Miller v. Lumpkin
MEMORANDUM OPINION AND ORDER--IT IS HEREBY ORDERED that: 1. Federal habeas corpus relief is DENIED and Petitioner Michael Rodney Millers Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE as untimely; 2. No Certificate of Appealability shall issue in this case; and 3. All remaining motions, if any, are DENIED, and this case is now CLOSED. Signed by Chief Judge Orlando L. Garcia. (bc)
July 14, 2021
CLERK, U.S. DISTRICT COURT
WESTERN DISTRICT OF TEXAS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL RODNEY MILLER,
TDCJ No. 01693893,
BOBBY LUMPKIN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil No. SA-20-CA-01210-OLG
MEMORANDUM OPINION AND ORDER
Before the Court are pro se Petitioner Michael Rodney Miller’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) and supplemental Appendix (ECF
No. 3), Respondent Bobby Lumpkin’s Answer (ECF No. 14), and Petitioner’s Replies (ECF
Nos. 15, 16) thereto. In his § 2254 petition, Petitioner challenges the constitutionality of his
2011 state court conviction for aggravated assault by raising numerous allegations, all of which
appear to assert that Petitioner had the right to defend himself and his property because the
victim was unlawfully trespassing. In his answer, Respondent contends Petitioner’s federal
habeas petition should be dismissed with prejudice as untimely.
Having carefully considered the record and pleadings submitted by both parties, the
Court agrees with Respondent that Petitioner’s allegations are barred from federal habeas review
by the one-year statute of limitations embodied in 28 U.S.C. § 2244(d)(1). Thus, for the reasons
discussed below, the Court concludes Petitioner is not entitled to federal habeas corpus relief or a
certificate of appealability.
In January 2011, Petitioner was convicted of aggravated assault with a deadly weapon
and sentenced to twenty years of imprisonment. State v. Miller, No. 2009CR4546 (437th Dist.
Ct., Bexar Cnty., Tex. Jan. 18, 2011); (ECF No. 13-1 at 18-19). The Texas Fourth Court of
Appeals affirmed his conviction on direct appeal. Miller v. State, No. 04-11-00046-CR, 2011
WL 5390212 (Tex. App.—San Antonio, Nov. 9, 2011, no. pet.); (ECF No. 13-9). Petitioner did
not file a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals.
(ECF No. 14-1).1
Instead, Petitioner waited until August 2019 to file a state habeas corpus application
challenging his conviction and sentence. Ex parte Miller, No. 90,260-01 (Tex. Crim. App.);
(ECF No. 13-12 at 4-31). The Texas Court of Criminal Appeals dismissed the petition on
September 11, 2019, as non-compliant because Petitioner did not properly verify the application
as required by Rule 73.1 of the Texas Rules of Appellate Procedure.
(ECF No. 13-11).
Petitioner corrected the problem and filed a second state habeas application on December 10,
2019, but the Texas Court of Criminal Appeals eventually denied relief without written order on
February 19, 2020. Ex parte Miller, No. 90,260-02 (Tex. Crim. App.); (ECF Nos. 13-13, 13-15
at 4-26). Petitioner then placed the instant federal habeas petition in the prison mail system on
September 11, 2020. (ECF No. 1 at 15).
II. Timeliness Analysis
Respondent contends Petitioner’s federal habeas petition is barred by the one-year
limitation period of 28 U.S.C. § 2244(d). Section 2244(d) provides, in relevant part, that:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
See also http://www.search.txcourts.gov, search for “Miller, Michael” last visited July 13, 2021.
judgment of a State court. The limitation period shall run from the
(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.
In this case, Petitioner’s conviction became final December 9, 2011, when the time for
filing a PDR with the Texas Court of Criminal Appeals expired. See Tex. R. App. P. 68.2
(providing a PDR must be filed within thirty days following entry of the court of appeals’
judgment); Mark v. Thaler, 646 F.3d 191, 193 (5th Cir. 2011) (holding that when a petitioner
elects not to file a PDR, his conviction becomes final under AEDPA at the end of the 30–day
period in which he could have filed the petition) (citation omitted). As a result, the limitations
period under § 2244(d) for filing a federal habeas petition challenging his underlying conviction
and sentence expired a year later on Monday, December 10, 2012.2 Because Petitioner did not
file his § 2254 petition until September 11, 2020—almost eight years after the limitations period
expired—his petition is barred by the one-year statute of limitations unless it is subject to either
statutory or equitable tolling.
Petitioner does not satisfy any of the statutory tolling provisions found under 28 U.S.C.
§ 2244(d)(1). There has been no showing of an impediment created by the state government that
violated the Constitution or federal law which prevented Petitioner from filing a timely petition.
28 U.S.C. § 2244(d)(1)(B). There has also been no showing of a newly recognized constitutional
right upon which the petition is based, and there is no indication that the claims could not have
been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(C)-(D).
Because the end of the limitations period fell on a Sunday, the limitations period continued to run until the
following Monday. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (finding Rule 6(a) of the Federal
Rules of Civil Procedure applies to computation of AEDPA’s limitations period).
Similarly, Petitioner is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2).
Section 2244(d)(2) provides that “[t]he 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 limitation under this subsection.” While
Petitioner challenged the instant conviction and sentence by filing an application for state postconviction relief in August 2019 and again in December 2019, Petitioner’s limitations period for
filing a federal petition had already expired in December 2012. As a result, neither state habeas
application tolled the one-year limitations period because they were filed well after the time for
filing a federal petition under § 2244(d)(1) had lapsed. See 28 U.S.C. § 2244(d)(2); Scott v.
Johnson, 227 F.3d 260, 263 (5th Cir. 2000).3 Thus, the instant § 2254 petition, filed September
11, 2020, is still well over seven and a half years too late.
In some cases, the limitations period may be subject to equitable tolling. The Supreme
Court has made clear that a federal habeas corpus petitioner may avail himself of the doctrine of
equitable tolling “only if he shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.” McQuiggin v.
Perkins, 569 U.S. 383, 391 (2013) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).
However, equitable tolling is only available in cases presenting “rare and exceptional
circumstances,” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), and is “not intended
for those who sleep on their rights.” Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012).
In addition, Petitioner’s first state habeas application was dismissed by the Texas Court of Criminal
Appeals for Petitioner’s failure to comply with the Texas Rules of Appellate Procedure. As such, this application
was not “properly filed” under § 2244(d)(2) and would afford Petitioner no tolling effect even if it were timely filed.
See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed’ when its delivery and acceptance are
in compliance with the applicable laws and rules governing filings.”).
Petitioner has not provided this Court with any valid reason to equitably toll the
limitations period in this case. Even with the benefit of liberal construction, Petitioner has
provided no justification for the application of equitable tolling, and a petitioner’s ignorance of
the law, lack of legal training or representation, and unfamiliarity with the legal process do not
rise to the level of a rare or exceptional circumstance which would warrant equitable tolling of
the limitations period. U.S. v. Petty, 530 F.3d 361, 365-66 (5th Cir. 2008); see also Sutton v.
Cain, 722 F.3d 312, 316-17 (5th Cir. 2013) (a garden variety claim of excusable neglect does not
warrant equitable tolling).
Moreover, Petitioner fails to demonstrate that he has been pursuing his rights diligently.
Petitioner’s direct appeal of his conviction was denied by the intermediate court of appeals on
November 9, 2011, yet Petitioner did not execute his first state habeas corpus application until
August 2, 2019, almost eight years later. Petitioner fails to establish that his claims could not
have been discovered and presented earlier. He also fails to explain why he waited almost seven
months after the Texas Court of Criminal Appeals denied his second state habeas application in
February 2020 before filing the instant petition in this Court. Consequently, because Petitioner
fails to assert any specific facts showing that he was prevented, despite the exercise of due
diligence on his part, from timely filing his federal habeas corpus petition in this Court, his
petition is untimely and barred by § 2244(d)(1).
III. Certificate of Appealability
The Court must now determine whether to issue a certificate of appealability (COA). See
Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller–El v. Cockrell, 537 U.S. 322,
335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
Supreme Court has explained that the showing required under § 2253(c)(2) is straightforward
when a district court has rejected a petitioner’s constitutional claims on the merits:
petitioner must demonstrate “that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This requires a petitioner to show “that reasonable jurists could debate whether the petition
should have been resolved in a different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Miller–El, 537 U.S. at 336 (citation omitted).
The issue becomes somewhat more complicated when the district court denies relief on
procedural grounds. Id. In that case, the petitioner seeking COA must show both “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack, 529 U.S. at 484). In that case, a COA should issue if the petitioner not only shows that the
lower court’s procedural ruling is debatable among jurists of reason, but also makes a substantial
showing of the denial of a constitutional right.
A district court may deny a COA sua sponte without requiring further briefing or
argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set
forth above, the Court concludes that jurists of reason would not debate the conclusion that
Petitioner was not entitled to federal habeas relief. As such, a COA will not issue.
After careful consideration, the Court concludes that Petitioner’s § 2254 petition (ECF
No. 1) is barred from federal habeas corpus relief by the statute of limitations set forth in 28
U.S.C. § 2244(d). As a result, Petitioner is not entitled to federal habeas corpus relief.
Accordingly, IT IS HEREBY ORDERED that:
Federal habeas corpus relief is DENIED and Petitioner Michael Rodney Miller’s
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED
WITH PREJUDICE as untimely;
No Certificate of Appealability shall issue in this case; and
All remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.
SIGNED this the _______ day of July, 2021.
ORLANDO L. GARCIA
Chief United States District Judge
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