Opinion
CIVIL ACTION NO. 9:14cv109
11-06-2015
EARLIE B. NORMAN v. DIRECTOR, TDCJ-CID
ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Earlie B. Norman, an inmate confined at the Wynne Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court previously referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this Court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this matter. The Magistrate Judge recommends the petition be dismissed as barred by the applicable statute of limitations.
The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and Recommendation. The court must therefore conduct a de novo review of the objections in relation to the pleadings and the applicable law.
In his objections, petitioner appears to assert he is entitled to equitable tolling because he is ignorant of proper procedures and does not understand legal issues such as the applicability of a statute of limitations. The statute of limitations may be equitably tolled in appropriate cases. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is only available if: (1) the petitioner diligently pursued his rights; and (2) extraordinary circumstances prevented timely filing. Id.
This petition was filed more than 11 years after the applicable period of limitations expired. In light of this lengthy delay, it cannot be concluded petitioner diligently pursued his rights. Further, petitioner's plea of ignorance of law and procedure does not constitute the type of extraordinary circumstances that would entitle him to equitable tolling. Tate v. Parker, 439 F. App'x 375, 376 (5th Cir. 2011); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000). As a result, petitioner is not entitled to equitable tolling.
For the reasons set forth above, petitioner's objections are without merit and are therefore OVERRULED. The findings of fact and conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is ADOPTED as the opinion of the court. A final judgment shall be entered dismissing the petition in accordance with the recommendation of the Magistrate Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability in this matter. An appeal from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of appealability requires the petitioner to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not demonstrate that he would prevail on the merits. Rather, he must demonstrate that the issues he raised are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
In this case, the petitioner has not shown that the issue of whether his petition is barred by the applicable statute of limitations is subject to debate among jurists of reason. The factual and legal issues raised by petitioner have been consistently resolved adversely to his position and the questions presented are not worth of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter.
SIGNED this 6th day of November, 2015.
/s/_________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE