Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT WAYNE NORTON, #599722, §

§

Petitioner, §

§

v. § Civil Action No. 3:05-CV-2134-L

§

NATHANIEL QUARTERMAN, Director, §

Texas Dept. of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

This is a habeas case brought under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b) and

an order of the court in implementation thereof, this action was referred to the United States

magistrate judge for proposed findings and recommendation. On August 8, 2006, the Findings,

Conclusions and Recommendation of the United States Magistrate Judge (“Report”) were filed.

Petitioner Norton filed Petitioner’s Objections to the Magistrate Judge’s Findings, Conclusions, and

Recommendations (“Objections”) on August 21, 2006. The magistrate judge found that the petition

is barred by the one-year statute of limitations. After making an independent review of the

pleadings, file and record in this case, the magistrate judge’s Report, and Petitioner’s Objections,

the court determines that the findings and conclusions of the magistrate judge are correct. The

magistrate judge’s findings and conclusions are, therefore, accepted as those of the court.

Accordingly, the court overrules Petitioner’s Objections to the Magistrate Judge’s Findings,

Conclusions, and Recommendations; denies Norton’s petition for the writ of habeas corpus; and

dismisses this action with prejudice as time-barred. 

 

 Case 3:05-cv-02134-L Document 14 Filed 09/28/06 Page 1 of 5 PageID 125
Memorandum Opinion and Order - Page 2

I. BACKGROUND

Petitioner Norton brings this writ to challenge his 1991 conviction for aggravated sexual

assault, resulting in a sentence of fifty years confinement. A brief overview of the other challenges

Norton has brought over the past fifteen years and the relevant dates of judicial reviews will reveal

why his latest petition is being denied as time-barred: 

! Jan. 30, 1991 original offense date.

! Sept. 19, 1991 (first) conviction in state district court.

! Feb. 26, 1993 conviction reversed and new trial granted by the Fifth District

Court of Appeals because of the prosecution’s improper jury

arguments.

! Dec. 21, 1993 (second) conviction in state district court.

! June 22, 1995 conviction affirmed by the Seventh District Court of Appeals.

! June 24, 1998 state application for writ of habeas corpus filed (no petition

for discretionary review (“PDR”) was ever filed).

! Feb. 23, 2000 permission to file an out-of-time appeal granted by the Court

of Criminal appeals (effectively granting a PDR).

! Oct. 1, 2001 conviction affirmed by the Fifth District Court of Criminal

Appeals.

! Feb. 20, 2002 (second) PDR refused.

! April 3, 2003 (second) state application for writ of habeas corpus filed.

! July 30, 2003 (second) writ denied by Court of Criminal Appeals.

! Oct. 27, 2005 current federal petition for writ of habeas corpus filed.

II. ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this petition

because Norton filed it after the Act’s effective date of April 24, 1996. See Pub.L. 104-132, 100

Stat. 1214 (1996). The AEDPA sets a one-year statute of limitations for federal habeas petitions.

The time limit begins to 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 such

State action;

 

 Case 3:05-cv-02134-L Document 14 Filed 09/28/06 Page 2 of 5 PageID 126
*

The Seventh District Court of Appeals affirmed Norton’s conviction on June 22, 1995. Texas Rules

of Appellate Procedure 68.2 gives thirty days to seek a direct review, which put that deadline for Norton on

July 24, 1995. He did not file a PDR or any other application for review until nearly three years later when

he filed his first state application for a writ of habeas corpus on June 24, 1998.

Memorandum Opinion and Order - Page 3

(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.

28 U.S.C. § 2244(d)(1). The time period is tolled while a properly filed motion for state postconviction relief or other collateral review is pending. Id. § 2244(d)(2). As the magistrate judge

correctly concluded, the one-year statute of limitations under § 2244(d)(1)(A) started to run on July

24, 1995, the latest date on which Norton’s conviction became final by the conclusion of direct

review or the expiration of time for seeking direct review.*

 Norton suggests in his Objections that

the limitations period should have been tolled because the Court of Criminal Appeals granted him

permission to file an out-of-time appeal, which he followed up with a later-filed PDR and a state

application for a writ of habeas corpus. The problem, however, is that the permission to file an outof-time appeal did not issue until Feb. 23, 2000, nearly five years beyond the date Norton’s

conviction became final. In a situation where a petitioner “acquires the right to file an out-of-time

appeal,” the Fifth Circuit has held that such relief may toll the AEDPA’s statute of limitations “until

the date on which the court of Criminal Appeals declines to grant further relief, but it does not

require a federal court to restart the running of AEDPA’s limitations period altogether.” Salinas v.

Dretke, 354 F.3d 425, 430 (5th Cir. 2004). Therefore, the statute of limitations for filing this federal

petition for a writ of habeas corpus had already expired prior to Norton acquiring his right to file an

out-of-time appeal, and no new tolling period restarted. 

 

 Case 3:05-cv-02134-L Document 14 Filed 09/28/06 Page 3 of 5 PageID 127
Memorandum Opinion and Order - Page 4

Finally, Norton argues in his objections that he deserves some form of equitable tolling or

remedy, because he has been denied the right to “pursue a meaningful appeal,” including the right

to present evidence of his past sexual relationship with the victim in his case. Petitioner’s

Objections at 1-3. The court finds these objections entirely misplaced. The Fifth Circuit recognizes

a doctrine of “equitable tolling,” but applies it only in “rare and exceptional cases” where the

petitioner has proved he is entitled to such tolling. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.

1998). Here, Norton has already received the benefit of two trials, two appellate court reviews of

his conviction (including one out-of-time right to appeal), and the denial of his state application for

a writ of habeas corpus. The opinions from the Fifth District Court of Appeals granting Norton his

new trial, and then subsequently affirming his conviction, both indicate that Norton had presented

the evidence of his past sexual relationship with the victim that he now claims he was barred from

presenting. See Norton v. State, 851 S.W.2d 341 (Tex. App.–Dallas 1993, writ ref’d); Norton v.

State, No. 05-00-00642-CR (Tex. App.–Dallas, Oct. 1, 2001, pet. ref’d). In short, Norton has failed

to show that his case is one of those “rare and exceptional cases” deserving of equitable tolling.

 

 Case 3:05-cv-02134-L Document 14 Filed 09/28/06 Page 4 of 5 PageID 128
Memorandum Opinion and Order - Page 5

III. CONCLUSION

For the reasons stated herein, this court overrules Petitioner’s Objections to the Magistrate

Judge’s Findings, Conclusions and Recommendations; denies Norton’s petition for the writ of

habeas corpus; and dismisses this action with prejudice as time-barred. 

It is so ordered this 28th day of September, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

 Case 3:05-cv-02134-L Document 14 Filed 09/28/06 Page 5 of 5 PageID 129