Sanders v. Davis-Director TDCJ-CID
ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendations. ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. It is further ORDERED that a certificate of appealability is DENIED. It is finally ORDERED that all motions not previously ruled on are DENIED. Signed by Judge Amos L. Mazzant, III on 2/8/2017. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MICHAEL LOUIS SANDERS, #1836784
CIVIL ACTION NO. 4:16cv580
ORDER OF DISMISSAL
Petitioner Michael Louis Sanders, a prisoner confined in the Texas prison system, filed the
above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is
challenging his Cooke County conviction for the offense of aggravated assault-deadly weapon and
serious bodily injury on spouse. The case was referred to United States Magistrate Judge Christine
A. Nowak, who issued a Report and Recommendation concluding that the petition should be denied.
Petitioner has filed objections.
Magistrate Judge Nowak concluded that the petition is time-barred by the one year statute of
limitations. 28 U.S.C. § 2244(d)(1). Petitioner was convicted, after a plea of guilty, on January 30,
2013. He did not appeal the conviction. The conviction became final thirty days later on March 1,
2013. The present petition was due one year later on March 1, 2014, but it was not filed until July 25,
2016. Petitioner’s first state application for a writ of habeas corpus was pending for 233 days, which
tolled the deadline by 233 days from March 1, 2014 until October 20, 2014. 28 U.S.C. § 2244(d)(2).
His second state application was not filed until October 5, 2015, which was almost one year too late.
The pendency of the second state application did not effectively toll the deadline.
Petitioner argues in his objections that the limitations period in his case should have run from
“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)(D). He asserts that he became aware
of important facts on December 15, 2015. These facts were discovered after he filed his second state
application, and his corresponding claims have not been exhausted. Petitioner has not shown that his
petition is saved by statutory or equitable tolling; thus, it should be dismissed as time-barred.
Furthermore, for reasons explained by Magistrate Judge Nowak, he has not shown “actual innocence”
in order to overcome the statute of limitations. The petition should be dismissed as time-barred.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Petitioner to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Petitioner’s objections are
without merit. Therefore the Court hereby adopts the findings and conclusions of the 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. It is further
ORDERED that a certificate of appealability is DENIED. It is finally
ORDERED that all motions not previously ruled on are DENIED.
SIGNED this 8th day of February, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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