IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DAVID C. ELLZEY, §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-0442-A

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the 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:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner David C. Ellzey, TDCJ # 1116224, is in custody of the Texas Department of

Criminal Justice, Correctional Institutions Division, in Gatesville, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In March 2002, Ellzey was charged by indictment in the Criminal District Court Number

 

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Three of Tarrant County, Texas, with aggravated robbery with a deadly weapon. (Clerk’s R. at 3.)

On July 17, 2002, a jury found Ellzey guilty of the offense, and the trial court assessed his

punishment at forty-five years’ imprisonment. (Id. at 33.) On April 10, 2003, the Second District

Court of Appeals of Texas affirmed the trial court’s judgment. Ellzey v. Texas, No. 2-02-296-CR,

slip op. (Tex. App.–Fort Worth Apr. 10, 2003) (not designated for publication). Ellzey did not file

a petition for discretionary review in the Texas Court of Criminal Appeals. (Petition at 3.) Ellzey

filed a sate application for writ of habeas corpus raising one or more of the claims asserted herein

on January 12, 2004, which was denied without written order by the Texas Court of Criminal

Appeals on the findings of the trial court on December 8, 2004. Ex parte Ellzey, Application No.

59,233-01, at cover. Ellzey filed this federal petition for writ of habeas corpus on July 2, 2005.

D. ISSUES 

Ellzey raises three grounds for relief, in which he claims (1) he was denied his right to

effective assistance of trial counsel, (2) the evidence was insufficient to support his conviction, and

(3) he is actually innocent of the offense. (Petition at 6-10 & Memorandum in Support at 2.) 

E. STATUTE OF LIMITATIONS

Among other things, Dretke argues that Ellzey’s petition should be dismissed with prejudice

as time-barred. (Resp’t Answer at 2-4.) 28 U.S.C. § 2244(d) imposes a one-year statute of

limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section

2244(d) provides:

(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

 

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Ellzey makes no allegations that the state imposed an unconstitutional impediment to the

filing of his petition for federal relief, that the Supreme Court has announced a new rule(s)

applicable to his claims, or that the factual predicate of his claims could not have been discovered

sooner through the exercise of due diligence. Therefore, the statutory exceptions embodied in §

2244(d)(1)(B)-(D) do not apply.

2

Ellzey contends he believed his conviction became final for purposes of subsection (A) on

October 24, 2004, the date the appellate court issued its mandate. (Pet’r Traverse at 1-3.) This

argument fails for two reasons. First, the state court records indicate that the appellate court’s

mandate issued on October 24, 2002. Second, the issuance of the mandate by the state court of

(continued...)

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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 the 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.

(2) The time during which a properly filed application for State postconviction 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.

Id. § 2244(d)(1)-(2).

Under subsection (A), applicable to this case, the limitations period began to run on the date

on which the judgment of conviction became final by the expiration of the time for seeking direct

review.1 For purposes of this provision, Ellzey’s conviction became final upon expiration of the

time that he had for filing a petition for discretionary review in the Texas Court of Criminal Appeals

on May 10, 2003.2 See Tex. R. App. P. 68.2(a); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.

 

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(...continued)

appeals is of no consequence for purposes of calculating the federal limitations period under

subsection (A). See Roberts, 319 F.3d at 693-95.

3

Ellzey does not allege nor do the circumstances of this case warrant equitable tolling, which

is available only in rare and exceptional circumstances when an extraordinary factor beyond the

petitioner’s control prevents him from filing in a timely manner. See Davis v. Johnson, 158 F.3d

806, 811 (5th Cir. 1998). 

4

2003). Thereafter, the one-year limitations period began to run and closed on May 10, 2004, absent

any tolling. Ellzey’s state habeas application filed on January 12, 2004, tolled the limitations 331

days, making his petition due on or before April 6, 2005.3

 Thus, Ellzey’s petition filed on July 2,

2005, is untimely. 

II. RECOMMENDATION

Ellzey’s petition for writ of habeas corpus should be dismissed with prejudice as time-barred.

III. 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 specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a 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 December 9, 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 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

 

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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 or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 9, 2005,

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED November 18, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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