HAB54\R&R\ROYAL-32.SOL-DEFERRED ADJUD:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

ERIKA ROCHELLE ROYAL, §

§

Petitioner, §

§

v. § 2:06-CV-0032

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DISMISS

PETITION FOR WRIT OF HABEAS CORPUS

Petitioner has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in

State Custody challenging an order of deferred adjudication and the subsequent revocation of her

probation. For the reasons hereinafter set forth, it is the opinion of the undersigned United States

Magistrate Judge that the petition for writ of habeas corpus be dismissed.

I.

PROCEDURAL HISTORY

On or about February 13, 2002, petitioner was indicted for the felony offense of robbery out

of the 251st Judicial District Court of Potter County, Texas. State v. Royal, No. 44,972-C. 

Defendant pleaded guilty to the charges and, on or about June 12, 2002, the state trial court placed

petitioner on eight (8) years of deferred adjudication probation, and assessed an $800.00 fine. 

Petitioner did not seek direct review of the deferred adjudication order by direct appeal.

 

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Petitioner attests her application was placed in the prison mailing system on February 7, 2006. Although the application

was not received by this Court and filed of record until February 13, 2006, the Court will use the February 7, 2006 date as the

filing date. See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner’s federal habeas corpus petition is deemed filed

when he delivers the petition to prison officials for mailing to the district court).

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The State subsequently alleged petitioner had violated the terms of her probation and, on or

about October 25, 2004, the state trial court found, pursuant to petitioner’s plea of true to the

probation violations, that petitioner had, in fact, violated the terms of her probation. Consequently,

the state trial court revoked petitioner’s probation. Pursuant to her earlier guilty plea, the state trial

court adjudicated petitioner guilty of the robbery offense and, apparently pursuant to an agreed

punishment and recommendations filed by the parties, sentenced petitioner to ten (10) years

confinement in the Texas Department of Criminal Justice, Correctional Institutions Division 

(TDCJ-CID). Petitioner did not attempt to appeal the conviction or sentence by direct appeal.

On September 23, 2005, petitioner filed a state writ of habeas corpus which was denied by

the Texas Court of Criminal Appeals without written order on November 23, 2005. In re Royal,

No. 63,378-01. On December 2, 2005, petitioner filed a second state writ of habeas corpus which

was dismissed without written order by the Texas Court of Criminal Appeals on January 25, 2006. 

In re Royal, No. 63,378-02. Petitioner initiated the instant federal application for writ of habeas

corpus on February 7, 2006.1

II.

PETITIONER’S GROUNDS

In this federal petition for habeas corpus relief, petitioner raises issues pertaining to her guilt

of the charged offense. Specifically, petitioner alleges the adjudication of guilt violated her federal

constitutional rights because:

1. The evidence in the original proceeding was insufficient to show a weapon

was used for aggravated robbery, or that a robbery had even occurred;

 

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2. Petitioner was denied effective assistance of counsel in the original

proceeding in that her counsel failed to adequately investigate to determine

there was no evidence to support the charges against her;

3. Petitioner’s guilty plea in the original proceeding was involuntary because

she had been unreasonably detained, was not advised of her right to an

attorney, was unable to read or write so as to review her statement, and the

statement was written by someone else; and

4. The trial court failed to consider a lesser included offense when there was no

evidence to support a charge of aggravated robbery in the original 

proceeding.

All issues raised by petitioner appear to be substantive issues relating to her June 2002 plea of 

guilty and the original order of deferred adjudication probation.

III.

EXHAUSTION OF STATE COURT REMEDIES

Petitioner has presented, to the highest court of the State of Texas, two (2) petitions for state

habeas corpus relief. The Court has not ordered an answer and, thus, does not possess copies of the

state petitions. Therefore, a determination cannot be made that the substance of the claims

petitioner now presents to this federal court is the same as that presented to the state courts. 

However, as it is the opinion of the Magistrate Judge that petitioner’s claims are time barred, the

undersigned does not recommend that this cause be dismissed for any failure to exhaust. The Court

however, reserves the right to re-address this issue.

IV.

STATUTE OF LIMITATIONS

Section 28 U.S.C. § 2244(d)(1) establishes a one-year limitation period for filing a 

habeas petition in federal court. That subsection provides:

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 

 

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In Caldwell, the Fifth Circuit recently held that an order of deferred adjudication probation following a guilty plea is a

final judgment for purposes of § 2244(d)(1)(A) upon the expiration of the time for seeking direct review.

HAB54\R&R\ROYAL-32.SOL-DEFERRED ADJUD:2 4

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.

Title 28 U.S.C. § 2244(d)(2) further provides:

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.

V.

DISCUSSION

The issues petitioner raises in the instant federal application pertain to the validity of

petitioner’s original guilty plea in the original proceeding. Petitioner was sentenced to eight (8)

years deferred adjudication on June 12, 2002. Petitioner did not seek review of the deferred

adjudication order. Under Texas law, a defendant must file a notice of appeal “within 30 days after

the day sentence is imposed or suspended in open court.” Tex.R.App.P. 26.2(a)(1). Thus,

petitioner’s deferred adjudication became final for purposes of section 2244(d)(1)(A) on July 12,

2002, and the statute of limitations began to run on that date as to any substantive issues relating to

the original proceeding. See Caldwell v. Dretke, 429 F.3d 521 (5th Cir. 2005).2

 Consequently, any

federal habeas application raising these issues was due on or before July 12, 2003. Petitioner’s state

 

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Even if this Court were to allow the one-year limitation period to be equitably tolled until petitioner’s revocation

judgment became final on December 18, 2004, it is clear that petitioner did not diligently pursue relief. More than nine (9)

months elapsed from the date that judgment became final until petitioner filed her first state habeas application on September 23,

2005.

HAB54\R&R\ROYAL-32.SOL-DEFERRED ADJUD:2 5

habeas applications were filed after the expiration of the 1-year statute of limitation and, thus, such

applications did not serve to toll the limitation period. Scott v. Johnson, 227 F.3d 260, 263 (5th

Cir.2000) (state habeas application did not toll limitation period where it was not filed until after the

limitation period had expired). Petitioner filed the instant federal habeas application on February 7,

2006, far beyond the expiration of the statute of limitation. Consequently, these issues are time

barred unless the limitation period is extended by equitable tolling.

"The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the

statute of limitations would be inequitable." United States v. Patterson, 211 F.3d 927, 930-31 (5th

Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998)). Equitable tolling applies

only in cases presenting "rare and exceptional circumstances." Coleman v. Johnson, 184 F.3d 398,

402 (5th Cir. 1999). "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." Id. (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). 

Further, "equity is not intended for those who sleep on their rights." Fisher v. Johnson, 174 F.3d

710, 715 (5th Cir. 1999).

Petitioner has not presented any argument that equitable tolling should apply in this case. 

Therefore, equitable tolling should not apply and petitioner’s grounds relating to her June 12, 2002

plea are barred by the statute of limitations.3

VI.

RECOMMENDATION

It is the recommendation of the United States Magistrate Judge to the United States District

 

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Judge that the petition for a writ of habeas corpus filed by petitioner ERIKA ROCHELLE ROYAL

be DISMISSED as time-barred.

VII.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and 

Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 14th day of April 2006.

CLINTON E. AVERITTE 

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the file mark on the first page of this

recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the parties are allowed

a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any objections must be filed on

or before the fourteenth (14th) day after this recommendation is filed. See 28 U.S.C. § 636(b);

Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1,

Local Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely file

written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from 

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district court. 

See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v.

Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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