Dills v. Thaler, Director TDCJ-CID
Filing
15
Memorandum Opinion and Order: The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is dismissed as time-barred. The court further ORDERS that a certificate of appealability is denied. (Ordered by Judge John McBryde on 8/30/2012) (dnw)
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u.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT OURT
FOR THE NORTHERN DISTRICT OF EXAS
FORT WORTH DIVISION
PAUL GLENN DILLS,
AUG 302012
CLERK, U.S. DISTRICT COURT
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By
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Petitioner,
FILED
--~D=ep-u:-ty----
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§
v.
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RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
No. 4:12-CV-430-A
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§
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Respondent.
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MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Paul Glenn Dills, a state
prisoner currently incarcerated in Cuero, Texas, against Rick
Thaler, Director of the Texas Department of Criminal Justice,
Correctional Institutions Division, respondent.
After having
considered the pleadings, state court records, and relief sought
by petitioner, the court has concluded that the petition should
be dismissed as time-barred.
I.
Factual and Procedural History
On November 7, 2008, a jury convicted petitioner of two
counts of aggravated assault with a deadly weapon and one count
of unlawful restraint in Cause Nos. 13731, 13732, and 13733 in
the 29 th Judicial District Court of Palo Pinto, County, Texas,
petitioner pleaded "true" to a prior 2000 felony conviction, and
the trial court assessed his punishment at 40, 20, and 15 years'
confinement, respectively.
40; 3Clerk's R. at 40 1 )
(lClerk's R. at 47; 2Clerk's R. at
Petitioner appealed his convictions, but
the Eleventh District Court of Appeals of Texas affirmed the
trial court's judgments on April 16, 2009.
Dills v. State, Nos.
11-08-00301-CR through 11-08-00303-CR, slip op.
App.-Eastland Apr. 16, 2009)
(Tex.
(not designated for publication) .
Petitioner did not file a petition for discretionary review; thus
his convictions became final under state law on May 18, 2009. 2
See Tex. R. App. P. 68.2(a); Roberts v. Cockrell, 319 F.3d 690,
694 (5 th Cir. 2003).
On August 22, 2011, petitioner filed three state
postconviction applications for habeas relief, one for each
conviction, which were denied without written order by the Texas
Court of Criminal Appeals on March 7, 2012.
Ex parte Dills,
Appl. Nos. WR-77,214-01, WR-77,214-02 & WR-77,214-03.
'"lClerk's
court Cause No.
record in trial
the state court
2The
This
R." refers to the state court record in trial
13731; "2Clerk's R." refers to the state court
court Cause No. 13732; "3Clerk's R." refers to
record in trial court Cause No. 13733.
thirtieth day fell on May 16, 2009, a Saturday.
2
federal petition is deemed filed on June 19, 2012, in which
petitioner challenges his convictions and sentences in four
grounds.
untimely.
Respondent, Rick Thaler, contends the petition is
(Resp't Prel. Resp. At 4-8)
II.
28 U.S.C.
§
STATUTE OF LIMITATIONS
2244(d) imposes a one-year statute of
limitations on federal petitions for writ of habeas corpus filed
by state prisoners.
Section 2244(d) provides:
(1) A I-year period of limitations shall apply to
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitations period shall run from the latest of(A)
the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B)
the date on which the impediment to
filing an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or
(C)
(D)
the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
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(2)
The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitations under this subsection.
28 U.S.C.
§
2244(d) (1)-(2).
Under subsection (A), applicable to this case, the
limitations period began to run on the date on which the
judgments of conviction became final by the expiration of the
time for seeking direct review.
For purposes of this provision,
petitioner's convictions became final on May 18, 2009, triggering
the one-year limitations period, which expired one year later on
May 18, 2010, absent any tolling.
Roberts, 319 F.3d at 694.
Petitioner's state habeas applications filed on August 22,
2011, after the statute of limitations had already expired, did
not operate to toll the running of the federal period under the
statutory tolling provision in
2244(d) (2), nor has petitioner
§
demonstrated that he is entitled to tolling as a matter of
equity.
Scott v. Johnson, 227 F.3d 260, 263
(5 th Cir. 2000).
Equitable tolling is permitted only in rare and exceptional
circumstances when an extraordinary factor beyond the
petitioner's control prevents him from filing in a timely manner.
Holland v. Florida, - U.S. -
, 130 S. Ct. 2549, 2560 (2010) i
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Davis v. Johnson, 158 F.3d 806, 811 (5 th Cir. 1998).
Petitioner
wholly fails to explain his delay in seeking state and federal
postconviction habeas relief.
It is well recognized that neither
a petitioner's unfamiliarity with the legal process nor his
ignorance of the law, even for an incarcerated pro se petitioner,
does not excuse prompt filing.
See Fierro v. Cockrell, 467 F.3d
484, 683 (5 th Cir. 2006) i Coleman v. Johnson, 184 F.3d 398, 402
(5 th Cir. 1999).
Petitioner's federal petition was due on or before May 18,
2010.
Accordingly, his petition filed on June 19, 2012, is
untimely.
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
dismissed as time-barred.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.
§
2253(c), for
the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner has not shown his petition is not time-barred or made
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a substantial showing of the denial of a constitutional right.
SIGNED August
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3~V~_,
2012.
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