AMENDED FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
PAUL D. STICKNEY, Magistrate Judge.
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Amended Findings, Conclusions and Recommendation of the Magistrate Judge are as follows:
Petitioner is an inmate in the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent Lorie Davis is Director of TDCJ-CID.
Petitioner challenges his conviction for capital murder. State of Texas v. Trandy Germaine Crew, No. F-0668002-I (Crim. Dist. Ct. No. 2, Dallas County, Tex., July 17, 2008). He was sentenced to life in prison without the possibility of parole. On August 31, 2009, Petitioner's conviction and sentence were affirmed on direct appeal. Crew v. State, No. 05-08-00959-CR, 2009 WL 2712386 (Tex. App. — Dallas, 2009, pet. ref'd). On April 14, 2010, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. PDR No. 1609-09.
On June 23, 2014, Petitioner filed a state habeas petition. Ex parte Crew, No. 82,119-01. On October 1, 2014, the Texas Court of Criminal Appeals denied the petition without written order.
On October 1, 2015, Petitioner filed this federal petition for habeas relief. Petitioner argues:
On March 21, 2016, Respondent filed her answer arguing, inter alia, that the petition is barred by limitations. Petitioner did not file a reply. The Court now finds the petition should be dismissed as time-barred.
A. Statute of Limitations
Petitioner filed his § 2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L. Ed. 2d 481 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996).
In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A).
On April 14, 2010, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. The conviction became final ninety days later, on July 13, 2010. See Sup. Ct. R. 13; see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires regardless of when mandate issues). Petitioner then had one year, or until July 13, 2011, to file his federal petition.
The filing of a state application for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). On June 23, 2014, Petitioner filed a state habeas petition. This petition was filed after the AEDPA limitations period expired. It therefore did not toll the limitations period.
Petitioner was required to file his § 2254 petition by July 13, 2011. He did not file his petition until October 1, 2015. His petition is therefore untimely.
B. Equitable Tolling
The one-year limitation period is subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). The Fifth Circuit has held that "`[e]quitable 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.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir.1996)). Petitioner bears the burden of proof to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5
In this case, Petitioner has made no argument that he was misled by the state or prevented in some extraordinary way from asserting his rights. Petitioner has failed to show that he is entitled to equitable tolling.
C. Actual Innocence
Petitioner argues he is actually innocent. The Supreme Court has held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). A petitioner who claims actual innocence, however, must submit new evidence to "show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. Petitioner has failed to submit any new evidence to support his claim. Petitioner's actual innocence claim is insufficient to excuse him from the statute of limitations.
The Court recommends that the petition for a writ of habeas corpus be dismissed with prejudice as barred by the one-year limitation period. See 28 U.S.C. §2244(d).
28 U.S.C. § 2244(d)(1).