IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

THOMAS S. OLIVAS, §

§

Petitioner, §

§

v. § Civil Action No. 4:22-cv-385-O

§

BOBBY LUMPKIN, §

DIRECTOR, TDCD-CID, §

§

Respondent. §

OPINION AND ORDER

Came on for consideration the petition of Thomas S. Olivas under 28 U.S.C. § 2254 for 

writ of habeas corpus by a person in state custody. The Court, having considered the petition, the 

answer, the reply, the record, and applicable authorities, concludes that the petition must be 

DENIED.

I. BACKGROUND

Petitioner is serving a sentence of life without parole following his conviction under Case 

No. 1376698R in the 372nd Judicial District Court of Tarrant County, Texas, for capital murdermultiple. ECF No. 16-46 (SHCR-01) at 8–10. His conviction was affirmed on appeal. Olivas v. 

State, 507 S.W.3d 446 (Tex. App.—Fort Worth 2016, pet. granted, judgm’t vacated w.r.m.). The 

Court of Criminal Appeals of Texas granted his petition for discretionary review and remanded

the case for reconsideration in light of Carpenter v. United States, 138 S. Ct. 2206 (2018). Olivas 

v. State, No. PD-0561-17, 2018 WL 4344310 (Tex. Crim. App. Sept. 12, 2018). Upon 

reconsideration, the appellate court again affirmed the judgment, holding that, beyond a reasonable 

doubt, the admission of cell-site location information obtained without warrant did not contribute 

to Petitioner’s conviction. Olivas v. State, No. 02-14-00412-CR, 2020 WL 827144 (Tex. App.—

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Fort Worth Feb. 20, 2020, pet. ref’d). His petition for discretionary review was refused. Id.; Olivas 

v. State, PD-0336-20 (Tex. Crim. App. Sept. 16, 2020). 

Petitioner filed a state application for writ of habeas corpus, which was denied without 

written order on findings of the trial court without hearing and on the Court of Criminal Appeals’ 

independent review of the record. Olivas v. State, No. WR-93,624-01 (Tex. Crim. App. May 4, 

2022). 

II. GROUNDS OF THE PETITION

Petitioner asserts two grounds in support of his petition. First, he says that he is actually 

innocent of capital murder. Second, he says that he was denied Due Process by faulty evidence 

submitted by the ex-deputy medical examiner relied upon by the ex-chief medical examiner at 

trial. ECF No. 1 at 6. 

III. APPLICABLE LEGAL STANDARDS 

A writ of habeas corpus on behalf of a person in custody under a state court judgment shall 

not be granted with respect to any claim that was adjudicated on the merits in state court 

proceedings unless the petitioner shows that the prior adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court 

arrives at a conclusion opposite to that reached by the United States Supreme Court on a question 

of law or if the state court decides a case differently than the Supreme Court has on a set of 

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000); see also Hill 

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v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable 

application of clearly established precedent if it correctly identifies the applicable rule but applies 

it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407–09; see also Neal v. 

Puckett, 286 F.3d 230, 236, 244–46 (5th Cir. 2002) (en banc) (focus should be on the ultimate 

legal conclusion reached by the state court and not on whether that court considered and discussed 

every angle of the evidence). A determination of a factual issue made by a state court is presumed 

to be correct. 28 U.S.C. § 2254(e)(1). The presumption of correctness applies to both express and 

implied factual findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 

274 F.3d 941, 948 n.11 (5th Cir. 2001). Absent express findings, a federal court may infer fact 

findings consistent with the state court’s disposition. Marshall v. Lonberger, 459 U.S. 422, 433 

(1983). Thus, when the Texas Court of Criminal Appeals denies relief without written order, such 

ruling is an adjudication on the merits that is entitled to this presumption. Ex parte Torres, 943 

S.W.2d 469, 472 (Tex. Crim. App. 1997). The petitioner has the burden of rebutting the 

presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 210 

F.3d at 486.

In making its review, the Court is limited to the record that was before the state court. 28 

U.S.C. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

IV. ANALYSIS

The Second Court of Appeals gave a brief overview of the evidence:

On March 20, 2011, at approximately 10 p.m., authorities responded to a fire at an 

apartment complex in Arlington where the bodies of the decedents (mother and 

baby) were discovered. The mother died of multiple (eleven) stab wounds. The 

baby suffered a violent death, the testimony showing that gasoline had been poured 

on or around him as he lay in a crib. The fire started in the baby’s room. When the 

flames became visible outside, a neighbor saw a lone individual wearing a hoodie 

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leave through a breezeway which afforded easy access to and from the decedent’s 

apartment. Gasoline also appeared on various portions of the mother’s clothing, the 

baby’s clothing, and areas throughout the apartment.

[Petitioner] and the mother were not strangers; they had a personal history, albeit 

an abhorrent one. The evidence showed [Petitioner] had a prior dating relationship 

with the mother, that he was the father of the baby, and that he loathed both. 

Previously, the mother instituted legal proceedings against [Petitioner] regarding 

paternity and child support through the Attorney General’s office. After receiving 

legal documents from the Attorney General’s office which she did not understand, 

she wanted to discuss them with [Petitioner]. Although upset with mother over this 

legal matter and another relating to a breakup with his current girlfriend, 

[Petitioner] agreed.

On March 20, [Petitioner] admittedly intended to meet with the mother and was 

present in the area of her apartment from late afternoon to about 10:00 p.m. Cell 

tower records reflecting cell communications between mother and [Petitioner], as 

well as [Petitioner’s] later statements, showed that he drove to Arlington in the area 

of her apartment. [Petitioner’s] statements and his text to mother indicated he did 

not know exactly where she lived. About 7:00 p.m., mother texted [Petitioner] that 

she would give him directions as soon as she got to her apartment. A few minutes 

later, the mother did call [Petitioner], ostensibly to give [Petitioner] the promised 

directions to her apartment. It is patently unreasonable to entertain any other 

explanation for her call.

Statements by [Petitioner] and testimony of several witnesses confirmed that the 

vehicle [Petitioner] borrowed and drove on the night of the murders and days 

afterwards smelled of gasoline. In addition, on the night of the murders, [Petitioner] 

alerted the vehicle’s owner that he had spilled gasoline in her vehicle.

507 S.W.3d at 449.

Petitioner alleges in his first ground that he is actually innocent of capital murder. ECF No. 

1 at 6. He says that newly discovered DNA evidence proves it, but the only “new” evidence he 

cites is that none of his belongings tested positive for gas and that none of his DNA was discovered 

at the crime scene, but a third party’s DNA was found. Id. In the first place, as Respondent notes, 

the evidence is not new. ECF No. 15 at 6–7. More importantly, even if it was, claims of actual 

innocence “have never been held to state a ground for federal habeas relief absent an independent 

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constitutional violation.” Herrera v. Collins, 506 U.S. 390, 400 (1993). No such independent 

constitutional violation is alleged here. In any event, Petitioner has not made a “truly persuasive 

demonstration of ‘actual innocence’” and shown that no state remedy was available to him. Graves 

v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (citing Herrera, 506 U.S. at 417). Compare In re 

Davis, 557 U.S. 952 (2009) (remanded for hearing where seven of the state’s key witnesses 

recanted and several implicated the state’s key witness as the shooter).

In his second ground, Petitioner alleges that he was denied Due Process by faulty evidence 

regarding the autopsy. He alleges that the deputy who conducted the autopsy left the medical 

examiner’s office for undisclosed reasons and that, rather than calling him to testify at trial, the 

State called the chief medical examiner. He further alleges that both “have a history of providing 

false testimony.” ECF No. 1 at 6. 

The Due Process Clause of the Fourteenth Amendment “forbids the State from knowingly 

using perjured testimony.” Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000) (citing Giglio v. 

United States, 405 U.S. 150, 153 (1972)). To be granted relief on this ground, Petitioner must show 

that (1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that 

the evidence was false. Id.; Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997). Here, Petitioner

offers nothing more than his bald assertion that both the ex-chief and ex-deputy chief medical 

examiners “have a history of providing false testimony.” ECF No. 1 at 6. Such an allegation is 

insufficient to entitle Petitioner to habeas relief. Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th 

Cir. 1996); United States v. Wood, 870 F.2d 285, 288 n.3 (5th Cir. 1989). The State habeas court 

held that Petitioner failed to prove that either medical examiner provided faulty evidence. ECF No. 

16-46 (SCHR) at 81–87 (findings and conclusions), 91 (order adopting findings and conclusions); 

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ECF No. 16-48 (SCHR) at 1166 (order adopting actions of magistrate). Petitioner has not shown, 

much less made any attempt to show, that the state court’s adjudication resulted in a decision that 

was contrary to, or involved an unreasonable application of, clearly established federal law or 

resulted in a decision that was based on an unreasonable determination of the facts in light of the 

evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). 

V. CONCLUSION

For the reasons discussed herein, the Court DENIES the relief sought in Petitioner’s 

application under § 2254.

Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of 

appealability is DENIED. 

SO ORDERED on this 29th day of November, 2022.

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