Opinion
No. 4:04-CV-217-A.
August 11, 2004
ORDER
Came on for consideration the above-captioned action wherein Zelro Anthony Daniels is petitioner and Douglas Dretke, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On July 21, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by August 11, 2004. On August 10, 2004, petitioner filed his written objections. Respondent has not made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
The magistrate judge recommends that the petition be dismissed as untimely. Petitioner objects, arguing that he should be entitled to equitable tolling. He says that he sent a state habeas petition to the Tarrant County District Clerk for filing within the one-year limitation period, but that the petition was not filed for some reason unknown to him. (He speculates that the petition was not filed, because it was not sent via certified mail.) The petition was allegedly sent for filing in April 2003. Petitioner did not make any attempt to determine what had happened to his petition until late December 2003. Within one week, he was informed that no petition had been filed. By the attachments to his objections, at most, petitioner has shown that he might have sent legal mail on or about April 28, 2003, to the district clerk of Tarrant County. Petitioner does not offer any other proof that he timely submitted a petition for writ of habeas corpus. The court notes that the state petition filed on February 2, 2004, does not contain any reference to an earlier attempt to file a petition. Moreover, the February 2004 petition shows that it was executed on January 22, 2004. There is nothing to indicate that petitioner simply refiled a petition that had been earlier prepared. Having considered the record, the court is not persuaded, and cannot find, that petitioner did timely submit his state petition or that he should be entitled to equitable tolling for any reason. Accordingly,
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, dismissed as untimely.