Mickey Pryor v. William Stephens, Director

Case: 14-10340 Document: 00513305211 Page: 1 Date Filed: 12/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10340 FILED
Summary Calendar December 11, 2015
Lyle W. Cayce
Clerk
MICKEY FRANK PRYOR,
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CV-808
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Mickey Frank Pryor, Texas prisoner # 1536612, appeals the district
court’s dismissal of his 28 U.S.C. § 2254 petition as barred by the limitations
period of 28 U.S.C. § 2244(d). In support of his claims of error, Pryor argues
that he properly filed a second state habeas application; the second application
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10340 Document: 00513305211 Page: 2 Date Filed: 12/11/2015
No. 14-10340
tolled the limitations period pursuant to § 2244(d)(2); and, based on the tolling,
his § 2254 petition was timely filed.
The record contains no proof that Pryor filed a second state habeas
application, much less a properly-filed application that tolled the limitations
period under § 2244(d)(2). Specifically, the state court records submitted in
the district court, which are entitled to a presumption of regularity, see Webster
v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974), do not contain the second
application that Pryor purportedly filed. Pryor has never submitted the
application, and the assertions made in this court, offered as proof of such a
filing, are too vague to show he properly filed a second state habeas application.
See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Finally, the record, as
supplemented by an unopposed motion, indicates that a second application was
not part of the state court’s official record and that there was no proof that
Pryor ever filed one. In light of the foregoing, we find no error, plain or
otherwise, in the district court’s ruling regarding § 2244(d). See Salts v. Epps,
676 F.3d 468, 474 (5th Cir. 2012); Starns v. Andrews, 524 F.3d 612, 617 (5th
Cir. 2008).
The judgment of the district court is AFFIRMED.
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