UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 FORT WORTH DIVISION

DENNIS WAYNE BLANCHARD,

Petitioner,

v. Civil No. 4:22-CV-489-P

BOBBY LUMPKIN, Director, 

TDCJ- CID, 

Respondent.

 OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 filed by petitioner, Dennis Wayne Blanchard (“Blanchard”), a state

prisoner confined in the Powledge Unit of the Correctional Institutions Division of

the Texas Department of Criminal Justice (TDCJ-CID), against Bobby Lumpkin,

director of that division, Respondent. After considering the pleadings and relief

sought by Blanchard, the Court has concluded that the petition should be dismissed

with prejudice as barred by the applicable statute of limitations. 

I. BACKGROUND

Blanchard is in custody pursuant to the judgment and sentence of the

Criminal District Court Number 3 of Tarrant County, Texas in cause number

1236936R. CR 189, ECF No. 10-7; SHCR-03 at 6, ECF No. 10-20.1 A grand jury

indicted Blanchard for committing the second-degree felony intoxication

manslaughter with the use of a deadly weapon. CR at 2, ECF No. 10-7; SHCR-03 at

4, ECF No. 10-20. Blanchard pleaded not guilty but on June 24, 2011, a jury found

him guilty and assessed punishment at twenty years imprisonment. CR 189:

SHCR-03 at 6, ECF No. 10-20.

Blanchard timely filed a notice of appeal. CR 194, ECF No. 10-7. On April

1.“CR” refers to the clerk’s record on appeal followed by the page number. “SHCR” refers

to the Clerk’s Record of pleadings and documents filed with the state court during

Petitioner’s state habeas court proceedings. See generally, Ex parte Blanchard, App. No.

86,414-03.

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25, 2013 the Second Court of Appeals affirmed his conviction in an unpublished

opinion. Blanchard v. State, 02-11-00267-CR, 2013 WL 1759905 (Tex. App.-Fort

Worth, 2013, no pet.). Blanchard did not file a petition for discretionary review.2 He

did filed three state habeas applications, the first two of which were dismissed as

noncompliant, while the third was denied without written order based on the findings

of the trial court and the court’s own independent review of the record. See

SHCR-01, ECF No. 10-11; SHCR-02, ECF No. 10-13; SHCR-03, ECF No. 10-19

“Action Taken” sheets. Blanchard constructively filed his § 2254 petition on May 6,

2022.3 Pet. 15, ECF No. 1. 

II. ISSUES

The Court understand’s Blanchard’ claims to be as follows: 

1. The indictment was fatally defective and did not invest the court

with jurisdiction. 

2. His conviction was obtained by the use of tainted, contaminated

evidence.

3. The prosecutor’s opening argument misled the jury by

referencing false, misleading testimony.

4. He received ineffective assistance of counsel on appeal for

failure to raise ineffective assistance of trial counsel.

5. He was mentally incompetent to stand trial.

Pet. 6-10, 23-33, ECF No. 1. 

III. RULE 5 STATEMENT 

2. See https://search.txcourts.gov/CaseSearch.aspx?cn=02-11-00267-CR&coa=coa02

(last visited March 7, 2023).

3. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (for purposes of determining the

applicability of AEDPA, a pro se petitioner's federal petition is filed on the date it is placed

in the prison mail system). Blanchard’s petition was file-stamped on June 6, 2022, but he

declared he placed the petition in the prison mail system on May 6, 2022. Pet. 15, ECF No.

1. Thus, that is the earliest date it could be deemed filed. 

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The Respondent argues that the § 2254 petition in this case is barred by

limitations. 28 U.S.C. § 2244(d). The Respondent reserved the right to argue

exhaustion and procedural bar, pending the Court’s resolution of the time-bar issue.

28 U.S.C. § 2254(b).

IV. ANALYSIS/LIMITATIONS

A. Application of the Statute of Limitations 

Title 28, United States Code, § 2244(d) imposes a one-year statute of

limitations on federal petitions for writ of habeas corpus filed by state prisoners.

Section 2244(d) provides:

(d) (1) A 1–year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from the

latest of–

(A) the date on which the judgment became final by

the conclusion of direct review or the expiration of

the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed,

if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on

collateral review; or

(D) the date on which the factual predicate of the

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claim or claims presented could have been

discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

As an initial matter, the record does not indicate that any unconstitutional

“State action” prevented Blanchard from filing for federal habeas corpus relief prior

to the end of the limitation period. See 28 U.S.C. § 2244(d)(1)(B). Also, Blanchard’s

claims do not concern a constitutional right recognized by the Supreme Court within

the last year and made retroactive to cases on collateral review. See 28 U.S.C. §

2244(d)(1)(C). Finally, Blanchard has not shown that he could not have discovered

the factual predicate of his claims until a date subsequent to the date his conviction

became final. See 28 U.S.C. § 2244(d)(1)(D). Accordingly, the date the limitations

period began to run on Blanchard’s claims is “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for

seeking such review,” 28 U.S.C. § 2244(d)(1)(A). 

Convictions become final for the purposes of § 2244(d)(1)(A) when the

availability of direct appeal to the state courts has been exhausted and the time for

filing a petition for writ of certiorari has elapsed or a timely filed petition has been

denied. See Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). The judgment

and sentence for Blanchard’s conviction in cause number 1236936R was entered on

June 24, 2011. CR 189-90, ECF No. 10-7. On April 25, 2013, the Second Court of

Appeals affirmed his conviction in an unpublished opinion. Blanchard, 2013 WL

1759905 at *1. Thus, Blanchard’s conviction became final on May 27, 2013,4 when

the thirty day time for filing a petition for discretionary review with the Texas Court

of Criminal Appeals expired. See Tex. R. App. P. 68.2(A) (“The petition must be

4. The end of the 30-day period, May 25, 2013, fell on a Saturday. Therefore, Blanchard’s

conviction became final the following Monday, May 27, 2013. See Flanagan v. Johnson,

154 F.3d 196, 202 (5th Cir. 1998) (Fed. R. Civ. Proc. 6(a) applies to the computation of the

limitations period.).

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filed within 30 days after either the day the court of appeals’ judgment was rendered

or the day the last timely motion for rehearing or timely motion for en banc

reconsideration was overruled by the court of appeals”). Therefore, the one-year

limitation period for filing a federal petition under § 2244(d)(1)(A) expired one year

later on May 27, 2014, absent any application of statutory or equitable tolling. 

1. Statutory Tolling Under 28 U.S.C. § 2244(d)(2)

The AEDPA provides that “the time duringwhich a properlyfiled application

for State post–conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation

under this section.” 28 U.S.C. § 2244(d)(2). None of Blanchard’s different state

habeas applications toll the limitations period because they were each filed after the

limitations period expired. See SHCR-01 (January 5, 2017, ECF No. 10-12); 

SHCR-02 (May 14, 2019, ECF No. 10-14); and SHCR-03 (January 13, 2022, ECF

No. 10-20); see also Scott v. Johnson, 227 F.3d. 260, 263 (5th Cir. 2000) (“state

habeas application did not toll the limitation period under § 2244(d)(2) because it

was not filed until after the period of limitation had expired.”) Moreover,

Blanchard’s first two state habeas applications also fail to invoke the tolling

provision of § 2244(d)(2) because, as noted in the Background section, they were

each dismissed as non-compliant and were therefore, not properlyfiled. See generally

North v. Davis, 800 F. App’x 211, 214 (5th Cir. 2020) (noting that “‘properly filed

application’ for § 2244(d)(2) purposes is one that conforms with a state’s applicable

procedural filing requirements”). Therefore, the instant federal § 2254 petition, filed

in May 2022, is filed several years too late. 

2. Equitable Tolling

The one-year limitation period for filing a petition under § 2254 is subject to

equitable tolling. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). Equitable

tolling should be applied only in “rare and exceptional circumstances.” Felder v.

Johnson, 204 F.3d 168, 170–71 (5th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d

806, 811 (5th Cir. 1998)). More specifically, “[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 way from asserting his rights.” Grooms v. Johnson,

208 F.3d 488, 489–90 (5th Cir. 1999) (citing Coleman v. Johnson, 184 F.3d 398, 402

(5th Cir. 1999) (abrogated on other grounds by Causey v. Cain, 450 F.3d 601, 605

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(5th Cir. 2006)). The petitioner bears the burden to show entitlement to equitable

tolling. See e.g. Phillips v. Donnelly, 223 F.3d 797, 797 (5th Cir. 2000). 

Nothing in the record suggests the state misled Blanchard. Furthermore,

ignorance of the law and lack of legal assistance, even for an incarcerated prisoner,

generally do not excuse prompt filing. Felder, 204 F.3d at 171; Fisher v. Johnson,

174 F.3d 710, 714 (5th Cir. 1999); Davis, 158 F.3d at 808-12; see also United States

v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (neither an inmate’s illiteracy, deafness,

or lack of legal training amounts to factors external to the inmate to excuse an abuse

of the writ); see also Flanagan, 154 F.3d at 198-99 (petitioner’s failure to discover

the significance of the operative facts does not constitute cause). 

Moreover, “[i]n order for equitable tolling to apply, the applicant must

diligently pursue his § 2254 relief.” Coleman, 184 F.3d at 403. Blanchard has failed

to diligently pursue such relief because he filed his state habeas applications after the

limitations period expired and then filed his federal petition over several years too

late. See Fisher, 174 F.3d at 713 (citing Covey v. Ark. River Co., 865 F.2d 660, 662

(5th Cir. 1989) (“[E]quity is not intended for those who sleep on their rights.”)

In sum, as Blanchard’s § 2254 petition was filed far beyond the applicable

one-year deadline from finality of judgment, and as he has not shown that he is

entitled to statutory or equitable tolling, the petition under § 2254 must be dismissed

with prejudice as barred by the applicable statute of limitations. 

V. CONCLUSION

It is therefore ORDERED that Dennis Wayne Blanchard’s petition for a writ

of habeas corpus under 28 U.S.C. § 2254 is DISMISSED with prejudice as timebarred. Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a

certificate of appealability is DENIED.

SO ORDERED on this 7th day of March 2023.

______________________________ 

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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