Brown v. Director, TDCJ-CID

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 6 Report and Recommendations of the United States Magistrate Judge. ORDERED that the application for the writ of habeas corpus is DISMISSED with prejudice as barred by the statute of limitations, that the Petitioner Desmond Brown is hereby DENIED a certificate of appealability sua sponte, and all motions which may be pending in this civil action are hereby DENIED. Signed by Judge Michael H. Schneider on 5/6/2011. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DESMOND DENARD BROWN

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:10cv648

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Desmond Brown, proceeding pro se, filed this application for the writ
of habeas corpus under 28 U.S.C. §2254 complaining of the legality of his confinement. This Court
ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of
Duties to United States Magistrate Judges.
Brown complained of convictions for aggravated robbery and aggravated assault,
which he received in the 124th Judicial District of Gregg County, Texas, on December 12, 2006.
He received concurrent sentences of 15 years. Brown did not take a direct appeal, but filed an
application for the writ of habeas corpus in state district court on December 10, 2009. This
application was denied without written order on March 2010. Brown then filed a second state
petition on September 1, 2010, which was denied on September 29, 2010. He signed his federal
petition, which raised issues of double jeopardy, ineffective assistance of counsel, a coerced guilty
plea, and a discrepancy between the date in the indictment and the date in the police report, on
November 26, 2010.
After review of the pleadings, the Magistrate Judge ordered Brown to show cause
why his petition should not be dismissed as barred by the statute of limitations. See Day v.

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McDonough, 547 U.S. 198, 210 (2006). Brown filed a response on March 11, 2011, saying that his
petition should not be barred by limitations because he is actually innocent, he only pleaded guilty
because of his attorney’s ineffectiveness, and his guilty plea was coerced.
After review of the pleadings, the Magistrate Judge issued a Report on March 16,
2011, recommending that the petition be dismissed as barred by the statute of limitations. The
Magistrate Judge rejected Brown’s arguments why it should not be barred, noting that the Fifth
Circuit has expressly held that claims of actual innocence are not a “rare and exceptional
circumstance” and thus provide no basis for equitable tolling of the limitations period. Felder v.
Johnson, 204 F.3d 168, 173 (5th Cir. 2000). The Magistrate Judge stated that Brown’s conviction
became final in January of 2007, and the limitations period expired in January of 2008, but he waited
until December of 2009 in which to file his first challenge to this conviction through a state habeas
corpus application. Thus, the Magistrate Judge concluded that Brown had not exercised “reasonable
diligence” and so was not entitled to have the statute of limitation equitably tolled.
A copy of the Magistrate Judge’s Report was sent to Brown at his last known address,
return receipt requested, but no objections have been received; accordingly, Brown is barred from
de novo review by the district judge of those findings, conclusions, and recommendations and,
except upon grounds of plain error, from appellate review of the unobjected-to factual findings and
legal conclusions accepted and adopted by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
The Court has reviewed the pleadings in this cause and the Report of the Magistrate
Judge. Upon such review, the Court has concluded that the Report of the Magistrate Judge is
correct. It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 6) is hereby
ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus is hereby
DISMISSED with prejudice as barred by the statute of limitations. It is further
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ORDERED that the Petitioner Desmond Brown is hereby DENIED a certificate of
appealability sua sponte. Finally, it is
ORDERED that any and all motions which may be pending in this civil action are
hereby DENIED.
SIGNED this 6th day of May, 2011.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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