McBride v. Lumpkin

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KIRK WAYNE MCBRIDE, SR.,
Petitioner,
VS.
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CIVIL ACTION NO. 4:24-CV-00041
BOBBY LUMPKIN,
Respondent.
MEMORANDUM AND ORDER
This case is before the Court on Petitioner Kirk Wayne McBride, Sr.=s petition for
a writ of habeas corpus. Having carefully considered the petition, the answer, McBride’s
response, all the arguments and authorities submitted by the parties, and the entire record,
the Court is of the opinion that McBride=s petition should be dismissed.
I. Background
McBride is an inmate in the custody of the Texas Department of Criminal Justice
(ATDCJ@). He challenges the loss of 180 days of good time credit, and he contends that
he was not properly credited with time served for time spent in custody on pre-revocation
warrants pending revocation of his parole.
II. Analysis
Under the Antiterrorism and Effective Death Penalty Act (AAEDPA@), a state
prisoner has one year in which to file a federal habeas corpus petition. Fierro v. Cockrell,
294 F.3d 674, 679 (5th Cir. 2002). The statute of limitations begins to run on Athe date on
United States District Court
Southern District of Texas
ENTERED
November 24, 2025
Nathan Ochsner, Clerk
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which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.@ 28 U.S.C. ' 2244(d)(1)(D). In this case, McBride
admits that he was aware of the loss of good time credits by September 17, 2020. See Doc.
# 18-27 at 11, 17. Therefore, in the absence of tolling, the statute of limitations expired on
September 17, 2021.
The statute of limitations is tolled during A[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
. . . claim is pending . . ..@ 28 U.S.C. ' 2244(d)(2). McBride claims that he filed a Time
Dispute Resolution form but never received a response. Before an inmate can file a state
habeas application challenging loss of good time credits, Texas law requires the inmate to
file a time dispute resolution and either receive a response or wait 180 days with no
response. See TEX. GOV’T CODE ' 501.0081(b). Accepting McBride’s assertion as true,
his time dispute resolution tolled the limitations period by 180 days, extending the federal
statute of limitations to March 16, 2022. McBride filed his state habeas application on
October 6, 2023. Doc. # 18-27 at 27. Because this was after the limitations period expired,
there was nothing left for the state application to toll. McBride filed this federal petition
on January 1, 2024, more than 22 months after the limitations period expired. His claim
concerning lost good time credits is therefore time barred.
The AEDPA statute of limitations is not jurisdictional, and is subject to equitable
tolling Ain rare and exceptional circumstances.@ Davis v. Johnson, 158 F.3d 806, 810-11
(5th Cir. 1998). ARare and exceptional circumstances@ exist when a petitioner is actively
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misled by the state or prevented in some extraordinary way from asserting his rights. ABut,
a garden variety claim of excusable neglect by the petitioner does not support equitable
tolling.@ Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (internal quotation
marks and citation omitted). Moreover, the Fifth Circuit has held that equitable tolling is
not warranted based on a petitioner=s pro se status. See Felder v. Johnson, 204 F.3d 168,
171 (5th Cir.); see also United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (holding
that pro se status, illiteracy, deafness, and lack of legal training are not external factors
excusing an abuse of the writ). McBride fails to show that he is entitled to equitable tolling.
As for McBride’s claim that he was not properly credited with time served, the
State submitted evidence in connection with McBride’s state habeas application showing
that he was, in fact, credited with time served. See Doc. # 18-27 at 65-68. McBride
presents no evidence to the contrary. The evidence thus establishes that this claim is
without merit.
III. Certificate of Appealability
McBride has not requested a certificate of appealability (ACOA@), but this court
may determine whether he is entitled to this relief in light of the foregoing rulings. See
Alexander v. Johnson, 211 F.3d 895, 898(5th Cir. 2000) (AIt is perfectly lawful for district
court=s [sic] to deny a COA sua sponte. The statute does not require that a petitioner move
for a COA; it merely states that an appeal may not be taken without a certificate of
appealability having been issued.@) A petitioner may obtain a COA either from the district
court or an appellate court, but an appellate court will not consider a petitioner=s request
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for a COA until the district court has denied such a request. See Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1988); see also Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997)
(A[T]he district court should continue to review COA requests before the court of appeals
does.@).
A COA may issue only if the petitioner has made a Asubstantial showing of the
denial of a constitutional right.@ 28 U.S.C. ' 2253(c)(2); see also United States v. Kimler,
150 F.3d 429, 431 (5th Cir. 1998). A petitioner Amakes a substantial showing when he
demonstrates that his application involves issues that are debatable among jurists of
reason, that another court could resolve the issues differently, or that the issues are suitable
enough to deserve encouragement to proceed further.@ Hernandez v. Johnson, 213 F.3d
243, 248 (5th Cir. 2000). The Supreme Court has stated that
Where a district court has rejected the constitutional claims on
the merits, the showing required to satisfy ' 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court=s assessment of
the constitutional claims debatable or wrong. The issue
becomes somewhat more complicated where . . . the district
court dismisses the petition based on procedural grounds. We
hold as follows: When the district court denies a habeas
petition on procedural grounds without reaching the prisoner=s
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). This Court has carefully considered the
petition and concludes that jurists of reason would not find it debatable that McBride’s
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good time credit claim petition is time-barred and his time served claim is without merit.
Therefore, McBride has failed to make a Asubstantial showing of the denial of a
constitutional right,@ 28 U.S.C. ' 2253(c)(2), and he is not entitled to a certificate of
appealability.
IV. Order
For the foregoing reasons, Kirk Wayne McBride, Sr.=s Petition for Writ Of Habeas
Corpus (Doc. # 1) is DENIED and is DISMISSED WITH PREJUDICE. No Certificate
of Appealability shall issue in this case.
The Clerk shall notify all parties and provide them with a true copy of this Order.
SIGNED on November 24, 2025, at Houston, Texas.
_______________________________
Kenneth M. Hoyt
United States District Judge
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