IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

GREGORY LEWIS MARTINEZ, ) 

 ID # 01861958, ) 

 Petitioner, ) 

 ) 

vs. ) No. 3:22-CV-673-X-BH 

 ) 

KELLY STRONG, Warden, ) 

 Respondent. ) Referred to U.S. Magistrate Judge1

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

 Before the Court is the Motion to Extend Time for Filing Habeas Corpus, received on 

March 22, 2022 (doc. 3). Based on the relevant filings and applicable law, this action should be 

DISMISSED for lack of subject matter jurisdiction. 

I. BACKGROUND 

In 2013, Gregory Lewis Martinez (Petitioner), an inmate currently incarcerated in the 

Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID), pleaded 

guilty to retaliation and evading arrest, and was fined and sentenced to 10 years’ imprisonment in 

the TDCJ-CID. See Martinez v. State, Nos. 05–13–00834-CR, 05–13–00836–CR, 2014 WL 

2743472, at *1 (Tex. App.—Dallas June 16, 2014, no pet.) On June 16, 2014, the state appellate 

court modified the judgment on the retaliation charge to correct the terms of the plea bargain, and 

it modified the judgment for the evading arrest charge to show the degree of the offense and the 

terms of the plea bargain, and to include a fine that was orally pronounced. See id. As modified, 

the judgments were affirmed. See id. Petitioner did not file a petition for discretionary review 

(PDR) with the Texas Court of Criminal Appeals. 

1

 By Special Order No. 3-251, this habeas case has been automatically referred for findings, conclusions, and 

recommendation. 

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On July 29, 2015, Petitioner’s first state habeas application regarding his retaliation 

conviction was denied without written order by the Texas Court of Criminal Appeals. See Ex parte 

Martinez, WR-83,406-02 (Tex. Crim. App. July 29, 2015). On September 23, 2015, his first state 

habeas application regarding his evading arrest conviction was denied by the Texas Court of 

Criminal Appeals without written order on the findings of the trial court without a hearing. See 

Ex parte Martinez, Nos. WR-83,406-01 (Tex. Crim. App. Sept. 23, 2015). Petitioner’s second 

state habeas applications in each case were denied without written order on March 17, 2021. See 

Ex parte Martinez, Nos. WR-83,406-03, WR-83,406-04 (Tex. Crim. App. Mar. 17, 2021). 

Petitioner now seeks a 90-day extension to file a § 2254 petition and for his filing “be 

considered as an equitable tolling request.” (doc. 3 at 2.) He claims that the need for the extension 

is “due to the actions of TDCJ which denied me due process in my state habeas filing,” and claims 

that the “actions of TDCJ since the filing of the application for writ in State Court have been 

retaliatory in nature and have caused harm to applicant by dening [sic] any further exhaustion 

remedies and not receiving timely notification of the denial, despite letter to the Court on March 

1, 2021.” (Id. at 2.) 

II. JURISDICTION 

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 

Pub. L. 104-132, 110 Stat. 1214, on April 24, 1996. It applies to all federal petitions for habeas 

corpus filed after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). One of the ways 

that Title I of the AEDPA substantially changed the way federal courts handle habeas corpus 

actions was by imposing of a one-year statute of limitations for filing a federal petition. See 28 

U.S.C. § 2244(d)(1). The 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, 

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645 (2010) (holding that the timeliness provision in the AEDPA is subject to equitable tolling). 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 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Equitable tolling 

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)). 

 Section 2254 does not authorize federal courts to prospectively extend, stop or toll the oneyear statute of limitations. See § 2244(d)(1). Federal courts lack jurisdiction to consider the

timeliness of a habeas petition until it is actually filed. See United States v. McFarland, 125 F. 

App’x 573, 574 (5th Cir. 2005) (“Before the petition itself is actually filed, ‘there is no case or 

controversy to be heard, and any opinion we were to render on the timeliness issue would be merely 

advisory.’”); see also Gray v. Quarterman, No. 3:08-CV-2068-D, 2008 WL 5385010 (N.D. Tex. 

Dec. 23, 2008) (“Federal courts do not ‘sit to decide hypothetical issues or to give advisory 

opinions about issues as to which there are not adverse parties before [them].’”) (quoting Princeton 

Univ. v. Schmid, 455 U.S. 100, 102 (1982) (other citations omitted)). A party invoking federal 

subject matter jurisdiction must present a justiciable case or controversy. Gray, 2008 WL 

5385010, at *1 (citing Juidice v. Vail, 430 U.S. 327, 331 (1977)) (other citations omitted). 

Here, a ruling on Petitioner’s motion will require an advance determination of whether his 

petition will be time-barred and whether equitable tolling is applicable. As noted, § 2254 does not 

authorize a prospective extension of the statute of limitations. There is no adverse party before 

the Court at this time, and no concrete dispute to be decided. Accordingly, the Court lacks subject 

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matter jurisdiction to grant any relief.

III. RECOMMENDATION 

This action should be DISMISSED for lack of subject matter jurisdiction, unless Petitioner 

either submits a habeas petition on the appropriate form, and a motion to proceed in forma pauperis

or the $5 filing fee, within the fourteen-day period for objecting to this recommendation, or by 

some other deadline set by the Court. 

SIGNED this 24th day of March, 2022. 

INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT 

 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. Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996). 

 

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