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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHANDELL MEIL GRIMBLE, 622849, §

Petitioner, §

§ No. 3:04-CV-2378-N

v. § ECF

§

DOUGLAS DRETKE, DIRECTOR, TDCJ-CID,§

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 August 27, 1992, Petitioner was convicted of capital murder and was sentenced to life

imprisonment. State of Texas v. Grimble, No. F92-39105-M (194th Jud. Dist. Ct., Dallas County,

Tex., Aug. 27, 1992). On May 31, 1994, the Fifth District Court of Appeals affirmed

Petitioner’s conviction. Grimble v. State of Texas, No. 05-92-02532-CR (Tex. App. – Dallas,

May 31, 1994). On October 12, 1994, the Court of Criminal Appeals refused Petitioner’s

 

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petition for discretionary review. PDR No. 0952-94.

On February 7, 1996, Petitioner filed a state petition for writ of habeas corpus. Ex parte

Grimble, Application No. 30, 533-01. On April 10, 1996, the Court of Criminal Appeals denied

the petition without written order on the findings of the trial court. On June 1, 2000, Petitioner

filed a second state petition for writ of habeas corpus. Ex parte Grimble, Application No.

30,533-02. On February 21, 2001, the Court of Criminal Appeals dismissed the petition. On

September 18, 2003, Petitioner filed his third state petition for habeas relief. Ex parte Grimble,

Application No. 30,533-03. On September 29, 2004, the Court of Criminal Appeals dismissed

the petition. 

On November 3, 2004, Petitioner filed this federal petition. He argues: (1) he received

ineffective assistance of counsel; (2) the trial court erred in overruling Petitioner’s objection to

the admission of photographs; and (3) the trial court erred in overruling Petitioner’s objection to

a peremptory challenge. 

On November 12, 2004, the Court ordered Petitioner to show cause why this petition

should not be dismissed as time-barred. On November 30, 2004, Petitioner filed his response. 

The Court now finds the petition is barred by limitations and should be dismissed.

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 (1997). The AEDPA

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

 

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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).

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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).1 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 May 31, 1994, the Fifth District Court of Appeals affirmed Petitioner’s conviction. 

On December 12, 1994, the Texas Court of Criminal Appeals denied the petition for

discretionary review. The conviction therefore became final ninety days later, on March 13,

1995. 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 March

 

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13, 1996, to file his federal petition. 

Petitioner’s limitation-commencing event occurred prior to the enactment of the AEDPA. 

Petitioner is therefore entitled to a period of one-year from the AEDPA’s effective date of April

24, 1996, to file his federal petition. See Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). 

Thus, Petitioner was required to file his § 2254 petition on or before April 24, 1997, to avoid

being time-barred.

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

U.S.C. § 2244 (d)(2). On February 7, 1996, Petitioner filed his first state habeas petition. On

April 10, 1996, the Court of Criminal Appeals denied the petition. Petitioner did not file his

second state petition until June 1, 2000. This petition was filed after the limitations period

expired. It therefore did not toll the limitations period. 

 Petitioner was required to file his federal habeas petition no later than April 24, 1997. 

He did not file his petition until November 3, 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 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. American President Lines, 96

 

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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 states that he filed a second state habeas in June, 2000, because his mother

informed him that he was partially disabled by mental retardation. He also states that he filed his

third state habeas petition in 2003, because he discovered the ingredients of a drug that he

involuntarily ingested immediately prior to the offense. He states his counsel failed to obtain

expert testimony regarding the effects of this drug on a person who is retarded.

 For equitable tolling to apply, however, the applicant must diligently pursue habeas

corpus relief. See Coleman, 184 F.3d at 402 (5th Cir. 1999). Petitioner has not shown that he

could not have discovered this evidence within the limitations period. Petitioner has not shown

that he was actively mislead by the State, or that he was prevented is 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 this 10th day of January, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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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).

 

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