Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STACEY O’NEAL WILLIAMS , #101941, )

Petitioner, )

)

v. ) No. 3:04-CV-2001-M

) (Consolidated with

DOUGLAS DRETKE, Director, Texas ) No. 3:04-CV-2002-M

Department of Criminal Justice, ) No. 3:04-CV-2003-M

Correctional Institutions Division, ) No. 3:04-CV-2004-M)

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. Parties

Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional

Institutions Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28

U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.

II. Background

On November 30, 2000, Petitioner pled guilty to three charges of burglary of a

habitation. State v. Williams, Cause Nos. F-0036903-TQ, F-0031809-TQ, and F-0070877-UQ

(204th Jud. Dist. Ct., Dallas County, Tex., Nov. 30, 2000). Petitioner also pled guilty to

 

 Case 3:04-cv-02001-M Document 17 Filed 07/13/05 Page 1 of 6 PageID 78
Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -2-

attempted burglary of a habitation. State v. Williams, Cause No. F-0022763-PQ (204th Jud. Dist.

Ct., Dallas County, Tex., Nov. 30, 2000). The Court sentenced Petitioner to fifty years

confinement in each case, to be served concurrently. The Court also imposed a $1,000 fine in

each case.

On February 1, 2002, the Fifth District Court of Appeals modified the judgments to

delete the $1,000.00 fine in each cause number, and affirmed the judgments as modified. 

Williams v. State, Nos. 05-01-00101-CR, 05-01-00102-CR, 05-01-00103-CR, 05-01-00104-CR

(Tex. App. – Dallas, Feb. 1, 2002, pet. ref’d). On June 26, 2002, the Court of Criminal Appeals

denied Petitioner’s petitions for discretionary review. Williams v. State, Nos. 0328-02, 0329-02,

0330-02, 0331-02.

On September 30, 2003, Petitioner filed state petitions for habeas relief challenging each

of his four convictions. Ex parte Williams, Application Nos. 58,139-01; 58,139-02; 58,139-03;

58,139-04. On August 31, 2004, the Texas Court of Criminal Appeals denied the petitions

without written order on the findings of the trial court. 

On September 9, 2004, Petitioner filed federal habeas petitions attacking each of his

convictions. Williams v. Dretke, 3:04-CV-2001-M; 3:04-CV-2002-M; 3:04-CV-2003-M; 3:04-

CV-2004-M. The Court consolidated these four petitions into the first-filed action. Petitioner

argues his convictions are unlawful because: (1) he was not properly admonished regarding the

range of punishment; and (2) he received ineffective assistance of counsel at trial and on appeal.

On December 17, 2004, Respondent filed his answer arguing the petition is time-barred. 

On January 24, 2005, Petitioner filed a motion for extension of time to file his traverse. On

February 1, 2005, the Court granted Petitioner until May 2, 2005 to file his traverse. Petitioner

 

 Case 3:04-cv-02001-M Document 17 Filed 07/13/05 Page 2 of 6 PageID 79
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;

(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).

Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -3-

did not file a traverse. The Court now finds the petition is time-barred.

III. 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. No. 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).1 This period is tolled while a properly filed motion for state post-conviction relief

 

 Case 3:04-cv-02001-M Document 17 Filed 07/13/05 Page 3 of 6 PageID 80
Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -4-

or other collateral review is pending. 28 U.S.C. § 2244(d)(2). The one-year limitations period is

also subject to equitable tolling in Arare and exceptional cases.@ Davis v. Johnson, 158 F.3d 806,

811 (5th Cir. 1998).

On February 1, 2002, the Fifth District Court of Appeals affirmed Petitioner’s conviction. 

On June 26, 2002, the Court of Criminal Appeals denied his petitions for discretionary review. 

The convictions therefore became final ninety days later, on September 24, 2002. See Sup. Ct.

R. 13; 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 24, 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 September 30, 2003, Petitioner filed state habeas petitions challenging

each of his convictions. These habeas petitions, however, were filed after the limitations period

expired. They therefore did not toll the limitations period. Petitioner was required to file his

federal petition by September 24, 2003. He did not file his petition until September 9, 2004. His

petition is therefore untimely.

(b) Equitable Tolling

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

cases.” Davis, 158 F.3d at 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

 

 Case 3:04-cv-02001-M Document 17 Filed 07/13/05 Page 4 of 6 PageID 81
Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -5-

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. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). 

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).

Petitioner has made no argument that he is entitled to equitable tolling. He has not

shown that he was actively misled by the state, or 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. 

RECOMMENDATION:

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

prejudice as barred by the one-year limitation period. See 28 U.S.C. § 2244(d). 

Signed July 13, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

 Case 3:04-cv-02001-M Document 17 Filed 07/13/05 Page 5 of 6 PageID 82
Findings, Conclusions and Recommendation

of the United States Magistrate Judge Page -6-

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

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

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally,

the failure to file written objections to proposed findings and recommendations within ten (10)

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. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1417 (5th Cir. 1996)(en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

 Case 3:04-cv-02001-M Document 17 Filed 07/13/05 Page 6 of 6 PageID 83