IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

ROBERT PRESTON, JR., § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-588-E-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Robert Preston, Jr., who appears to now be a former Texas prisoner 

based on his current address, filed a pro se 28 U.S.C. § 2254 application for a writ of 

habeas corpus collaterally attacking his 1981 Dallas County conviction for murder, 

which resulted in a sentence of life imprisonment. See Dkt. No. 3; State v. Preston, 

No. F81-09855-K (Crim. Dist. Ct. No. 4, Dallas Cnty., Tex. Nov. 22, 1981) (the 

Judgment). 

It is unclear whether Preston appealed the Judgment, but he has filed multiple 

state habeas petitions concerning it. See Ex parte Preston, WR-15,848-26 (Tex. Crim. 

App. Aug. 5, 2009) (denying relief without written order); see also Ex parte Preston, 

WR-15,848-36 (Tex. Crim. App. Nov. 10, 2021) (taking no action on the writ after 

noting that the Texas Court of Criminal Appeals (the CCA) “previously entered an 

order citing [Preston] for abuse of the writ of habeas corpus”). 

Regardless, this appears to be Preston’s first Section 2254 application as to the 

Judgment. United States District Judge Ada Brown referred the application to the 

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undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. And the undersigned enters these 

findings of fact, conclusions of law, and recommendation that the Court should 

dismiss the Section 2254 habeas application with prejudice as time barred under Rule 

4 of the Rules Governing Section 2254 Cases (Habeas Rule 4). 

Legal Standards and Analysis 

Habeas Rule 4 allows a district court to summarily dismiss a habeas 

application “if it plainly appears from the face of the petition and any exhibits 

annexed to it that the petitioner is not entitled to relief in the district court.” Id.1

Under Habeas Rule 4, the Court should first consider whether Preston is “in 

custody” under the Judgment. If he is not, Habeas Rule 4 authorizes the Court to 

summarily dismiss his collateral challenge to this conviction. See, e.g., Claybon v. 

Texas, No. 3:16-cv-2479-K-BN, 2016 WL 5793767, at *2-*3 (N.D. Tex. Aug. 29, 2016) 

(citing Brown v. Wenerowicz, Civ. A. No. 13-430, 2013 WL 2404152 (W.D. Pa. May 31, 

2013); Yuen v. Lee, No. 3:09CV-P919-S, 2010 WL 299277 (W.D. Ky. Jan. 19, 2010)), 

rec. accepted, 2016 WL 5717532 (N.D. Tex. Sept. 28, 2016). 

A federal court lacks subject matter jurisdiction to entertain a habeas petition 

1 See also Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (“This rule 

differentiates habeas cases from other civil cases with respect to sua sponte

consideration of affirmative defenses. The district court has the power under 

[Habeas] Rule 4 to examine and dismiss frivolous habeas petitions prior to any 

answer or other pleading by the state. This power is rooted in “the duty of the court 

to screen out frivolous applications and eliminate the burden that would be placed 

on the respondent by ordering an unnecessary answer.” (quoting 28 U.S.C. foll. § 

2254 Rule 4 Advisory Committee Notes)). 

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if, at the time it is filed, the prisoner is not “in custody” under the conviction and 

sentence that he seeks to attack. See 28 U.S.C. § 2241(c); 28 U.S.C. § 2254(a); Hendrix 

v. Lynaugh, 888 F.2d 336, 337 (5th Cir. 1989). 

A prisoner need not be physically confined to be “in custody” for the purposes 

of habeas relief. See Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir. 1979) (“‘[I]n 

custody’ does not necessarily mean ‘in custody for the offense being attacked.’ Instead, 

jurisdiction exists if there is a positive, demonstrable relationship between the prior 

conviction and the petitioner’s present incarceration.”). Even so, “once the sentence 

imposed for a conviction has completely expired, the collateral consequences of that 

conviction are not themselves sufficient to render an individual ‘in custody’ for the 

purposes of a habeas attack upon it.” Maleng v. Cook, 490 U.S. 488, 492 (1989); see 

also Hendrix, 888 F.2d at 337-38 (adverse consequences of expired sentence, 

including possibility that conviction may be used to impeach future testimony and 

enhance future punishment, held insufficient to satisfy the “in custody” requirement 

of Section 2254). 

Insofar as Preston has been released from state custody but remains on parole 

or supervised release under the Judgment, which appears plausible, the Court has 

jurisdiction to consider his Section 2254 application. See Jones v. Cunningham, 371 

U.S. 236, 243 (1963) (“While petitioner’s parole releases him from immediate physical 

imprisonment, it imposes conditions which significantly confine and restrain his 

freedom; this is enough to keep him in [ ] ‘custody’ ... within the meaning of the habeas 

corpus statute.”); see also Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2000) 

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(“Usually, ‘custody’ signifies incarceration or supervised release, but in general it 

encompasses most restrictions on liberty resulting from a criminal conviction.” 

(citation omitted)). 

Nonetheless, his challenge to the Judgment under Section 2254 remains time 

barred. And, while “the statute of limitations provision of the AEDPA is an 

affirmative defense rather than jurisdictional,” a district court may dismiss a time 

barred Section 2254 application sua sponte under Habeas Rule 4. Kiser, 163 F.3d at 

329. 

“‘[B]efore acting on its own initiative’ to dismiss an apparently untimely § 2254 

petition as time barred, a district court ‘must accord the parties fair notice and an 

opportunity to present their positions.’” Wyatt v. Thaler, 395 F. App’x 113, 114 (5th 

Cir. 2010) (per curiam) (quoting Day v. McDonough, 547 U.S. 198, 210 (2006); 

alteration to original). Under the circumstances here, these findings, conclusions, and 

recommendation provide Preston fair notice, and the opportunity to file objections to 

them (further explained below) affords him a chance to present to the Court his 

position as to the limitations concerns explained below. See, e.g., Ingram v. Dir., 

TDCJ-CID, No. 6:12cv489, 2012 WL 3986857, at *1 (E.D. Tex. Sept. 10, 2012) (a 

magistrate judge’s report and recommendation gives the parties “fair notice that the 

case may be dismissed as time-barred, which [gives a petitioner] the opportunity to 

file objections to show that the case should not be dismissed based on the statute of 

limitation” (collecting cases)). 

AEDPA establishes a one-year statute of limitations for federal habeas 

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proceedings brought under 28 U.S.C. § 2254. See ANTITERRORISM AND EFFECTIVE 

DEATH PENALTY ACT OF 1996, Pub. L. 104-132, 110 Stat. 1214 (1996). The limitations 

period runs 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; 

(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 

(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)(1). 

The time during which a properly filed application for state post-conviction or 

other collateral review is pending is excluded from the limitations period. See id. § 

2244(d)(2). 

The one-year limitations period is also subject to equitable tolling – “a 

discretionary doctrine that turns on the facts and circumstances of a particular case,” 

Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), and only applies in “rare and 

exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 800 n.9 (5th Cir. 

2002) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “[A] litigant is 

entitled to equitable tolling of a statute of limitations only if the litigant establishes 

two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some 

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extraordinary circumstance stood in his way and prevented timely filing.’” 

Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016) (quoting 

Holland v. Florida, 560 U.S. 631, 649 (2010)). 

Taking the second prong first, “[a] petitioner’s failure to satisfy the statute of 

limitations must result from external factors beyond his control; delays of the 

petitioner’s own making do not qualify.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th 

Cir. 2009) (per curiam) (citation omitted). This “prong of the equitable tolling test is 

met only where the circumstances that caused a litigant’s delay are both 

extraordinary and beyond [the litigant’s] control.” Menominee Indian Tribe, 577 U.S. 

at 257.2

But “‘[t]he diligence required for equitable tolling purposes is reasonable 

diligence, not maximum feasible diligence.’ What a petitioner did both before and 

after the extraordinary circumstances that prevented him from timely filing may 

indicate whether he was diligent overall.” Jackson v. Davis, 933 F.3d 408, 411 (5th 

Cir. 2019) (quoting Holland, 560 U.S. at 653; footnote omitted). 

And a showing of “actual innocence” can also overcome AEDPA’s statute of 

limitations. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But the actual 

innocence gateway is only available to a petitioner who presents “evidence of 

2 See, e.g., Farmer v. D&O Contractors, 640 F. App’x 302, 307 (5th Cir. 2016) 

(per curiam) (holding that because “the FBI did not actually prevent Farmer or any 

other Plaintiff from filing suit” but instead “advised Farmer that filing suit would 

have been against the FBI’s interest” and “that the RICO claims could be filed after 

the investigation concluded,” “[a]ny obstacle to suit was ... the product of Farmer’s 

mistaken reliance on the FBI, and a party’s mistaken belief is not an extraordinary 

circumstance” (citation omitted)). 

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innocence so strong that a court cannot have confidence in the outcome of the trial 

unless the court is also satisfied that the trial was free of nonharmless constitutional 

error.” Id. at 401 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). That is, the 

petitioner’s new, reliable evidence must be enough to persuade the Court that “‘no 

juror, acting reasonably, would have voted to find him guilty beyond a reasonable 

doubt.’” Id. at 386 (quoting Schlup, 513 U.S. at 329).3

Preston alleges in his Section 2254 application that he directly appealed the 

Judgment, but he does not allege when he did so. See Dkt. No. 3 at 3. That said, 

Preston further indicates that he did not file a petition for discretionary review with 

the CCA. See id. And records available online from the CCA confirm this. Those 

records further indicate that the CCA denied substantive relief as to state habeas 

claims made by Preston on August 5, 2009. See Ex parte Preston, WR-15,848-26. So, 

3 See also Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992) (“The 

Supreme Court has made clear that the term ‘actual innocence’ means factual, as 

opposed to legal, innocence – ‘legal’ innocence, of course, would arise whenever a 

constitutional violation by itself requires reversal, whereas ‘actual’ innocence, as the 

Court stated in McCleskey [v. Zant, 499 U.S. 467 (1991)], means that the person did 

not commit the crime.” (footnotes omitted)); Acker v. Davis, 693 F. App’x 384, 392-93 

(5th Cir 2017) (per curiam) (“Successful gateway claims of actual innocence are 

‘extremely rare,’ and relief is available only in the ‘extraordinary case’ where there 

was ‘manifest injustice.’ Schlup, 513 U.S. at 324, 327. When considering a gateway 

claim of actual innocence, the district court must consider all of the evidence, ‘old 

and new, incriminating and exculpatory, without regard to whether it would 

necessarily be admitted under rules of admissibility that would govern at trial.’ 

House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks and citations 

omitted). ‘Based on this total record, the court must make “a probabilistic 

determination about what reasonable, properly instructed jurors would do.”’ Id.

(quoting Schlup, 513 U.S. at 329). ‘The court’s function is not to make an 

independent factual determination about what likely occurred, but rather to assess 

the likely impact of the evidence on reasonable jurors.’ Id.” (citations modified)).

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in sum, Preston’s Section 2254 application – filed no sooner than March 14, 2022, 

without the benefit of the prison mailbox rule, since Preston is no longer incarcerated 

– and available state court records establish that Preston’s federal-habeas challenge 

to a state criminal judgment entered on November 22, 1981 is time barred under 

Section 2241(d)(1)(D) and must be dismissed as untimely absent tolling of the 

limitations period or establishment of actual innocence. 

But Preston has neither shown how another provision of Section 2244(d)(1) 

could apply here, nor advanced a claim of tolling under the narrow actual innocence 

gateway, nor established either prong of equitable tolling – that he pursued his rights 

diligently and that an extraordinary circumstance beyond his control prevented the 

timely filing of the federal habeas petition. See Dkt. No. 3 at 13 (explaining, 

incorrectly, that the habeas application is timely because “void pronouncement of 

sentence may be challenged at any time in federal court”). 

Accordingly, Preston’s request for federal habeas relief as to the Judgment 

should be dismissed with prejudice as time barred. 

Recommendation and Directions to Clerk

Under Rule 4 of the Rules Governing Section 2254 Cases, the Court should 

dismiss Petitioner Robert Preston, Jr.’s pro se 28 U.S.C. § 2254 application for a writ 

of habeas corpus with prejudice as time barred. And the Court should direct that the 

Clerk of Court serve any order accepting or adopting this recommendation on the 

Texas Attorney General. 

The Clerk shall serve electronically a copy of this recommendation and the 

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petition, along with any attachments thereto and brief in support thereof, on the 

Texas Attorney General as counsel for Respondent, directed to the attention of 

Edward L. Marshall, Chief, Criminal Appeals Division, Texas Attorney General’s 

Office. See RULE 4, RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES 

DISTRICT COURTS. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: March 30, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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