IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CLIFTON BRYANT HENNINGTON §

§

V. § A-20-CV-656-LY

§

BOBBY LUMPKIN §

1

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL 

UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United

States District Court for the Western District of Texas. 

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

§ 2254 (Document 1). Petitioner, proceeding pro se, has paid the full filing fee for this case. For the

reasons set forth below, the undersigned finds that Petitioner’s application for writ of habeas corpus

should be dismissed. 

 I. STATEMENT OF THE CASE

A. Petitioner’s Criminal History

According to Petitioner, the Director has custody of him pursuant to a judgment and sentence

of the 207th Judicial District Court of Hays County, Texas, in cause number CR-14-0271. A jury

found Petitioner guilty of aggravated robbery. See TEX. PENAL CODE § 29.03. The jury then found

The previous named respondent in this action was Lorie Davis. BobbyLumpkin succeeded 1

Davis as Director of the Texas Department of Criminal Justice, Correctional Institutions Division. 

Under Rule 25(d) of the Federal Rules of Civil Procedure, Lumpkin is automatically substituted as

a party.

Case 1:20-cv-00656-LY Document 8 Filed 08/21/20 Page 1 of 6
the State’s accusation of a prior conviction “true” and assessed punishment at life imprisonment and

a $10,000 fine. The trial court rendered judgment consistent with the jury’s verdicts. The Third

Court of Appeals of Texas affirmed Petitioner’s conviction and sentence on February 15, 2018. 

Hennington v. State, No. 03-16-00332-CR, 2018 WL 895037 (Tex. App.–Austin 2018, pet. ref’d). 

The Court of Criminal Appealsrefused Petitioner’s petition for discretionaryreview on May9, 2018. 

Hennington v. State, No. PD-0294-18. Petitioner did not file a petition for writ of certiorari with the

Supreme Court. 

Petitioner did, however, challenge his conviction in a state application for habeas corpus

relief. Petitioner executed his state application on February 29, 2020. The Texas Court of Criminal

Appeals denied it without written order on April 29, 2020. Ex parte Hennington, Appl. No. 91,170-

01.

B. Petitioner’s Grounds for Relief

Petitioner raises multiple claims of ineffective assistance of counsel.

 II. DISCUSSION AND ANALYSIS

A. Statute of Limitations

Federal law establishes a one-year statute 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 byState

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;

2

Case 1:20-cv-00656-LY Document 8 Filed 08/21/20 Page 2 of 6
(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.

B. Application

Petitioner’s conviction became final, at the latest, on August 9, 2018, at the conclusion of

time during which he could have filed a petition for writ of certiorari with the United States Supreme

Court. See SUP. CT. R. 13.1 (“A petition for a writ of certiorari seeking review of a judgment of a

lower state court that is subject to discretionary review by the state court of last resort is timely when

it is filed with the Clerk within 90 days after entry of the order denying discretionary review.”).

Therefore, Petitioner had until August 9, 2019, to timely file his federal application. Petitioner did

not execute his federal application until June 19, 2020, more than ten months after the limitations

period expired.

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

filed after the limitations period had already 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 the limitations period).

Petitioner may be contending the untimeliness of his application should be excused, because

he is actually innocent. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Supreme Court held a

prisoner filing a first-time federal habeas petition could overcome the one-yearstatute of limitations

in § 2244(d)(1) upon a showing of “actual innocence” under the standard in Schlup v. Delo, 513

3

Case 1:20-cv-00656-LY Document 8 Filed 08/21/20 Page 3 of 6
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

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). Petitioner has not shown he was actually innocent under the standard

in Schlup.

Petitioner also 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.”). The Court finds that Petitioner’s circumstances are not “rare and exceptional” in which

equitable tolling is warranted and Petitioner did not act with diligence. In addition, the record does

not reflect that any unconstitutional state action impeded 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. 

4

Case 1:20-cv-00656-LY Document 8 Filed 08/21/20 Page 4 of 6
III. RECOMMENDATION

The undersigned recommends that Petitioner’s application for writ of habeas corpus be

dismissed with prejudice as time-barred.

IV. CERTIFICATE OF APPEALABILITY

An appeal may not be taken to the court of appeals from a final order in a habeas corpus

proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.

§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective

December 1, 2009, the district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant. 

A certificate of appealability may issue only if a petitioner has made a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained

the requirement associated with a “substantial showing of the denial of a constitutional right” in

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s

constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “When a

district court denies a habeas petition on procedural grounds without reaching the petitioner’s

underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists

of reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id.

In this case, reasonable jurists could not debate the dismissal of the Petitioner’s section 2254

petition on substantive or procedural grounds, nor find that the issues presented are adequate to

5

Case 1:20-cv-00656-LY Document 8 Filed 08/21/20 Page 5 of 6
deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack,

529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not issue a

certificate of appealability.

V. OBJECTIONS

The parties may file objections to this Report and Recommendation. A party filing

objections must specifically identify those findings or recommendations to which objections are

being made. The District Court need not consider frivolous, conclusive, or general objections. 

Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations

contained in this Report within fourteen (14) days after the party is served with a copy of the Report

shall bar that party from de novo review by the district court of the proposed findings and

recommendations in the Report and, except upon grounds of plain error, shall bar the party from

appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the

district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985); 

Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).

SIGNED on August 21, 2020.

_____________________________________

MARK LANE

UNITED STATES MAGISTRATE JUDGE

6

Case 1:20-cv-00656-LY Document 8 Filed 08/21/20 Page 6 of 6