United States District Court, N.D. Texas, Dallas Division
Willie C. Walker, #2081561, Petitioner,
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division Div., Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b) and Special Order 3, this
case was referred to the United States magistrate judge for
case management, including findings and a recommended
disposition. As detailed here, Petitioner Willie C.
Walker's petition for writ of habeas corpus under 28
U.S.C. § 2254 should be summarily DISMISSED WITH
PREJUDICE as barred by the one-year statute of
2016, Walker pled guilty to sexual assault of a child under
17 years of age and was sentenced to 15 years'
imprisonment. State v. Walker, No. F-1550911 (Crim.
Dist. Ct. No. 2, Dallas Cty., Tex., Aug. 1,
2016). He unsuccessfully sought state habeas
relief. Ex parte Walker, No. WR-87, 469-01
(Tex. Crim. App. Jul. 25, 2018) (denying
relief). On November 9, 2018, Walker filed the
instant pro se federal habeas petition, challenging
his conviction. Doc. 1. As his federal petition appeared
untimely, the Court directed Walker to respond regarding the
application of the one-year limitations period, which he has
now done. Doc. 16. Having now reviewed all of the applicable
pleadings and law, the Court concludes that Walker's
petition was filed outside the one-year limitations period
and, because no exception applies, should be dismissed as
One-Year Statute of Limitations and Statutory
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a one-year statute of limitations for state
inmates seeking federal habeas corpus relief, which the Court
may consider sua sponte after providing notice and
an opportunity to respond. See28 U.S.C. §
2244(d); Day v. McDonough, 547 U.S. 198, 209-10
(2006). Walker does not allege any facts that could trigger a
starting date under Subsections 2254(d)(1)(B)-(D), so the
one-year limitations period began to run from the date his
judgment of conviction became final. See28 U.S.C.
§ 2244(d)(1)(A) (a state prisoner ordinarily has one
year to file a federal habeas petition, calculated from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review”).
Walker did not pursue a direct appeal, his conviction became
final on August 31, 2016-30 days after the August 1, 2016
judgment. SeeTex. R. App. P. 26.2(a)(1). Thus, when
his state habeas application was filed on July 27, 2017, 330
days of the one-year limitations period had already
elapsed. The state application remained pending
until its denial on July 25, 2018, statutorily tolling the
one-year limitations period during its pendency. 28 U.S.C.
§ 2244(d)(2) (statutory tolling available during
pendency of properly filed state application). The one-year
period resumed running on July 26, 2018, and expired 35 days
later on August 29, 2018.
suggestion that the one-year period began on July 25, 2018-at
the conclusion of his state post-conviction proceedings when
the TCCA denied his state habeas application-is baseless.
Doc. 16. The AEDPA one-year period commences upon the
conclusion of direct review of a judgment of conviction or
upon the expiration of the time for seeking such review. 28
U.S.C. § 2244(d)(1); Roberts v. Cockrell, 319
F.3d 690, 694 (5th Cir. 2003). The running of the limitations
period is merely suspended while state post-conviction
proceedings are pending. 28 U.S.C. § 2244(d)(2)
(“The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection.”). See also Gonzalez v.
Thaler, 623 F.3d 222, 225 (5th Cir. 2010)
(distinguishing the AEDPA's “tolling provision,
§ 2244(d)(2)” from its “triggering
provision, § 2244(d)(1)”).
the petition sub judice, deemed filed on November 8,
2018, is clearly outside the one-year limitations period
absent equitable tolling.
filings, even when liberally construed in light of his
pro se status, do not present due diligence and
“rare and exceptional circumstances” warranting
equitable tolling. Lawrence v. Florida, 549 U.S.
327, 336 (2007) (to be entitled to equitable tolling, a
petitioner must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing” (internal quotation marks and quoted case
omitted)). Unexplained delays do not evince due diligence or
rare and extraordinary circumstances. Fisher v.
Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (noting
“equity is not intended for those who sleep on their
rights” (internal quotation marks and quoted case
this is not a case in which Walker pursued “the process
with diligence and alacrity.” Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (per
curiam). As previously noted, he squandered the entire
one-year period, waiting 330 days from the date his
conviction became final to file his state habeas application,
and delaying an additional 71 days after his state
application was denied before mailing his federal petition.
Moreover, Walker's pro se status and
unfamiliarity with the law do not suffice as a basis for
equitable tolling. See Felder v. Johnson,
204 F.3d 168, 171 (5th Cir. 2000) (“proceeding pro
se is not a ‘rare and exceptional'
circumstance because it is typical of those bringing a §
2254 claim”); Turner v. Johnson, 177 F.3d 390,
391-392 (5th Cir. 1999) (per curiam) (finding that
“neither a plaintiffs unfamiliarity with the legal
process nor his lack of representation during the applicable
filing period merits equitable tolling”).
Walker has not met his burden to establish that equitable
tolling is warranted in this case. SeeAlexander
v. Cockrell,294 ...