Busby v. Guerrero

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WYATT ELLIS BUSBY,
(TDCJ # 023 79725),
Petitioner,
vs.
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ERIC GUERRERO, Executive Director 	§
ofTDCJ-CID 	§
Respondent.
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CIVIL ACTION NO. H-25-5808
MEMORANDUM OPINION AND ORDER
The petitioner, Wyatt Ellis Busby, (TDCJ #02379725), is a state inmate in
custody 	at the 	Coffield Unit 	o( the 	Texas 	Department 	of Criminal 	Justice-
Correctional Institutions Division. Proceeding pro se, he filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the
Eastern District of Texas, seeking to challenge his 2022 conviction for murder in
Harris County Cause Number 1535843. 	(Dkt. 1). 	The Eastern District transferred
the petition to this Court. (Dkt. 2). The Court ordered a response, and the respondent
answered and provided copies of the state-court records. (Dkts. 11, 13). Busby did
not reply. After reviewing the petition and amended answer, the state-court records,
and the applicable law, the Court dismisses Busby's action as barred by limitations.
United States District Court
Southern District of Texas
ENTERED
June 08, 2026
Nathan Ochsner, Clerk
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I. 	BACKGROUND
On January 24, 2022, the 184th District Court sentenced Busby to fifty years
in prison after a jury found him guilty of murder with a deadly weapon in Harris
County Cause Number 1535843. 	(Dkt. 11-1, pp. 323-25). 	The Texas Fourteenth
Court of Appeals affirmed the conviction and sentence on December 12, 2023. See
Busby v. State, No. 14-22-00052-CR, 2023 WL 8588057 (Tex. App.-Houston
[14th Dist.] Dec. 12, 2023, pet. refd) (mem. op., not designated for publication).
The Texas. Court of Criminal Appeals refused Busby's petition for discretionary
review on April 3, 2024. 	(Dkt. 11- 77). 	Busby did not seek further review of his
conviction and sentence in the United States Supreme Court.
Busby filed multiple state applications for a writ of habeas corpus while his
trial and appeal proceedings were pending. 	(Dkts. 11-82, 11-86, 11-89; 11-92, 11-
95). 	Each 	of these applications was 	dismissed 	as 	procedurally improper or
noncompliant with the Texas Rules of Appellate Procedure. 	(Dkts. 11-84, 11-87,
11-90, 11-93, 11-97). He did not file a state application for writ of habeas corpus
challenging the final judgment after the TCCA denied discretionary review.
On November 25, 2025, Busby mailed this federal petition for writ of habeas
corpus to the District Court for the Eastern District of Texas. (Dkt. 1). The petition
was subsequently transferred to this Court. 	(Dkt. 2). 	In it, Busby raises multiple
claims of trial court error and a claim that he was st1bject to malicious prosecution.
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(Dkt. 1, pp. 6-15). 	He did not answer the question about the timeliness of his
petition. 	As relief, he •asks this Court to vacate his judgment of conviction and
expunge the record. 	(Id. at 11 ).
The respondent's amended answer contends that Busby's petition is barred by
the statute of limitations applicable to § 2254 petitions. 	(Dkt. 13). 	Busby has not
filed a reply, and his time to do so has now expired.
II. 	DISCUSSION
A. 	Statute of Limitations
Busby's petition is governed by the provisions of the Antiterrorism and
Effective 	Death 	Penalty 	Act, 	Pub. 	L. 	No. 	104-132, 	110 	Stat. 	1214 	(1996)
("AEDPA"), which contains a one-year limitations period. See 28 U.S.C. § 2244( d).
That one-year period runs from the latest of four accrual dates:
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(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)(l). The limitations period is an affirmative defense, which the
respondent properly raised in his answer.
Busby's time to file a federal habeas petition challenging his conviction and
sentence began to run on "the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review."
28 U.S'.C. § 2244(d)(l)(A). The pleadings and matters of record show that Busby's
conviction became final for purposes of federal habeas review on July 2, 2024, when
the 90-day time to seek review of his conviction in the United States Supreme Court
expired. 	See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) ("[A] state
prisoner's conviction becomes final for purposes of § 2244 ninety days after the
judgment is entered, when the time to file a petition for writ of certiorari with the
Supreme Court has expired."); see also SUP. CT. R. 13(1) (a petition for a writ of
certiorari is due within 90 days of the entry of an order denying discretionary review
by the state court of last resort} 	Therefore, the deadline for Busby to file a timely
federal habeas petition was one year later,. on July 2, 2025. 	His petition, filed
December 1, 2025, was filed well outside the limitations period and is time-barred
unless he can show that a statutory or equitable exception to the limitations period
applies.
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Under 28 	U.S.C. 	§ 2244(d)(2); the time during which a properly filed
application for state habeas relief or other collateral review is pending extends the
limitations period. 	See Artuz v. Bennett, 531 U.S. 4, 5 (2000). 	A state habeas
application is "'properly filed' when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings." 	Id. at 8; see also Villegas v.
Johnson, 184 F.3d 467, 470 (5th Cir. 1999) ("[A] 'properly filed application' for
§ 2244(d)(2) purposes is one that conforms with a state's applicable procedural filing
requirements."). 	In Texas, a state habeas application filed before a judgment of
conviction becomes final is not "properly filed'' because the Texas Court of Criminal
Appeals lacks jurisdiction to consider a habeas application until the judgment is
final. See Larry v. Dretke, 361 F.3d 890, 897 (5th Cir. 2004) ("The TCCA 'does not
have jurisdiction to consider an application for writ of habeas corpus pursuant to Art.
11.07 until the felony judgment from which relief is 	sought becomes final."'
(quotingExparteJohnson, 12 S.W.3d472, 473 (Tex. Crim. App. 2000))). Likewise,
a state habeas 	application dismissed 	for 	noncompliance with Texas 	Rule 	of
Appellate Procedure 73 .1 is not properly filed and does not toll the limitations
period. See North v. Davis, 800 F. App'x 211, 214 (5th Cir. 2020).
All of Busby's state habeas applications were filed before his judgment of
conviction became final in July 2024. (Dkts. 11-82 (filed 12/21/2018), 11-86 (filed
7/19/2019), 	11-89 	(filed 	1/28/2021), 	11-92 	(filed 	11/19/2021), 	11-95 	(filed
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2/14/2022)). 	None of these applications were properly filed in compliance with
Texas law. 	They therefore do not toll the limitations perio·d applicable to Busby's
federal habeas petition, and his petition is untimely unless another tolling provision
applies.
Busby also filed several federal habeas corpus petitions both before and after
his judgment of conviction became final. 	See Busby v. Davis, No. 4:19-cv-2346
(S.D. Tex.) (filed June 26, 2019); Busby v. Gonzalez, No. 4:21-cv-261 (S.D. Tex.)
(filed Jan. 25, 2021); Busby v. Gonzalez, No. 4:22-cv-366 (S.D. Tex.) (filed Jan. 10,
2022); Busby v. Lumpkin, No. 4:24-cv-2133 (S.D. Tex.) (filed May 6, 2024); Busby
v. Guerrero, No. 4:25-cv-1249 (S.D. Tex.) (filed Feb. 19, 2025); Busby v. Guerrero,
No. 4:25-cv-4775 (S.D. Tex.) (filed Sept. 24, 2025). But a federal habeas petition,
even if properly filed, does not toll the limitations period under § 2244(d)(2). 	See
Duncan v Walker; 533 U.S. 167, 181-82 (2001). These federal petitions do not toll
the limitations period, and Busby's current federal habeas petition is time-barred
unless another statutory exception applies.
But Busby has not alleged facts showing that any other statutory exception
applies. 	He has not alleged facts showing that any unconstitutional state action
prevented him from filing his federal habeas petition before the expiration of the
limitations period. See 28 U.S.C. § 2244(d)(l)(B). He has not alleged facts showing
that his claims are based on a newly recognized constitutional right. 	See 28 U.S.C.
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§ 2244(d)(l)(C). And he has not alleged facts showing that the factual basis for his
claims could not have been timely discovered if he had acted with due diligence.
See 28 U.S.C. § 2244(d)(l)(D). As a result, there is no statutory basis to allow Busby
to avoid the effect of the limitations period, and his _petition is time-barred unless
another exception applies.
B. 	Equitable Tolling
In some 	instances, 	equitable tolling 	can extend the 	limitations 	period.
Equitable 	tolling 	is 	an 	extraordinary 	remedy 	that 	applies 	only 	"when 	strict
application of the statute oflimitations would be inequitable." Mathis v. Thaler, 616
F.3d 461, 475 (5th Cir. 2010) (quoting In re Wilson, 442 F.3d 872, 875 (5th Cir.
2006) (per·curiam)); see also Davis v. Johnson, 158 F.3d 806,811 (5th Cir. 1998)
(equitable tolling applies only "in rare and exceptional circumstances"). 	A habeas ·
"petitioner is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010)
(cleaned up). The failure to meet the statute oflimitations "must result from external
factors beyond [the petitioner's] control; delays of the petitioner's own making do
not qualify." 	In re Wilson, 442 F.3d at 875. A "garden variety claim of excusable_
neglect" does not support equitable tolling. 	Lookingbill v. Cockrell, 293 F .3d 256,
264 (5th Cir. 2002). 	Neither lack of knowledge of the law or filing deadlines nor
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status as a layman excuses delay. See Felder v. Johnson, 204 F.3d 168, 171-72 (5th
Cir. 2000) (citing cases). 	And the habeas petitioner has the burden of justifying
equitable tolling. 	See Holland, 560 U.S. at 649; Hardy v. Quarterman, 577 F.3d
596, 598 (5th Cir. 2009) (per curiam).
Busby's petition contains no facts showing that he is entitled to equitable
tolling. 	His petition contains no explanation for his delayed filing. And even after
the respondent raised the statute of limitations as a defense, Busby identified no
extraordinary circumstance that prevented him from filing a timely petition.
Absent facts sufficient to show that Busby is entitled to equitable tolling, the
limitations period will not be extended on that basis. His federal habeas petition is
untimely and will be dismissed.
III. 	CERTIFICATE OF APPEALABILITY
Habeas corpus actions under § 2254 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 court to issue or deny a certificate of appealability when entering a final order
that is adverse to the petitioner. 	To be entitled to a certificate of appealability, the
petitioner must make "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
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debatable or wrong." 	Tennard v. Dretke, 542 U.S. 274, 276 (2004) (quoting Slack
v. McDaniel, 529 U.S. 473,484 (2000)). The 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 (quoting
Slack, 529 U.S. at 484). 	When the 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. 	A district court may deny a certificate
of appealability, sua sponte, without requiring further briefing or argument. 	See
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per curiam).
Because Busby has not shown that reasonable jurists would find the Court's
resolution of the constitutional issues debatable or wrong, this Court will not issue a
certificate of appealability.
IV. 	CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1. Busby's petition for writ of habeas corpus, (Dkt. 1), is DISMISSED with
prejudice as barred by limitations.
2. Final judgment will be separately entered.
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3. All pending motions_ are DENIED as moot.
4. A certificate of appealability is DENIED.
The Clerk will send a copy of this order to the parties.
SIGNED at Houston, Texas on 	~ 	8
'$d@ ..DAVID HITTNER
, 2026.
UNITED STATES DISTRICT JUDGE
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