Smith v. Director, TDCJ-CID

Filing 12

ORDER ADOPTING 8 Report and Recommendations. The petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are hereby DENIED. Signed by Judge Leonard Davis on 05/30/12. cc:petr 5-31-12(mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
FREDRICK SMITH, SR., #1578310

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 6:12cv239

ORDER OF DISMISSAL
Petitioner Fredrick Smith, Sr., an inmate confined in the Texas prison system, proceeding
pro se, filed the above-styled and numbered petition for a writ of habeas corpus challenging his
Smith County conviction for possession of a controlled substance. The petition was referred to
United States Magistrate Judge Judith K. Guthrie, who issued a Report and Recommendation
concluding that the petition for a writ of habeas corpus should be denied as time-barred. The
Petitioner has filed a response, which was construed as objections (docket entry #11).
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 the Petitioner to the Report, the Court is of the
opinion that the findings and conclusions of the Magistrate Judge are correct and the objections of
the Petitioner are without merit.
The objections raised several issues that should be addressed. The Twelfth Court of Appeals
affirmed the Petitioner’s conviction on November 3, 2010.

He did not file a petition for

discretionary review. The conviction became final when the opportunity to file a petition for
discretionary review expired, and he had thirty days to file a petition for discretionary review.
Windland v. Quarterman, 578 F.3d 314, 315 (5th Cir. 2009). The conviction became final on
December 3, 2010. Petitioner asked about the relevancy of the date on which the mandate was
issued, but the Fifth Circuit has held that “the issuance of the mandate by the state court of appeals
1

is of no consequence for the purposes of § 2244(d)(1)(A). Mark v. Thaler, 646 F.3d 191, 194 n.2
(5th Cir. 2011) (citing Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003). The present
petition was due no later than December 3, 2011 in the absence of tolling.
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. The Petitioner’s state application was filed on November 29, 2011, which
was just four days before the deadline of December 3, 2011. The Texas Court of Criminal Appeals
denied his application on March 7, 2012. The application was pending for 100 days. Thus the
deadline for filing the present petition was extended by 100 days to March 12, 2012. However, the
present petition was not filed until March 29, 2012. It was filed too late. The Petitioner has not
shown that any of the other provisions of § 2244(d) or principles of equitable tolling save the
petition. Consequently, the petition was untimely filed.
In his objections, the Petitioner stressed that he mailed his state application on November 15,
2011. That date is not significant since the mailbox rule does not apply to the date he mailed his
state application. See Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999); Schillereff v.
Quarterman, 304 Fed. Appx. 310, 313 (5th Cir. 2008). The Petitioner also discussed the six day
delay between the time the Texas Court of Criminal Appeals issued the decision denying his state
application and when he received the decision. Routine delays of a few days do not warrant tolling,
although long delays in receiving state court action may warrant equitable tolling. Hardy v.
Quarterman, 577 F.3d 596, 598 (5th Cir. 2009). The period of time of six days in this case did not
warrant statutory or equitable tolling. The objections raised by the Petitioner lack merit. Therefore
the Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and
conclusions of the Court. It is therefore
ORDERED that the Report and Recommendation (docket entry #8) is ADOPTED. It is
further

2

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 finally
ORDERED that all motions not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 30th day of May, 2012.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

3