IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WEISSINGER NEWBERRY III §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1760-H 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Weissinger Newberry III, appearing pro se, has filed an application for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should

be dismissed on limitations grounds.

I.

Petitioner was convicted of possession of a controlled substance and sentenced to 25 years

confinement. His conviction and sentence were affirmed on direct appeal. Newberry v. State, No.

05-02-001497-CR, 2003 WL 21480278 (Tex. App.–Dallas Jun. 27, 2003, no pet.). Petitioner also

filed an application for state post-conviction relief. The application was denied without written

order. Ex parte Newberry, No. 59,365-01 (Tex. Crim. App. Jan. 26, 2005). Petitioner then filed this

action in federal court.

II.

In five grounds for relief, petitioner contends that: (1) his conviction was obtained by

evidence seized during an unlawful search; (2) his attorney advised him to sign a written confession

 

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in violation of his right against self-incrimination; (3) the prosecutor failed to disclose evidence

favorable to the defense; (4) he received ineffective assistance of counsel; and (5) he was denied due

process at trial and on appeal.

In his answer, respondent argues that this case is barred by the one-year statute of limitations

established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Petitioner

addressed the limitations issue in a reply filed on January 23, 2006. The court now determines that

this case should be dismissed on limitations grounds.

A.

The AEDPA establishes a one-year statute of limitations for federal habeas proceedings

brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L.

104-132, 110 Stat. 1214 (1996). The limitations period runs 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

direct 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.

See 28 U.S.C. § 2244(d)(1). The time during which a properly filed application for state postconviction or other collateral review is pending is excluded from the limitations period. Id. §

2244(d)(2). The AEDPA statute of limitations is also subject to equitable tolling in "rare and

 

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 1

 The 30th day after the motion for rehearing was overruled fell on Saturday, October 18, 2003. As a result,

petitioner had until the following Monday, October 20, 2003, to file a petition for discretionary review. See TEX.R.APP.

P. 4.1(a).

 2 On March 21, 2005, petitioner filed a petition for writ of certiorari from the denial of his state writ. The

Supreme Court denied certiorari on May 31, 2005. Newberry v. Texas, ___ U.S. ___, 125 S.Ct. 2520, 161 L.Ed.2d 1116

(2005). Petitioner is not entitled to statutory tolling of the AEDPA limitations period while his writ of certiorari was

pending because such a petition is not an application for "State post-conviction or other collateral review" under 28

U.S.C. § 2244(d)(2). See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 120 S.Ct. 1834 (2000).

exceptional" circumstances. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied,

119 S.Ct. 1474 (1999). 

B.

Petitioner was sentenced to 25 years in prison for possession of a controlled substance. His

conviction and sentence were affirmed by the court of appeals on June 27, 2003. A motion for

rehearing was overruled on September 18, 2003. Petitioner did not timely file a petition for

discretionary review. Therefore, his conviction became final on October 20, 2003--30 days after

the court of appeals overruled his motion for rehearing.1 TEX. R. APP. P. 68.2. See also Bautista v.

McCotter, 793 F.2d 109, 110 (5th Cir. 1986) (finding "no material distinction . . . between the failure

to seek discretionary review in the Texas Court of Criminal Appeals and the failure to do so

timely"). Petitioner filed an application for state post-conviction relief on April 18, 2004. The

application was denied on January 26, 2005. Petitioner filed this action in federal court on August

26, 2005.

The one-year statute of limitations started to run on October 20, 2003, when petitioner's

conviction became final. See 28 U.S.C. § 2254(d)(1)(A). This period was tolled from April 18,

2004 to January 26, 2005, a total of 283 days, while a properly filed application for state postconviction relief was pending.2

 Even allowing for this tolling period, petitioner still waited more

than a year before filing this action in federal court.

 

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In an attempt to excuse this delay, petitioner contends that he did not receive actual notice

that his motion for rehearing had been overruled until November 25, 2003, when the court of appeals

responded to his inquiry regarding the status of that motion. The Fifth Circuit has held that equitable

tolling may apply where there is a substantial delay of several months in receiving notice from a

state court and the petitioner pursues the post-conviction process with "diligence and alacrity."

Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on limited grounds, 223 F.3d 797 (5th

Cir. 2000). After learning that the court of appeals overruled his motion for rehearing, petitioner

promptly filed a motion for extension of time to file a petition for discretionary review on December

2, 2003. The Texas Court of Criminal Appeals denied the motion on December 11, 2003. Petitioner

then waited four months to file an application for state post-conviction relief and another seven

months to file a federal writ after his state writ was denied. No explanation is offered to justify this

delay. Unlike the prisoner in Phillips, petitioner did not act with "diligence and alacrity." The court

therefore concludes that this case is time-barred. See Gutierrez v. Cockrell, No. 01-41148, 45

Fed.Appx. 321 (5th Cir. Jun. 19, 2002) (petitioner not entitled to equitable tolling where he waited

nearly one year after receiving notice of state court action to pursue post-conviction remedies);

Selvage v. Johnson, No. 2-00-CV-0114-J, 2001 WL 194748 at *3 & n.5 (N.D. Tex. Feb. 23, 2001)

(same).

RECOMMENDATION

Petitioner's application for writ of habeas corpus is barred by limitations and should be

dismissed with prejudice.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

 

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conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: January 25, 2006.

 

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