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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

MICHAEL WAYNE PACE, §

§

Petitioner, §

§

v. § 2:03-CV-0386

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DISMISS

PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED 

On October 14, 2003, petitioner MICHAEL WAYNE PACE, a state prisoner confined in the

Coffield Unit, filed with the United States District Court for the Eastern Division of Texas a Petition

for a Writ of Habeas Corpus by a Person in State Custody. By his application, petitioner challenges

his September 11, 1995 conviction for the felony offense of aggravated sexual assault of a child out

of the 320 Judicial District Court of Potter County, Texas and the resultant 24-year sentence. See th

State v. Pace, No. 35,103-D. On November 17, 2003, petitioner’s application was transferred to

this Court. For the reasons hereinafter set forth, it is the opinion of the undersigned United States

Magistrate Judge that the petition for a writ of habeas corpus should be DISMISSED as time barred.

I.

PROCEDURAL HISTORY

On September 7, 1995, in Cause No. 35,103-D, a jury found petitioner guilty of the offense

 

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On that same date, petitioner was also convicted of aggravated sexual assault of a child in Cause No. 35,104-D, and of 1

indecency with a child in Cause No. 35, 105-D. Petitioner was assessed a 24-year sentence and a 20-year sentence, respectively,

such sentences to run concurrently.

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of aggravated sexual assault as charged in the indictment and assessed petitioner’s sentence at

confinement in the Texas Department of Criminal Justice, Institutional Division, for a period of

twenty-four (24) years. Petitioner directly appealed his conviction and sentence to the Court of 1

Appeals for the Seventh District of Texas who, on August 6, 1996, affirmed said conviction and

sentence in an unpublished opinion. Pace v. State, No. 07-95-0412-CR. Petitioner sought review of

the state appellate court’s decision by filing a petition for discretionary review. The Texas Court of

Criminal Appeals refused said petition on October 16, 1996. Pace v. State, No. 1334-96. Petitioner

did not petition the United States Supreme Court for a writ of certiorari.

On October 2, 1998, petitioner filed an application for a state writ of habeas corpus with the

Court of Appeals for the Seventh District of Texas. On October 9, 1998, that court denied

petitioner’s application for want of jurisdiction. Ex parte Pace, No. 07-98-0333-CR.

On February 27, 2002, petitioner filed an application for a state writ of habeas corpus with

the state trial court. Ex parte Pace, No. 52,173-03. On May 22, 2002, the Texas Court of Criminal

Appeals denied petitioner’s application without written order.

On September 3, 2003, petitioner executed the instant federal habeas application challenging

his conviction and sentence. Petitioner’s application, however, was not filed of record until October

14, 2003, almost 1 1⁄2 months later. This Court received petitioner’s application from the Eastern

District on November 17, 2003. 

II.

PETITIONER’S ALLEGATIONS

Petitioner alleges his conviction and sentence are in violation of the Constitution and/or 

 

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laws of the United States for the following reasons:

1. Petitioner is actually innocent of the crime of which he was convicted;

2. The prosecution withheld exculpatory evidence from the defense;

3. The Potter County court lacked venue to prosecute petitioner;

4. Prosecutorial misconduct; and

5. A witness gave false testimony. 

III.

STATUTE OF LIMITATIONS

Section 28 U.S.C. § 2244(d)(1) establishes a one-year limitation period for filing a habeas 

petition in federal court. That subsection provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus

by a person in custody pursuant to the judgment of a State court. The limitation

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 such 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.

Title 28 U.S.C. § 2244(d)(2) further provides:

The 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.

 

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IV.

TIME BAR

In this case, petitioner’s claims clearly do not involve a constitutional right recognized by the

Supreme Court in the last year and made retroactive to cases on collateral review, see 28 U.S.C. §

2244(d)(1)(C). Nor has petitioner alleged, or shown, he could not have discovered the factual

predicate of his claims until a date subsequent to his final conviction date. See 28 U.S.C. §

2244(d)(1)(D). Consequently, the 1-year period of limitation began to run either on the date on

which petitioner’s judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review, see 28 U.S.C. § 2244(d)(1)(A), or 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 was removed, if petitioner was prevented from filing by such State action. See 28 U.S.C. §

2244(d)(1)(B). 

After the Texas Court of Criminal Appeals’ refusal of petitioner’s petition for discretionary

review on October 16, 1996, petitioner had ninety (90) days in which to file a petition for a writ of

certiorari with the United States Supreme Court. See Sup. Ct. R. 13.1, 13.3 (2000). Petitioner,

however, failed to do so. Therefore, petitioner’s conviction became final upon the expiration of the

time period in which to file his petition for a writ of certiorari, or January 14, 1997. See Griffith v.

Kentucky, 479 U.S. 314 (1987) (explaining that when a defendant does not seek a writ of certiorari,

the judgment of conviction becomes final upon the expiration of the time allowed for certiorari

review). Petitioner appears to argue, however, that the 1-year limitation period did not begin to run

on January 14, 1997, the date on which his judgment became final, because unconstitutional State

action created an impediment to, and prevented petitioner from, filing a state habeas application. 

 

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Even so, any purported lack of a transcript or trial records did not prevent petitioner from filing an application for a

2

state writ of habeas corpus on October 2, 1998, albeit with the wrong state court, such application being denied on October 9,

1998. See Ex parte Pace, No. 07-98-0333-CR. Petitioner then did not file his state habeas application with the appropriate court

until February 27, 2002, almost 3 1⁄2 years later.

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Specifically, petitioner argues the following:

I have filed via U.S. mail several letters and pro se motions to the Potter County

Clerks Office and the 320 District Court seeking to obtain trial records and th

transcripts to proceed intelligently and knowledgeably in the Federal Court and

comply with the AEDPA limitation requirement. Nevertheless, from 1996 to 2000

all correspondences and motions went without acknowledgment. I attempted the

filing of a state habeas corpus without support of the trial records, but was denied its

filing absent a $90.00 filing fee.

In August of 2000, I complained to the Seventh Court of Appeals of the disregard to

my legal filings and requested information and assistance with procuring the trial

records. On its own initiative, the Seventh Court of Appeals provided me a copy of

the trial record without cost as per Judge Emerson’s instruction within said record. 

From the trial record I compiled and filed a reasonably intelligent state writ of habeas

corpus, which was hindered by, but complied with, the State’s January 1, 2002,

enactment of its habeas corpus form requirement.

The trial court took no action and transmitted the habeas corpus forms to the Texas

Court of Criminal Appeals, which denied same without written order in May 22,

2002. And as a result, I now make this statement to bring forward a federal review

on the ground of actual and factual innocence.

Petitioner appears to argue the purported lack of a transcript and trial records from 1996 to 2000

prevented him from proceeding with his challenge of his state conviction and, consequently, the

timely filing of his federal habeas application. 

Petitioner misconstrues the applicability of 28 U.S.C. § 2244(d)(1)(B). Subparagraph (B)

does not concern alleged impediments to filing a petition for a state writ of habeas corpus. Rather,

the subparagraph addresses unconstitutional State-created impediments to filing "an application"

and the statute clearly identifies the relevant application as being "an application for a writ of 

habeas corpus by a person in custody pursuant to the judgment of a State court." The impediment

must thus prevent the filing of his federal application. 

2

 

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Furthermore, although petitioner attempts to invoke section 2244(d)(1)(B), he has shown no

impediment that falls within the purview of that subparagraph. To satisfy this subparagraph, the

prisoner must show that: (1) he was prevented from filing a (federal) petition (2) by State action (3)

in violation of the Constitution or federal law. Although this section does not define what

constitutes an "impediment," its "plain language . . . makes clear that whatever constitutes an

impediment must prevent a prisoner from filing his petition." Lloyd v. Van Natta, 296 F.3d 630,

633 (7 Cir. 2002). The purported unavailability of a transcript of his trial or other trial records did th

not prevent petitioner from timely filing the instant federal petition. Petitioner has not shown how

the court records were necessary for the filing of his petition, and nothing of record indicates that

petitioner needed his state records to raise his claims. In fact, based on petitioner’s representation

that he did not receive the state records until sometime in the year 2000, it appears he filed his first

state habeas petition (in 1998) without access to such records.

Nor has petitioner established that “State action” prevented him from filing his federal

petition. Although petitioner claims he submitted numerous letters and pro se motions to the state

district clerk and state district court, petitioner has not submitted copies of such letters or motions,

he has not shown that such letters or motions constituted proper requests of the records, nor has he

shown that such letters or motions were ever received by the clerk or the court. Petitioner cannot

establish “State action” prevented him from filing this federal petition. 

The undersigned finds petitioner has not established any unconstitutional state action

prevented him from timely filing an application for federal habeas relief. Petitioner does not satisfy

any of the statutory exceptions to delay the running of the AEDPA statute of limitations. 

Consequently, the one-year statute of limitations in this case is calculated from the date petitioner's

judgment of conviction became final on January 14, 1997. As such, the instant federal application

 

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was due on or before January 14, 1998. Petitioner’s first state habeas application was not filed until

October 2, 1998 and, thus, did not toll the statute of limitations. After the first state habeas was

denied on October 9, 1998, petitioner did not file a second state habeas application until February

27, 2002. After this second state habeas was denied on May 22, 2002, petitioner did not complete

and sign the current federal habeas application until September 3, 2003, almost 1 1⁄2 years later. 

Petitioner’s federal habeas petition is clearly untimely.

To the extent, if any, petitioner argues the purported denial of copies of his court records

should equitably toll the limitations provision of 28 U.S.C. § 2254, such argument is without merit. 

Delays in the receipt of transcripts and court-records do not generally equate to an “rare and

exceptional” that justifies equitable tolling of the limitations period established by the AEDPA. 

Fadayiro v. United States, 30 F.Supp.2d 772, 780 (D.N.J. 1998); United States v. Van Poyck, 980

F.Supp. 1108, 1111 (C.D. Cal. 1997). Petitioner has provided nothing to show that the alleged

denial of records amounted to an “extraordinary circumstance” that entitles him to equitable tolling. 

See, e.g. Scott v. Johnson, 227 F.3d 260, 263 & n.3 (5 Cir. 2000), cert. denied, 532 U.S. 963, 121 th

S.Ct. 1498, 149 L.Ed.2d 383 (2001) (inability to obtain research materials does not warrant

equitable tolling);

Finally, even if this Court were to allow tolling for period of time during which petitioner

was purportedly denied his records (1996 to 2000), the instant federal habeas petition would still be

time barred. Petitioner asserts he received his records in 2000. Petitioner did not, however, pursue

state habeas corpus relief until February 27, 2002, and did not pursue federal habeas relief until

September 2, 2003, more than a year after the denial of his state habeas relief efforts. Petitioner

did not pursue his claims with diligence.

Petitioner’s federal habeas was due to be filed on or before January 14, 1998, but petitioner

 

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For purposes of determining the applicability of the statute of limitations, petitioner’s federal habeas application is 3

considered filed on the date it is placed in the prison mail system. Spotville v. Cain, 149 F.3d 374, 378 (5 Cir. 1998). th

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failed to deposit the instant application in the prison mail until September 3, 2003, said application

being filed of record on October 14, 2003. Consequently, petitioner’s federal habeas application is 3

time barred. Accordingly, it is the opinion of the undersigned Magistrate Judge that petitioner’s

federal habeas application should be dismissed as time barred. 

V.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States

District Judge that the Petition for Writ of Habeas Corpus by a Person in State Custody filed by

petitioner MICHAEL WAYNE PACE be DISMISSED as time barred.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and 

Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 3rd day of January 2006.

 

CLINTON E. AVERITTE 

UNITED STATES MAGISTRATE JUDGE

 

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* NOTICE OF RIGHT TO OBJECT*

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the file mark on the first page of this

recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the parties are

allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any objections must be

filed on or before the fourteenth (14th) day after this recommendation is filed. See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule

3.1, Local Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

 

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