Findings, Conclusions and Recommendation

of the United States Magistrate Judge 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTHONY SCOTT JOHNSON, 1024898, )

Petitioner, )

v. ) No. 3:04-CV-1357-M

DOUGLAS DRETKE, Director, Texas ) (Consolidated with 

Department of Criminal Justice, Correctional ) 3:04-CV1358-M)

Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Background

On January 11, 2001, Petitioner was convicted of aggravated robbery and aggravated

sexual assault. State of Texas v. Anthony Johnson, Nos. F-9972860-JN and F-9972651-MN

(195th Jud. Dist. Ct., Dallas County, Tex., Jan. 11, 2001). Petitioner was sentenced to ninetynine years confinement for the aggravated robbery and life imprisonment for the aggravated

sexual assault. On August 22, 2002, the Fifth District Court of Appeals affirmed Petitioner’s

convictions. Johnson v. State, No. 05-01-00171-CR (Tex. App. – Dallas, no pet.). Petitioner did

not file a petition for discretionary review. 

On June 26, 2003, Petitioner filed a state habeas petition. Ex parte Johnson, Application

No. 56,803-03. On October 1, 2003, the Court of Criminal Appeals denied the petition without

written order on the findings of the trial court. On January 23, 2004, Petitioner filed a second

 

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1

The statute provides that the limitations 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 direct review;

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of the United States Magistrate Judge 2

state habeas petition. (Pet. at 4). Ex parte Johnson, Application No. 56, 803-05. On May 26,

2004, the Court of Criminal Appeals dismissed the petition for noncompliance with the appellate

rules.

On June 14, 2004, Petitioner filed this federal petition. He argues his conviction and

sentence are unlawful because: (1) the trial court committed error; (2) there was insufficient or

no evidence to support the conviction; (3) he received ineffective assistance of counsel; and (4)

evidence against him was obtained by an illegal search and seizure. On September 27, 2004,

Respondent filed a preliminary response arguing the petition is time-barred. The Court finds the

petition should be dismissed as barred by the one-year statute of limitations.

II. Discussion

A. Statute of Limitations

Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA

governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059, 2068, 138 L.

Ed. 2d 481 (1997). The 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. See 28 U.S.C. ' 2244(d)(1)(A).1

 

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(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 claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. ' 2244(d)(1).

2

Thirty days from August 22, 2002, is Saturday, September 21, 2002. Pursuant to Tex. R. App.

P. 4(a), the PDR was due on Monday, September 23, 2002.

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of the United States Magistrate Judge 3

This period is tolled while a properly filed motion for state post-conviction relief or other

collateral review is pending. Id. ' 2244(d)(2). 

On August 22, 2002, Petitioner’s conviction was affirmed. He did not file a petition for

discretionary review. His conviction therefore became final thirty days later, on September 23,

2002.2

 See Tex. R. App. P. 68.2 (PDR must be filed within 30 days after court of appeals

renders judgment or overrules motion for rehearing); see also Roberts v. Cockrell, 319 F.3d 690,

694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for

seeking further direct review expires, regardless of when mandate issues). Petitioner then had

one year, or until September 23, 2003, to file his federal petition. 

The filing of a state application for habeas corpus tolls the statute of limitations. See 28

U.S.C. § 2244 (d)(2). On June 26, 2003, Petitioner filed his first state petition for habeas relief. 

This petition tolled the limitations period for ninety-eight days, until it was denied on October 1,

2003. When ninety-eight days are added to the one-year filing period, the new deadline was

 

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Findings, Conclusions and Recommendation

of the United States Magistrate Judge 4

December 30, 2003. On January 23, 2004, Petitioner filed a second state habeas petition. That

petition, however, was filed after the one-year limitations period expired. It therefore did not toll

the limitations period. 

Petitioner was required to file his federal petition by December 30, 2003. He did not file

his petition until June 14, 2004. His petition is therefore untimely.

B. Equitable Tolling

The one-year limitations 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 way from asserting his rights.’” Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. Am. President Lines, 96 F.3d 124,

128 (5th Cir. 1996)). Petitioner bears the burden of proof to show he is entitled to equitable

tolling. 

Petitioner makes several arguments regarding equitable tolling. He argues: (1) his

second state habeas should toll the limitations period because it was properly filed; (2) the Court

should apply the federal mailbox rule to Petitioner’s state habeas applications; and (3) he was

unable to file a federal petition because he was bench warranted to Dallas County Jail on January

22, 2004, and he was not returned to TDCJ until June 14, 2004.

First, regardless of whether Petitioner’s second state habeas was properly filed, Petitioner

 

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of the United States Magistrate Judge 5

states he placed this application in the prison mail system on January 5, 2004. (Pet. Resp. at 3). 

Petitioner’s federal petition, however, was due by December 30, 2003. Since his second state

habeas petition was filed after the federal limitations period expired, it did not toll the limitations

period. 

Petitioner also argues that the Court should apply the federal mailbox rule to his state

habeas applications. Under the federal mailbox rule, a petition is considered filed on the date the

prisoner delivers the petition to prison officials for mailing. Spotville v. Cain, 149 F.3d 374,

376-78 (5th Cir. 1998). The Fifth Circuit has held, however, that the mailbox rule does not

extend to filing dates for state habeas applications. Coleman v. Johnson, 184 F.3d 398, 402 (5th

Cir. 1999). Petitioner’s claim that he is entitled to rely on the mailbox rule is without merit.

Finally, Petitioner argues he is entitled to equitable tolling because he was unable to file a

federal habeas petition when he was bench warranted back to Dallas County Jail on January 22,

2004. He states the law library at the jail was inadequate. Petitioner’s federal deadline,

however, expired on December 30, 3003, prior to his being transferred to the Dallas County Jail. 

Petitioner has not shown that he was prevented in some extraordinary way from asserting

his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling

in this case.

 

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of the United States Magistrate Judge 6

RECOMMENDATION

The Court recommends that the petition for writ of habeas corpus be dismissed with

prejudice as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d).

Signed December 12, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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Findings, Conclusions and Recommendation

of the United States Magistrate Judge 7

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

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

file 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. A

party's failure to file such written objections to these proposed findings, conclusions and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any 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, 1417 (5th Cir. 1996) (en banc).

 

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