IRMA CARRILLO RAMIREZ, Magistrate Judge.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to Special Order 3-251, this habeas case has been referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the petition for writ of habeas corpus under 28 U.S.C. § 2254 should be DENIED with prejudice.

I. BACKGROUND

Zachary Don Gillaspie (Petitioner) challenges his convictions for theft of property valued at $1500 to $20,000 from the elderly and tampering with physical evidence. The respondents are Warden Mackey and Warden Garza (Respondents).

A. Procedural History

On November 29, 2012, the State indicted Petitioner for theft of property (assorted jewelry) valued at $1500 to $20,000 from a person over the age of 65 by acquiring or exercising control over the property, and tampering with physical evidence by concealing assorted jewelry with intent to impair its availability in an investigation, in Cause No. F46910. (Doc. 41-5 at 9.)1 On January 3, 2013, he pleaded guilty under a plea agreement and was convicted in the 413th Judicial District Court of Johnson County, Texas, and he was sentenced to ten years of probation. (Id. at 16.) He did not appeal. On January 28, 2016, the State moved to revoke his probation for alleged violations of its conditions. (Id. at 21.) On February 18, 2016, he pled true to the allegations, and he was sentenced to four years' imprisonment. (Id. at 29.) He did not appeal.

Petitioner's first state habeas application was signed on June 18, 2016, and received by the state court on June 22, 2014. (Id. at 34, 50.) The state habeas application was denied without written order on the findings of the trial court without a hearing on August 24, 2016. (Doc. 41-1); see Ex parte Gillaspie, WR-85,391-01 (Tex. Crim. App. Aug. 24, 2016). He then filed two more state habeas applications that were dismissed as subsequent applications under Texas Code of Criminal Procedure article 11.07, § 4. See Ex parte Gillaspie, WR-85,391-02 (Tex. Crim. App. Dec. 17. 2016); Ex parte Gillaspie, WR-85,391-03 (Tex. Crim. App. Feb. 22, 2017). He filed a fourth state habeas application that was denied in part and dismissed in part as a subsequent application. See Ex parte Gillaspie, WR-85,391-04 (Tex. Crim. App. May 24, 2017).

B. Substantive Claims

Petitioner filed a federal petition that was mailed on September 30, 2016. (Doc. 3 at 10.) He then filed an amended petition that raises the following claims:

1. There was police coercion based on

(See doc. 25 at 6-7.) Respondents filed a response on May 15, 2017 (doc. 40), and Petitioner filed a reply on June 8, 2017 (doc. 42).

II. STATUTE OF LIMITATIONS

Petitioner's first three grounds relate to his guilt.2

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because Petitioner filed his petition after its effective date, the Act applies to it. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1).

A. Calculation of One-Year Period

The one-year period is calculated from the latest of either:

See id. § 2244(d)(1)(A)-(D).

The factual predicate for Petitioner's first three claims either became known or could have become known prior to the date his judgment became final.3 The Fifth Circuit has held that a judgment of probation is a final judgment for purposes of AEDPA's statute of limitations. See Caldwell v. Dretke, 429 F.3d 521, 528-29 (5th Cir. 2005). Petitioner's limitations period for challenging substantive issues relating to guilt began to run when the judgment imposing probation became final. See id.

Because Petitioner did not appeal the trial court's January 3, 2013 judgment of probation, it became final thirty days later, on February 2, 2013. See Tex. R. App. P. 26.2(a) (1) (stating that "[t]he notice of appeal must be filed . . . within 30 days after the day sentence was imposed or suspended in open court, or after the day the trial court enters an appealable order"). That day was a Saturday, so the last day to file a petition for discretionary review was Monday, February 4, 2013. See Tex. R. App. P. 4.1. The one-year limitations period ended on February 4, 2014. Petitioner filed his initial § 2254 petition on September 30, 2016, more than two years later. A literal application of § 2244(d)(1)(A) renders the § 2254 petition untimely.

B. Statutory Tolling

Section 2244 mandates that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (emphasis added). Petitioner's state habeas applications were filed after the one-year limitations period expired, so they did not toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).

C. Equitable Tolling

AEDPA's one-year statutory deadline is not a jurisdictional bar and can, in appropriate exceptional circumstances, be equitably tolled. Holland v. Florida, 560 U.S. 631 (2010); Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998); cf. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (only "rare and exceptional circumstances" warrant equitable tolling). "The doctrine of equitable tolling preserves a [party's] claims when strict application of the statute of limitations would be inequitable." Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). It "applies principally where [one party] is actively misled by the [other party] about the cause of action or is prevented in some extraordinary way from asserting his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). A habeas petitioner is entitled to equitable tolling only if he shows that: 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance prevented a timely filing. Holland, 560 U.S. at 649, citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). He bears the burden to show entitlement to equitable tolling. Phillips v. Donnelly, 223 F.3d 797, 797 (5th Cir. 2000) (per curiam). Courts must examine each case in order to determine if there are sufficient exceptional circumstances that warrant equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The Fifth Circuit has also stated that when a prisoner contends that his ability to file a federal habeas petition has been affected by a state proceeding, the court should look at the facts to determine whether equitable tolling is warranted. Coleman, 184 F.3d at 402.

Here, Petitioner presents no argument or evidence that he was prevented from filing his state writ or his federal petition earlier. He has failed to meet his burden to show that he is entitled to any equitable tolling of the federal statute of limitations.

D. Actual Innocence

In McQuiggin v. Perkins, ___ U.S. ____, 133 S.Ct. 1924, 1928-31 (2013), the Supreme Court held that even where a habeas petitioner has failed to demonstrate the due diligence required to equitably toll the statute of limitations, a plea of actual innocence can overcome the AEDPA statute of limitations under the "miscarriage of justice" exception to a procedural bar. A tenable actual innocence claim must persuade a district court that, in light of the new evidence, it is more likely than not that no rational fact-finder would have found the petitioner guilty beyond a reasonable doubt in light of the new evidence. Id. at 1928, 1935. The untimeliness of a plea of actual innocence does bear on the credibility of the evidence offered. Id. at 1935-36.

Petitioner asserts that the only item he appropriated was a watch worth less than $100, and he did not possess any assorted jewelry valued between $1500 and $20,000. (See docs. 25 at 6; 26 at 3-4.) To the extent that he asserts he is actually innocent of the offenses, his factual assertions are evidence that was available when he pled guilty. He is not entitled to equitable tolling based on actual innocence because his claim is not based on new evidence.

Additionally, in the plea documents, Petitioner judicially confessed that he committed the offenses. (Doc. 41-5 at 13.) He admitted in court that the factual allegations in the indictment were true. (Id. at 73.) In light of his judicial confession and admission and the "great evidentiary weight" accorded to court documents, see United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994), and the "strong presumption of verity" accorded "solemn declarations" made in open court, see Blackledge v. Allison, 431 U.S. 63, 73-74 (1977), he has not shown that he is actually innocent of the offenses. Even if McQuiggin applies to this case, see Thomas v. Stephens, 4:13-CV875-A, — WL 929031 at *3 (N.D. Tex. March 7, 2014) (citing cases that split on the applicability of McQuiggin to a guilty plea case), Petitioner has not shown that he is entitled to equitable tolling based on his claim of actual innocence. He has not overcome the statute of limitations, and his first three grounds are time-barred.

III. CLAIMS REGARDING STATE HABEAS PROCEEDINGS

In ground four, Petitioner raises claims about the State's actions in the state habeas proceedings.4

Federal habeas relief cannot be had "absent the allegation by a [Petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). The courts entertain federal petitions under § 2254 "only on the ground" that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a). Courts cannot grant habeas corpus relief to correct alleged errors in state habeas proceedings. See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not available for such alleged errors); see also Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999) ("errors in state postconviction proceedings will not, in and of themselves, entitle a Petitioner to federal habeas relief"); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) ("infirmities in state habeas [and other post-conviction] proceedings do not constitute grounds for relief in federal court"). Petitioner has not shown that he is entitled to relief on this claim.

IV. RECOMMENDATION

This petition for writ of habeas corpus should be DENIED with prejudice.