Unreported / Non-Citable
Background
Donald Berford Johnson, III is serving a 38-year prison sentence following his May 8, 2023 conviction for indecency with a child in Tarrant County, Texas. A Texas appellate court affirmed the conviction on July 11, 2024.
Johnson did not timely petition the Texas Court of Criminal Appeals for discretionary review. He submitted such a petition on April 8, 2026, but the state court took no action because it was untimely and filed after the mandate had issued. Johnson filed no state habeas application and signed his federal habeas petition on June 16, 2026.
The Court’s Holding
The district court dismissed Johnson’s 28 U.S.C. § 2254 petition as untimely. His conviction became final on August 12, 2024, when his time to seek discretionary review expired, giving him until August 12, 2025 to file a federal petition. His June 2026 filing came approximately ten months after that deadline.
The court held that Johnson’s untimely petition for discretionary review did not toll the federal limitations period and that his asserted excuses did not justify equitable tolling. Although Johnson claimed that he had filed previously and had been deprived of his direct appeal, he supplied no proof of an earlier filing, and the state appellate record contradicted his assertion about the appeal. The court also noted that his claims were unexhausted, declined to reach their merits, and denied a certificate of appealability.
Key Takeaways
- The one-year federal habeas limitations period began when Johnson’s time to seek timely discretionary review expired, not when his later, untimely petition was rejected.
- An improperly filed state petition does not toll the federal habeas deadline, and unsupported assertions of an earlier filing do not establish timeliness.
- Johnson failed to show grounds for equitable tolling, and his claims were also unexhausted because he had not properly presented them to Texas’s highest criminal court.
Why It Matters
The ruling underscores that state prisoners must calculate the federal habeas deadline from the conclusion of timely direct review and cannot revive or toll an expired limitations period through an untimely state filing. A petitioner seeking equitable tolling must provide evidence of diligent pursuit and an extraordinary circumstance that actually prevented timely filing.