IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIE B. JACKSON, #1163445, ) 

Petitioner, )

)

v. ) 3:05-CV-1135-K

)

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, )

Correctional Institutions Division, )

Respondents. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District

Court in implementation thereof, this cause has been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate

Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for writ of habeas corpus filed by a state inmate

pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is presently incarcerated at the Huntsville Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in

Huntsville, Texas. Respondent is the Director of TDCJ-CID. The court did not issue

process in this case, pending preliminary screening. 

Statement of Case: Following his plea of not guilty, a jury convicted Petitioner of

aggravated robbery in the 282nd Judicial District Court of Dallas County, Texas, in

Cause No. F02-01774-NS. (Petition (Pet.) at 2). Punishment was assessed at ten years

 

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1 The Dallas County District Clerk’s Office has confirmed that Petitioner’s

art. 11.07 application was filed in the convicting court on October 27, 2004. 

2 On June 6, 2005, the magistrate judge issued a show cause order,

informing Petitioner of the one-year statute of limitations and granting him thirty days to

show cause why his petition should not be dismissed as barred by the limitation period. 

2

confinement. (Id.). His conviction was affirmed on appeal. Jackson v. State, No. 05-03-

00551-CR (Tex. App. – Dallas Oct. 27, 2003, no pet.) (unpublished). 

Thereafter, Petitioner submitted a state habeas application pursuant to art. 11.07,

Texas Code of Criminal Procedure, which he claims to have filed on September 20,

2004. (Petitioner’s Response to Show Cause Order (Pet’s Resp.) at 2, filed on July 8,

2005). The Texas Court of Criminal Appeals denied the application without written

order on February 9, 2005. (Id. at 3). See also Ex parte Jackson, WR-60-819-01,

www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=231150 (Docket Sheet

information generated from the Texas Judiciary Online – Court of Criminal Appeals).1

In this federal petition, filed on June 2, 2005, Petitioner alleges (1) his

identification was not established beyond a reasonable doubt; (2) his sentence was

unreasonably enhanced on the basis of two prior convictions; (3) the indictment was

defective and invalid; and (4) his sentence was illegal in light of the unreasonable

enhancement. (Pet. at 7-8).

Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking

federal habeas corpus relief. See 28 U.S.C. § 2244(d). The court may raise the

affirmative defense of the statute of limitations sua sponte. See Kiser v. Johnson, 163

F.3d 326 (5th Cir. 1999).2

 

 

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Petitioner filed his response on July 8, 2005.

3

The one-year period is calculated from the latest of either (A) the date on which

the judgment of conviction became final; (B) the date on which an 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 Supreme Court initially recognizes a new constitutional right

and makes the right retroactively applicable to cases on collateral review; or (D) the date

on which the facts supporting the claim became known or could have become known

through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that

prevented him from filing his federal petition. Nor does he base his petition on any new

constitutional right under subparagraph (C). With regard to subparagraph (D), the Court

determines that the facts supporting the claims raised in the instant petition for habeas

relief became known or could have become known prior to the date Petitioner's state

judgment of conviction became final. Thus, the court will calculate the one-year statute

of limitations from the date Petitioner's conviction became final at the conclusion of

direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. §

2244(d)(1)(A).

Petitioner's conviction became final for purposes of the one-year period on

November 26, 2003, thirty days after the Court of Appeals affirmed the judgment of

conviction. See TEX. R. APP. P. 68.2(a) (effective September 1, 1997). Although a

mandate was issued on January 28, 2004, as Petitioner correctly asserts (Pet’s Resp. at 2),

 

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3 Pursuant to Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), a federal

petition is deemed filed for determining application of the AEDPA when the prisoner

tenders it to prison officials for mailing. Here Petitioner failed to include the date on

which he signed his petition. (See Petition at 9). Moreover, his brief in support of the

petition is neither signed nor dated. Therefore, absent additional information, the court is

bound by the filing date of June 2, 2005. Nevertheless, the long delays in this case would

render irrelevant any benefit of the mailbox rule.

4

that date does not control the limitation analysis in this case. The Fifth Circuit has held

that issuance of a mandate does not determine when a state conviction becomes final for

purposes of the one-year limitation period. See Roberts v. Cockrell, 319 F.3d 690, 693-

695 (5th Cir. 2003). Petitioner’s arguments to the contrary raised in his response to the

show cause order (see Pet’s Resp. at 1-2) should, therefore, be rejected. 

The one-year period began to run on November 27, 2003, the day after

Petitioner’s conviction became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th

Cir.1998). As of October 27, 2004, the date on which the Dallas County District Clerk

filed the art. 11.07 application, see note 1 supra, 335 days of the one-year limitation

period had elapsed. The state application remained pending until February 9, 2005,

during which time the one-year period was tolled pursuant to 28 U.S.C. § 2244(d)(2). See

also Sonnier v. Johnson, 161 F.3d 941, 944 (5th Cir.1998); Fields v. Johnson, 159 F.3d

914, 916 (5th Cir.1998). The one-year period resumed running on February 10, 2005,

and expired 30 days later on March 12, 2005– more than 82 days before Petitioner filed

the federal petition in this case on June 2, 2005. Therefore, the federal petition is time

barred absent equitable tolling.3

Petitioner alleges submitting the art. 11.07 application on September 20, 2004,

more than one month before its filing by the Dallas County District Clerk. (Pet’s Resp.

 

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4 Even assuming arguendo that the art. 11.07 was filed in the convicting

court on September 20, 2004, the petition would still be untimely. Pursuant to this

assumption, 298 days of the one-year period elapsed between the date on which the oneyear period began to run and September 20, 2004, the alleged date of filing of the state

application. Following the denial of the state application, only 68 days of the limitation

period remained, or until April 19, 2005. The federal petition was not filed until forty

four days later on June 2, 2005.

5

at 2-3); but see n. 1, supra. Insofar as he relies on the federal mailbox rule, his claim is

meritless. The federal mailbox rule does not apply to the filing of state writs. Coleman

v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (declining to extend the mailbox rule to the

determination of filing dates for state habeas applications). Instead, when a prisoner

asserts that his ability to file a federal habeas petition has been affected by a state

proceeding, a court should examine the facts to determine whether the prisoner is entitled

to equitable tolling. Id.4

Petitioner does not present “rare and exceptional” circumstances warranting

equitable tolling, see Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), or that he

diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 93 (5th Cir. 2000).

He merely argues the prosecuting officer delayed in submitting a response to the state

writ beyond the statutory fifteen-day period, and the trial court failed to issue its findings

and conclusions within the requisite twenty-day period. (Pet’s response at 3). These

delays, however, do not appear to have hindered Petitioner. On the contrary they

extended the period under which the one-year limitation period was tolled.

Moreover, Petitioner’s own allegations reflect that he did not pursue “the process

with diligence and alacrity.” Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000),

reh’g granted in part, 223 F.3d 797 (5th Cir. 2000). He delayed the filing of his art. 11.07

 

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6

application by approximately ten months after his conviction became final. Following

the denial of his state application, he waited almost an additional four months before

submitting this federal petition for filing. These delays – clearly of Petitioner’s own

making – do not evince due diligence. “[E]quity is not intended for those who sleep on

their rights. Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Therefore, Petitioner

is not entitled to equitable tolling. 

RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court dismiss the

habeas corpus petition as barred by the one-year statute of limitations. See 28 U.S.C. §

2244(d). 

A copy of this recommendation will be transmitted to Petitioner Willie B.

Jackson, #1163445, TDCJ, Huntsville Unit, 815 12th Street, Huntsville, Texas 77348.

Signed this 20th day of September, 2005.

 

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby

notified that you must file your written objections within ten days after being served with

a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79

F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these

proposed findings of fact and conclusions of law within such ten-day period may bar a de

novo determination by the district judge of any finding of fact or conclusion of law and

shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to proposed findings of fact and conclusions of law accepted by the district

court.

 

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