George v. Director, TDCJ-CID

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
T YRONE E. G EORGE ,
TDCJ-CID N O. 02469271,
Petitioner,
v. 	No. 4:26-cv-0366-P
D IRECTOR , TDCJ-CID,
Respondent.
OPINION AND ORDER
Before the Court is the petition of Tyrone E. George under 28 U.S.C.
§ 2254. Having considered the parties’ pleadings, the state-court record,
and applicable authorities, the Court concludes that the petition must
be DISMISSED WITH PREJUDICE as untimely.
BACKGROUND
Petitioner is serving a sentence of 25 years’ imprisonment following
his conviction for unlawful possession of a firearm by a felon under
Cause No. 1737689 in Criminal District Court No. 3, Tarrant County,
Texas. ECF No. 16-1, Ex. A.1 The judgment was entered on September
18, 2023. ECF No. 16-1, Ex. A. The Second Court of Appeals of Texas
affirmed Petitioner’s conviction on June 13, 2024. George v. State, No.
02-23-00261-CR, 2024 WL 2971678 (Tex. App.—Fort Worth June 13,
2024, no pet.) (mem. op., not designated for publication); ECF No. 16-1,
Ex. C. He did not file a petition for discretionary review. ECF No. 16-1,
Ex. D.
On December 11, 2024, Petitioner filed his state habeas application.
ECF No. 16-1. Ex. E. See Richards v. Thaler, 710 F.3d 573, 578–79 (5th
1 The page number references to the appendix to Respondent’s answer are to “Page
__ of 31” reflected at the top right portion of the document on the Court’s electronic
filing system.
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Cir. 	2013) 	(applying 	the 	prison 	mailbox 	rule 	to 	state 	habeas
applications). On July 23, 2025, the Texas Court of Criminal Appeals
(“CCA”) denied his application without written order on the findings of
the trial court and its independent review of the record. ECF No. 16-1,
Ex. 	F. 	Petitioner’s 	motion 	for 	reconsideration 	was 	postmarked 	on
August 7, 2025, ECF No. 16-1, Ex. G, and dismissed by the CCA on
August 13, 2025. ECF No. 16-1, Ex. H.
On March 17, 2026, Petitioner signed his federal habeas petition.
ECF No. 1 at 15.2 See RULES G OVERNING S ECTION 2254 CASES FOR THE
U.S. D IST . CTS. Rule 3(d) (applying the prison mailbox rule to federal
habeas applications).
GROUNDS OF THE PETITION
Petitioner raises four grounds in support of his petition, which he
defines as illegal enhancement, illegal sentence, hearsay, and ineffective
assistance of counsel. ECF No. 1 at 5–11.
STATUTE OF LIMITATIONS
A one-year period of limitation applies to a petition for writ of habeas
corpus by a person in custody pursuant to the judgment of a state court.
The period runs from the latest of —
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
2 The page number references to the petition are to “Page __ of 19” reflected at the
top right portion of the document on the Court’s electronic filing system.
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(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of diligence.
28 U.S.C. § 2244(d)(1). Typically, the time begins to run on the date the
judgment of conviction becomes final. United States v. Thomas, 203 F.3d
350, 351 (5th Cir. 2000). A criminal judgment becomes final when the
time for seeking direct appeal expires or when the direct appeals have
been exhausted. Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
The time during which a properly filed application for state post-
conviction 	relief 	is 	pending 	does 	not 	count 	toward 	the 	period 	of
limitation. 28 U.S.C. § 2244(d)(2). A state habeas petition is pending on
the 	day 	it 	is 	filed 	through 	the 	day 	it 	is 	resolved. 	Windland 	v.
Quarterman, 578 F.3d 314, 317 (5th Cir. 2009). A subsequent state
petition, 	even 	though 	dismissed 	as 	successive, 	counts 	to 	toll 	the
applicable limitations period. Villegas v. Johnson, 184 F.3d 467, 470 (5th
Cir. 1999). And, a motion for reconsideration of the denial of a state
petition also counts to toll limitations. Emerson v. Johnson, 243 F.3d
931, 935 (5th Cir. 2001). A state habeas application filed after the period
of limitations has expired does not entitle the petitioner to statutory
tolling. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
The period of limitations may also be subject to equitable tolling—an
extraordinary remedy available only where strict application of the
statute of limitations would be inequitable. United States v. Patterson,
211 F.3d 927, 930 (5th Cir. 2000). The doctrine is applied restrictively
only in rare and exceptional circumstances. In re Wilson, 442 F.3d 872,
875 (5th Cir. 2006). The petitioner bears the burden of showing that
equitable tolling should apply. Alexander v. Cockrell, 294 F.3d 626, 629
(5th Cir. 2002). To do so, the petitioner must show that he was pursuing
his rights diligently and that some extraordinary circumstance stood in
his way and prevented the timely filing of his petition. Holland v.
Florida, 560 U.S. 631, 649 (2010). The failure to satisfy the statute of
limitations must result from factors beyond the petitioner’s control;
delays of his own making do not meet the test. In re Wilson, 442 F.3d at
875. Equitable tolling applies principally where the petitioner is actively
misled by the government or is prevented in some extraordinary way
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from asserting his rights. Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir.
2002); 	Patterson, 	211 	F.3d 	at 	930. 	Neither 	excusable 	neglect 	nor
ignorance of the law is sufficient to justify equitable tolling. Fierro, 294
F.3d at 682. Lack of legal acumen and unfamiliarity with legal process
also do not justify equitable tolling. United States v. Petty, 530 F.3d 361,
366 (5th Cir. 2008); Alexander, 294 F.3d at 629.
Finally, the Supreme Court has recognized actual innocence as an
equitable exception to the statute of limitations. McQuiggin v. Perkins,
569 U.S. 383, 386 (2013). To meet the actual innocence exception to
limitations, the petitioner must show that, in light of new evidence, no
juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt. Id. at 386–87; Merryman v. Davis, 781 F. App’x 325,
330 (5th Cir. 2019). “Actual innocence” means factual innocence, not
mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623
(1998). Moreover, such a claim requires the petitioner to support his
allegations with new reliable evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995).
ANALYSIS
Petitioner’s judgment became final when the time to file a petition
for discretionary review with the CCA expired; here, that was on July
13, 2024, thirty days after the Second Court of Appeals’ judgment on
June 13, 2024. ECF No. 16-1, Ex. C; Tex. R. App. P. 68.2. His federal
petition was therefore due on Sunday July 13, 2025—extended to
Monday July 14, 2025—absent tolling. 28 U.S.C. § 2244(d)(1)(A); F ED.
R. CIV. P. 6(a)(3) (extending filing deadlines to first accessible weekday
that is not a legal holiday).
Petitioner’s state application for writ of habeas corpus—which was
filed on December 11, 2024, and denied on July 23, 2025—tolled the
limitations period by 225 days. 28 U.S.C. § 2244(d)(2); ECF No. 16-1, Ex.
E–F. The limitations period was further tolled for “as long as the Texas
courts [took] to resolve [his] motion or suggestion for reconsideration;”
in this case, the seven days between August 7 and August 13, 2025.
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Emerson, 	243 	F.3d 	at 	935; 	ECF 	No. 	16-1, 	Ex. 	G–H.3 	Thus, 	the
limitations period was statutorily tolled for 232 days and expired on
March 3, 2026—fourteen days before Petitioner filed his federal petition
on March 17, 2026. ECF No. 1 at 15.
Anticipating that his petition may be untimely, Petitioner claims
that since August 2025 prison officials have delayed his habeas petition
by preventing him from paying the filing fee. ECF No. 1 at 13–14
(vaguely referencing dismissals in earlier § 2254 cases for failure to pay
the filing fee and complaining of retaliation by prison officials); ECF No.
20 at 4–7 (enclosing grievances complaining of denial of access to the
court due to prison officials’ failure to process his filing fee payment).
Petitioner provides no support for this claim, instead inviting the Court
to investigate the prison’s records. ECF No. 1 at 14. Regardless, the
timeliness of the petition is determined by the date it is filed, not the
date the fee is paid, and Petitioner does not allege that prison officials
prevented him from filing his petition.
Petitioner also claims that the Court should apply equitable tolling
because he pursued his claim with due diligence. ECF No. 20 at 1. But
equitable 	tolling 	requires 	both 	due 	diligence 	and 	extraordinary
circumstances, 	Holland, 	560 	U.S. 	at 	649, 	and 	Petitioner 	has 	not
demonstrated either. He has been given multiple opportunities across
two prior habeas petitions to pay the $5 filing fee, but has repeatedly
failed to do so. See Tyrone E. George v. Director, TDCJ-CID, No. 4:25-cv-
00924-P (N.D. Tex. Nov. 4, 2025); Tyrone E. George v. Director, TDCJ-
CID, 	No. 	4:25-cv-01428-P 	(N.D. 	Tex. 	Mar. 	2, 	2026). 	This 	Court
ultimately 	determined 	that 	Petitioner 	“made 	contradictory
representations regarding his ability to pay and requests that payment
be made from his inmate trust account.” ECF No. 13 in No. 4:25-cv-
01428-P (N.D. Tex. Mar. 2, 2026). Likewise, Petitioner’s claim in the
instant case that prison officials prevented him from filing his petition
3 Respondent argues that Petitioner’s Motion for Reconsideration does not toll the
limitations period because Texas Rule of Appellate Procedure 79.2 prohibits habeas
petitioners from filing such motions. ECF No. 16 at 6. But the Fifth Circuit has
considered and rejected this argument, noting that “the Texas Court of Criminal
Appeals has entertained motions for reconsideration, notwithstanding the language in
. . . Rule 79.2(d).” Emerson, 243 F.3d at 934.
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or paying the filing fee are unsubstantiated. Petitioner’s filings instead
indicate that he did not properly submit his payment requests to prison
authorities. ECF No. 20, Ex. B.
Lastly, Petitioner argues that under Federal Rule of Civil Procedure
15(c), his current petition relates back to his two prior timely petitions
which were dismissed for failure to pay the filing fee. ECF No. 18 at 4.
But Rule 15(c) applies when a pleading is amended, see F ED. R. CIV. P.
15(c), and his current petition is not an amendment of the previously
dismissed petitions.4
CONCLUSION
For the reasons discussed, the petition is DISMISSED 	WITH
PREJUDICE as untimely.
Further, for the reasons discussed herein, pursuant to 28 U.S.C.
§ 2553(c), a certificate of appealability is DENIED.
SO ORDERED on this 13th day of October 2026.
4 Petitioner does not argue that the actual innocence exception to the statute of
limitations applies.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
REGINALEA KEMP ,
Plaintiff,
v. 	No. 4:23-cv-00841-P
REGIONS BANK ET AL .,
Defendants.
ORDER
Before the Court is Plaintiff’s Unopposed Motion for Leave to File
Second Amended Complaint. ECF No. 18. Having considered the Motion
and applicable docket entries, the Court GRANTS the Motion.
SO ORDERED on this 18th day of September 2023.
______________________________________________
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
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