Nelson v. Director

Filing 24

ORDER adopting Report and Recommendations for ( 14 in 5:22-cv-00020-RWS-JBB) Report and Recommendations. Signed by District Judge Robert W. Schroeder, III on 3/7/2025. Associated Cases: 5:22-cv-00020-RWS-JBB, 5:22-cv-00019-RWS-JBB, 5:22-cv-00021-RWS-JBB, 5:22-cv-00022-RWS-JBB, 5:22-cv-00023-RWS-JBB(psm)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
KENNETH DEWAYNE NELSON
Plaintiff,
v.
DIRECTOR, TDCJ-CID
Defendant.

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CIVIL ACTION NOS. 5:22-CV-20, -19, -21,
-22, -23

ORDER
Before the Court are Petitioner Kenneth Dewayne Nelson’s Objections (Docket No. 16) to
the Report and Recommendation of the United States Magistrate Judge (Docket No. 14)
recommending dismissal with prejudice of Petitioner’s consolidated requests for habeas corpus
relief as time-barred. 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
Objections (Docket No. 16) are without merit and OVERRULED and the Report and
Recommendation (Docket No. 14) is ADOPTED by the Court.
Petitioner’s state court convictions became final no later than January 27, 2020 when
the United States Supreme Court denied his petition for writ of certiorari. The limitations
period was statutorily tolled from August 17, 2020 to April 14, 2021 while his state habeas
applications were pending. After the denial of his state applications, the final day for filing his
federal habeas petitions was Monday, September 27, 2021. Petitioner did not file his federal
petitions until January 26, 2022, 121 days after the limitations period expired.
Petitioner does not argue that his federal petitions were timely. Instead, Petitioner
contends that he should be granted equitable tolling due to disruptions in his law library access

caused by COVID-19 pandemic-related restrictions. Despite such disruptions, Petitioner was
able to file his state habeas applications on August 17, 2020, during the height of the pandemic.
Because claims raised in a federal habeas petition must first be exhausted in state court, Petitioner
was already aware of the legal claims and the factual basis for the claims he would later raise
in his federal petitions. After his state applications were denied, Petitioner had five months to
complete the federal habeas forms, which only required him to identify each ground for relief
and provide a brief summary of the facts supporting each ground.
Petitioner alleges that periodic interruptions to law library access affected his ability to
prepare the memorandums he submitted with his petitions, but he was not required to file
memorandums with legal analysis. Further, there is no requirement that a memorandum must
be filed at the same time as the petition. Petitioner failed to prove that disruptions to his law
library access prevented him from filing timely petitions.
Petitioner also alleges that he was absent from his assigned unit for approximately one
month for medical treatment. Petitioner was not transferred to the hospital until November 16,
2021, nearly two months after the statute of limitations expired. Therefore, equitable tolling for
this time would not make this petition timely.
Petitioner has not alleged rare and exceptional circumstances warranting equitable
tolling. In addition, Petitioner did not demonstrate that he diligently pursued his rights.
Accordingly, the Magistrate Judge correctly concluded that the petitions should be dismissed
as barred by the statute of limitations.
Additionally, in this case, 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).

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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; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the petition was denied on
procedural grounds, the petitioner must show that jurists of reason would find it debatable: (1)
whether the petition raises a valid claim of the denial of a constitutional right, and (2) whether
the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at
328. 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. 2000).
Petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason or that a procedural ruling was incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. Petitioner has failed to make a
sufficient showing to merit the issuance of a certificate of appealability. Accordingly it is
ORDERED Petitioner’s Objections (Docket No. 16) are OVERRULED. The findings
of fact and conclusions of law of the Magistrate Judge are correct, and the Report and
Recommendation of the Magistrate Judge (Docket No. 14) is ADOPTED. A final judgment will

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be entered in these cases in accordance with the Magistrate Judge’s recommendation. A
certificate of appealability will not be issued.

So ORDERED and SIGNED this 7th day of March, 2025.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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