Collier v. Director - Texas Department of Criminal Justice, Correctional Institutions Division

Filing 8

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition be dismissed as barred by the statute of limitations. Signed by Judge Marcia A. Crone on 2/24/12. (mrp, )

UNITED STATES DISTRICT COURT
DONALD RAY COLLIER,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:11-CV-227

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Donald Ray Collier, an inmate confined at the Wynne Unit, proceeding pro se,
brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends that the petition be dismissed as barred by the statute of
limitations.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
Petitioner’s objections are without merit.
Petitioner contends he is without counsel and only learned of his claims through fellow
inmates; thus, he should be entitled to equitable tolling. Equitable tolling, however, “is permitted
only ‘in rare and exceptional circumstances.’” United States v. Riggs, 314 F.3d 796, 799 (5th Cir.
2002), quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). It is well settled that
“ignorance of the law, even for an incarcerated pro se petitioner [like Collier], generally does not

excuse prompt filing.” Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). Thus, the petition
should be dismissed as barred by the applicable statute of limitations.
Furthermore, the petitioner is not entitled to the issuance of a certificate of appealability.
An appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge
issues a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard
for granting a certificate of appealability, like that for granting a certificate of probable cause to
appeal under prior law, requires the petitioner to make a substantial showing of the denial of a
federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.
Dretke, 362 F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893
(1982). In making that substantial showing, the petitioner need not establish that he should prevail
on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of
reason, that a court could resolve the issues in a different manner, or that the questions presented
are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt
regarding whether to grant a certificate of appealability is resolved in favor of the petitioner, and
the severity of the penalty may be considered in making this determination. See Miller v. Johnson,
200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Here, the petitioner has not shown that any of the issues raised by his claims are subject
to debate among jurists of reason. The factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to his position. In addition, the questions
presented are not worthy of encouragement to proceed further. Therefore, the petitioner has failed
to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly,
a certificate of appealability shall not be issued.
ORDER
Accordingly, Petitioner’s objections are OVERRULED.

The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is

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ADOPTED. A final judgment will be entered in this case in accordance with the magistrate

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judge's recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 24th day of February, 2012.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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