IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARTIS LEON POLK, JR., #811901, )

Petitioner, )

)

v. ) No. 3:03-CV-2330-G

)

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, Correctional ) 

Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b), implemented by an order of the United States

District Court for the Northern District of Texas. The Findings, Conclusions and

Recommendation of the Magistrate Judge follow.

I. Background

On November 3, 1997, Petitioner Artis Leon Polk, Jr. (“Petitioner”) was convicted in

Dallas County Cause No. 597-34778-WR of aggravated robbery, enhanced by the use of a

deadly weapon. Polk v. State, 1999 WL 326283 (Tex. App.–Dallas 1999, pet. ref’d) (Fed. Pet.

at 2.) The trial court sentenced him to fifteen years in prison (Id.) The Texas Fifth District

Court of Appeals affirmed his conviction on May 25, 1999. (Id. at 3.) On September 8, 1999,

the Texas Court of Criminal Appeals denied his petition for discretionary review. (Id.) The

conviction therefore became final ninety days later, on December 8, 1999. See SUP. CT. R. 13;

see also Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (holding that state conviction

becomes final for limitation purposes when time for seeking further direct review expires,

 

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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

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irrespective of when the appellate court issues the mandate). This Court noted that the one-year

statute of limitations appears to bar consideration on the merits in this case. Therefore, the Court

granted Petitioner the opportunity to file a response showing cause why the Court should not

dismiss his petition. On November 14, 2003, Petitioner filed a response. The Court now finds

that the petition is time-barred and that equitable tolling is not warranted.

II. Discussion

A. Statute of Limitations

Petitioner filed his petition for writ of habeas corpus 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, 336 (1997). The

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

Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). In most

cases, as in this one, the limitation 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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exercise of due diligence.

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

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

collateral review is pending. Id. ' 2244(d)(2). The one-year limitation period is also subject to

equitable tolling in Arare and exceptional cases.@ Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.

1998).

 Petitioner’s conviction became final on December 8, 1999, ninety days after his petition

for discretionary review was refused. Petitioner then had one year from December 8, 1999, or

until December 8, 2000, to file his federal habeas petition. See 28 U.S.C. § 2244(d). On

September 27, 2000, Petitioner filed a federal petition for writ of habeas corpus, but the District

Court dismissed it without prejudice because Petitioner failed to exhaust his state court remedies. 

Polk v. Johnson, No. 3:00-CV-2112-L (N.D. Tex. Mar 30, 2001). The limitation period is not

tolled while a federal petition for writ of habeas corpus is pending. Duncan v. Walker, 533 U.S.

167, 181 (2001). Ordinarily, the filing of a state habeas corpus application tolls the limitation

period. See 28 U.S.C. § 2244(d)(2). However, Petitioner did not file his state habeas application

until June 6, 2003, after the limitation period expired. Therefore, his state application did not

toll the statute of limitations.

 Petitioner had to file his § 2254 petition on or before December 8, 2000, to avoid the

time-bar. He did not file his petition until October 2, 2003. His petition is 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; see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)

 

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(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)). " 'Equitable 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

that he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

Petitioner argues that he is entitled to equitable tolling because he filed several motions

and letters addressed to the trial court, court clerk, stenographer, the District Clerk and trial

counsel requesting copies of evidence which were not included in the record on appeal. (Resp.

at 1-2.) Petitioner contends he never received any answers to those requests. (Id.) A petitioner

is not entitled to an extended delay while he gathers every scrap of evidence that might support

his claim. See Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). Petitioner has not shown

that he could not have pursued his remedies diligently without this evidence. 

Petitioner claims that in May of 2000, he was transferred to a high security unit where his

important papers were destroyed and his right hand was injured. (Resp. at 3.) Petitioner

contends that he should be granted equitable tolling because “the permanent disfigurement of his

right hand was beyond his control.” (Id.) The Court notes that Petitioner was able to file a

federal habeas corpus petition on September 27, 2000, which was before the statute of

limitations expired. However, he had not exercised due diligence by exhausting his state court

remedies before he filed that petition. Petitioner has not shown that he diligently pursued his

habeas corpus remedies. See Coleman, 184 F.3d at 402 (5th Cir. 1999). He could have filed his

 

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state habeas application without the evidence he was waiting for and exhausted his state court

remedies before filing his first federal habeas corpus petition. Neither a petitioner’s

unfamiliarity with the legal process, nor his ignorance of the law merits equitable tolling. See

Turner v. Johnson, 177 F.3d 390, 291 (5th Cir. 1999).

Petitioner argues that in May of 2000, he was placed on an indefinite law library

restriction for a law library infraction. (Resp. at 4). He claims that this lack of access to the law

library was a circumstance beyond his control that should toll the limitation period. Petitioner

managed to file a federal habeas petition on September 27, 2000, thus demonstrating that the law

library restriction did not prevent him from filing a timely federal habeas corpus petition before

the limitation period expired. Moreover, Petitioner has not shown that he would have filed a

timely, procedurally correct petition if his access to the law library had not been limited. An

inadequate law library in itself is not a "rare and exceptional" circumstance that warrants

equitable tolling of the AEDPA limitation period. See Scott v. Johnson, 227 F.3d 260, 263 & n. 3

(5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). Petitioner failed to show

rare and exceptional circumstances that would justify equitable tolling in this case. 

III. Recommendation

The Court recommends that the District Court dismiss the petition for a writ of habeas 

 

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

Signed this 27 day of September, 2005.

___________________________________

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, 106 S. Ct. 466, 472

(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

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996)(en banc).

___________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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