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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROY EARL BROWN, §

 Petitioner, § No. 3:22-cv-01066-M

§

v. § Consolidated with:

§ 3:22-cv-01067-M

BRYAN COLLIER, § 3:22-cv-01068-M

 Respondent. § 3:22-cv-01069-M

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner Roy Earl Brown, a Texas prisoner, filed four pro se petitions 

for a writ of habeas corpus under 28 U.S.C. § 2254 and a motion requesting 

an extension of time to file his federal habeas claims. The District Court 

consolidated the petitions into one case and referred the matter to the 

undersigned United States Magistrate Judge (ECF No. 7). For the following 

reasons, the District Court should DENY Brown’s request for an extension 

(ECF No. 5) and DISMISS his claims as barred by limitations. 

I.

On January 24, 1997, Brown was convicted on three counts of assault 

on a public servant and one count of second-degree robbery in the 292nd 

Judicial District Court in Dallas County, Texas. Pet. 2 (ECF No. 3); see also

https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=035594

09 (last visited June 22, 2022). He was sentenced to forty years’ 

imprisonment. Id. Brown did not file a direct appeal. Pet. 3 (ECF No. 3). 

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Instead, he pursued habeas relief in state and federal court. On 

November 3, 2020, he filed a federal habeas petition under 28 U.S.C. § 2254 

(Case No. 3:20-cv-3305-S), which the court dismissed without prejudice 

because he failed to exhaust his state court remedies. And thereafter, on April 

26, 2021, he filed his first state habeas application, see 

https://search.txcourts.gov/CaseSearch.aspx?coa=coscca&s=c (last visited 

June 22, 2022), which the Texas Court of Criminal Appeals (CCA) denied 

without a written order on May 5, 2021. Id. Then, on December 17, 2021, 

Brown filed a second state habeas application, which the CCA dismissed on 

January 5, 2022. Id. Brown filed the four federal petitions consolidated in 

this action on April 28, 2022.1 (ECF No. 3.) 

II.

Under Rule 4 of the Rules Governing Section 2254 Cases, a court 

should conduct a preliminary review of a petition to determine “[i]f it plainly 

appears from the petition and any attached exhibits that the petitioner is not 

entitled to relief.” Rule 4 of the Rules Governing Section 2254 Cases (2254 

Rules). To avoid summary dismissal, a petition must contain factual 

allegations pointing to a “real possibility of constitutional error.” Id. at Rule 

1 Brown signed and dated his petition April 28, 2022, but the Court did not 

receive it until May 12, 2022. Pet. 12 (ECF No. 3.) The Court will consider 

the petition filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 

377 (5th Cir. 1998) (pro se habeas petition deemed filed when delivered to 

prison authorities for mailing).

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4, advisory committee note (quoting Aubut v. State of Maine, 431 F.2d 688, 

689 (1st Cir. 1970)). Under Rule 4, a court reviews the pleadings and exhibits 

before it to determine whether any right to relief is implicated. If not, the 

court must dismiss the petition.

III. 

Brown’s claims challenging his 1997 convictions for assault on a 

public servant and second-degree robbery are time-barred.

A.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

establishes a one-year statute of limitations for federal habeas proceedings. 

See Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 

1214 (1996). In most cases, the limitations period begins to run when the 

judgment becomes final after direct appeal or the time for seeking such 

review has expired. 28 U.S.C. § 2244(d)(1)(A). 

Here, the state court entered judgment on Brown’s convictions for 

assault on a public servant and second-degree robbery on January 24, 1997. 

Because he did not file a direct appeal, his convictions became final on 

February 24, 1997, thirty days after the date of his judgment and sentence. 

See Tex. R. App. P. 26.2(a)(1) (including the time limits for properly filing a 

notice of appeal). Brown then had one year, until February 24, 1998, to file 

his federal petition. 28 U.S.C. § 2244(d)(1)(A). But he did not file his petitions 

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in this Court until April 28, 2022, more than twenty-four years after the 

deadline expired. Brown’s claims are therefore untimely.

Brown filed state habeas applications on April 26, 2021 and December 

17, 2021, but those applications did not toll his limitations period because 

they were filed more than one year after his convictions became final and the 

limitations period had expired. See Flores v. Quarterman, 467 F.3d 484, 485 

n.2 (5th Cir. 2006) (per curiam) (“While the filing of a state habeas 

application ordinarily tolls the federal one-year statute of limitations, [the 

petitioner] did not file his state application until . . . more than one year after 

his sentence became final, and almost two months after the statute of 

limitations expired.”) (citing Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 

2000) (holding that state habeas applications filed after the expiration of the 

limitations period do not toll the limitations period). 

B.

The one-year limitation period is subject to equitable tolling in “rare 

and exceptional cases.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); 

see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999) (asserting that 

courts must “examine each case on its facts to determine whether it presents 

sufficiently ‘rare and exceptional circumstances’ to justify equitable tolling”) 

(quoting Davis, 158 F.3d at 811). The Fifth Circuit has held that “[e]quitable 

tolling applies principally where the plaintiff is actively misled by the 

defendant about the cause of action or is prevented in some extraordinary 

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way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th 

Cir.1999), abrogated on other grounds by Causey v. Cain, 450 F.3d 601, 

605-06 (5th Cir. 2006). A petitioner bears the burden of proof to show he is 

entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 

2000).

In his motion for an extension of time, Brown argues that when he was 

attempting to mail out his four federal habeas petitions on April 28, 2022, 

the prison mailroom “illegally held” his legal documents for sixteen days. 

Mot. 1 (ECF No. 5). Brown claims that he was not notified about what had 

happened to his mail until May 4, 2022. He concludes that he hopes the Court 

will grant his motion seeking additional time. Although the form federal 

habeas petition Brown used states, “If your judgment of conviction, parole 

revocation or disciplinary proceeding became final over one year ago, you 

must explain why the one-year statute of limitations contained in 28 U.S.C. § 

2244(d) does not bar your petition,” Pet. 11 (ECF No. 3), Brown did not 

elaborate on the reasons why his claims are not time-barred. 

Brown’s argument for equitable tolling fails because even if the prison 

mailroom held his four petitions for sixteen days, it had absolutely no impact 

on the fact that his petitions are untimely because they were filed twenty-four 

years late. Therefore, Brown cannot demonstrate that he diligently pursued 

his rights. See Holland v. Florida, 560 U.S. 631, 649 (2010) (to be entitled to 

equitable tolling, a petitioner must demonstrate (1) he has been diligently 

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pursuing his rights, and (2) an extraordinary circumstance got in his way and 

prevented a timely filing) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005)). Likewise, Brown has failed to demonstrate that some “extraordinary 

circumstance” stood in his way of timely filing his claims. Id. Indeed, he does 

not even allege that he acted to timely file his petition. See Pet. (ECF No. 3)

“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.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009)

(quoting In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006)). 

Accordingly, Brown is not entitled to equitable tolling. See Phillips, 

216 F.3d at 511.

C.

The Supreme Court has held that “actual innocence, if proved, serves 

as a gateway through which a petitioner may pass whether the impediment 

is a procedural bar, . . . or, as in this case, expiration of the statute of 

limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). A petitioner 

who claims actual innocence, however, “must show that it is more likely than 

not that no reasonable juror would have convicted him in light of the new 

evidence. Id. Brown does not present an actual innocence argument. See

(ECF No. 3).

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IV. 

The District Court should DENY Brown’s motion for an extension of 

time (ECF No. 5) and DISMISS his petition as time-barred. See 28 U.S.C. § 

2244(d). 

SO RECOMMENDED. 

Signed June 24, 2022.

______________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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