Bell v. Cockrell

Full title: DARRELL WAYNE BELL, Petitioner v. JANIE COCKRELL, DIRECTOR, T.D.C.J.…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Nov 5, 2002

CIVIL ACTION NO. 4:02-CV-566-Y (N.D. Tex. Nov. 5, 2002)

Opinion

CIVIL ACTION NO. 4:02-CV-566-Y

November 5, 2002

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)

TERRY R. MEANS, United States District Judge.

The Court has made an independent review of the following matters in the above-styled and numbered cause:

1. The pleadings and record;

2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on October 7, 2002; and

3. The petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on October 28, 2002.

The Court, after de novo review, finds and determines that petitioner Darrell Wayne Bell's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244(d)(1)-(2), for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.

In his written objections to the magistrate judge's report and recommendation that this petition be deemed time-barred, Bell claims he should not be subject to the limitation provision because of the failure of the state trial court to rule on his postjudgment motion. The Court has treated this argument as a claim by Bell that he is entitled to equitable tolling. The one-year limitation for filing a petition under § 2254 is subject to equitable tolling.¹ The burden is on the petitioner — here Bell — to show rare, exceptional and/or extraordinary circumstances beyond his control that made it impossible for him to timely file a § 2254 petition.² The Fifth Circuit has held that "`equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'"<sup>3</sup> A "`garden variety claim of excusable neglect'" does not support equitable tolling.⁴ Ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not warrant equitable tolling.⁵

1 See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. den'd, 526 U.S. 1074 (1999); see also Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000), cert. den'd, 531 U.S. 1035 (2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. den'd, 531 U.S. 1164 (2001).

2 See Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (statute can be tolled in "rare and exceptional" circumstances); see also Davis, 158 F.3d at 811 (same).

3 Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. den'd, 529 U.S. 1057 (2000) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).

4 Id.

5 Mob v. Johnson, 207 F.3d 773, 775-76 (5th Cir. 2000).

Bell's claim that the state trial court failed to rule on a post-judgment, pro-se motion is not a sufficient ground for equitable tolling. Bell has not shown that such circumstance prevented him from pursuing federal habeas-corpus relief. Alternatively, even assuming such factual event could provide a basis for equitable tolling, Bell has not shown that he so diligently pursued collateral challenges to his conviction⁶ that he is entitled to equitable tolling of the AEDPA's one-year limitation period.⁷

6 Although Bell presented his pro-se motion to the state trial court in August 2000 and inquired of the trial court in September 2000, he acknowledges that he did not again question the trial court until seven months later, in late April 2001. After that, Bell did not file a state habeas-corpus application until December 2001 (almost eighth months later); and then, did not file the instant federal petition until June 25, 2002, over three months after the state habeas application was denied.

7 See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) ("[equitable tolling] will not be applied where the applicant failed to diligently pursue habeas corpus relief under § 2254 . . ."), citing Patterson, 211 F.3d at 930.

It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.

It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITH PREJUDICE.

It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.