McWherter v. Director, TDCJ-CID
ORDER ADOPTING 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 Michael H. Schneider on 09/01/15. (mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
DAVID WAYNE MCWHERTER #267382
CIVIL ACTION NO. 6:13cv590
ORDER OF DISMISSAL
Petitioner David Wayne McWherter, 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 two 1976 convictions for aggravated robbery. The petition was referred to United
States Magistrate Judge K. Nicole Mitchell, who issued a Report and Recommendation concluding
that the petition for a writ of habeas corpus should be dismissed as time-barred pursuant to the
provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
The Petitioner filed an objection to the Report and Recommendation was issued. Petitioner
states that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply
to issues of excessive confinement, but rather, only to habeas petitions challenging the validity of
the holding conviction. Petitioner offers no legal authority for his argument.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a oneyear statute of limitations for filing a federal habeas petition. 28 U.S.C. § 2244(d)(1). The statute
of limitations applies to all habeas petitions filed. There is no exception provided for those petitions
addressing excessive confinement. See 28 U.S.C. § 2244(d)(1).
Petitioner was convicted and sentenced well before the AEDPA was enacted. In cases where
the limitation period expired before AEDPA’s enactment, the petitioner is provided with a
reasonable time in which to file a federal habeas petition. United States v. Flores, 135 F.3d 1000,
1005 (5th Cir.1998); Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998). The Fifth Circuit held
that a reasonable time is a one-year period to begin on April 24, 1996, the date of the enactment of
AEDPA. See Flores, 135 F.3d at 1006; Flanagan, 154 F.3d at 200. The Fifth Circuit also held that
the tolling provision contained in 28 U.S.C. § 2244(d)(2) applies to the reasonable time grace period.
Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
Applying that rule in this case indicates that the one-year grace period would have closed on
April 24, 1997. See Flanagan, 154 F.3d at 202 (Rule 6(a) of the Federal Rules of Civil Procedure
applies to the computation of the limitations period). Petitioner’s state application for writ of habeas
corpus related to the time credited to this conviction did not toll the limitations period because it was
filed after April 24, 1997. See SHCR–06 13; see also Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
2000) (“state habeas application did not toll the limitation period under § 2244(d)(2) because it was
not filed until after the period of limitation had expired”). Therefore, Petitioner’s federal petition
was due by April 24, 1997. Accordingly, his federal petition, filed on August 9, 2013, was over
sixteen years and three months too late.
AEDPA is not a jurisdictional bar, and the statute of limitations can be equitably tolled in
certain extraordinary circumstances. See Holland v. Florida, 560 U.S. 631, 648 (2010); see also
Davis v. Johnson, 158 F.3d 806, 810–11 (5th Cir.1998). 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 existed and prevented timely filing. Holland, 560 U.S. at 648; see also
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner’s case does not present the necessary
“rare and exceptional circumstances” to merit such tolling. Ott v. Johnson, 192 F.3d 510, 513 (5th
Here, Petitioner was not active in challenging the time credited to his sentence for over
thirty-four years from his judgment of conviction and over eighteen years from the date he claims
his sentence should have expired, until he filed his state application for writ of habeas corpus. It
cannot be said that Petitioner was diligent in pursuing relief. The Petitioner has not shown that he
is entitled to equitable tolling.
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. 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. A certificate of appealability is DENIED. All motions not previously
ruled on are hereby DENIED.
SIGNED this 1st day of September, 2015.
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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