IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

FREDDIE K. KING, ID # 1157843, )

Petitioner, )

vs. ) No. 3:05-CV-0037-D

 )

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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge a January 10, 2003 judgment of conviction and forty-year

sentence for possession of a controlled substance in Cause No. F99-55712-NR. Respondent is

Douglas Dretke, Director of TDCJ-CID. 

B. Procedural and Factual History

On December 16, 1999, the State indicted petitioner for possession of cocaine with two

enhancement paragraphs based on prior felony convictions for credit card abuse (Cause No. F96-

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 1 of 13 PageID 85
1

 “S.H. Tr.” denotes the state habeas records attached to Ex parte King, No. 28,368-02, slip op. (Tex. Crim. App. Sept.

15, 2004). 

2

 Scott Bryant represented petitioner through November 20, 2000. (See Mem. Supp. at 2-3.) 

3

 Catherine Gould represented petitioner in 2002 and 2003. (Mem. Supp. at 3.) 

4

 The Court notes that, in reply to the respondent’s motion to dismiss this action as time-barred, petitioner argues that

he filed an appeal but never received a response. (See Petr.’s Reply at 8th page (the pages of the reply brief are

unnumbered).) He further states that “[a]lthough he did not receive a direct appeal . . . he did seek collateral review .

. . by submitting [a] request to withdraw his plea, [a] request for an appeal; and by filing a complaint with the Board of

Disciplinary Appeals Appointed by the Supreme Court of Texas.” (Id.) He provides documentation which shows that

the Board of Disciplinary Appeals disposed of his disciplinary case against Attorney Gould on April 11, 2003. (See Ex.

A attached to Petr.’s Reply.) Despite the arguments in his reply brief, petitioner has not shown that he appealed his

conviction. Furthermore, he concedes in his state and federal petitions for writ of habeas corpus as well as his supporting

memorandum that he has filed no such appeal. (See Pet. at 2; S.H. Tr. at 3; Mem. Supp. at 3.)

2

33605-IS) and aggravated robbery with a deadly weapon (Cause No. F86-92065-UN). See S.H. Tr.1

at 47-48 (indictment). On October 23, 2000, petitioner entered into a plea bargain agreement

whereby he pled guilty to the possession charge and true to the enhancement paragraphs. See id. at

56-57. On November 20, 2000, the trial court placed him on deferred adjudication probation for

ten years.2 See id. at 55. 

On December 12, 2002, the State moved for an adjudication of guilt based upon six alleged

violations of conditions of probation. See id. On January 10, 2003, petitioner entered into a plea

agreement whereby he pled true to two of the six alleged probation violations in the motion for

adjudication. See id. at 58-60. On that same date, the court found that petitioner violated

conditions of his probation, adjudicated him guilty of the charged offense, found the enhancement

paragraphs true, entered judgment, and sentenced him to forty years imprisonment.3

 See id. at 51.

Petitioner filed no direct appeal regarding his possession conviction in Cause No. F99-55712-

NR. (See Pet. for Writ of Habeas Corpus (Pet.) at 2.)4 On April 13, 2004, petitioner filed a state

petition seeking habeas relief from his conviction. See S.H. Tr. at 2. On September 15, 2004, the

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 2 of 13 PageID 86
3

Texas Court of Criminal Appeals denied the petition without written order on the findings of the

trial court. Ex parte King, No. 28,368-02, slip op. at 1 (Tex. Crim. App. Sept. 15, 2004). 

Petitioner filed the instant petition on December 30, 2004, when he signed and placed it in

the prison mail system. (Pet. at 18); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999)

(recognizing that prisoners file their federal pleadings when they place them in the prison mail

system). As summarized in the memorandum in support of his petition, petitioner raises the following five claims in nineteen grounds for relief: 

(1) his sentence was illegally enhanced; (2) he was denied the effective assistance of

counsel (ten separate grounds for relief); (3) his sentence is illegal; (4) his plea was

involuntary (four separate grounds for relief); and [(5)] his conviction was the result

of a coerced confession . . . (three separate grounds for relief).

(See Mem. Supp. at 3.)

On March 18, 2005, respondent filed a motion to dismiss the instant action as barred by the

federal statute of limitations. (See Mot. Dismiss at 3-6.) On May 26, 2005, the Court received

petitioner’s reply to that response. (See Petr.’s Reply at 1.) 

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 3 of 13 PageID 87
4

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).

Petitioner does not rely upon subparagraph (C) for finding his § 2254 petition timely. (See

Petr.’s Reply. at 1-13.) Instead, petitioner argues that the period of limitations would commence

when his conviction became final, except that “he could not have discovered the factual predicate

of his claim until a date subsequent to the date of his conviction” and that a State-created impediment caused by a failure of the State to timely provide him a copy of court records and transcripts

prevented him from filing his federal petition until December 5, 2003. (Petr.’s Reply at 7-9.) Thus,

as § 2244(d)(1) relates to this case, the Court will calculate the one-year statute of limitations from

(A) the date petitioner’s conviction became final unless an impediment under (B) or a factual

predicate under (D) provides a later commencement date. 

A. Finality of Judgment of Conviction

Under 28 U.S.C. § 2244(d)(1)(A), a judgment of conviction becomes final at one of two

distinct points, i.e., “by the conclusion of direct review or the expiration of the time for seeking such

review.” Direct review encompasses a petition for writ of certiorari filed with the Supreme Court,

Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002), and ends “when the Supreme Court either

rejects the petition for certiorari or rules on its merits”, Roberts v. Cockrell, 319 F.3d 690, 694 (5th

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 4 of 13 PageID 88
5

 Although petitioner purports to challenge only the January 2003 judgment of conviction, he raises claims related to

the events of his guilty plea prior to the November 2000 placement on deferred adjudication probation. Petitioner’s

ability to appeal the November 2000 order that placed him on deferred adjudication probation expired thirty days

thereafter. See TEX. R. APP. P. 26.2(a)(1) (stating that “[t]he notice of appeal must be filed . . . within 30 days after the

day sentence was imposed or suspended in open court, or after the day the trial court enters an appealable order”). The

Fifth Circuit has held that orders of deferred adjudication probation are final judgments for purposes of AEDPA’s statute

of limitations. See Caldwell v. Dretke, 429 F.3d 521, 528-29 (5th Cir. 2005). However, the Court need not determine

when the claims related to the November 2000 order of deferred adjudication probation became final for purposes of

limitations. Because the instant action appears untimely even when commencing the limitations period from the later

January 2003 judgment of conviction, consideration of finality from the November order would not alter the outcome.

6

 Respondent submits that, because the thirtieth day fell on a Sunday, petitioner had until Monday, February 10, 2003,

to file his notice of appeal. (See Mot. Dismiss at 5 n.3.) 

5

Cir. 2003). When a “conviction does not become final by the conclusion of direct review, it becomes

final by ‘the expiration of the time for seeking such review.’” Id. The time for seeking direct review

“includes the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort.” Id. However, when the appeal process stops “before that

point, the conviction becomes final when the time for seeking further direct review in the state court

expires.” Id.

In this case, petitioner never formally commenced the direct appeal process. For purposes

of § 2244(d), his judgment of conviction thus became final thirty days after the trial court adjudicated him guilty and sentenced him, and he failed to appeal.5

 See Scott v. Johnson, 227 F.3d 260, 262

(5th Cir. 2000) (noting that a conviction becomes final under Texas law thirty days after the

defendant pled guilty and failed to file an appeal). Petitioner’s state judgment of conviction thus

became final on February 10, 2003.6

 That date commences the limitations period unless petitioner

shows an impediment or a factual predicate that provides a later commencement date.

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 5 of 13 PageID 89
6

B. Impediment

Petitioner alleges that “an unconstitutional ‘State Action’” prevented him from filing his federal habeas petition. (Petr.’s Reply at 7.) More specifically, he alleges that, because the State denied

him access to court transcripts and records until providing some records on December 5, 2003, the

limitations period commenced no earlier than that date. (Id. at 9.) 

Although petitioner attempts to invoke § 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 petition (2) by State action (3) in violation of the

Constitution or federal law.” Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). While 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 (7th Cir. 2002). That petitioner did not receive copies of state court

records until December 5, 2003, did not prevent him from timely filing the instant federal petition.

See Earls v. Johnson, No. 3:00-CV-1193-P, 2001 WL 238099, at *2 (N.D. Tex. Mar. 5, 2001) (finding

no State-created impediment when the petitioner did not receive his state court records when he

requested them and noting that such delay of itself does not prevent the filing of a federal petition

for writ of habeas corpus), adopted by 2001 WL 305860 (N.D. Tex. Mar. 29, 2001). Consequently,

the Court finds no State-created impediment that prevented petitioner from timely filing the instant

action. The one-year statute of limitations is therefore calculated from the date petitioner’s judgment of conviction became final or the date he knew or could have known through the exercise of

due diligence the factual basis of his claims.

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 6 of 13 PageID 90
7

 Although petitioner may have been ineligible for regular probation, see TEX. CODE CRIM. PROC. ANN. art. 42.12, §

3g(a)(1)(F) (Vernon Supp. 1999) (showing that the provision for judge-ordered community supervision does not apply

to defendants adjudged guilty of aggravated robbery), he remained eligible for deferred adjudication probation, see id. §

5 (showing that deferred adjudication probation was available). Petitioner’s legal basis for this claim thus appears flawed.

7

C. Factual Predicate

With regard to subparagraph (D), the date on which petitioner knew or should have known

with the exercise of due diligence the facts supporting his claims, petitioner proclaims “that he could

not have discovered the factual predicate of his claim until a date subsequent to the date of his

conviction.” (Petr.’s Reply at 7.) Despite that proclamation, he identifies no claim for which he

lacked knowledge of its factual predicate. He merely argues that he diligently pursued court documents until he received some documents in December 2003. That a petitioner may lack court

records or transcripts does not mean that he lacked knowledge of the factual basis for his claims.

Moreover, after reviewing the claims raised in the instant action, the Court concludes that petitioner

knew or should have known the factual predicate for each of his claims no later than January 10,

2003.

When the trial court placed him on deferred adjudication probation in November 2000,

petitioner would have known the factual basis for the claim that his sentence was illegal.7 At that

time, he also would have known the factual basis for his claim that he involuntarily pled guilty.

Furthermore, to the extent his claim of coerced confession relates to acts that occurred prior to his

placement on deferred adjudication probation, he would have known the factual basis for such claim

when he made the confession. 

To the extent the coerced-confession claim relates to events in 2002 and 2003, petitioner

would have known the factual basis for that aspect of the claim no later than January 10, 2003. In

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 7 of 13 PageID 91
8

addition, when the trial court sentenced him on January 10, 2003, he would have known the factual

predicate for his claim that his sentence was illegally enhanced. 

Petitioner’s claims of ineffective assistance also extends to acts and omissions of counsel

related to the plea proceedings in 2000 and the adjudication-of-guilt proceedings in 2002 and 2003.

Each claim of ineffective assistance relates to acts or omissions of counsel that occurred no later than

January 10, 2003. Petitioner presents nothing to show that he did not know the factual basis for

such claims on or before that date. The Court thus finds that he knew or should have known the

factual basis for such claims at that time. 

D. Conclusions Regarding Commencement Date

Petitioner’s judgment of conviction became final on February 10, 2003. The Court finds that

no State-created impediment prevented petitioner from timely filing the instant action. It further

finds 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. The federal statute of limitations thus commenced on February 10, 2003. Because

petitioner filed his petition more than one year after that date, a literal application of § 2244(d)(1)

renders his December 30, 2004 filing untimely.

III. TOLLING

A. Statutory Tolling

The AEDPA expressly and unequivocally provides that “[t]he 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.”

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 8 of 13 PageID 92
9

28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See also Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D.

Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling

on state application). In this instance, furthermore, petitioner indicates that he sought “collateral

review . . . by submitting [a] request to withdraw his plea, [a] request for an appeal; and by filing a

complaint with the Board of Disciplinary Appeals Appointed by the Supreme Court of Texas.”

(Petr.’s Reply at 8.) 

Whether the request to withdraw plea, request for appeal, or disciplinary complaint tolls the

limitation period depends on whether the document sought collateral “‘review’ of the judgment

pursuant to which [petitioner] is incarcerated.” Moore v. Cain, 298 F.3d 361, 367 (5th Cir. 2002).

As a prerequisite to statutory tolling pursuant to § 2244(d)(2), petitioner must have properly filed

an application for State collateral review. Duncan v. Walker, 533 U.S.167, 174-77 (2001) (recognizing that “State postconviction” is a form of collateral review). Neither petitioner’s request to

withdraw his plea nor his complaint with the Board of Disciplinary Appeals seek collateral review

of the judgment that resulted in his incarceration. Consequently, the filing of such documents does

not act to statutorily toll the limitations period. Furthermore, because a request for an appeal

invokes the direct review process, not the collateral review process, see Miller-El v. Cockrell, 537 U.S.

322, 340 (2003) (noting that an appeal constitutes direct review, and distinguishing it from collateral

review); Brecht v. Abrahamson, 507 U.S. 619, 634-35 (1993) (same), the purported request for appeal

does not statutorily toll the limitations period. In fact, had petitioner timely filed an appeal, such

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 9 of 13 PageID 93
10

filing would have delayed commencement of the limitations period rather than acting to toll the

period pursuant to § 2244(d)(2). 

In addition, when petitioner filed his state petition on April 13, 2004, the statutory limitations period had already expired because the limitations period commenced no later than February

10, 2003. It is well settled that a document, filed in state court after the limitations has expired, does

not operate to statutorily toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.

2000). 

For all of these reasons, the statutory tolling provision does not save the December 30, 2004

federal petition.

B. Equitable Tolling 

Petitioner appears to seek equitable tolling based upon his status as a pro se litigant who is

not well-versed in the law. (See Petr.’s Reply at 12-13.) He also seeks to equitably toll the one year

period of limitations based upon the State’s failure to provide court records. (See id. at 10-13.) 

The Fifth Circuit Court of Appeals held in Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998),

“as a matter of first impression, that the AEDPA one-year limitations period was a statute of

limitations, not a bar to federal jurisdiction . . . [and thus] could be equitably tolled, albeit only in

‘rare and exceptional circumstances.’” Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted). “Equitable tolling applies principally where [one party] is actively misled by the

[other party] about the cause of action or is prevented in some extraordinary way from asserting his

rights.” See 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)). “The doctrine of equitable tolling preserves a

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 10 of 13 PageID 94
8

 Petitioner relies upon Griffin v. Rogers, 308 F.3d 647 (6th Cir. 2002) for the proposition that he does not have the

burden to show that equitable tolling is warranted. Regardless of Griffin, this Court is bound by decisions of the Fifth

Circuit Court of Appeals. Consistent with Alexander, it thus places the burden on petitioner. 

11

[party’s] claims when strict application of the statute of limitations would be inequitable.” Davis,

158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). Nevertheless,

a petitioner “is not entitled to equitable tolling” unless he “diligently pursue[s] his § 2254 relief.”

Coleman, 184 F.3d at 403. “[S]uch tolling is available only when the petitioner meets the high

hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible

to file his petition on time.” Henderson v. Johnson, 1 F. Supp. 2d 650, 654 (N.D. Tex. 1998).

“[E]quity is not intended for those who sleep on their rights.” Covey v. Arkansas River Co., 865 F.2d

660, 662 (5th Cir. 1989). “The petitioner bears the burden of proof concerning equitable tolling,

and must demonstrate ‘rare and exceptional circumstances’ warranting application of the doctrine.”

Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (footnote omitted).8

1. Pro Se status and Ignorance of the Law

With regard to petitioner’s pro se status, equitable tolling is not warranted merely because a

petitioner proceeds pro se and is not well-versed in the law. “[I]gnorance of the law or of statutes

of limitations is insufficient to warrant tolling.” Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000).

That petitioner proceeds without counsel likewise does not warrant tolling. Id. at 171. Neither

unfamiliarity with the legal process nor “lack of representation during the applicable filing period

merits equitable tolling.” Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999). 

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 11 of 13 PageID 95
12

2. Lack of Transcripts and Court Records

“Delays in the receipt of transcripts and court records do not generally equate to an ‘extraordinary circumstance’ that justifies equitable tolling of the limitations period established by the

AEDPA.” Munguia v. Dretke, No. 3:02-CV-1453-R, 2004 WL 2254221, at *4 (N.D. Tex. Oct. 6,

2004) (findings, conclusions, and recommendation citing 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)),

accepted by 2004 WL 2389372 (N.D. Tex. Oct. 25, 2004). As was the case in Munguia, “[p]etitioner

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.” See id. In fact,

petitioner filed the instant action without obtaining a copy of court transcripts. (See Petr.’s Reply

at 8-9 (indicating that petitioner received some copies of court records on December 5, 2003, but

no transcript).) It thus appears that such access was unnecessary to present petitioner’s claims.

Petitioner has provided nothing to show that the alleged denial amounts to an extraordinary

circumstance that entitles him to equitable tolling. 

Petitioner has not shown that he was actively misled by the State about the cause of action

or was prevented in some extraordinary way from asserting his rights. He has not shown extraordinary circumstances beyond his control that made it impossible to file his petition on time. He failed

to file an appeal within the period prescribed by state statute. He filed no state collateral review

until the federal limitations period expired. He has not shown that he diligently pursued habeas

relief. Because petitioner has shown no entitlement to equitable tolling, the instant federal petition

falls outside the statutory period of limitations, and the Court should find it untimely.

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 12 of 13 PageID 96
13

III. EVIDENTIARY HEARING

Upon review of the pleadings filed herein and the proceedings held in state court as reflected

in the state-court records, an evidentiary hearing appears unnecessary.

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court FIND the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by the

statute of limitations, GRANT respondent’s motion to dismiss, and DISMISS the instant petition

for writ of habeas corpus with prejudice. 

SIGNED this 1st day of February, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

 Case 3:05-cv-00037-D Document 11 Filed 02/01/06 Page 13 of 13 PageID 97