IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WILLIE NELLOMS, § 

(TDCJ # 932846), §

Petitioner, §

VS. § CIVIL ACTION NO.4:05-CV-355-Y

§

DOUGLAS DRETKE, Director, §

T.D.C.J., Correctional §

Institutions Div., §

Respondent. § 

 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE 

 UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER 

This cause of action was referred to United States Magistrate

Judge pursuant to the provisions of 28 U.S.C. § 636(b), as

implemented by an order of the United States District Court for the

Northern District of Texas. The findings, conclusions and

recommendation of the United States Magistrate Judge are as

follows:

FINDINGS AND CONCLUSIONS:

A. NATURE OF THE CASE

 This is a petition for habeas corpus relief brought pursuant

to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Willie Nelloms, Texas Department of Criminal

Justice (TDCJ) No. 932846, is currently confined in the Roach Unit

in Childress, Texas. The Director of the TDCJ Correctional

Institutions Division is Respondent. No process has been issued to

Respondent in this case.

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 1 of 8 PageID 59
1

Section 2243, governing applications for writ of habeas corpus,

provides:

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to

show cause why the writ should not be granted, unless

it appears from the application that the applicant or

person is not entitled thereto.

28 U.S.C. § 2243(emphasis added). Rule 4 of the Rules Governing

Section 2254 Cases provides:

The clerk must promptly forward the petition to a

judge under the court’s assignment procedure, and the

judge must promptly examine it. If it plainly appears

from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district

court, the judge must dismiss the petition and direct

the clerk to notify the petitioner.

RULES GOVERNING SECTION 2254 CASES, RULE 4(emphasis added). 

2

C. LEGAL ANALYSIS

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts and 28 U.S.C. § 2243 both authorize a habeas

corpus petition to be summarily dismissed.1

 The Court of Appeals

for the Fifth Circuit recognized the district courts authority

under Rule 4 to examine and dismiss frivolous habeas petitions

prior to any answer or other pleading by the state. Kiser v.

Johnson, 163 F.3d 326, 328 (5th Cir. 1999). After review of the

petition under Rule 4 and under 28 U.S.C. § 2243, it appears the

person detained has filed this petition beyond the applicable

limitations period as set forth in 28 U.S.C. § 2244. See generally

Kiser, 163 F.3d at 329 (noting that although the § 2244 statute of

limitations is an affirmative defense, it is appropriate for a

district court to raise and consider such defense sua sponte).

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 2 of 8 PageID 60
2

Although Nelloms wrote that the PDR was denied on May 29, 2002, records

of the Texas Court of Criminal Appeals (TXCCA) indicate that the PDR filed

from appeal 02-00-252-CR (TXCCA# PD-0433-02) was not resolved until June 14,

2002, and thus the Court will assume the accuracy of the state record. The

Court takes judicial notice of the records of the TXCCA on its website

www.cca.courts.state.tx.us/opinions. See generally FED. R. EVID. 201; see

also Zimmerman v. Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice

taken of earlier habeas proceedings in different court). 

3

Nelloms v. Texas, 537 U.S. 960 (2002).

4 The Court also takes judicial notice of the relevant dates of record

of the state writ application proceeding in the office of the Tarrant County

District Clerk provided in its response to this Court’s inquiry as shown in

Exhibit 1. The Court has confirmed and takes judicial notice of the

disposition of Nelloms’s writ application in the TXCCA through a search on its

website www.cca.courts.state.tx.us/opinions for writ application number WR60,707-01. 

3

By this action, petitioner Willie Nelloms challenges his June

28, 2000 conviction for sexual assault of a child under seventeen,

case number 0750915D, in the 297th District Court of Tarrant County,

Texas. (Pet. at ¶¶ 1-4.) Nelloms’s conviction was affirmed on

direct appeal by the Court of Appeals of Texas, Second District, on

November 29, 2001, and his petition for discretionary review was

refused by the Texas Court of Criminal Appeals (TXCCA) on June 14,

2002.2 (Pet. at ¶ 9.) Nelloms then filed a petition for writ of

certiorari to the Supreme Court, which was denied on October 15,

2002.3 Nelloms then filed a state application for writ of habeas

corpus in state district court on August 2, 2004, and it was

ultimately denied without written order by the TXCCA on December

22, 2004.4 

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), imposed for the first time a statute of limitations on

federal petitions for writ of habeas corpus filed by state

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 3 of 8 PageID 61
5

In Title I of the AEDPA, sections 101-106 amend § 2244 and §§ 2253-2255

of chapter 153, Title 28, United States Code, governing all habeas corpus

proceedings in the federal courts. 110 Stat. 1217-1221. The amendments to

chapter 153 apply only to cases filed on or after the date the AEDPA was

signed into law. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

6

28 U.S.C.A. § 2244 (d)(1)-(2)(West Supp. 2004).

4

prisoners.5 This limitations provision, codified at 28 U.S.C. §

2244(d)(1)-(2), provides:

(d)(1) 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 that 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. 

(d)(2) 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.6

Petitioner Nelloms was convicted in June 2000, but the date on

which his judgment of conviction became final by the conclusion of

direct review or the expiration of the time for seeking such review

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 4 of 8 PageID 62
7

See Flanagan v. Johnson, 154 F.3d 196, 201-02 (5th Cir. 1998)(applying

to the computation of the AEDPA one-year limitations period the directive in

Federal Rule of Civil Procedure 6(a) regarding not counting the day of an act

or event in computing the relevant time).

8

A pro se prisoner’s habeas corpus petition is constructively filed, for

the purposes of the AEDPA, when the prisoner delivers the papers to prison

authorities for mailing to the district court. Spotville v. Cain, 149 F.3d

374, 378 (5th Cir. 1998); see also Sonnier v. Johnson, 161 F.3d 941, 944-45

(5th Cir. 1998). Although the Court has not been provided with any specific

information as to the date of delivery of the petition to prison officials,

the inmate account certificate Nelloms submitted at the same time as his §

2254 petition is dated on May 20, 2005, and thus that is the earliest date on

which this § 2254 petition could be deemed filed under the mailbox rule. 

9

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

5

is on October 15, 2002, the date the Supreme Court denied the

petition for writ of certiorari. Thus, one year from the date on

which Nelloms’s judgment of conviction became final was October 15,

2003.7 Nelloms’s petition under 28 U.S.C. § 2254 was not file

stamped in federal district court until May 25, 2005.8

 

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

that remedy is not counted toward the one-year limitation period.9

Thus, each day during which a properly filed application for state

post-conviction or other collateral review is pending, the

limitation period is extended. Petitioner Nelloms, however, did

not file a state application for writ of habeas corpus challenging

the conviction made the basis of this petition until August 2,

2004, almost 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 Nelloms’s state application for writ

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 5 of 8 PageID 63
10Of course, § 2244(d)(1) lists three other dates upon which the

limitations period might otherwise commence, but Nelloms has not claimed that

any of the necessary circumstances apply to his petition, and none of the

substantive grounds asserted by Nelloms cause the Court to believe that any of

the other respective limitations-commencement categories applies. See 28

U.S.C.A. § 2244(d)(1)(B)-(D)(West Supp. 2004).

6

of habeas corpus was pending does not extend the one-year

limitation period of § 2244(d)(1).

It plainly appears from the face of the petition for writ of

habeas corpus, and from records of which the Court can take

judicial notice, that petitioner Willie Nelloms’s § 2254 petition

was constructively filed in May 2005, beyond the one-year

limitation period set forth in 28 U.S.C. § 2244(d)(1).10 Under the

circumstances, summary dismissal is appropriate. 

 RECOMMENDATION

It is therefore RECOMMENDED that Willie Nelloms’s Petition For

Writ of Habeas Corpus under 28 U.S.C. § 2254 be summarily DISMISSED

WITH PREJUDICE as filed beyond the one-year limitation period set

forth in 28 U.S.C. § 2244(d)(1).

 NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the

right to serve and file written objections to the United States

Magistrate Judge’s proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 6 of 8 PageID 64
7

copy of this document. The court is extending the deadline within

which to file specific written objections to the United States

Magistrate Judge’s proposed findings, conclusions and recommendation until July 11, 2005. The United States District Judge need

only make a de novo determination of those portions of the United

States Magistrate Judge’s proposed findings, conclusions, and

recommendation to which specific written objection is timely made.

See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above

a specific written objection to a proposed factual finding or legal

conclusion will bar a party, except upon grounds of plain error or

manifest injustice, from attacking on appeal any such proposed

factual finding and legal conclusion if it has been accepted by the

United States District Judge. See Douglass v. United Services Auto

Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)(en banc); Carter v.

Collins, 918 F. 2d 1198, 1203 (5th Cir. 1990).

ORDER

Under 28 U.S.C. § 636, it is ORDERED that Petitioner is

granted until July 11, 2005 to serve and file written objections to

the United States Magistrate Judge’s proposed findings, conclusions

and recommendation. 

It is further ORDERED that the above-styled and numbered

action, previously referred to the United States Magistrate Judge

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 7 of 8 PageID 65
8

for findings, conclusions and recommendation, be and is hereby,

returned to the docket of the United States District Judge.

SIGNED June 20, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:05-cv-00355-Y Document 6 Filed 06/20/05 Page 8 of 8 PageID 66