Read v. Director, TDCJ-CID

Filing 27

ORDER OF DISMISSAL ADOPTING {14] Report and Recommendations. ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. It is further ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 2/1/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ROBERT BRUCE READ, JR. #1568901
V.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:14cv144

ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate Judge
Christine A. Nowak, who issued a Report and Recommendation concluding that the petition for a
writ of habeas corpus should be dismissed with prejudice. Petitioner filed objections.
The Report of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Having
made a de novo review of the objections raised by Petitioner to the Report, the Court concludes that
the findings and conclusions of the Magistrate Judge are correct. In his objections, Petitioner
concedes that his case is time-barred, but urges that he is entitled to equitable tolling.1 He relies on
Trevino v. Thaler, — U.S. —, 133 S. Ct. 1911 (2013) and Martinez v. Ryan, — U.S. —, 132 S. Ct.
1309 (2012). However, these cases relate to excusing a procedural default, and do not apply to
AEDPA’s statute of limitations or the tolling of that period. See, e.g. Arthur v. Thomas, 739 F.3d
611, 630 (11th Cir. 2014).
In sum, Petitioner fails to show that his petition was timely filed or that he is entitled to
equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (While a court may equitably toll
the AEDPA limitations period, a petitioner is not entitled to equitable tolling unless he shows that

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Petitioner also argues that the Texas Court of Criminal Appeals denied his state habeas application on February 19,
2014, rather than February 9, 2014. Although it makes no difference to the ultimate decision of this case, Petitioner is
incorrect. His state habeas application was denied on February 9, 2014, as noted in the Report and Recommendation.

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he has been pursuing his rights diligently and that some extraordinary circumstance stood in his way
and prevented timely filing). Therefore, the Court hereby adopts the findings and conclusions of the
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Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. A certificate of appealability is DENIED. It is further
ORDERED that all motions not previously ruled on are hereby DENIED.
SIGNED this 1st day of February, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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