Honish v. Director, TDCJ-CID
ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations. It is therefore ORDERED that the petition is DENIED with prejudice. Additionally, a certificate of appealability is DENIED. It is finally ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 3/9/2017. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARK FRANCIS HONISH #01745461
CIVIL ACTION NO. 4:16cv425
ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Kimberly C. Priest Johnson, who issued a Report and Recommendation concluding that the
petition should be dismissed with prejudice as untimely filed. Petitioner filed objections.
The Report of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such actions, 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. Petitioner fails to show that
he timely filed his petition or that he is entitled to equitable tolling.
After the Texas Court of Criminal Appeals refused Petitioner’s petition for discretionary
review, Petitioner filed his first state writ, which was dismissed as non-compliant based on excessive
pages. The provisions of 28 U.S.C. § 2244(d)(2) provide that the time during which a properly filed
application for state post-conviction or other collateral review is pending shall not be counted toward
any period of limitation (emphasis added). The Supreme Court held that “an application is ‘properly
filed’ when its delivery and acceptance are in compliance with the applicable laws and rules
governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). It counseled that these rules govern
“for example, the form of the document, the time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee.” Id; Larry v. Dretke, 361 F.3d 890, 893 (5th
Cir. 2004). The Fifth Circuit interprets the words, “properly filed,” narrowly. Lookingbill v.
Cockrell, 293 F.3d 256, 160 (5th Cir. 2002).
Petitioner claims that when he filed his first state writ, he was unaware the Texas Court of
Criminal Appeals had changed its page limit. He asserts this entitles him to equitable tolling. The
United States Supreme Court confirmed that the AEDPA statute of limitation is not a jurisdictional
bar, and it is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). “A habeas
petitioner is entitled to equitable tolling only if he shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.” Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 560 U.S. at 649). The
petitioner bears the burden of proving that he is entitled to equitable tolling. Phillips v. Donnelly,
216 F.3d 508, 511 (5th Cir. 2000).
In this case, Petitioner has not shown any valid basis upon which to equitably toll the statute
of limitations. The pendency of his first state writ, which was improperly filed, did not toll the
limitations period. However, the second state writ, which was properly filed, tolled the limitations
period for 205 days. After the denial of his second state writ, it was seventeen (17) months before the
instant federal habeas petition was filed. The Fifth Circuit has held that equitable tolling is not
intended for those who “sleep on their rights.”Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir.1999).
Petitioner fails to show extraordinary circumstances and due diligence. He fails to meet his burden
for equitable tolling. Accordingly, the Court adopts the findings and conclusions of the Magistrate
Judge as the findings and conclusions of the Court.
It is therefore ORDERED that the petition is DENIED with prejudice. Additionally, a
certificate of appealability is DENIED.
It is finally ORDERED that all motions not previously ruled on are hereby DENIED.
SIGNED this 9th day of March, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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