Romine v. Dretke

Full title: DALE WADE ROMINE, Petitioner, v. DOUGLAS DRETKE, Director, T.D.C.J.…

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

Date published: Apr 26, 2004

CIVIL ACTION NO. 4:03-CV-1460-Y (N.D. Tex. Apr. 26, 2004)

Opinion

CIVIL ACTION NO. 4:03-CV-1460-Y.

April 26, 2004

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS

TERRY MEANS, District Judge

In this action brought by petitioner Dale Wade Romine under 28 U.S.C. § 2254, 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 April 9, 2004; and

3. The respondent written objections to the proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on April 19, 2004;

4. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on April 21, 2004.

The Court, after de novo review, finds and determines that both the Respondent and the Petitioner'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, Romine argues, for the first time, that he was depending on his appellate counsel to file a state writ application on his behalf, and that he was unable due to "ignorance of the law" to find required legal material once he found out his attorney had not filed a writ application on his behalf. The Court has construed these arguments by Romine as claims that he should be entitled to equitable tolling.

The one-year limitation period for filing a petition under § 2254 is subject to equitable tolling.¹ The burden is on the petitioner — here Romine — 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 As Romine's claims about the inadequate law library amount to nothing more than such an argument, that objection is overruled.

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 United States v. 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 See Molo v. Johnson, 207 F.3d 773, 775-76 (5th Cir. 2000).

Romine also argues that he should be afforded equitable-tolling credit for the period he allegedly relied upon counsel's assurances that he would take further action on Romine's behalf. Romine, however, cannot show that counsel's inaction justifies equitable tolling. The Fifth Circuit has expressly noted: "[I]f there were ever any doubt that an attorney's error or neglect does not warrant equitable tolling, our recent decision in Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002) erased it: `[M]ere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified.'"⁶ Romine's objection based upon the ineffective assistance of habeas counsel are overruled.

6 United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002), cert den'd, 123 S.Ct. 2630 (2003).

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.