United States District Court, E.D. Texas
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
A. CRONE UNITED STATES DISTRICT JUDGE
Michael Brent Brown, an inmate confined at the Polunsky Unit,
proceeding pro se, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
court referred this matter to the Honorable Keith F. Giblin,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
court. The magistrate judge recommends that the petition be
dismissed as barred by limitations.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record, pleadings and all available evidence. Petitioner
filed objections to the Report and Recommendation. The court
has conducted a de novo review of the objections in
relation to the pleadings and the applicable law.
See Fed. R. Civ. P. 72(b). After careful
consideration, the court concludes petitioner's
objections are without merit.
did not diligently pursue his rights and has failed to
adequately explain the excessive delay in this case.
Petitioner contends that an impediment to filing his state
application for writ of habeas corpus existed. Petitioner
claims he had requested the production and inspection of the
dash cam video taken on the night of his traffic stop.
However, while the video may have been beneficial to his
case, the lack of the video tape did not prevent petitioner
from filing his state application for writ of habeas corpus.
Further, it is noted that petitioner did not make his initial
request for the video until more than ten months after his
conviction became final based on the denial of his appeal by
the United States Supreme Court. Petitioner has made no
attempt to explain this delay.
petitioner acknowledges his state application was past due
when he received notice from the clerk on October 10, 2017
that his request for the video tape had been denied. However,
instead of filing his state application at that time,
petitioner claims he then sought the assistance of legal
counsel before mailing his state application on December 26,
petitioner has failed to provide any explanation for the
delay of more than four months between the date on which his
state application was denied by the Texas Court of Criminal
Appeals and the date he filed his federal petition.
Petitioner did not pursue his rights diligently.
statutory limitations period is subject to equitable tolling
in appropriate cases. See Holland v. Florida, 560
U.S. 631, 645, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010);
United States v. Jackson, 470 Fed.Appx. 324 (5th
Cir. 2012). However, “a petitioner is entitled to
equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland, 560 U.S. at 649.
Holland defines “diligence” for these
purposes as “reasonable diligence, not maximum feasible
diligence.” Id., at 653. “[E]quity is
not intended for those who sleep on their rights.”
Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010).
has failed to demonstrate he pursued his rights diligently
and could not have discovered his claims earlier due to some
extraordinary circumstance. Neither proceeding pro
se, having limited access to a law library, nor lacking
knowledge of filing deadlines can serve as a basis for
equitable tolling as they are not a “rare and
exceptional” circumstance of prison life. See
Felder v. Johnson, 204 F.3d 168, 170 (5th Cir. 2000). A
pro se prisoner's ignorance of the law of habeas
corpus is likewise insufficient to invoke equitable tolling.
Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir.
2002). Accordingly, equitable tolling is not warranted, and
the petition is barred by limitations. Therefore,
petitioner's objections should be overruled.
the petitioner is not entitled to the issuance of a
certificate of appealability. An appeal from a judgment
denying federal habeas corpus relief may not proceed unless a
judge issues a certificate of appealability. See 28
U.S.C. § 2253; Fed. R. App. P. 22(b). The standard for
granting a certificate of appealability, like that for
granting a certificate of probable cause to appeal under
prior law, requires the petitioner to make a substantial
showing of the denial of a federal constitutional right.
See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir.
2004); see also Barefoot v. Estelle, 463 U.S. 880,
893 (1982). In making that substantial showing, the
petitioner need not establish that he should prevail on the
merits. Rather, he must demonstrate that the issues are
subject to debate among jurists of reason, that a court could
resolve the issues in a different manner, or that the
questions presented are worthy of encouragement to proceed
further. See Slack, 529 U.S. at 483-84. Any doubt
regarding whether to grant a certificate of appealability is
resolved in favor of the petitioner, and the severity of the
penalty may be considered in making this determination.
See Miller v. Johnson, 200 F.3d 274, 280-81 (5th
Cir.), cert. denied, 531 U.S. 849 (2000).
the petitioner has not shown that any of the issues raised by
his claims are subject to debate among jurists of reason. The
factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to
his position. In addition, the questions presented are not
worthy of encouragement to proceed further. Thus, the
petitioner has failed to make a sufficient showing to merit
the issuance of a certificate of appealability. Therefore, a
certificate of appealability shall not be issued.
petitioner's objections are OVERRULED.
The findings of fact and conclusions of law of the magistrate
judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in