IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT HARRIS BRINSTON, )

#1141091, ) 

Petitioner, )

)

v. ) 3:05-CV-1701-B

)

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, )

Correctional Institutions Division, )

Respondents. )

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 District

Court in implementation thereof, this cause has been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate

Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for writ of habeas corpus filed by a state inmate

pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is presently incarcerated at the Price Daniel Unit of the Texas

Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in

Snyder, Texas. Respondent is the Director of TDCJ-CID. The court issued process in

this case.

Statement of Case: Following his plea of not guilty, a jury convicted Petitioner of

aggravated sexual assault of a child in Criminal District Court No. 1 of Dallas County,

Texas, in Cause No. F99-30828-KH. (Petition (Pet.) at 2). Punishment was assessed at

 

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1 For purposes of this recommendation, the petition is deemed filed on

August 19, 2005, the date on which Petitioner certifies placing it in the prison mail

system. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (a federal petition is

deemed filed for determining application of the AEDPA when the prisoner tenders it to

prison officials for mailing). 

2

twenty years confinement. (Id.). His conviction was affirmed on appeal. Brinston v.

State, No. 11-03-00053-CR (Tex. App. – Eastland Mar. 4, 2004, no pet.) (unpublished).

Thereafter, Petitioner filed his first federal petition. See Brinston v. Dretke,

3:05cv0327-K (N.D. Tex. filed Feb. 15, 2005). On March 1, 2001, the undersigned

Magistrate Judge filed findings and conclusions, recommending that the petition be

dismissed without prejudice for failure to exhaust state court remedies. The

recommendation cautioned Petitioner that the habeas corpus statute imposed a one-year

statute of limitations for filing federal habeas corpus petitions, and that this provision

would be applicable to any subsequent petition that Petitioner may file in this court. Id.

at n. 1 p. 3. Petitioner did not object and on March 22, 2005, the District Court adopted

the recommendation and dismissed the habeas petition. 

On March 18, 2005, four days before the dismissal of his first federal petition,

Petitioner filed a state habeas application pursuant to art. 11.07, Texas Code of Criminal

Procedure. Ex parte Brinston, No. 62,413-01, at 2. Texas Court of Criminal Appeals

denied the application without written order on July 27, 2005. 

In this federal petition, filed on August 23, 2005, Petitioner alleges the trial court

violated his Fifth Amendment rights during the punishment phase of the trial when the it

remarked that Petitioner would testify, although he ultimately did not do so. (Pet. at 7).1

 

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3

In response to this court’s order, Respondent filed an answer seeking dismissal of

the petition as time barred. Alternatively, Respondent asserts the petition is meritless. 

Petitioner has not filed a reply. 

Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) establishes a one-year statute of limitations for state inmates seeking

federal habeas corpus relief. See 28 U.S.C. § 2244(d).

The one-year period is calculated from the latest of either (A) the date on which

the judgment of conviction 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 28 U.S.C. § 2244(d)(1)(A)-(D).

Petitioner has alleged no state-created impediment under subparagraph (B) that

prevented him from filing his federal petition. Nor does he base his petition on any new

constitutional right under subparagraph (C). With regard to subparagraph (D), the Court

determines 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. Thus, the court will calculate the one-year statute

of limitations from the date Petitioner's conviction became final at the conclusion of

direct review or upon the expiration of the time for seeking such review. See 28 U.S.C. §

2244(d)(1)(A).

 

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2 Pursuant to Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), a federal

petition is deemed filed for determining application of the AEDPA when the prisoner

tenders it to prison officials for mailing. Here Petitioner failed to include the date on

which he signed his petition. (See Petition at 9). Moreover, his brief in support of the

petition is neither signed nor dated. Therefore, absent additional information, the court is

bound by the filing date of June 2, 2005. Nevertheless, the long delays in this case would

render irrelevant any benefit of the mailbox rule.

4

Petitioner's conviction became final for purposes of the one-year period on April

3, 2004, thirty days after the Court of Appeals affirmed the judgment of conviction. See

TEX. R. APP. P. 68.2(a) (effective September 1, 1997). The one-year period began to

run on April 4, 2004, the day after Petitioner’s conviction became final. See Flanagan v.

Johnson, 154 F.3d 196, 202 (5th Cir.1998). As of March 18, 2004, the date on which the

Dallas County District Clerk filed the art. 11.07 application, see Ex parte Brinston, No.

WR-62,413-01, at 2, 349 days of the one-year limitation period had elapsed. The state

application remained pending until July 27, 2005, during which time the one-year period

was tolled pursuant to 28 U.S.C. § 2244(d)(2). See also Sonnier v. Johnson, 161 F.3d

941, 944 (5th Cir.1998); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir.1998). The oneyear period resumed running on July 28, 2005, and expired sixteen days later on August

12, 2005, seven days before Petitioner filed the federal petition in this case. Therefore,

the federal petition is time barred absent equitable tolling.2

Petitioner certifies mailing the art. 11.07 application on March 10, 2005, eight

days before its filing by the Dallas County District Clerk. (Pet. at 3). Insofar as he relies

on the federal mailbox rule, his claim is meritless. The federal mailbox rule does not

apply to the filing of state writs. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)

(declining to extend the mailbox rule to the determination of filing dates for state habeas

 

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5

applications). Instead, when a prisoner asserts that his ability to file a federal habeas

petition has been affected by a state proceeding, a court should examine the facts to

determine whether the prisoner is entitled to equitable tolling. Id.

Petitioner does not present “rare and exceptional” circumstances warranting

equitable tolling, see Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), or that he

diligently pursued his rights, United States v. Patterson, 211 F.3d 927, 93 (5th Cir. 2000).

On the contrary, his own allegations reflect that he did not pursue “the process with

diligence and alacrity.” Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh’g

granted in part, 223 F.3d 797 (5th Cir. 2000). He delayed the filing of his art. 11.07

application by 349 days -- eleven months and fifteen days -- after his conviction became

final. Following the denial of his state application, he delayed 23 days before submitting

this federal petition for filing, although this Court had specifically advised him about the

one-year limitation period. These delays – clearly of Petitioner’s own making – do not

evince due diligence. “[E]quity is not intended for those who sleep on their rights. 

Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Therefore, Petitioner is not entitled

to equitable tolling. 

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court dismiss the

habeas corpus petition as barred by the one-year statute of limitations. See 28 U.S.C. §

2244(d). 

A copy of this recommendation will be transmitted to Petitioner, and counsel for

Respondent.

Signed December 12, 2005.

____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby

notified that you must file your written objections within ten days after being served with

a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79

F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these

proposed findings of fact and conclusions of law within such ten-day period may bar a de

novo determination by the district judge of any finding of fact or conclusion of law and

shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to proposed findings of fact and conclusions of law accepted by the district

court.

 

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