1

 “S.H. Tr.” denotes the state habeas records attached to Ex parte Frazier, No. 6,344-05, slip op. (Tex. Crim. App. Dec.

5, 2001). 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

IVAN COLBERT FRAZIER, )

a.k.a. Ivan Colbert Frazier, Jr., )

ID # 889756, )

Petitioner, )

vs. ) No. 3:03-CV-1546-N

)

DOUGLAS DRETKE, Director, )

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge.

The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate

pursuant to 28 U.S.C. § 2254. 

B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of

Criminal Justice - Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke,

Director of TDCJ-CID. 

C. Procedural History: On August 12, 1999, petitioner was convicted of misdemeanor theft

in Cause No. 24,117-CR, and received an enhanced sentence of twenty years. (Pet. Writ Habeas

Corpus (Pet.) at 2.) On December 20, 2000, the court of appeals affirmed his conviction. (Id. at

3). Petitioner filed no petition for discretionary review (PDR). (Id.) On August 10, 2001, he filed

a state petition for writ of habeas corpus to challenge his theft conviction. See S.H. Tr.1 at 33. On

December 5, 2001, the Texas Court of Criminal Appeals denied that writ. See Ex parte Frazier, No.

6,344-05, slip op. at 1 (Tex. Crim. App. Dec. 5, 2001). On December 27, 2001, petitioner filed a

 

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2

 “S.H. Tr. II” denotes the state habeas records attached to Ex parte Frazier, No. 6,344-06, slip op. (Tex. Crim. App. Mar.

26, 2003). 

2

federal petition to challenge his 1999 conviction. See Frazier v. Cockrell, No. 3:02-CV-0230-R (N.D.

Tex.) (petition dated Dec. 27, 2001, and received Jan. 11, 2002, by the Eastern District of Texas and

transferred to this Court on Jan. 18, 2002). By judgment dated December 2, 2002, the Court dismissed the federal petition without prejudice so that petitioner could exhaust his state remedies. Id.

(Judgment). On January 29, 2003, petitioner filed a second state application for writ of habeas

corpus relevant to his theft conviction in Cause No. 24,117-CR. See S.H. Tr. II2 at 4. The Texas

Court of Criminal Appeals dismissed that application as an abuse of writ on March 26, 2003. See

Ex parte Frazier, No. 6,344-06, slip op. at 1 (Tex. Crim. App. Mar. 26, 2003). 

Petitioner filed the instant petition on July 3, 2003, when he signed and placed it in the

prison mail system. (Pet. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999)

(recognizing that prisoners file their federal pleadings when they place them in the prison mail

system). He claims that he is being held unlawfully because (1) his conviction was obtained by a

violation of the privilege against self-incrimination; (2) the State failed to prove an essential element

of the theft offense; (3) the State failed to prove that his sentence should be enhanced; (4) his

sentence should not have been enhanced under the repeat felony offender statute; (5) the State

improperly amended the indictment against him; (6) his sentence violates his right to be free from

cruel and unusual punishment in that the imposed sentence is excessive and disproportionate to the

crime committed; (7) Cause No. F89-88732-IJ should not have been used to enhance his punishment; (8) the state statute which elevates a misdemeanor offense to a state jail felony is merely a

sentencing provision which was unconstitutionally applied to him; (9) the trial court lacked jurisdiction; (10) his conviction violates the Double Jeopardy Clause of the United States Constitution;

and (11) the State used the same prior conviction to twice enhance his sentence. (Pet. at 7-8 and

Attached Pages at 1-25.) He also claims that (12) his attorney lacked knowledge of the law and

 

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3

 Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).

4

 Apprendi v. New Jersey, 530 U.S. 466 (2000).

3

rendered ineffective assistance by (A) refusing to investigate enhancement convictions, (B) refusing

to protect petitioner from double jeopardy; (C) failing to summon a witness at trial; (D) allowing the

prosecutor to say she was going to prove one thing but then allowing her to prove a different theory;

(E) failing to request a directed verdict of acquittal; (F) failing to file a post-judgment motion; and

(G) failing to follow appellate rules. (See Attached Pages at 26-30.) 

On April 1, 2004, respondent filed a preliminary response in which he asserts that the instant

action is barred by the applicable statute of limitations. (See Prelim. Resp. at 1-10.) Petitioner thereafter filed a response in which he argues that this action is not untimely because the State misled him

to dismiss his prior federal action. (See Petitioner’s Resp. at 2, hereinafter Reply.) He also claims

that equitable tolling principles should apply to toll the limitations period when his appellate

attorney failed to file a petition for review and he was unaware that he had a right to such review.

(Id. at 3.) He further argues that the Court should find the instant petition timely because his first

federal petition was timely, (Id. at 4.) 

To further clarify his claims, petitioner filed an “Amicus Curiae Brief” that the Court

received on January 5, 2005. He therein alleges that the State misled him to dismiss his prior federal

petition by claiming that he had not exhausted “Ground of Error No. 23”, although such error “was

lawfully exhausted” in that the Court could have excused the lack of exhaustion. (Amicus Brief at

2.) He argues that the Court should not have allowed him to voluntarily dismiss his prior federal

petition because he was an unskilled layman in the law. (Id. at 3.) He further argues that he is

“actually innocent of any conduct that authorizes a prison sentence of 20 years or that authorizes

imprisonment in the Texas Department of Criminal Justice.” (Id. at 7-8.) He argues that in view

of Blakely3

 and Apprendi,

4

 his sentence should be vacated. (Id. at 8.) 

 

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 Petitioner seeks appointment of counsel due to the complexity of this case. (See Mot. for Appointment.) By the

motion to join pending litigation, petitioner seeks to join or consolidate the instant action with another habeas action

filed by petitioner in Frazier v. Dretke, No. 3:03-CV-0864-D (N.D. Tex.). (See Mot. to Join Pending Litigation.) In view

of the ultimate disposition of this action, the Court denies both motions. 

6

 Because the Supreme Court has not made Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004) or Apprendi v.

New Jersey, 530 U.S. 466 (2000) retroactively applicable to cases on collateral review, petitioner’s reliance upon those

cases does not place this action under subparagraph (C). 

4

Petitioner has also filed a motion for appointment of counsel and a motion to join pending

petitions.5

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral

review; or (D) the date on which the facts supporting the claim became known or could have

become known through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that prevented

him from filing his federal petition. Nor does he base his petition on any new constitutional right

under subparagraph (C).6

 Thus, as § 2244(d)(1) relates to this case, the Court will calculate the

one-year statute of limitations from the latest of (A) the date petitioner’s conviction became final

 

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or (D) the date on which he knew or should have known with the exercise of due diligence the facts

supporting his claims. 

In this case, petitioner appealed his conviction but filed no petition for discretionary review

(PDR). The state conviction therefore becomes final for purposes of § 2244(d) upon the expiration

of the time for seeking further review through the filing of a PDR, i.e. thirty days after the appellate

court rendered its judgment on December 20, 2000. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th

Cir. 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. APP. P. 68.2 for the

thirty day period to file a PDR). Petitioner’s state judgment of conviction thus became final on

January 19, 2001. With regard to subparagraph (D), the Court determines that the facts supporting

the claims raised in the instant petition for habeas relief also became known or could have become

known prior to the date petitioner’s state judgment of conviction became final on January 19, 2001.

The claims relate to matters that occurred at or before trial or his appeal. 

Accordingly, a literal application of § 2244(d)(1) renders petitioner’s July 3, 2003 filing

untimely because it was filed more than one year after his conviction became final. 

III. TOLLING

The AEDPA expressly and unequivocally provides that “[t]he 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)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D.

Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling

on state application). 

 

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 The Fifth Circuit later held that principles of equitable tolling apply in the context of a motion to vacate filed under

28 U.S.C. § 2255, and that case law regarding such tolling is applicable whether decided in the context of § 2254, § 2255,

or outside AEDPA. See United States v. Patterson, 211 F.3d 927, 930-31 & n.5 (5th Cir. 2000). 

6

A. Entitlement to Statutory Tolling

When petitioner filed his state petition on August 10, 2001, 203 days had elapsed since his

conviction became final on January 19, 2001. The filing of his state petition tolled the statute of

limitations until the Texas Court of Criminal Appeals denied the writ on December 5, 2001. The

AEDPA clock began to run again on December 6, 2001. The 162 days remaining in the statutory

period of limitations therefore elapsed on or about May 16, 2002. Although petitioner filed a federal

petition on December 27, 2001, that petition does not statutorily toll the limitations period. See

Duncan v. Walker, 533 U.S.167, 181 (2001) (holding “that § 2244(d)(2) does not toll the limitation

period during the pendency of a federal habeas petition). By the time petitioner filed his next state

habeas application on January 29, 2003, and the instant federal petition on July 3, 2003, the

statutory period of limitations had already elapsed. He is therefore not entitled to statutory tolling,

and his federal filing should be deemed untimely unless principles of equitable tolling make the

action timely. 

B. Entitlement to Equitable Tolling

In his reply brief, petitioner asserts that the instant federal petition is not time-barred, and

he urges the Court to equitably toll the limitations period. (Reply at 1-4.) 

In Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998) the Fifth Circuit Court of Appeals held, “as

a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations,

not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in ‘rare and

exceptional circumstances.’”7

 Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations

omitted). “Equitable tolling applies principally where [one party] is actively misled by the [other

party] about the cause of action or is prevented in some extraordinary way from asserting his rights.”

 

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See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President

Lines, 96 F.3d 124, 128 (5th Cir. 1996)). In addition, equitable tolling may be warranted when a

court affirmatively misleads a litigant. See United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir.

2000). “The doctrine of equitable tolling preserves a [party’s] claims when strict application of the

statute of limitations would be inequitable.” Davis, 158 F.3d at 810 (quoting Lambert v. United States,

44 F.3d 296, 298 (5th Cir. 1995)). The Supreme Court has suggested that “equitable considerations

may make it appropriate for federal courts” to toll the “statute of limitations for unexhausted federal

habeas petitions.” Duncan v. Walker, 533 U.S.167, 183-84 (2001) (Stevens, J., concurring ). Nevertheless, a petitioner is not entitled to equitable tolling unless he “diligently pursue[s] his § 2254

relief.” Coleman, 184 F.3d at 403. “[E]quity is not intended for those who sleep on their rights.”

Covey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989). “The petitioner bears the burden

of proof concerning equitable tolling, and must demonstrate ‘rare and exceptional circumstances’

warranting application of the doctrine.” Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002)

(footnote omitted). 

1. Ineffective Assistance of Counsel and Ignorance of the Law

Petitioner argues that any untimeliness of the instant petition should be excused because his

appellate attorney failed to file a petition for review and he was unaware that he had a right to such

review. (Reply at 3.) This argument fails for a number of reasons. First, there is no right to counsel

for filing a petition for discretionary review. See Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir. 2002),

cert. denied, 538 U.S. 969 (2003). Second, even if petitioner had a right to counsel, “mere attorney

error or neglect is not an extraordinary circumstance such that equitable tolling is justified.” Salinas

v. Dretke, 354 F.3d 425, 432 (5th Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 2099 (2004). Third,

ignorance of the law does not warrant equitable tolling. See Felder v. Johnson, 204 F.3d 168, 172 (5th

Cir. 2000). Fourth, petitioner timely filed his first federal petition despite the proffered excuse.

 

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Petitioner was thus not prevented from timely asserting his rights by any actions of his appellate

counsel.

2. Pro se Status and Actual Innocence

Petitioner also argues that equitable tolling is warranted because he is actually innocent and

because he proceeded without counsel on his previous petition and without counsel on the instant

petition. (Amicus Brief at 3,7-8.) However, proceeding pro se does not warrant tolling. See id. at

171. Furthermore, a claim of actual innocence “does not constitute a ‘rare and exceptional’

circumstance, given that many prisoners maintain they are innocent.” See id. at 171 & n.8.

3. Misled by the State

Petitioner further claims in his “Amicus Curiae Brief” that the State misled him to dismiss

his prior federal petition by claiming that he had not exhausted “Ground of Error No. 23”, although

such error “was lawfully exhausted” in that the Court could have excused the lack of exhaustion.

(Amicus Brief at 2.) Such claim is also insufficient to equitably toll the limitations period. 

The record does not reflect that the State actively misled petitioner. In response to

petitioner’s prior federal petition, the State asserted that one of the claims was unexhausted. See

Frazier v. Cockrell, No. 3:02-CV-0230-R (N.D. Tex.) (Answer at 12-15). Although the State

discussed the ramifications of such non-exhaustion and the potential that a mixed petition may be

dismissed entirely, it did not move for dismissal of the entire action on grounds of exhaustion. Id.

Instead it asserted that the claim was procedurally barred, and specifically indicated that “it would

be futile to return to the state courts to file yet another state writ” because the court would dismiss

such writ as an abuse of the writ. Id. (Answer at 14). Under the facts of this case, the Court does

not find that the State actively misled petitioner in any way. The State merely asserted a procedural

bar to one of petitioner’s prior claims. Such assertion caused petitioner to seek to voluntarily dismiss

his prior action. All litigants may voluntarily dismiss their actions “upon order of the court and upon

such terms and conditions as the court deems proper.” See Fed. R. Civ. P. 41(b)(2).

 

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4. Error by the Court

Petitioner argues that the Court erroneously allowed him to voluntarily dismiss his prior

federal petition. Although the primary focus of such argument lies in the fact that petitioner proceeded pro se in his prior action, his argument may reasonably be construed as a claim that petitioner

is entitled to equitable tolling because he was misled by the dismissal of his prior action without

prejudice.

In United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000), the “pro se movant,

expressly requested that his motion be dismissed without prejudice to allow him to obtain the

assistance of an experienced writ-writer in filing a subsequent § 2255 motion.” Id. at 931. Finding

that such a dismissal “would be in the interests of justice”, the district court permitted the movant

to voluntarily withdraw his timely-filed motion to vacate without prejudice. Id. at 929-30. Nearly

a year later, the movant moved for an extension of time to file his subsequent § 2255 motion. Id.

at 930. In ruling on that motion for extension, the district court specifically noted that the

limitations period would expire on April 30, 1998. Id. at 930. After the denial of his requested

extension of time, Patterson delivered a § 2255 motion to prison authorities prior to April 30, 1998,

but the district court dismissed it as untimely. Id. The Fifth Circuit held that equitable tolling was

warranted because the movant “relied to his detriment on the district court’s granting of his request

to dismiss the initial, timely filed § 2255 motion in order to refile it at a later date” and because the

district court affirmatively misled Patterson as to the deadline for filing his motion to vacate. Id. at

930-32. The Fifth Circuit noted that, “on the very date that the district court dismissed Patterson’s

initial § 2255 motion . . . any future filings would have been time-barred.” Id. at 932.

In this case, petitioner filed three documents in response to the State’s answer entitled

“Petitioner’s Response to Respondent’s Answer”, “Motion for the Appointment of Counsel to

Perfect Out-of-time Petition for Discretionary Review”, and “Motion for Summary Judgement [sic]

for Leave to Exhaust State Remedies and Return Without Prejudice to this Court with a Fully

 

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Exhausted Petition” on June 7, 2002. See id. (docs. 25, 26, and 27). In his response to respondent’s

answer, petitioner conceded that he had not totally exhausted his state remedies, but argued that

the Court should find that he meets an exception to the exhaustion doctrine. Id. (Resp. to Resp.’s

Answer at 2-3). Alternatively, he stated that he would “concede this ground rather than have his

entire application dismissed.” Id. (Resp. to Resp.’s Answer at 3). He proposed that the Court order

the Texas Court of Criminal Appeals to allow an out-of-time petition for discretionary review so that

they would hear his non-exhausted claim. Id. (Resp. to Resp.’s Answer at 10). He specifically asked

the Court “to grant him leave to return to this Court ‘without prejudice’ after exhausting state

remedies” and for appointment of counsel to pursue an out-of-time petition for discretionary review.

Id. (Resp. to Resp.’s Answer at 12). 

By the motion for summary judgment, petitioner sought “summary judgment as a corrective

remedy to achieve justice by allowing petitioner to exhaust state remedies by out of time petition for

discretionary review.” Id. (Mot. Summ. J. at 2). He formally requested “leave to return to the

Federal District Court without prejudice for appropriate legal disposition of his claims on their

merits.” Id. (Mot. Summ. J. at 3). Thus, like the movant in Patterson, petitioner in this case

expressly requested that the dismissal be without prejudice so that he could return to this Court once

he exhausted his state remedies.

On December 2, 2002, the Court construed petitioner’s motion for summary judgment as a

“motion for voluntary dismissal” that sought dismissal of the action without prejudice so that petitioner could pursue state remedies. See id. (Judgment and Order of Dismissal dated Dec. 2, 2002).

The Court granted the request and dismissed the prior federal action without prejudice. Id. It

specifically instructed petitioner that if he “intends to re-file this action in federal court, he must

comply with the applicable statute of limitations.” Id. (Order of Dismissal). Notwithstanding the

Court’s notation that a later filing would be subject to the applicable statute of limitations, as

demonstrated below, the limitations period for petitioner to timely file a § 2254 action related to his

 

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1999 conviction had already expired when the Court dismissed the prior action. Consequently, any

purported dismissal without prejudice would be immediately transformed into a dismissal with prejudice unless petitioner was granted some tolling. As was the case in Patterson, this appears inconsistent with the intent of the Court and petitioner. 

Unlike Patterson, the district court in this case did not expressly misinform petitioner

regarding the expiration of the limitations period. However, as in Patterson, “on the very date that

the district court dismissed [petitioner’s] initial § 2255 motion . . . any future filings would have been

time-barred.” 211 F.3d at 932. Thus, it is arguable, based on Patterson, that petitioner was

unintentionally misled by the dismissal of his prior action without prejudice. For this reason, this

Court assumes, without deciding, that petitioner is entitled to equitable tolling.

C. Application of Equitable Tolling

Given the assumption that petitioner is entitled to equitable tolling, the Court must now

determine how much tolling is warranted on the facts of the case.

In Patterson, the movant was given a year from the date the district court dismissed his

earlier-filed federal action. See 211 F.3d at 930 & n.4. The Fifth Circuit expressly noted that it had

“not ascertained how the district court and Patterson concluded that April 30, 1998 was the

deadline” or “why they believed that it ran from the date of the voluntary dismissal of the original

§ 2255 motion.” Id. The Fifth Circuit noted, however, that AEDPA had recently been enacted, and

that it had yet to determine the parameters of any grace period for movants in Patterson’s

circumstances. See id.

In contrast, the parameters of AEDPA and the statute of limitations associated with § 2254

actions were well-established when the Court dismissed petitioner’s prior federal action in December

2002 in this case. Moreover, the Court’s order of dismissal made no express statement regarding the

expiration of limitations period for a challenge to petitioner’s theft conviction. To the contrary, the

Court specifically indicated that any re-filing of petitioner’s § 2254 action would be subject to the

 

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 In 2001, the Supreme Court recognized the possibility that courts may toll the limitations period during the pendency

of a prior federal action mistakenly commenced prior to exhaustion of state remedies. See Duncan v. Walker, 533 U.S.

167, 183-84 (2001) (Stevens, J., concurring, noting that, although the filing of petitioner’s first federal petition does not

statutorily toll the statute of limitations, the possibility exists that such filing could equitably toll the limitations period).

12

applicable statute of limitations. As the Fifth Circuit’s comments in note 4 make clear, Patterson

does not dictate that the Court equitably toll the limitations period for one year from the dismissal

of petitioner’s prior federal action. At most, Patterson supports equitable tolling to the extent

petitioner reasonably relied to his detriment on the Court’s prior dismissal of petitioner’s earlier

federal action.

In determining the extent to which petitioner reasonably relied on the prior dismissal, the

Court first considers the amount of time remaining in the one-year limitations period when

petitioner filed his earlier federal action. When the Texas Court of Criminal Appeals denied

petitioner’s state writ on December 5, 2001, petitioner had 162 days remaining. Twenty-two more

days passed before petitioner filed his earlier federal petition on December 27, 2001. Petitioner

therefore had 140 days remaining of the one-year limitations period when he filed his earlier federal

action. On June 7, 2002, 162 days later, petitioner filed his “summary judgment” motion requesting

dismissal without prejudice to re-filing. Thus, the one-year limitation period had actually already

expired at the time petitioner first sought dismissal. Because there was no suggestion in the Court’s

December 2, 2002 Order that the limitations period would expire by a certain date, as in Patterson,

the reasonable conclusion is that the voluntary dismissal neither placed petitioner in a better nor

worse position. By tolling for the pendency of the prior federal action, the Court places petitioner

in the same position as when he filed his earlier federal petition.8 Thus, the Court assumes that 140

days remained in the limitations period.

By the time he filed his second state writ challenging his theft conviction on January 29,

2003, fifty-eight days had elapsed since the Court’s December 2, 2002 dismissal of his prior federal

action. The Court further tolls the limitations period during the time petitioner’s second state writ

 

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 The Court assumes without deciding that, under the facts of this case, the filing of the second relevant state writ would

toll the limitations period until the Texas Court of Criminal Appeals dismissed that state application on March 26, 2003.

Such assumption appears reasonable because petitioner could have reasonably relied upon the dismissal of his prior

federal action without prejudice as indicating that a properly filed state application for writ of habeas corpus would toll

the limitations period under 28 U.S.C. § 2244(d)(2). 

13

challenging his theft conviction was pending in state court.9 When the limitations period recommenced after denial of that second writ on March 27, 2003, petitioner had eighty-two days remaining

to file the instant federal habeas petition. Petitioner, however, took another ninety-nine days to file

the instant petition. The petition is thus untimely even when the limitations period is tolled during

the pendency of his prior federal petition and his second relevant state habeas application. 

Petitioner has not demonstrated that further equitable tolling is warranted under the facts

of this case. Upon dismissal of petitioner’s prior federal petition, the Court specifically indicated that

he must comply with the applicable statute of limitations should he intend to re-file his petition.

Such indication put petitioner on notice that he needed to proceed with due diligence to timely

return to federal court. By tolling for the time period that petitioner’s prior federal petition remained

pending and for the time period that his subsequent state application for writ of habeas corpus

remained pending, the Court has given petitioner every benefit of the doubt with respect to the

tolling issue. Nevertheless, his current petition falls outside the period of limitations even with such

tolling. 

Petitioner provides absolutely no explanation for why it took him more than three months

to return to federal court after the Texas Court of Criminal Appeals dismissed his January 29, 2003

state application. He simply had to resubmit his previously filed federal petition. Under such circumstances, additional equitable tolling is not warranted. As previously stated, petitioner “is not

entitled to equitable tolling” unless he “diligently pursue[s] his § 2254 relief.” Coleman v. Johnson,

184 F.3d 398, 403 (5th Cir. 1999). Under the facts of this case, the unexplained three-month delay

in returning to federal court makes the circumstances not extraordinary enough to qualify for further

 

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equitable tolling. See id. “For equitable tolling to be appropriate, external forces, rather than a

litigant’s lack of diligence, must account for the failure of a complainant to file a timely claim.” Foley

v. Cockrell, 222 F. Supp. 2d 826, 828 (N.D. Tex. 2002). The Court has already considered equitable

tolling for all relevant external forces suggested for the untimeliness. Petitioner’s lack of diligence

rather than external forces appears to account for the ultimate untimeliness of this action. Petitioner

has exercised insufficient diligence to warrant equitable tolling over and above that which the Court

has already considered. Consequently, petitioner’s July 3, 2003 filing falls outside the statutory

period and should be deemed untimely.

Because neither statutory nor equitable tolling saves the instant petition from being untimely,

the Court should find the instant federal petition untimely and deny it.

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice.

SIGNED this 7th day of April, 2005.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions, or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. Failure to

file written objections to the proposed findings, conclusions, and recommendation within ten days

after being served with a copy shall bar the aggrieved party from appealing the factual findings and

legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon

grounds of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)

(en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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