IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

MARK DOUGLAS ADAMS §

§

V. § A-20-CV-610-RP

§

LORIE DAVIS §

ORDER

Before the Court is Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.

§ 2254 (Document 1). Petitioner, proceeding pro se, has been granted leave to proceed in forma

pauperis. On June 21, 2020, the Court ordered Petitioner to show cause why his application should

not be dismissed as time-barred. Petitioner failed to respond to the Court’s order. For the reasons

set forth below, the undersigned dismisses as time-barred Petitioner’s application for writ of habeas

corpus and dismisses without prejudice Petitioner’s remaining claims. 

 STATEMENT OF THE CASE

A. Petitioner’s Criminal History

Petitioner was convicted of two counts of aggravated robberywith a deadlyweapon in Travis

County, Texas in cause numbers D-1-DC-08-201711 and D-1-DC-08-300703. On May 30, 2008,

he was sentenced to 25 years in prison. He did not appeal. He did, however, challenge his

conviction in a state application for habeas corpus relief filed in 2019. 

B. Grounds for Relief 

Petitioner raises the following grounds for relief:

1. His Miranda warnings have never been read to him;

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2. His mail has been tampered with in prison and in particular mail that relates to Cause

No. 6:19-CV-565 in the Eastern District of Texas; and

3. The Court of Criminal Appeals improperly denied his appeal to the Supreme Court. 

Petitioner seeks “full reversal and dismissal” of his criminal charges, the return of all fines

and fees paid, plus $3,000 per day for false and illegal imprisonment. He further seeks to have

criminal charges brought against all Texas elected judicial officials. He further requests a F.B.I.

handwriting analysis be done on any Miranda warning forms allegedly bearing his signature. He

also requests a full true and correct copy of his medical records from the University of Texas

Medical Branch and Texas Tech University Health Science Center. Finally, he requests the Court

to order a magistrate judge in the Eastern District of Texas to revisit everymotion filed in Cause No.

6:19cv565.

 DISCUSSION AND ANALYSIS

A. Application for Habeas Corpus Relief

To the extent Petitioner challenges his convictions in Travis County, Texas in cause numbers

D-1-DC-08-201711 and D-1-DC-08-300703 his claims are barred by the applicable statute of

limitations. Federal law establishes a one-yearstatute of limitations for state inmates seeking federal

habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of--

(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;

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(C) the date onwhich 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

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

(2) The 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.

Petitioner’s convictions became final, at the latest, on June 29, 2008, at the conclusion of

time during which he could have appealed his convictions. See TEX. R. APP. P. 26.2(a). 

Accordingly, Petitioner had until June 29, 2009, to timely file his federal application. Petitioner

indicates he placed his federal application in the prison mail system on May 22, 2020, nearly 11

years after the limitations period had expired. 

Petitioner’s state application did not operate to toll the limitations period, because it was filed

long after the limitations period had expired. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)

(state application for habeas corpus relief filed after limitations period expired does not toll

limitations period).

Petitioner alleges no facts showing any equitable basis exists for excusing his failure to

timely file his federal habeas corpus application. See Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005) (“a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that

he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way.”). 

Petitioner also has not shown he was actually innocent under the standard in Schlup v. Delo,

513 U.S. 298, 329 (1995). A habeas petitioner, who seeks to surmount a procedural default through

a showing of “actual innocence,” must support his allegations with “new, reliable evidence” that was

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not presented at trial and must show that it was more likely than not that, in light of the new

evidence, no juror, acting reasonably, would have voted to find the petitioner guilty beyond a

reasonable doubt. See Schlup, 513 U.S. at 326–27 (1995); see also House v. Bell, 547 U.S. 518

(2006) (discussing at length the evidence presented by the petitioner in support of an

actual-innocence exception to the doctrine of procedural default under Schlup). “Actual innocence”

in this context refers to factual innocence and not mere legal sufficiency. Bousely v. United States,

523 U.S. 614, 623–624 (1998). Accordingly, Petitioner’s application for habeas corpus relief is

time-barred. 

B. Remaining Claims

1. Infirmities in State Court Proceedings

To the extent Petitioner complains of how the state court reviewed his state habeas

application or appeal, his claim fails. Infirmities in state habeas corpus proceedings do not constitute

grounds for federal habeas corpus relief. Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001); Vail

v. Procunier, 747 F.2d 277 (5th Cir. 1984).

2. Criminal Charges

Petitioner does not have a constitutional right to have someone criminallyprosecuted. Oliver

v. Collins, 914 F.2d 56 (5th Cir. 1990).

3. Heck Bar

Petitioner’s request for monetarydamages is not a properrequest for reliefin a habeas corpus

proceeding. Moreover, his request for damages is currently barred by Heck v. Humphrey, 512 U.S.

477, 486-87 (1994) and the Fifth Circuit’s application of Heck to state prisoner § 1983 lawsuits in

Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994). In Heck, the Supreme Court held:

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[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render

a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.

In this case Petitioner does not allege that his convictions have been reversed, expunged, invalidated,

or called into question by a federal court’s issuance of writ of habeas corpus. Petitioner’ recitation

of the procedural history in this case indicates just the opposite. 

4. EDTX Case

Petitioner’s complaint of how his mail was handled in the prison with regard to Cause No.

6:19-CV-565 in the United States District Court for the Eastern District of Texas is not properly

raised in this habeas corpus proceeding. In addition, to the extent Petitioner challenges actions taken

by the magistrate judge in the Eastern District of Texas he must raise those issues in that court.

5. Medical Records and Handwriting Analysis

The Court has no authority in this case to order the production of his medical records or to

order the F.B.I. to conduct a handwriting writing analysis on any Miranda form that may exist

bearing Petitioner’s purported signature.

 CONCLUSION

Petitioner has alleged no facts showing any equitable basis exists for excusing his failure to

timely file his federal habeas corpus application. See Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005) (“a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that

he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way.”). In addition, the record does not reflect that any unconstitutional state action impeded

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Petitioner from filing for federal habeas corpus relief prior to the end of the limitations period.

Furthermore, Petitioner has not shown that he did not know the factual predicate of his claims

earlier. Finally, the claims do not concern a constitutional right recognized by the Supreme Court

within the last year and made retroactive to cases on collateral review. 

The remainder of Petitioner’s claims are not properly raised in his application for habeas

corpus relief, are barred, or are without merit. 

It is therefore ORDERED that Petitioner’s application for writ of habeas corpus is

DISMISSED WITH PREJUDICE as time-barred. 

It is further ORDERED that a certificate of appealability is DENIED. 

It is finally ORDERED that, to the extent Petitioner raises claims not related to habeas

corpus relief, Petitioner’s claims are DISMISSED WITHOUT PREJUDICE.

SIGNED on July 24, 2020.

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

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