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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LAWRENCE EDWARD BELL, 1068757, )

Petitioner, )

)

v. ) No. 3:05-CV-2092-G

) ECF

NATHANIEL QUARTERMAN, Director )

TDCJ-CID, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Background

On October 25, 2001, Petitioner was convicted of aggravated robbery. State of Texas v.

Lawrence Edward Bell, No. F-0072426-KP (203rd Jud. Dist. Ct., Dallas County, Tex., Oct. 25,

2001). Petitioner was sentenced to eleven years confinement. On January 31, 2003, the Fifth

District Court of Appeals affirmed the conviction. Bell v. State, No. 05-01-01766-CR (Tex.

App. Dallas Jan. 31, 2003). Petitioner did not file a petition for discretionary review.

On May 6, 2003, Petitioner filed two federal petitions for writ of habeas corpus. Bell v.

Cockrell, Nos. 3:03-CV-946-D and 3:03-CV-947-L (N.D. Tex.). The Court dismissed both

petitions for failure to exhaust state remedies.

On December 22, 2003, Petitioner filed a state habeas petition. Ex parte Bell,

 

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Application No. 58,174-01. On June 2, 2004, the Court of Criminal Appeals denied the

application without written order. On July 16, 2004, Petitioner filed a second state habeas

petition. Ex parte Bell, Application No. 58,174-02. On October 6, 2004, the Court of Criminal

Appeals dismissed the application as successive. On November 30, 2004, Petitioner filed a third

state application for writ of habeas corpus. Ex parte Bell, Application No. 58,174-03. On April

6, 2005, the Court of Criminal Appeals dismissed the application as successive.

On October 20, 2005, Petitioner filed this federal petition. He argues: (1) he received

ineffective assistance of counsel because counsel failed to subpoena two key witnesses; (2) the

evidence is insufficient to support the conviction; (3) the trial judge and court clerk erred by

failing to subpoena three key witnesses; (4) he was not informed of his rights when he was

arrested; (5) he was denied a speedy trial; (6) the state was allowed to use impermissible

evidence; (7) he received ineffective assistance of counsel because his counsel had a conflict of

interest; (8) the trial court erred in denying Petitioner’s motion for mistrial; (9) the state made

improper arguments during the guilt/innocence phase of the trial; (10) he received ineffective

assistance of counsel because his counsel failed to object to testimony from Petitioner’s father;

(11) he received ineffective assistance of counsel because counsel allowed Petitioner to sign a

waiver regarding fingerprint evidence; (12) the state erred in allowing him to testify because he

had mental difficulties, was going through “major problems” and was a PCP user. 

On January 17, 2006, Respondent filed a preliminary response arguing that the petition is

time-barred. On February 15, 2006, May 3, 2006, and July 27, 2006, Petitioner filed replies. 

The Court now determines the petition is barred by limitations and should be dismissed.

 

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The statute provides that the limitations 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 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.

28 U.S.C. ' 2244(d)(1).

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II. Discussion

A. Statute of Limitations

Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA

governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA

establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism

and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). 

1. Timeliness under § 2244(d)(1)(A)

In most cases, the limitations period begins to run when the judgment becomes final after

direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A).1

This period is tolled while a properly filed motion for state post-conviction relief or other

collateral review is pending. Id. § 2244(d)(2). 

 

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On January 31, 2003, the Fifth District Court of Appeals affirmed Petitioner’s conviction. 

The Court granted petitioner an extension of time until May 2, 2003, to file his petition for

discretionary review. He did not file a petition for discretionary review. His conviction

therefore became final on May 2, 2003. See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir.

2003) (state conviction becomes final for limitations purposes when time for seeking further

direct review expires, regardless of when mandate issues). Petitioner then had one year, or until

May 2, 2004, to file his federal petition. 

The filing of a state application for habeas corpus tolls the statute of limitations. See 28

U.S.C. § 2244 (d)(2). On December 22, 2003, Petitioner filed his first state habeas application. 

This application tolled the limitations period for 164 days, until it was denied on June 2, 2004. 

Adding 164 days to the limitations period, Petitioner’s federal petition was due on August 13,

2004. On July 16, 2004, Petitioner filed a second state habeas petition. This petition tolled the

limitations period for 82 days, until it was dismissed on October 6, 2004. Adding 82 days to the

federal limitations period, Petitioner’s federal petition was due on November 2, 2004. On

November 30, 2004, Petitioner filed a third state habeas petition. This third petition was filed

after the federal limitations period expired. It therefore did not toll the limitations period. 

Petitioner’s federal petition was due by November 2, 2004. He did not file his federal

petition until October 20, 2005. His petition is therefore untimely. 

2. Timeliness under § 2244(d)(1)(B)

Petitioner also argues that the exhaustion requirements under the AEDPA created a state

court impediment that prevented him from timely filing his federal petition. The AEDPA,

however, does not constitute a state court impediment. This claim should be dismissed. 

 

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B. Equitable Tolling

The one-year limitation period is subject to equitable tolling in “rare and exceptional

cases.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174

F.3d 710, 713 (5th Cir.1999) (asserting that courts must "examine each case on its facts to

determine whether it presents sufficiently 'rare and exceptional circumstances' to justify

equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that " '[e]quitable

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.' " Coleman v.

Johnson, 184 F.3d 398, 402 (5th Cir.1999) (quoting Rashidi v. American President Lines, 96

F.3d 124, 128 (5th Cir.1996)). Petitioner bears the burden of proof to show he is entitled to

equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

Petitioner states that on February 26, 2003, he filed a petition for discretionary review

“with petition under 28 U.S.C. 2255 to vacate, set-aside, or correct sentence.” (Feb. 15, 2005,

Traverse page 1). The record reflects that on May 6, 2003, Petitioner filed petitions under 28

U.S.C. §§ 2255 and 2254 in federal court. Bell v. Cockrell, Nos. 3:03-CV-946-D (N.D. Tex.),

3:03-CV-947-L (N.D. Tex.). In each petition, he challenged the state court conviction that he

now challenges. The Court therefore sent Petitioner a notice of deficiency in the § 2255 case

informing him that he used the incorrect form, since a § 2255 petition is only used to challenge

federal convictions. Petitioner then submitted his claim under § 2254. Both of Petitioner’s 

§ 2254 petitions were dismissed for failure to exhaust state remedies. It is unclear whether

Petitioner meant to file a petition for discretionary review instead of the § 2255 petition. Even if

he intended to file a petition for discretionary review, however, he filed the § 2255 petition after

 

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the deadline for filing his petition for discretionary review. Therefore, even if he had filed the

petition in the correct state court, it would not have extended the date on which his conviction

became final. 

Petitioner has not shown that he was prevented in some extraordinary way from asserting

his rights. He has failed to show rare and exceptional circumstances justifying equitable tolling

in this case. 

RECOMMENDATION:

The Court recommends that the petition for a writ of habeas corpus be dismissed with

prejudice as barred by the one-year limitation period. See 28 U.S.C. §2244(d). 

Signed this 14th day of September, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally,

the failure to file written objections to proposed findings and recommendations within ten (10)

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. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1417 (5th Cir. 1996)(en banc).

 

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