IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

STEVEN LEIGH NASH, §

Petitioner, §

§

v. § Civil Action No. 4:06-CV-0012-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 Steven Leigh Nash, TDCJ # 00801506, is in custody of the Texas Department of

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

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

Correctional Institutions Division.

 

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“1State Habeas R.,” “2State Habeas R.,” “3State Habeas R.,” “4State Habeas R.,” and

“5State Habeas R.,” refer to the records for Nash’s state habeas Application Nos. 60,157-01 through

60,157-05, respectively.

2

C. FACTUAL AND PROCEDURAL HISTORY

In 1996, Nash was charged by five separate indictments with aggravated sexual assault of

a child (Case Nos. 0619202D and 0619211D) and indecency with a child (Case Nos. 0619387D,

0619401D and 0619390D), in the Criminal District Court Number One of Tarrant County, Texas.

On July 28, 1997, Nash entered open pleas of guilty to the charges in the indictments, and, on July

31, 1997, he was sentenced by the state trial court. (1State Habeas R. at 57-63; 2State Habeas R.

at 60-66; 3State Habeas R. at 59-65; 4State Habeas R. at 60-66; 5State Habeas R. at 59-65.)1

 Nash

did not directly appeal his convictions or sentences. (Petition at 3.) On February 24, 2004, Nash

filed five applications for writ of habeas corpus in state court, one for each case, raising the

ineffective assistance claims now presented, which were denied without written order by the Texas

Court of Criminal Appeals on the findings of the trial court on December 15, 2004. Ex parte Nash,

Application Nos. 60,157-01 through 60,157-05, at covers. Nash filed this federal petition for writ

of habeas corpus on January 4, 2006. As ordered, Dretke has filed a preliminary response and

documentary exhibits addressing only the issue of limitations, to which Nash has filed a reply. 

D. ISSUES 

Nash raises one ground for relief in which he asserts various instances of ineffective

assistance of counsel. (Petition at 7.) 

E. STATUTE OF LIMITATIONS

Dretke argues that Nash’s federal petition for writ of habeas corpus should be dismissed with

prejudice because his claims are time-barred. (Resp’t Preliminary Resp. at 1-5.) 28 U.S.C. §

2244(d) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief.

 

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There are no allegations that the state imposed an unconstitutional impediment to the filing

of Nash’s petition for federal relief, that the Supreme Court has announced a new rule(s) applicable

to Nash’s 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.

3

August 30, 1997, was a Saturday.

3

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

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 judgments of conviction became final by the expiration of the time for seeking direct

review.2

 For purposes of this provision, the judgments of conviction became final and the one-year

limitations period began to run upon expiration of the time that Nash had for filing timely notices

of appeal on September 1, 1997,3 and closed one year later on September 1, 1998, absent any

 

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applicable tolling. See TEX. R. APP. P. 26.2; Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.

1998). 

Nash’s state habeas applications, filed on February 24, 2004, after limitations had already

expired, did not operate to toll the federal limitations period under § 2244(d)(2). See Scott v.

Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Nash demonstrated exceptional circumstances

that prevented him from filing a timely petition to warrant equitable tolling of the limitations period.

See Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Turner v. Johnson, 177 F.3d 390, 391-

92 (5th Cir. 1999). Nash avers that he only found out in 2001 that he could attack his convictions

through the use of writs. (Pet’r Reply at 2.) However, mere ignorance of the law or lack of

knowledge of filing rules or deadlines does not justify equitable tolling. See Felder, 204 F.3d at

171-72; Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). Nor does a claim of actual innocence.

See Felder, 204 F.3d at 171.

Nash’s federal petition filed on January 4, 2006, was filed beyond the limitations period and

is, therefore, untimely.

II. RECOMMENDATION

Nash’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 May 10, 2006. The United States District Judge need only make a de

 

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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

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 May 10, 2006, 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 April 19, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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