1As Brown’s written objections are dated March 6, 2005, and post-marked

from Amarillo, Texas on March 7, 2005, his objections, due to be filed by March

15, are deemed timely under the mailbox rule. See Thompson v. Raspberry, 993 F.2d

513, 515 (5th Cir. 1993)(“[A] pro se prisoner’s written objections to a

magistrate’s report and recommendations must be deemed filed and served at the

moment they are forwarded to prison officials for delivery to the district

court”).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

PRESTON EDWARD BROWN, Jr., §

Petitioner, §

 §

VS. § CIVIL ACTION NO.4:04-CV-870-Y 

 §

DOUGLAS DRETKE, Director, §

T.D.C.J., Correctional § 

Institutions Division, §

Respondent. § 

ORDER ADOPTING, AS MODIFIED, MAGISTRATE JUDGE'S

 FINDINGS AND CONCLUSIONS 

In this action brought by petitioner Preston Edward Brown Jr.

under 28 U.S.C. § 2254, the Court has made an independent review of

the following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on

February 22, 2005; and

3. The petitioner's written objections to the proposed

findings, conclusions, and recommendation of the United

States magistrate judge filed on March 21, 2005.1

The Court, after de novo review, concludes that Brown’s

objections to the magistrate judge’s findings and conclusions as to

the date from which the limitation period under 28 U.S.C. § 2244(d)

should run are sustained, to the extent that a portion of the

magistrate judge’s report--page 4, first paragraph through page 5,

first and second complete sentences--is not reached; but further

 

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2

concludes that Brown’s remaining objections must be overruled, and

that the petition for writ of habeas corpus should be dismissed

with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d)(1)-

(2), for the reasons stated in the remainder of the magistrate

judge’s report, and as set forth herein. 

As noted by the magistrate judge, the applicable limitations

period in this case is the “date on which the judgment became final

by the conclusion of direct review or the expiration of the time

for seeking such review” under 28 U.S.C. § 2244(d)(1)(A). In the

underlying state criminal cases made the basis of this petition,

the trial court, on February 11, 1999, initially deferred adjudication of guilt and entered unadjudicated judgments suspending the

imposition of sentence. (Ex parte Brown, No. 57,735-01 at 46 (cause

number 0699112D--aggravated sexual assault of a child under 14

years of age; Ex parte Brown, No. 57,735-02 at 43 (cause number

0699116D–sexual assault of a child under 17 years of age). Upon

the state’s petitions to proceed to adjudication of guilt in each

case, the trial court entered, on September 14, 2001, a judgment

adjudicating Brown guilty of aggravated sexual assault of a child

under 14 years of age, and a judgment adjudicating him guilty of

sexual assault of a child under 17 years of age, and imposed

concurrent sentences of confinement of eight years. (No.57,735-01

at 57; No.57,735-02 at 53.) Brown did not file a direct appeal from

either the February 11, 1999, unadjudicated judgments suspending

the imposition of sentence, or the September 14, 2001, judgments

adjudicating guilt. 

 

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2See Wilson v. Dretke, No. 3:02-CV-2734K, 2005 WL 170718, at *2 (N.D.Tex.

Jan. 21, 2005)(Kinkeade); see also Wilkinson v. Cockrell, 240 F.Supp. 2d 617,

621-22 (N.D.Tex. 2002)(McBryde). Under this analysis, the thirty days to seek

direct review under 28 U.S.C. § 2244(d)(1)(A) would have expired on March 13,

1999. 

3See, e.g. Standridge v. Cockrell, No.4:02-CV-462-Y, 2002 WL 31045977, at

*3 (N.D.Tex. Sep. 10, 2002); Crenshaw v. Cockrell, No.4:01-CV-405-Y, 2002 WL

356513, at *5 (N.D.Tex. Mar. 5, 2002); Daugherty v. Dretke, No. 3:01-CV-202-N,

2003 WL 23193260, at 5-8 (N.D.Tex. Dec. 24, 2003), findings and recommendation

adopted, 2004 WL 993822 (N.D.Tex. Feb. 12, 2004)(Godbey); Jamme V. Cockrell, No.

3:01-CV-1370-L, 2002 WL 1878403 at *3 (N.D.Tex. Aug. 12, 2002)(Lindsay); Cutrer

v. Cockrell, No. 3:01-CV-841-D, 2002 WL 1398558, at *2-5 (N.D.Tex. June 26, 2002)

(Fitzwater); Smith v. Cockrell, No.3-02-CV-0503-M, 2002 WL 1268016 at *2

(N.D.Tex. June 3, 2002)(Lynn); Jordan v. Cockrell, No.3:01-CV-1162-G, 2001 WL

1388015, at *2 (N.D.Tex. Nov. 6, 2001)(Fish); see generally Duarte v. Dretke, No.

3:03-CV-2463-D, 2005 WL 1025797, at *4-9 (N.D.Tex. April 29, 2005)(findings,

conclusions, and recommendation not yet adopted)(collecting cases and updating

analysis based upon recent Fifth Circuit cases). Under the analysis assuming the

expiration of time after the adjudication of guilt, the thirty days to seek such

direct review under 28 U.S.C. § 2244(d)(1)(A) in this case would have expired on

October 14, 2001. 

3

In the instant § 2254 petition, Brown claims that his

convictions were in violation of his right not to be subjected to

double jeopardy. The magistrate judge concluded that, as Brown’s

claims arise from the original plea proceedings, the running of the

§ 2244(d)(1)(A) limitations period commenced when the time for

direct review of the order deferring adjudication expired in 1999.

The magistrate judge’s conclusion on this issue stems from the fact

that the courts of this, the Northern District of Texas, are split,

having recognized two separate dates upon which to commence the

running of limitations under 28 U.S.C. § 2244(d)(1)(A) on such

procedural history–-either after the time expires to appeal the

deferral of adjudication,2 or after the time expires to appeal the

judgment adjudicating guilt.3 In this case, however, whether the

one-year period under 28 U.S.C. § 2244(d)(1)(A) could be said to

end on March 13, 1999, or on October 14, 2001, Brown’s petition

 

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428 U.S.C.A. § 2244(d)(2)(West Supp. 2004).

5See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). 

4

under § 2254 was filed too late. In this regard, assuming the later

limitations commencement date of October 14, 2001, Brown would have

had until October 14, 2002, to file. Brown did not file this

federal petition until December 2004. 

If a state prisoner files an application for state postconviction or other collateral review, the time taken to pursue

that remedy is not counted against the one-year limitation period.4

Thus, for each day that a properly filed application for state

post-conviction or other collateral review is pending, the

limitations period is extended. Petitioner Brown, however, did not

file the first state applications for writ of habeas corpus

challenging his convictions until November 19, 2003, over a year

after the one-year limitation period had expired. Thus, the tolling

provision of 28 U.S.C. § 2244(d)(2) does not apply, and the time

that Brown’s state applications for writ of habeas corpus were

pending does not extend the one-year limitations period of §

2244(d)(1).5 So, without reaching the magistrate judge’s recommendation that the limitations period under 28 U.S.C. § 2244(d)(1)(A)

should run from thirty days after the deferred adjudication

proceedings, but instead applying the later limitations commencement date analysis that the § 2244(d)(1)(A) limitation period began

thirty days after the judgments adjudicating guilt, this petition

was filed beyond the expiration of the one-year period of limitations.

 

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6See Crutcher v. Cockrell, 301 F.3d 656, 657 (5th Cir. 2002), citing

Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir.), cert. den’d, 537 U.S. 1072

(2002) and Lookingbill v. Cockrell, 293 F.3d 256, 262 (5th Cir. 2002), cert.

den’d, 537 U.S. 1116 (2003)(other citations omitted). 

5

In his written objections, petitioner Brown again argues for

equitable tolling of the limitations period. These objections are

rejected for the same reasons stated by the magistrate judge at

page 5, footnote 6, of his report, and for the reasons stated in

the respondent’s answer at pages 4-6. Also, Brown contends that he

did not timely receive notice of the September 2001 judgments

adjudicating guilt, and that such delay amounts to state action

that prevented him from filing, entitling him to a different

limitations commencement date under 28 U.S.C. § 2244(d)(1)(B). 

First, the Court notes this argument appears to be an effort

to circumvent Fifth Circuit authority that holds that finality

under 28 U.S.C. § 2244(d)(1)(A) depends upon when a judgment

becomes final, not when the petitioner receives notice or becomes

aware that the judgment is final.6 Furthermore, this Court doubts

that the inaction of a court could be deemed “State action” under

§ 2244(d)(1)(B), but even if so, Brown has not shown that the

failure to notify him of the issuance of a judgment is a violation

of the Constitution or laws of the United States, nor has he shown

that he was prevented from filing. Brown’s objection based upon §

2244(d)(1 )( B) is overruled. 

 Having rejected Brown’s arguments that the limitations period

commenced under § 2244(d)(1)(B) and that he is entitled to

equitable tolling, but holding that the limitations period for

 

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6

challenges to a proceeding in which the Court initially defers

adjudication does not commence, for purposes of 28 U.S.C. §

2244(d)(1)(A), until the expiration of the time for seeking direct

review of the adjudication of guilt, the Court concludes that

Brown’s petition under 28 U.S.C. § 2254 is barred by the one-year

period of limitations and must be dismissed with prejudice.

 It is therefore ORDERED that the findings, conclusions, and

recommendation of the magistrate judge, except as modified with

regard to the applicable date of finality under 28 U.S.C. §

2244(d)(1)(A), be, and are hereby, ADOPTED.

It is further ORDERED that the petition for writ of habeas

corpus under 28 U.S.C. § 2254 be, and is hereby, DISMISSED WITH

PREJUDICE.

SIGNED May 31, 2005.

 

 

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