IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSEPH L. McNARY, #450899, )

Petitioner, )

)

v. ) 3:05-CV-0519-G

)

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

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, the subject cause has been referred to the United States Magistrate

Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by

his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

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

pursuant to 28 U.S.C. § 2254. 

Parties: Petitioner is presently confined at the Powledge Unit of the Texas Department of

Criminal Justice -- Correctional Institutions Division (TDCJ-CID) in Palestine, Texas. 

Respondent is the Director of TDCJ-CID. The court has not issued process in this case. 

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

possession of cocaine in the 195th Judicial District Court of Dallas County, Texas, Cause No.

F87-93312-KN. (Petition (Pet.) at 2). Punishment was assessed at twenty-eight years

imprisonment. (Id.). Petitioner’s conviction was affirmed on direct appeal. (Id. at 3).

 

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1 In his response filed on May 2, 2005, Petitioner alleged that his art. 11.07

application was filed in October of 2003. The office of the undersigned magistrate judge called

the Dallas County District Clerk’s Office on May 16, 2005, to verify the date of filing of his art.

11.07 application.

2 While Petitioner filed a fifth art. 11.07 application on May 26, 2004, which was

denied on July 21, 2004, that action does not relate to the conviction at issue in this case. See In

re McNary, No. WR17,248-05, http://www.cca.courts.state.tx.us/opinions/Case.asp?FilingID

=227397 (Docket Sheet information generated from the Texas Judiciary Online – Court of

Criminal Appeals).

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). However, he obtained a certificate of inmate trust account on March 8, 2005,

which he mailed to this Court along with his petition and request for leave to proceed in forma

pauperis. (See Petition at 9, and Motion for Leave to Proceed In Forma Pauperis). Therefore,

for purposes of this recommendation, the petition is deemed filed on March 8, 2005, the earliest

2

Petitioner was subsequently released on parole/mandatory supervision. He remained on

parole/mandatory supervision until January 10, 2003, when his parole/mandatory supervision

was revoked and his street-time credits were forfeited. (Id. at 5 and Memorandum in Support

attached to the Pet.). 

On October 7, 2003, Petitioner filed his fourth state application for habeas corpus relief

pursuant to Texas Code of Criminal Procedure art. 11.07, raising the claims at issue in this case. 

(Pet. At 3).1

 The Texas Court of Criminal Appeals denied the state application on February 4,

2004. See In re McNary, No. WR17,248-04, http://www.cca.courts.state.tx.us/opinions/Case.

asp?FilingID=222133 (Docket Sheet information generated from the Texas Judiciary Online –

Court of Criminal Appeals).2

In this habeas corpus action, filed on March 14, 2005, Petitioner challenges the

computation of his sentence under the Due Process and Ex Post Facto Clauses of the United

States Constitution. (Pet. ¶ 20).3

 

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possible date on which Petitioner could have placed it along with his certificate of trust account

in the prison mail.

4 On April 4, 2004, the magistrate judge informed Petitioner of the one-year statute

of limitations and granted him thirty days to state all reasons why his petition should not be

dismissed as barred by the limitation period. Petitioner filed his response to the court’s show

cause order on May 2, 2005.

5 The magistrate judge notes that Petitioner has not alleged a state-created

impediment under subparagraph (B) that prevented him from filing his federal petition. Nor

3

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).4

 

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 id. § 2244(d)(1)(A)-(D).

Subsection (D) – when a petitioner was or, with due diligence, should have been aware of

the predicate facts of his habeas claims – applies in the parole-revocation context. Heiser v.

Johnson, No. 00-10408 (5th Cir. June 8, 2001) (unpublished); see also Kimbrell v. Cockrell, 311

F.3d 361 (5th Cir. 2002) (one-year period ran from conclusion of prison disciplinary hearing,

when petitioner learned of loss of credits).5 

 

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does he base his petition on any new constitutional right under subparagraph (C). With regard to

subparagraph (A), the Court determines that the facts supporting the claims raised in the instant

petition for habeas relief could not have become known at the time Petitioner’s judgment of

conviction became final.

4

In this case, the very latest date on which Petitioner could or should have been aware of

the claims at issue in this case was on January 10, 2003, when his parole/mandatory supervision

was revoked. As of that date, Petitioner was on notice that his street-time credits had been

forfeited and that he would be serving the remainder of his sentence without the benefit of the

forfeited credits. Therefore, the one-year limitation period commenced to run at the latest on

January 11, 2003, the day after Petitioner’s parole was revoked. See Flanagan v. Johnson, 154

F.3d 196, 202 (5th Cir. 1998). As of October 7, 2003, the date on which Petitioner filed his art.

11.07 application, 269 days of the one-year limitation period had elapsed. The state application

remained pending until February 4, 2004, during which time the one-year period was statutorily

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 expired 96

days later on May 10, 2004, ten months before Petitioner filed the federal petition in this case. 

Therefore, the federal petition is time barred. 

In response to the Court’s show cause order, Petitioner explains that within a few days of

filing his state writ he began a three-month period during which he was repeatedly transferred

from one unit to another, until he reached his final destination on January 2, 2004, at the

Powledge Unit. The court liberally construes Petitioner to request equitable tolling of the oneyear limitation period. 

The one-year statute of limitations can be equitably tolled, but only in cases presenting

 

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“rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998);

Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713

(5th Cir. 1999). “‘The doctrine of equitable tolling preserves a plaintiff’s claims when strict

application of the statute of limitations would be inequitable.’” United States v. Patterson, 211

F.3d 927, 930-31 (5th Cir. 2000) (quoting Davis, 158 F.3d at 810). “‘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. American President Lines, 96 F.3d 124, 128 (5th

Cir. 1996)); see also Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). Neither “a

plaintiff’s unfamiliarity with the legal process nor his lack of representation during the

applicable filing period merits equitable tolling.” Turner v. Johnson, 177 F.3d 390, 392 (5th Cir.

1999). Moreover, a habeas petitioner bears the burden of proving that he is entitled to equitable

tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh’g granted in part, 223 F.3d

797 (5th Cir. 2000). 

Even when liberally construed, the pleadings in this case do not present rare and

extraordinary circumstances warranting equitable tolling. While Petitioner was in transit for

three months from October 2003 until January 2004 (see Response to Show Cause Order at 1-2),

that period post-dated the filing of his art. 11.07 application and, as a result, the one-year period

was already being tolled on statutory grounds under 28 U.S.C. § 2244(d)(2). See supra at 4. 

The court further notes that Petitioner’s own allegations reflect that he did not pursue “the

process with diligence and alacrity.” Phillips, 216 F.3d at 511. On the contrary Petitioner

waited ten months before even filing his art. 11. 07 application. After the denial of his state

 

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application, he waited more than one year before filing this federal petition. These delays –

clearly of Petitioner’s own making – do not constitute rare and extraordinary circumstances

warranting equitable tolling. “[E]quity is not intended for those who sleep on their rights. 

Fisher, 174 F.3d at 715.

Petitioner’s request for equitable tolling should be denied, and the petition for writ of

habeas corpus should be dismissed as barred by the one-year limitation period.

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). 

The Clerk will mail a copy of this recommendation to Petitioner Joseph L. McNary,

#450899, TDCJ, Powledge Unit, Rt. 2 Box 2250, Palestine, Texas75882.

Signed May 31, 2005.

___________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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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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