Gundrum v. Quarterman , 191 F. App'x 313 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-10873
Summary Calendar
DAVID MILTON GUNDRUM,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CV-69
USDC No. 4:05-CV-81
USDC No. 4:05-CV-114
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
David Milton Gundrum, Texas prisoner # 1088250, appeals the
district court’s dismissal of his three 28 U.S.C. § 2254petitions as untimely. Gundrum filed the petitions to attack his
three convictions for aggravated robbery with a deadly weapon.
The district court granted a certificate of appealability on the
issue whether Gundrum is entitled to equitable tolling for the
time that his initial state habeas applications were pending,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-10873
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given that the state court dismissed them for failure to comply
with Texas Rule of Appellate Procedure 73.2 due to the omission
of one page of the Texas form for application for a writ of
habeas corpus.
Gundrum’s convictions became final on July 15, 2003, when
the time for seeking discretionary review by the Texas Court of
Criminal Appeals (TCCA) expired. See Roberts v. Cockrell, 319
F.3d 690, 694 (5th Cir. 2003). Gundrum had one year from that
date to file his § 2254 petition. See 28 U.S.C. § 2244(d). On
April 20, 2004, Gundrum filed three state habeas petitions
challenging his convictions. On August 24, 2004, the TCCA
dismissed all three applications. Gundrum filed federal habeas
applications on January 24, 2005.
Equitable tolling of the one-year limitations period is
appropriate only in “rare and exceptional circumstances.” Felder
v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000). A district
court’s refusal to invoke the doctrine of equitable tolling is
reviewed only for abuse of discretion. Ott v. Johnson, 192 F.3d
510, 513 (5th Cir. 1999).
Gundrum’s situation resembles that in Larry v. Dretke, 361
F.3d 890 (5th Cir. 2004). In that case, Larry filed a state
habeas application before the United States Supreme Court denied
his writ for certiorari in his direct appeal of his conviction,
i.e. before his conviction became final. 361 F.3d at 892.
Although Larry’s application remained in the Texas trial court
No. 05-10873
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for over a year and the trial court addressed the merits of
Larry’s habeas petition, the TCCA dismissed it for lack of
jurisdiction on the basis of the pending direct appeal. Id.Larry filed a second habeas application which was denied without
written order. Id. He then filed a federal habeas petition
which the district court dismissed as time-barred. Id. This
court affirmed, determining that the district court did not abuse
its discretion in declining to equitably toll the period of
limitations. Id. at 895-96, 898. The court stated, “Larry’s own
action . . . prevented him from asserting his rights. If Larry
had ‘properly filed’ his state habeas application in accordance
with Texas law the federal statute of limitations would have
tolled for the entire period his application was pending before
the state habeas courts.” Id. at 897.
Like Larry, Gundrum’s own actions have prevented the
assertion of his rights. Gundrum waited for a year after the
TCCA denied his PDR before filing his state habeas action,
leaving only 90 days before the end of the limitations period.
Gundrum provides no explanation for this delay. See Fisher v.
Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (“[E]quity is not
intended for those who sleep on their rights.”)(internal
quotation marks, parentheses, footnote, and citation omitted).
Like Larry, Gundrum has failed to show rare and exceptional
circumstances warranting equitable tolling. Larry, 361 F.3d at
897; see also Felder, 204 F.3d at 170-71.
No. 05-10873
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Accordingly, the district court did not abuse its discretion
in dismissing Gundrum’s instant application as barred by
limitations and the district court’s judgment is AFFIRMED.