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Walker v. Davis

United States District Court, N.D. Texas, Dallas Division

April 4, 2019

Willie C. Walker, #2081561, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division Div., Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE

         Pursuant 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 limitations.

         I. BACKGROUND

         In 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).[1] He unsuccessfully sought state habeas relief. Ex parte Walker, No. WR-87, 469-01 (Tex. Crim. App. Jul. 25, 2018) (denying relief).[2] 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 time barred.

         II. ANALYSIS

         A. One-Year Statute of Limitations and Statutory Tolling

          The 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”).

         Because 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.[3] 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.

         Walker's 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)”).

         Consequently, the petition sub judice, deemed filed on November 8, 2018, is clearly outside the one-year limitations period absent equitable tolling.[4]

         B. Equitable Tolling

         Walker's 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 omitted)).

         Furthermore, 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”).

         Consequently, Walker has not met his burden to establish that equitable tolling is warranted in this case. SeeAlexander v. Cockrell,294 ...


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