United States District Court, E.D. Texas, Lufkin Division
RODERICK CREAG, SR.
ORDER OVERRULING OBJECTIONS AND ADOPTING THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
CLARK, UNITED STATES DISTRICT JUDGE.
Roderick Creag, Sr., an inmate confined within the Texas
Department of Criminal Justice, Correctional Institutions
Division, proceeding pro se, filed the above-styled petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
court previously referred this matter to the Honorable Zack
Hawthorn, United States Magistrate Judge, at Beaumont, Texas,
for consideration pursuant to 28 U.S.C. § 636 and
applicable orders of this Court. The Magistrate Judge has
submitted a Report and Recommendation of United States
Magistrate Judge recommending that a motion to dismiss filed
by the respondent be granted and this petition dismissed as
barred by the applicable statute of limitations.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and pleadings. Petitioner filed objections to the
Report and Recommendation. The court must therefore conduct a
de novo review of the objections in relation to the pleading
and the applicable law.
Magistrate Judge concluded this petition was filed after the
applicable period of limitations expired. Petitioner does not
contest this conclusion. The Magistrate Judge further
concluded petitioner was not entitled to equitable tolling.
The Magistrate Judge found petitioner had not pursued his
habeas remedies with sufficient diligence and alacrity.
statute of limitations may be equitably tolled in appropriate
cases. Holland v. Florida, 560 U.S. 631, 649 (2010).
Equitable tolling is only available if: (1) the petitioner
diligently pursued his rights; and (2) extraordinary
circumstances prevented timely filing. Id. Equitable
tolling is “a discretionary doctrine that turns on the
facts and circumstances of a particular case.”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.
1999). To be entitled to equitable tolling, a petitioner need
only exercise “reasonable diligence, not maximum
feasible diligence.” Holland, 560 U.S. at 653.
filed a state application for writ of habeas corpus on
September 16, 2015. The Texas Court of Criminal Appeals
denied the application on November 11, 2015. However,
petitioner did not receive notice of the denial. On March 6,
2018, almost 30 months after the application was filed,
petitioner inquired about the status of the application. He
was subsequently informed the state application had been
denied. The Magistrate Judge concluded that by waiting more
than seven months to file his state application, and by
waiting almost 30 months to inquire as to its status,
petitioner failed to exercise reasonable diligence.
contends he exercised proper diligence in pursuing his habeas
remedies. He states he trusted that he would receive notice
of the denial of his state application in a timely fashion.
He also states that his work schedule in prison made it
difficult for him to conduct legal research.
court agrees with the Magistrate Judge's conclusion. In a
recent case, the United States Court of Appeals for the Fifth
Circuit held that a petitioner who inquired at to the status
of his state application 15 months after filing his
application, and sent a follow-up inquiry five months later,
had exercised reasonable diligence. Jackson v.
Davis, 933 F.3d 408, 413. In the case now before the
court, however, petitioner waited almost twice as long as the
petitioner in Jackson before making his inquiry. The Fifth
Circuit has found that a petitioner who, like the current
petitioner, waited 30 months before inquiring as to the
status of his petition did not exercise reasonable diligence.
Lewis v. Cockrell, 2001 WL 1267701, at *3 (5th Cir.
Oct. 15, 2001). Moreover, difficulty in conducting legal
research does not entitle a petitioner to equitable tolling.
Tate v. Parker, 439 Fed.Appx. 375, 376 (5th Cir.
2013) (citing Felder v. Johnson, 204 F.3d 168,
171-72 (5th Cir. 2000). The court therefore agrees that
petitioner is not entitled to equitable tolling.
reasons set forth above, petitioner's objections are
without merit and are therefore OVERRULED.
The findings of fact and conclusions of law of the Magistrate
Judge are correct and the report of the Magistrate Judge is
ADOPTED as the opinion of the court. The
motion to dismiss is GRANTED. A final
judgment shall be entered dismissing the petition in
accordance with the recommendation of the Magistrate Judge.
addition, the court is of the opinion petitioner is not
entitled to a certificate of appealability in this matter. An
appeal from a judgment denying federal habeas relief may not
proceed unless a judge issues a certificate of appealability.
See 28 U.S.C. § 2253. The standard for a
certificate of appealability 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; Elizalde v. Dretke, 362 F.3d 323,
328 (5th Cir. 2004). To make a substantial showing, the
petitioner need not demonstrate that he would prevail on the
merits. Rather, he must demonstrate that the issues he raised
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
should be 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. 2000).
case, the petitioner has not shown that the issue of whether
his petition is barred by the applicable statute of
limitations is subject to debate among jurists of reason. The
factual and legal issues raised by petitioner have been
consistently resolved adversely to his position and the
questions presented are not worth of encouragement to proceed
further. As a result, a certificate of appealability shall
not issue in this matter.