Nollie v. Lumpkin

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH EDWARD NOLLIE, §
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TDCJ # 02081490,
Petitioner,
VS. CIVIL ACTION NO. 4:25-0049
ERIC GUERRERO,
Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Keith Edward Nollie, an inmate in the custody of the Texas Department
of Criminal Justice–Correctional Institutions Division (TDCJ), filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 and proceeds pro se. In April 2025, the respondent
filed a motion to dismiss Nollie’s petition (Dkt. 21) and a copy of the state court records
(Dkt. 22). Nollie filed two motions to appoint counsel (Dkt. 28; Dkt. 31), but has not
responded to the motion to dismiss. After considering the pleadings and filings, the
applicable law, and all matters of record, the Court will grant the motion to dismiss for the
reasons explained below.
I. BACKGROUND
Nollie pleaded guilty to aggravated robbery with a deadly weapon, enhanced, in
Cause No. 1468524, 180th District Court of Harris County. On August 4, 2016, the court
entered judgment and sentenced him to 25 years in TDCJ, as agreed in a written plea
agreement (Dkt. 1, at 1; Dkt. 22-9, at 50-51 (judgment); id., at 35-36 (plea agreement)).
United States District Court
Southern District of Texas
ENTERED
March 27, 2026
Nathan Ochsner, Clerk
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Nollie waived his right to appeal (id. at 45).
On April 13, 2021, Nollie filed an application for state habeas relief. The Court of
Criminal Appeals (CCA) dismissed the application on June 14, 2023, for noncompliance
under Texas Rule of Appellate Procedure 73.1 (WR-94,852-01). See Dkt. 22-1, at 4-22
(application); Dkt. 22-2 (dismissal). He filed a second application on October 12, 2023,
which the CCA denied without written order on January 24, 2024 (WR-94,852-02). See
Dkt. 22-9, at 4-22 (application); Dkt. 22-10 (denial). He executed a third application on
September 5, 2024, and the CCA dismissed as subsequent (WR-94,852-03). See Dkt. 22-
16, at 5-23 (application); Dkt. 22-17 (dismissal as subsequent).
Nollie executed his federal habeas petition on October 21, 2024, and states that he
placed it in the prison mailing system the same day (Dkt. 1, at 15). The petition was
docketed with the Court on January 2, 2025. He brings four claims for relief: (1) his trial
counsel was constitutionally ineffective because he was not licensed to represent a mentally
ill inmate; (2) his state habeas counsel was constitutionally ineffective and violated his due
process rights because they did not adequately communicate with him; (3) the state habeas
judge abused his discretion when he failed to appoint new counsel to represent Nollie; and
(4) his trial counsel was ineffective and his guilty plea was not voluntary because counsel
did not inform him of a critical element of the offense and failed to recognize his
diminished mental capacity (id. at 5-11). As relief for his claims, he seeks exoneration (id.
at 15).
The respondent filed a motion to dismiss and argues that Nollie’s claims are barred
by the statute of limitations and that two claims are not cognizable on federal habeas
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review.
II. DISCUSSION
Federal courts do not hold pro se habeas petitions “to the same stringent and
rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d 420,
426 (5th Cir. 2011) (cleaned up). “The filings of a federal habeas petitioner who is
proceeding pro se are entitled to the benefit of liberal construction.” Id.
Claims 2 and 3 in Nollie’s petition assert his right to effective counsel and the
counsel of his choice in state habeas proceedings (Dkt. 1, at 7-9). However, “alleged
infirmities in state habeas proceedings are not grounds for federal habeas relief.”
Haynes v. Quarterman, 526 F.3d 189, 195 (5th Cir. 2008) (cleaned up); see Harris v.
Lumpkin, 756 F. Supp. 3d 249, 296-97 (N.D. Tex. 2024) (collecting cases). Claims 2 and
3 therefore will be dismissed because they are not cognizable on federal habeas.
In any event, Nollie’s claims are time-barred. Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), the petition is subject to a one-year limitations
period. The limitations period runs from the “latest of” four accrual dates:
(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
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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 due
diligence.
28 U.S.C. § 2244(d)(1). The time period during which a “properly filed application for
State post-conviction or other collateral review” is pending is not counted toward the
limitation period. Id. § 2244(d)(2).
Nollie challenges a judgment entered on August 4, 2016. Because he did not file an
appeal, his conviction became final on Tuesday, September 6, 2016, when the 30-day
period to file an appeal expired. See TEX. R. APP. P. 26.2(a)(1); Butler v. Cain, 533 F.3d
314, 317 (5th Cir. 2008).1 His limitations period under § 2244(d)(1)(A) therefore ended
one year later, on Wednesday, September 6, 2017. His federal petition, executed on
October 21, 2024, is over seven years late and time-barred unless a statutory or equitable
exception applies. Nollie did not answer the question on the form habeas petition about
the timeliness of his filing (Dkt. 1, at 13-14) and did not respond to the pending motion to
dismiss. He thus asserts no basis for an exception.
Nollie’s three state habeas applications did not toll the limitations period under the
statutory tolling provision of 28 U.S.C. § 2244(d)(2) because, at the time he filed them in
2021, 2023, and 2024, the AEDPA limitations period already had expired. See Richards
v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013). Additionally, he does not demonstrate the
applicability of any provisions in § 2244(d)(1) that might warrant a later accrual date
1 Nollie’s 30-day period to appeal ran until Saturday, September 3, 2016. Because Monday,
September 5 was a holiday, the deadline was automatically extended to Tuesday, September 6,
2016. TEX. R. APP. P. 4.1(a).
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because he does not identify a state-created impediment to filing for habeas relief, a
constitutional right newly recognized and made retroactive by the Supreme Court, or a
recently discovered factual predicate for his claims. Therefore, no statutory exception
renders his petition timely.
Finally, Nollie does not invoke the equitable tolling doctrine. The record before the
Court does not indicate that he diligently pursued his rights or that an extraordinary
circumstance prevented him from filing his federal habeas petition before the limitations
period ended. See Holland v. Fla., 560 U.S. 631, 649 (2010) (equitable tolling of AEDPA’s
limitations period is appropriate only if a petitioner shows that “he has been pursuing his
rights diligently” and that “some extraordinary circumstance stood in his way”); Mathis v.
Thaler, 616 F.3d 461, 475 (5th Cir. 2010). In addition, he has not demonstrated the
existence of a claim for which “strict application of the statute of limitations would be
inequitable.” See In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (cleaned up). Therefore,
equitable tolling of the limitations period is not warranted.
Because Nollie’s petition is time-barred, the Court may not address his claims. The
respondent’s motion to dismiss will be granted.
Nollie’s motions for appointed counsel (Dkt. 28; Dkt. 31) will be denied for the
reasons stated in the Court’s prior order denying the same relief (see Dkt. 5) and as moot.
III. CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a district
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court to issue or deny a certificate of appealability when entering a final order that is
adverse to the petitioner.
A certificate of appealability will not issue unless the petitioner makes “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a
petitioner to demonstrate “‘that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.’” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling
standard, a petitioner must show “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Miller-El,
537 U.S. at 336 (cleaned up). Where denial of relief is based on procedural grounds, the
petitioner must show not only that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right,” but also that they “would
find it debatable whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484; see Pierre v. Hooper, 51 F.4th 135, 137 (5th Cir. 2022) (a certificate of
appealability may not issue based solely on a debatable procedural ruling).
A district court may deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After careful review of the record and the applicable law, the Court concludes that
reasonable jurists would not find its assessment of the claims debatable or wrong. Because
the petitioner does not allege facts showing that his claims could be resolved in a different
manner, a certificate of appealability will not issue in this case.
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IV. CONCLUSION
For the reasons stated above the Court ORDERS as follows:
1. The respondent’s motion to dismiss (Dkt. 21) is GRANTED.
2. Nollie’s habeas claims are DISMISSED as time-barred.
3. Nollie’s motions for appointed counsel (Dkt. 28; Dkt. 31) are DENIED.
4. All other pending motions, if any, are DENIED as moot.
5. A certificate of appealability is DENIED.
The Clerk will provide copies of this order to the parties.
SIGNED at Houston, Texas, on , 2026.
_______________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE
March 27
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