United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION ORDER
LINDSAY, UNITED STATES DISTRICT JUDGE
September 26, 2018, United States Magistrate Judge David L.
Horan entered the Findings, Conclusions and Recommendation of
the United States Magistrate Judge (“Report”),
recommending that the court deny Petitioner's habeas
petition because his two habeas claims are time-barred and
not equitably tolled as follows:
Under Section 2244(d)(2), the one-year period to file a
federal habeas petition was tolled from November 16, 2015 to
July 13, 2016 the soonest date that Garcia could have his
state habeas application to the date that the CCA [Texas
Court of Criminal Appeals] denied that application. Adding
these some 240 days to the one-year period that commenced on
February 24, 2015 means that Garcia's Section 2254
application should have been filed before the end of October
[Garcia's habeas] application was not docketed in this
Court until February 1, 2018. See Dkt. No. 1.
Notably, Garcia appears to represent that he executed it on
January 25, 2018. See Id. at 10. And he argues in
that application, see id., and elsewhere, see
generally Dkt. No. 21, that prison officials prevented
the timely filing of his Section 2254 petition because he was
denied an envelope (in April or May 2017) and because his
belongings, including legal materials, were ransacked (in
late November 2017).
First, to the extent that these contentions are made to
assert statutory tolling under Section 2244(d)(1)(B), the
United States Court of Appeals for the Fifth Circuit has held
that, in order to invoke statutory tolling based on an
alleged government impediment, “the prisoner must show
that: (1) he was prevented from filing a petition (2) by
State action (3) in violation of the Constitution or federal
law.” Egerton v. Cockrell, 334 F.3d 433, 436
(5th Cir. 2003). “These requirements imply an element
of causality and materiality with respect to a prisoner's
ability to file his . . . federal petition. Thus, [a
petitioner] ‘must also show that . . . [the impediment]
actually prevented him from timely filing his habeas
petition.'” Clark v. United States, Nos.
3:13-cv-1851-N-BK & 3:92-cr-382-N-1, 2013 WL 5873294, at
*2 (N.D. Tex. Nov. 1, 2013) (quoting Krause v.
Thaler, 637 F.3d 558, 561 (5th Cir. 2011); citations
omitted; emphasis in Krause); see also Winkfield
v. Bagley, 66 Fed.Appx. 578, 583 (6th Cir. 2003)
(“Section 2244(d)(1)(B) requires a causal relationship
between the unconstitutional state action and being prevented
from filing the petition.” (quoting Dunker v.
Bissonnette, 154 F.Supp.2d 95, 105 (D. Mass. 2001)).
Garcia has not made this showing. Nor has he made a showing
that these claims support equitable tolling. His
State-created-impediment assertions are conclusory, in that
he fails to specify that (or how) the alleged actions were in
violation of the Constitution or federal law and that these
actions specifically prevented the timely filing of this
petition. There is therefore no alleged causal relationship
between the State action alleged and Garcia's being
prevented from filing (much less timely filing) the Section
2254 petition. See, e.g., Alston v. Thomas, Civ. No.
11-00062 HG-BMK, 2011 WL 4929139, at *7 (D. Haw. Oct. 17,
2011) (“Neither Alston's inability to physically
attend the law library during the 99 days that SCF was in
lockdown in 2010, the lack of inmate or trained paralegal
assistance, nor the alleged lack of pens, papers, envelopes,
and stamps constituted State created impediments within the
meaning of § 2244(d)(1)(B).”).
But, even if the Court accepts the earliest date that Garcia
claims he attempted to mail the Section 2254 application
April 20, 2017 see Dkt. No. 3 at 10, that date is
still some 6 months too late. In sum, then, Garcia has not
demonstrated that he is entitled to equitable tolling by
showing that “rare, exceptional, or extraordinary
circumstances beyond his control . . . made it impossible for
him to timely file” his federal habeas application.
Montes v. United States, Nos. 3:13-cv-1936-K &
3:09-cr-286- K (4), 2014 WL 5286608, at *3 (N.D. Tex. Oct.
15, 2014) (citations omitted); see also Menominee Indian
Tribe [of Wis. v. United States, 136
S.Ct. 750, 755-56 (2016)]; Holland [v.
Florida, 560 U.S. 631, 649 (5th Cir. 2010)];
Farmer, [v. D&O Contractors, 640
Fed.Appx. 302, 307 (5th Cir. 2016) (per curiam)]
filed objections to the Report, which were docketed on
October 10, 2018. Petitioner disagrees with the magistrate
judge's calculation of the time during which his period
for filing a federal habeas petition was tolled. In this
regard, Petitioner asserts, under penalty of perjury, that,
because he did not receive notice that the Texas Court of
Criminal Appeals (“TCCA”) had denied his state
habeas application until March 31, 2017, more than eight
months after it was denied, the time for filing his federal
habeas petition was tolled until that date, not July 13,
2016, as determined by the magistrate judge. Petitioner,
therefore, asserts that the tolling period was extended 261
days longer than the date determined by the magistrate judge.
Petitioner also disagrees with the magistrate judge's
determination that his assertions regarding a state-created
impediment are conclusory and continues to maintain that,
after learning his state habeas petition was denied, prison
officials denied his requests for supplies needed to prepare
his federal habeas petition and an envelope and stamps to
mail his petition.
one-year limitations period for filing a federal habeas
petition “is subject to equitable tolling only
‘in rare and exceptional circumstances.'”
Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir.
2009) (citation omitted). For equitable tolling to apply,
“[a] petitioner's failure to satisfy the statute of
limitations must result from external factors beyond his
control; delays of the petitioner's own making do not
qualify.” Id. (quoting In re Wilson,
442 F.3d 872, 875 (5th Cir. 2006)). This is because
“equity is not intended for those who sleep on their
rights.” Fisher v. Johnson, 174 F.3d 710, 715
(5th Cir. 1999). It is the petitioner's burden to
establish that equitable tolling is justified under the
circumstances. Hardy, 577 F.3d at 598 (citation
tolling applies principally where the plaintiff is actively
misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his
rights.” Melancon v. Kaylo, 259 F.3d 401, 408
(5th Cir. 2001) (quoting Rashidi v. American President
Lines, 96 F.3d 124, 128 (5th Cir. 1996)). The TCCA is
required “to notify a petitioner once a decision has
been rendered on his habeas petition.” Hardy,
577 F.3d at 598 (citation omitted). Long delays in receiving
notice that a decision has been rendered on a state habeas
petition may entitle a petitioner to equitable
tolling. Hardy, 577 F.3d at 598; Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on
reh'g, 223 F.3d 797 (5th Cir. 2000); see also
Fisher, 174 F.3d at 715 (“In the right
circumstances, a delay in receiving information might call
for equitable tolling-such as if the prison did not obtain
copies of AEDPA for months and months.”); but see
Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000)
(declining to follow foregoing quoted language in Fisher as
dicta). Equitable tolling, however, only applies when a
habeas petitioner diligently pursues habeas corpus relief
“before and after receiving notification” of a
decision on a state habeas petition. Hardy, 577 F.3d
at 598 (citations omitted).
Hardy v. Quaterman, the Fifth Circuit addressed the
timeliness of a petitioner's inquiry regarding the status
of his habeas application. Id. at 598-99. The
petitioner in Hardy did not receive notice of the
TCCA's decision until almost a year later. Id.
In determining whether the petitioner acted diligently, the
Hardy court looked at two unpublished cases:
Lewis v. Cockrell, 275 F.3d 46, 2001 WL 1267701 (5th
Cir. Oct. 15, 2001); and Coker v. Quarterman, 270
Fed.Appx. 305, 2008 WL 724042 (5th Cir. March 17, 2008).
Hardy, 577 F.3d at 599. The petitioner in
Lewis waited approximately two and a half years
before inquiring about the status of his state habeas
petition, which was determined not to be diligent.
Id. In contrast, the petitioner in Coker
waited only eight months to inquire about the status of his
case, and, after not hearing anything, inquired again a year
later, which was determined to be diligent. Id. The
petitioner in Hardy waited less than one year,
approximately eleven months, before contacting the trial
court, and this time period was also determined to be
reasonable and diligent. Hardy, 577 F.3d at 599-600.
case, Respondent submitted evidence that shows notification
by the TCCA was sent to Garcia on July 13, 2016, at the
Clements Unit where he is still housed. Resp't Ex. E.
Petitioner, nevertheless, asserts in his federal habeas
petition (Doc. 3) and unsworn affidavit (Doc. 8) and states
in his sworn objections to the Report that he did not receive
notice until March 31, 2017, approximately eight months
later, because of ongoing problems with the prison's law
library and mail room. Petitioner further states in his sworn
objections that he first learned that his habeas petition was
denied when the TCCA responded to “[his] motion for
stay and abeyance to file an amended 11.07 [habeas
application].” Obj. 2.
response to Petitioner's federal habeas application,
Respondent argues that Petitioner's complaints regarding
access to mail and supplies beginning in March 2017 are
insufficient because they do not account for the untimeliness
of his federal habeas petition that was due several months
earlier by October 12, 2016,  and, thus, could not have
prevented him from filing timely a federal habeas petition.
Respondent further contends that Petitioner's allegation
that he did not receive notice of the TCCA's denial of
his state habeas application until March 31, 2017, are
similarly unavailing and do not entitle him to ...