IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROGER DALE JOHNSTON, §

Petitioner, §

 §

VS. § CIVIL ACTION NO.4:05-CV-652-Y

 §

DOUGLAS DRETKE, Director, §

T.D.C.J., Correctional § 

Institutions Division, §

Respondent. § 

 ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS

In this action brought by petitioner Roger Dale Johnson under

28 U.S.C. § 2254, the Court has made an independent review of the

following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on

February 14, 2006; and 

3. The petitioner’s written objections to the proposed

findings, conclusions, and recommendation of the United

States magistrate judge filed on March 8, 2006.

The Court, after de novo review, concludes that the Petitioner’s objections must be overruled, and that the petition for

writ of habeas corpus should be dismissed with prejudice as timebarred pursuant to 28 U.S.C. § 2244(d)(1)-(2), for the reasons

stated in the magistrate judge's findings and conclusions, and as

set forth herein. 

In his written objections to the magistrate judge’s report and

recommendation that this petition be deemed time-barred, Johnston

contends that he is entitled to equitable tolling of the limitations period because he did not timely receive notice of the

disposition of the state application for writ of habeas corpus.

 

 Case 4:05-cv-00652-Y Document 25 Filed 03/20/06 Page 1 of 3 PageID 133
1

See 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).

2

See 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).

3

Coleman 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)). 

4

See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002)(“[equitable

tolling] will not be applied where the applicant failed to diligently pursue

habeas corpus relief under § 2254 . . .”), citing Patterson, 211 F.3d at 930. 

2

The one-year limitation period for filing a petition under § 2254

is subject to equitable tolling.1 The burden is on the petitioner–-

here, Johnston–-to show rare, exceptional and/or extraordinary

circumstances beyond his control that made it impossible for him to

timely file a § 2254 petition.2 The Fifth 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.’”3

Furthermore, in order to invoke equitable relief, a petitioner must

show that he pursued collateral relief with diligence.4

Johnston filed his application for writ of habeas corpus under

state law in the 355th Judicial District Court of Hood County, Texas

on April 16, 2004, and it was ultimately denied by the Texas Court

of Criminal Appeals on July 7, 2004. Attached to his written

objections, Johnston supplied copies of letters from him to state

court officials apparently inquiring of the status of his writ

application in July and August of 2004. Even assuming the letters

accurately reflect that Johnston did not timely receive notice of

 

 Case 4:05-cv-00652-Y Document 25 Filed 03/20/06 Page 2 of 3 PageID 134
3

the July 7, 2004, disposition of his state writ, this did not

prevent him in an extraordinary way from asserting his rights, for

the reasons enunciated by the magistrate judge. Further, Johnston

has provided a copy of a letter from the Texas Court of Criminal

Appeals dated September 9, 2004, which expressly informed him that

the application was denied on July 7, 2004. Yet, he did not

constructively file this federal petition for writ of habeas corpus

until June 6, 2005. Thus, even if Johnston did not receive notice

of the disposition of his state writ application until the

September 9 letter, his failure to file a federal petition until

almost nine months later reflects a lack of diligence necessary to

warrant equitable tolling. Johnston’s objection based upon

equitable tolling is overruled. 

 Therefore, the findings, conclusions, and recommendation of

the magistrate judge are ADOPTED.

Roger D. Johnston’s petition for writ of habeas corpus is

hereby DISMISSED WITH PREJUDICE.

SIGNED March 20, 2006.

 

 Case 4:05-cv-00652-Y Document 25 Filed 03/20/06 Page 3 of 3 PageID 135