IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DAVID MILTON GUNDRUM, §

§

VS. § CIVIL ACTION NO. 4:05-CV-069-Y

 §(Consolidated with actions 4:04-

 § -CV-081-Y and 4:04-CV-114-Y) 

DOUGLAS DRETKE, Director, §

T.D.C.J., Correctional § 

Institutions Division, §

Respondent. § 

 OPINION AND ORDER DISMISSING PETITION UNDER 28 U.S.C. § 2254

Pending before the Court is the consolidated petition for writ

of habeas corpus under 28 U.S.C. § 2254 brought by David Milton

Gundrum. Although initially referred to the magistrate judge, this

case was returned to the district judge after the respondent moved

to consolidate the three cases. The Court has now consolidated

petitioner David Milton Gundrum’s three petitions for writ of habeas

corpus under 28 U.S.C. § 2254 into the cause number above first

listed. Because the respondent has filed an answer asserting the

ground that Gundrum’s consolidated petition is barred by the oneyear limitations provision of 28 U.S.C. § 2244(d), and Gundrum has

now filed a reply, the petition is ripe for consideration on the

issue of limitations.

By this consolidated action for habeas-corpus relief under 28

U.S.C. § 2254, petitioner David Milton Gundrum, TDCJ No. 1088250,

challenges his judgments of conviction for aggravated robbery in

cause numbers 0819397R, 0819384R, and 0819411R in the 372nd

Judicial District Court, Tarrant County, Texas. (Pets. ¶¶ 1-4.)

 

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1In 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. See 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).

2

Gundrum filed direct appeals, whereupon his convictions were

affirmed by the Texas Court of Appeals, Second District, on

November 15, 2002. Gundrum sought discretionary review, which the

Texas Court of Criminal Appeals refused on April 16, 2003. (Pets.

¶¶ 8-9.) Gundrum filed his first applications for writ of habeas

corpus in state district court on April 20, 2004, but they were

ultimately dismissed by the Texas Court of Criminal Appeals (TCCA)

on August 24, 2004, for lack of compliance with Texas Rule of

Appellate Procedure 73.1 and 73.3. (Pets. ¶ 11; Ex parte Gundrum,

No. 59,856-01 (0819397R), No. 59,856-02 (0819411R ), No. 59,856-03

(0819384R), at covers.) Gundrum filed a second application for writ

of habeas in state district court as to each conviction on

September 28, 2004, each of which was ultimately denied on the

findings of the trial court without a hearing on December 15, 2004.

(Pets. ¶ 11; Ex parte Gundrum, No. 59,856-04 (0819411R), No.

59,856-05 (0819397B), No.59,856-06 (0819384R), at covers.)

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

prisoners.1 This limitations provision, codified at 28 U.S.C. §

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

 

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

3

(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.2

As Petitioner’s action was filed after the enactment of the AEDPA,

the timeliness of his filing is controlled by § 2244(d).

Petitioner Gundrum was convicted in 2002, but the date on

which his judgments of conviction became final by the conclusion of

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

was July 15, 2003, ninety days after the TCCA refused his petitions

 

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3 See Flanagan v. Johnson, 154 F. 3d. 196, 197 (5th Cir. 1998)(noting that

even though Flanagan did not file a petition for writ of certiorari with the

Supreme Court, his conviction was not final until the ninety-day period to file

a petition for writ of certiorari had expired), citing Casspari v. Bohlen, 510

U.S. 383,(1994) and Motley v. Collins, 18 F.3d 1223, 1225 (5th Cir. 1994).

4See Flanagan, 154 F.3d at 201-02 (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).

5A 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). Gundrum’s sworn statement of January 12, 2005, indicates that he

delivered the petition to prison officials on that date, and thus January 12 is

the earliest date on which this § 2254 petition could be deemed filed under the

mailbox rule. 

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

4

for discretionary review (April 16, 2003).3

 Thus, one year from

the date on which Gundrum’s judgments of conviction became final

was July 15, 2004.4 But Gundrum filed this petition for relief

under 28 U.S.C. § 2254 as of January 12, 2005.5 

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 limitations period.6

Thus, for each day that a “properly filed” application for state

post-conviction or other collateral review is pending, the

limitation period is extended. Resolution of whether the one-year

limitations period bars the bringing of this case turns on whether

Gundrum’s first applications for habeas corpus relief in state

court were “properly filed” as required under 28 U.S.C. § 2244(d)

 

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7Rule 73.1 of the Texas Rules of Appellate Procedure prescribes the form

and its required contents to file for relief under article 11.07. Rule 73.2

provides that the clerk of the convicting court will not file an application that

does not use the form, and it provides that the clerk of the Court of Criminal

Appeals may return a non-complying application with direction to the clerk of the

convicting court to return it to the applicant. 

5

(2) and, if not, whether Petitioner is entitled to equitable

tolling for the time he submitted his first and second applications

to state court. 

Again, one year from the date Gundrum’s convictions were final

was July 15, 2004. Prior to that date Gundrum submitted form

applications for habeas-corpus relief under article 11.07 of the

Texas Code of Criminal Procedure, with memoranda in support. It

appears that one page of the article 11.07 form application (page

6) was omitted as to each application. Ex parte Gundrum, No.

56,856-01, 02, and 03 at 5-6.) Although the trial court forwarded

the writ applications and records to the TCCA, that Court, on

August 25, 2004, dismissed each application for lack of compliance

with Texas Rules of Appellate Procedure 73.1 and 73.2.7 Within a

few weeks after learning of the dismissal, Gundrum refiled article

11.07 application forms with the trial-court clerk, this time with

the missing page of instructions and possible grounds for relief

included. Those applications were ultimately denied on the merits.

(Ex parte Gundrum, No. 59,856-04-06, at 5-7.) 

Under controlling and persuasive authority in this circuit,

Gundrum’s argument that his initial article 11.07 applications

should be considered “properly filed” is foreclosed. In Larry v.

 

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8Larry v. Dretke, 361 F.3d 890, 893-94 (5th Cir.), cert. den’d, 125 S.Ct.

141 (2004), citing Emerson v. Johnson, 243 F.3d 931, 934 (5th Cir. 2001).

9Id., at 892. 

10Id., at 895 (“Thus, if a state court mistakenly accepts and considers the

merits of a state habeas application in violation of its own procedural

requirements, including those governing jurisdiction, that habeas application is

not “properly filed.”) 

6

Dretke, the Court of Appeals for the Fifth Circuit held that “an

application is not “properly filed” if the state court blindly

applies the procedural bar in all cases without ever having to

consider any potential exception to its prohibition or examine any

issues related to the substance of the application.”8 In the

state-court proceedings in Larry, the petitioner had filed a

habeas application prior to his judgment’s becoming final. The

application was pending for more than one year before the trial

court issued findings of fact, denied the application and then

forwarded the file to the TCCA. But the TCCA dismissed the

application.9 In resolving whether such application was “properly

filed” under § 2244(d)(2), the Fifth Circuit determined that

because the article 11.07 application in that case was filed prior

to the applicable judgment’s becoming final, and was ultimately

dismissed by the TCCA, the article 11.07 application was not

properly filed, even though the trial court had issued findings of

fact and had denied the petition.10 The opinion in Larry forecloses

any argument here that since the trial court accepted for filing

Gundrum’s initial article 11.07 applications, entered an order, and

 

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11Id., (noting that an application can be “pending” but not “properly

filed”), citing Artuz v. Bennett, 531 U.S. 4, 9 (2000). 

12Edwards v. Dretke, No.3:02-CV-2673-M, 2003 WL 21321231 (N.D.Tex. June 5,

2003), adopted by Order December 5, 2003). 

7

forwarded it to the TCCA, such action made the pendency of that

application “properly filed” for purposes of § 2244(d)(2).11 

Furthermore, the Fifth Circuit recently determined that an

article 11.07 application, deficient for the failure of an

applicant to properly complete the application, did not constitute

a “properly filed” petition under § 2244(d)(2). In Edwards v.

Dretke, the petitioner sought §2244(d)(2) tolling credit for the

pendency of an article 11.07 application that was dismissed by the

TCCA for lack of compliance with Rule 73.2 of the Texas Rules of

Appellate Procedure, “specifically because it did not set out the

grounds on the art. 11.07 ‘form rather than by reference.’” The

district court determined:

Although the Dallas County Clerk accepted the initial

art. 11.07 application for filing and the trial court

issued its findings, the Texas Court of Criminal Appeals

rejected the application because it did not comply with

state procedural rules. The application, thus, must be

deemed as though it was never filed by the Dallas County

District Clerk.12 

In spite of this determination, the federal district court granted

a certificate of appealability on the question of whether such

application was “properly filed.” The Fifth Circuit, however, then

affirmed the district court, holding that “[t]he initial filing of

Edwards’s state habeas-corpus application did not constitute a

“properly filed” application for purposes of 28 U.S.C. § 2244(d)(2)

 

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13Edwards v. Dretke, No. 03-11347, (October 6, 2004), citing Artuz, 531

U.S. at 8 and Larry, 361 F.3d at 895 (unpublished-copy attached hereto). 

14See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). 

15See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. den’d, 526

U.S. 1074 (1999); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.

2000), cert. den’d, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713

(5th Cir. 1999), cert. den’d, 531 U.S. 1164 (2001).

16See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (statute

can be tolled in “rare and exceptional” circumstances); see also Davis, 158 F.3d

at 811 (same).

8

because the Texas Court of Criminal Appeals determined that the

application failed to comply with Tex. R. App. 73.2.”13

Although the Edwards case, as an unpublished opinion, is not

precedent, it is instructive. Because Gundrum’s first applications

under article 11.07 failed to include all required pages, and

therefore were found not in compliance with Rule 73.2 by the TCCA,

such applications did not constitute “properly filed” application

for post-conviction review under § 2244(d)(2). Furthermore, with

regard to the second applications filed under article 11.07 as to

each conviction, as they were filed after the expiration of the

one-year period, their pendency does not extend the limitation

period.14 

Gundrum also argues that he is entitled to equitable tolling

for the time he pursued the improperly filed state writ applications. The one-year limitation for filing a petition under § 2254

can be subject to equitable tolling.15 But the burden is on the

petitioner–-here Gundrum–-to show rare, exceptional, and/or

extraordinary circumstances beyond his control that made it

impossible for him to timely file a § 2254 petition.16 The Fifth

 

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17Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999),cert. den’d, 529

U.S. 1057 (2000)(quoting Rashidi v. American President Lines, 96 F.3d 124, 128

(5th Cir. 1996)). 

18See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002), citing

Patterson, 211 F.3d at 930.

19The first article 11.07 applications were dismissed on August 25, 2004;

the subsequent article 11.07 applications were signed by Gundrum on September 9,

2004, and file-stamped on September 28, 2004. (Ex parte Gundrum, No. 59,856-01-03

at covers; No.59,856-04 at 1A, 8; No. 59,856-05-06, at 2,9).

20The subsequent article 11.07 applications were denied on December 15,

2004. Gundrum placed the instant § 2254 petition in the prison mail on January

12, 2005. 

21Larry, 361 F.3d at 897 (rejecting petitioner’s claim that because state

court held his application for over a year he was mislead or prevented from

asserting his rights: “{L]arry’s own action of filing his state habeas

application before his judgment was final, rather than any action taken by the

state court, prevented him from asserting his rights.”) 

22Edwards, No. 03-11347, at 2 (“Edwards has failed to allege circumstances

warranting equitable tolling from the time he initially filed his state habeas

corpus application to the time that application was returned to him for

noncompliance.”), citing Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000);

Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999).

9

Circuit has held that “‘equitable tolling applies principally where

the plaintiff is actively misled by the defendant about the cause

of action or is prevented in some extraordinary way from asserting

his rights.’”17 Further, the doctrine will not be applied where the

petitioner failed to pursue relief under § 2254 with diligence.18

Even assuming that Gundrum acted with diligence in refiling article

11.07 applications after learning of the deficiencies in the

initial applications,19 and in preparing and delivering the instant

§ 2254 petition,20 Gundrum cannot make a showing entitling him to

equitable tolling, as arguments similar to his were rejected by the

court of appeals in both Larry v. Dretke21 and Edwards v. Dretke.22

The Court notes, however, that because the inadequacy in this case

was the omission of an instruction page from the article 11.07

 

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23Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

10

application, as opposed to the failure by the applicant to actually

complete all portions of the article 11.07 form, jurists of reason

could debate whether the equitable tolling issue should have been

resolved in a different manner or is adequate to deserve encouragement to proceed further,23 such that should Gundrum file a notice

of appeal, this Court will grant a certificate of appealability on

that issue. 

For the above, and foregoing reasons, it is therefore ORDERED

that Petitioner's Petition for Writ of Habeas Corpus be, and is

hereby, DISMISSED WITH PREJUDICE.

SIGNED June 14, 2005.

 

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