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 On June 1, 2006, Nathaniel Quarterman became the Director of the Texas Department of Criminal Justice - Correctional Institutions Division. The Court thus substitutes him for Douglas Dretke. See Fed. R. Civ. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANDREW NILES GORDON, )

ID # 1097997, )

Petitioner, )

vs. ) No. 3:05-CV-1852-R (BH)

 ) ECF

NATHANIEL QUARTERMAN,1 Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Petitioner, an inmate currently incarcerated in Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge his Kaufman County murder conviction. Respondent is

Nathaniel Quarterman, Director of TDCJ-CID. 

B. Procedural History 

On May 15, 2002, a jury convicted petitioner of murder, and he was sentenced to life

imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) After the intermediate court of appeals

 

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affirmed petitioner’s conviction and sentence in Cause No. No. 05-02-00865-CR, the Texas Court

of Criminal Appeals refused his petition for discretionary review on January 3, 2003. (Id. at 3.) On

May 4, 2004, petitioner filed a state application for writ of habeas corpus. (See Answer to Question

1 of Magistrate Judge’s Questionnaire.) The Texas Court of Criminal Appeals denied that

application on October 6, 2004. See Texas Judiciary Online, http://www.cca.courts.state.tx.us/

opinions/EventInfo.asp?EventID=2172958 (accessed September 5, 2006). 

Petitioner filed the instant petition on September 12, 2005, when he placed it in the prison

mail system. (Pet. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing

that prisoners file their federal pleadings when they place them in the prison mail system). He claims

that he (1) was denied the reasonable doubt standard; (2) was denied a change of venue; and (3)

received ineffective assistance of counsel when his attorney failed to obtain a mental health expert,

failed to pursue an insanity defense, and failed to raise the issue of incompetency when his

competency became an issue. (Pet. at 7.) 

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

 

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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 id. § 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). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the oneyear statute of limitations from the latest of (A) the date petitioner’s conviction became final or (D)

the date on which he knew or should have known with the exercise of due diligence the facts supporting his claims.

In this instance, petitioner appealed his conviction; the Texas Court of Criminal Appeals

refused his petition for discretionary review on September 3, 2003; and petitioner filed no petition

for writ of certiorari. In such cases, the state conviction becomes final for purposes of § 2244(d) by

the expiration of the ninety-day time frame for seeking further review after the Texas Court of

Criminal Appeals refused the petition for discretionary review – in this instance on December 2,

2003. See Roberts v. Cockrell, 319 F.3d 690, 692 (5th Cir. 2003) (holding that, when the petitioner

has halted the review process, “the conviction becomes final when the time for seeking further direct

review in the state court expires” and noting that the Supreme Court allows ninety days for filing a

petition for certiorari following the entry of judgment); SUP. CT. R. 13. 

 

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With regard to subparagraph (D), the Court determines that the facts supporting the claims

raised in the instant petition became known or could have become known through the exercise of

due diligence prior to the date petitioner’s conviction became final on December 2, 2003. 

Because petitioner filed his September 12, 2005 petition more than one year after his conviction became final on December 2, 2003, a literal application of § 2244(d)(1) renders the filing

untimely. 

III. TOLLING

The AEDPA expressly and unequivocally provides that “[t]he 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.”

28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D.

Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling

on state application).

By the time petitioner filed his state application on May 24, 2004, 174 days had elapsed since

his conviction became final on December 2, 2003. The filing of his state petition tolled the statute

of limitations until the Texas Court of Criminal Appeals denied the writ on October 6, 2004. The

AEDPA clock began to run again on October 7, 2004, and the time remaining in petitioner’s oneyear time period for filing a federal petition expired in April 2005, approximately five months before

petitioner filed the instant federal petition for writ of habeas corpus. Accordingly, the statutory toll-

 

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ing provision does not save the instant federal petition. Further, petitioner presents nothing that

indicates that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227

F.3d 260, 263 (5th Cir. 2000) (recognizing that statute of limitations is subject to equitable tolling).

The instant action thus falls outside the statutory period and should be deemed untimely.

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice. 

SIGNED this 6th day of September, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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