United States District Court, S.D. Texas, Brownsville Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE
ROLANDO OLVERA UNITED STATES DISTRICT JUDGE.
the Court is the "Magistrate Judge's Report and
Recommendation" ("R&R") (Docket No. 82) in
the above-captioned case. The R&R recommended the Court
(1) dismiss David Norway Winstead's
("Petitioner") "Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody" ("§ 2254 Petition") (Docket No.
1) as untimely and (2) decline to issue a certificate of
appealability. See Docket No. 82. Petitioner timely
filed objections. See Docket No. 83.
RELEVANT PROCEDURAL HISTORY
was convicted of one count of tampering with or fabricating
physical evidence and one count of possession of a controlled
substance; he was sentenced to thirty years imprisonment. The
Texas Thirteenth Court of Appeals, then affirmed
Petitioner's conviction on August 7, 2014. Thereafter,
Petitioner filed three state applications for habeas corpus
relief.Petitioner's first two state habeas
applications were dismissed for failure to comply with the
Texas Rules of Appellate Procedure. Petitioner's third
state habeas application was denied as untimely.
deadline to seek federal habeas relief, under 28 U.S.C.
§ 2254 ("§ 2254"), terminated September
6, 2015. See 28 U.S.C. § 2244(d)(1)(A).
Petitioner did not file the instant § 2254 petition
(Docket No. 1) until January 22, 2016-138 days after the
22, 2018, the Court respectfully remanded this case
instructing the Magistrate Judge to conduct an evidentiary
hearing on the issues of (1) Petitioner's mental
competency, and (2) whether his alleged incompetency
prevented Petitioner from timely filing his § 2254
Petition. See Docket No. 22.
petitioner is entitled to equitable tolling if he
establishes: (1) an "extraordinary circumstance"
prevented timely filing and (2) he pursued habeas relief with
"reasonable diligence." Manning v. Epps,
688 F.3d 177, 183 (5th Cir. 2012) (citing Holland v.
Florida, 560 U.S. 631, 649 (2010)). A petitioner's
mental incompetence may warrant equitable tolling if the
incompetence rises to the level of an "extraordinary
circumstance". Fisher v. Johnson, 174 F.3d 710,
715 (5th Cir. 1999). To do so, "a petitioner (1) must
make a threshold showing of incompetence and (2) must show
that this incompetence affected his ability to [timely file]
a habeas [petition]." Jones v. Stephens, 541
Fed.Appx. 499, 505 (5th Cir. 2013). The alleged mental
incompetency must have existed during the relevant period and
"must have actually been an impediment to filing in a
timely manner." Alexander v. Cockrell, 294 F.3d
626, 629 (5th Cir. 2002).
the record confirms Petitioner received sporadic mental
health treatment during the limitations period,
record also reflects Petitioner "malingered" his
symptoms for secondary gain. See generally Docket
No. 66 Ex. 2. Further, Petitioner submitted a pro se
legal filing on September 18, 2014-demonstrating
Petitioner's competency to file a federal habeas petition
within the limitations period. See Docket No. 66 Ex.
4; see Smith v. Kelly, 301 Fed.Appx. 375 (5th Cir.
2008) (finding a petitioner's ability to file a
state-court habeas application during the federal limitations
period negates eligibility for equitable tolling). Thus, the
record does not support Petitioner's assertion that his
alleged mental incompetence prevented a timely filing of the
§ 2254 Petition; thus, Petitioner is not eligible for
de novo review of the record, the Court
ADOPTS the R&R (Docket No. 82) in its
entirety and DISMISSES Petitioner's
§ 2254 Petition (Docket No. 1) with
prejudice and DECLINES to issue a
certificate of appealability. The Clerk of the Court is
hereby ORDERED to close this case.