IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CARLOS JAVIER HERNANDEZ, §

#2215690, §

PETITIONER, §

§

V. § CIVIL CASE NO. 3:22-CV-1326-S-BK

§

DIRECTOR, TDCJ-CID, §

RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Petitioner Carlos Javier Hernandez’s

pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 was referred to the United 

States magistrate judge for case management, including the issuance of findings and a 

recommended disposition where appropriate. For the reasons outlined here, the petition should 

be DISMISSED WITH PREJUDICE as barred by the one-year statute of limitations.

1

I. BACKGROUND

Hernandez was indicted for the offense of continuous sexual abuse of a young child. 

State v. Hernandez, No. F1748267 (Crim. Dist. Ct. No. Three, Dallas Cnty., Tex., July 31, 

2018).

2

 As recounted by his post-conviction counsel, Allan Fishburn, in the memorandum in 

support of his state habeas application, Hernandez pled not guilty, exercised his right to a jury 

1

See Rule 4(b) of the RULES GOVERNING SECTION 2254 PROCEEDINGS (“If it plainly appears 

from the petition and any attached exhibits that the petitioner is not entitled to relief in the 

district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.”).

 

2 The state trial court’s docket sheet is available by entering the case number (F1748267) at 

https://www.dallascounty.org/services/public-access.php (last accessed on Mar. 22, 2023). 

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trial, and elected for the trial court to set punishment. Before jury selection, Hernandez also 

rejected a 25-year plea offer but then surprised everyone by entering a guilty plea to the indicted 

offense after the jury was selected and sworn. Thus, the trial court called the case and, after both 

sides rested, instructed the jury to return a verdict of guilty. The case then proceeded to the 

punishment phase and the court assessed a 50-year sentence. See Ex parte Hernandez, No. 

W1748267A, Mem. in Supp. of Appl. for Writ of Habeas Corpus, filed Dec. 13, 2021.3

Hernandez’s trial counsel, Gilbert Medina, moved for new trial on July 31, 2018, the 

same day of the judgment, but did not file a timely notice of appeal. Over a year later, on 

October 17, 2019, Fishburn (Hernandez’s newly retained counsel) filed a notice of appeal and

moved for an out-of-time appeal in the Fifth District Court of Appeals, in Dallas. Hernandez v. 

State, No. 05-19-01265-CR, 2019 WL 5541264, at *1 (Tex. App.—Dallas Oct. 28, 2019, no 

pet.). The motion relied on Medina’s affidavit, which attested that (1) Medina had presented 

Hernandez with a notice of appeal right after sentencing and Hernandez signed it, and (2)

although Medina placed the signed notice of appeal in the clerk’s basket for filing, it was never 

filed. Id., Mot. for Out-of-Time Appeal and Aff. at 1-2. 

The state court of appeals dismissed the untimely appeal for want of jurisdiction, noting

that “[t]o the extent appellant seeks an out of time appeal, he raises his complaint in the improper 

forum” and that “[t]o be entitled to an out-of-time appeal, the defendant must file an application 

for a writ of habeas corpus with the clerk of the convicting court.” Hernandez, 2019 WL 

5541264, at *1. Hernandez did not pursue the matter in the trial court, but instead unsuccessfully 

sought state habeas relief on December 10, 2021, with Fishburn’s assistance, challenging the 

3 The trial court state habeas docket sheet it available by entering the case number (W1748267A)

at https://www.dallascounty.org/services/public-access.php (last accessed on Mar. 22, 2023).

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sentencing scheme. Ex parte Hernandez, No. WR-93,510-01 (Tex. Crim. App. Mar. 30, 2022)

(denying relief without written order).

4 Finally, on June 16, 2022, Hernandez filed the pro se 

federal habeas petition in this case. Doc. 1. He alleges ineffective assistance of counsel and 

challenges the jury instructions, a purported violation of his Fifth Amendment right to remain 

silent, and the sufficiency of the evidence. Doc. 1 at 6-9.

5

 

As his federal petition appeared untimely, the Court directed Hernandez to respond 

regarding the application of the one-year limitations period, which he has since done. Doc. 10; 

Doc. 12. Having now reviewed all applicable pleadings, the Court concludes that Hernandez’s

federal habeas petition was filed well after the expiration of the one-year limitations period. And 

because no exception applies, it should be dismissed as time barred. 

II. ANALYSIS

A. One-Year Statute of Limitations and Statutory Tolling

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a oneyear statute of limitations for state inmates seeking federal habeas corpus relief, which the Court 

may consider sua sponte after providing notice and an opportunity to respond. See 28 U.S.C. § 

2244(d); Day v. McDonough, 547 U.S. 198, 209-10 (2006). Hernandez does not allege any facts 

that could trigger a starting date under § 2244(d)(1)(B)-(D), so the one-year limitations period 

began to run from the date his judgment of conviction became final. See 28 U.S.C. § 

2244(d)(1)(A) (“The limitations period shall run from . . . the date on which the judgment 

4 The docket sheet is available at https://search.txcourts.gov/Case.aspx?cn=WR-93,510-

01&coa=coscca (last accessed on Mar. 22, 2023).

5 The federal petition was initially filed in the Southern District of Texas and then transferred to 

this Court. Doc. 3. 

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became final by the conclusion of direct review or the expiration of the time for seeking such 

review[.]”). In addition, the one-year period is statutorily tolled for the time that a properly filed 

application for state collateral relief is pending. 28 U.S.C. § 2244(d)(2). 

Hernandez was sentenced on July 31, 2018, and the deadline for filing a notice of appeal 

was 30 days later. See TEX. R. APP. P. 26.2(a)(1). However, on October 17, 2019, more than 14 

months after conviction, he filed a notice of appeal and motion for an out-of-time appeal but the

appeal was dismissed for lack of jurisdiction as it was untimely. Hernandez v. State, 2019 WL 

5541264, at *1. Thus, Hernandez’s state conviction became final for purposes of § 

2244(d)(1)(A) on August 30, 2018, 30 days after entry of the July 31, 2018 judgment. Cf. United 

States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (where the notice of appeal was untimely, 

the judgment became final when the time to appeal expired); Pete v. Director, TDCJ-CID, No. 

3:21-CV-1849-B-BK, 2022 WL 802549, at *2 (N.D. Tex. Feb. 22, 2022), R. & R. adopted, 2022 

WL 912894 (N.D. Tex. Mar. 29, 2022) (collecting cases finding dismissal of untimely direct 

appeal for lack of jurisdiction did not count in determining finality of conviction under § 

2244(d)(1)(A)).

The limitations period under § 2244(d)(1)(A) expired one year later on August 30, 2019. 

Moreover, Hernandez is not entitled to statutory tolling, since he did not file his state application 

until December 10, 2021—more than 2 years after the limitations period expired.

6

 See 28 U.S.C. 

§ 2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Consequently, the petition 

6 The “mailbox rule” is inapplicable because Hernandez’s state application was filed by his 

retained counsel. See Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002) (declining to apply 

mailbox rule to prisoners represented by counsel).

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sub judice, deemed filed on June 10, 2022, is clearly outside the one-year limitations period

absent equitable tolling.

7

 

B. Equitable Tolling

Hernandez’s filings, even when liberally construed based on his pro se status, do not 

evince due diligence and “rare and exceptional circumstances” warranting equitable tolling. 

Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is appropriate only where the 

petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented timely filing.” Id. (quotations and 

citations omitted). Notably, “the extraordinary circumstances . . . must result from external 

factors beyond [the petitioner’s] control; delays of the petitioner’s own making do not qualify.” 

Jones v. Lumpkin, 22 F.4th 486, 490 (5th Cir. 2022) (quotations and citations omitted). 

Moreover, equitable tolling is an extraordinary remedy limited to “rare and exceptional 

circumstances.” Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000). Unexplained delays 

do not equate to due diligence or rare and extraordinary circumstances. Fisher v. Johnson, 174 

F.3d 710, 715 (5th Cir. 1999) (“Equity is not intended for those who sleep on their rights.” 

(quotation and quoted case omitted)). 

The Court notes that Hernandez did not pursue “the process with diligence and alacrity.” 

Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). As previously explained here, he 

squandered the entire one-year period. Hernandez did not diligently seek habeas relief, waiting 

instead over two years after his conviction became final to file his state habeas application. And 

7 The federal petition is deemed filed on June 10, 2022, the date Hernandez certifies placing it in 

the prison mail system. Doc. 1 at 12; see Rule 3(d) of the Rules Governing Section 2254 

Proceedings (“mailbox rule” applies when inmates use the prison’s internal mailing system). 

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while Hernandez placed his federal petition in the prison mailbox just over two months after the 

denial of his state habeas application, as mentioned previously, he was not entitled to tolling 

during the pendency of his state petition, so this was simply too late. These extended periods of 

inactivity clearly indicate a lack of due diligence, and Hernandez only offers conclusory reasons

to excuse his delays. See, e.g., Doc. 10 at 1 (asserting delays were not intentional). Again, 

unexplained delays or delays of the petitioner’s own making establish neither due diligence nor 

rare and extraordinary circumstances. See Fisher, 174 F.3d at 715. 

Additionally, Hernandez’s remaining arguments in favor of equitable tolling are 

unpersuasive: 

My family had decided to hire a lawyer, the cost was somewhere around 

$27,000.00. The petitioner took the lawyer’s advise [sic] in letting him handle the 

case, he states “he was going to wait a while, before filing in Federal Court, and 

that he was going to skip the rest” after talking to some inmates, their opinion was 

that the attorney was taking petitioner and family for a ride.

Petitioner waited for appeal or to hear from the attorney, even after writing letters 

(petitioner used carbon paper, for copies) there still was no response, the appeal 

was done but the lawyer waited a year to do the Article 11.07, then never attempted 

to file the § 2254. 

Doc. 10 at 1. 

In his supplemental response, Hernandez adds that “‘no, motion for New Trial,’ [was] 

ever filed, [and that] this was ‘abandonment by counsel’ within the first 30 days after the 

‘District Court’s sentencing and conviction.” Doc. 12 at 1. He also cites state court cases 

holding that a defendant has a right to counsel during the 30-day period for moving for new trial, 

as it was a critical stage of the criminal proceedings. Doc. 12 at 2. Hernandez’s arguments are 

unavailing.

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First, Hernandez’ assertions of ineffective assistance of counsel by Medina during the 30-

day period for filing a motion for new trial and a notice of appeal have no bearing on equitable 

tolling because the alleged deficiencies necessarily preceded the beginning of the one-year 

limitations period. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (ineffective 

assistance of counsel on appeal is not relevant to equitable tolling). 

Second, any alleged ineffective assistance by Fishburn during the post-conviction

proceedings—the out-of-time appeal and state habeas—do not constitute the kind of egregious 

behavior that excuses Hernandez’s failure to timely assert his habeas rights. Equitable tolling 

applies mainly where a petitioner is actively misled by his attorney or someone else. See Sutton 

v. Cain, 722 F.3d 312, 317 (5th Cir. 2013) (citations omitted); Williams v. Thaler, 400 F. App’x 

886, 892 (5th Cir. 2010). “[I]neffective assistance of counsel is irrelevant to the tolling decision 

because a prisoner has no right to counsel during post-conviction proceedings.” United States v. 

Petty, 530 F.3d 361, 366 (5th Cir. 2008).

Importantly, Hernandez does not contend that any misrepresentation by or 

misinformation received from Fishburn contributed to the lapse of the one-year statute of 

limitations before filing. Cf. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002)

(attorney’s misrepresentations may be grounds for equitable tolling); Jimenez v. Butcher, 839 

Fed. Appx. 918, 920 (5th Cir. 2021) (“[C]ombined deception and tardiness of counsel 

constitute[d] extraordinary circumstances, which, considered together, resulted in [the petitioner] 

missing the time target of the limitations period.”); Vineyard v. Dretke, 125 Fed. Appx. 551, 553 

(5th Cir. 2005) (equitable tolling is warranted when an attorney affirmatively misinforms his 

client and causes him to miss the limitations period). Instead, Hernandez states that he followed

Fishburn’s advice to “let[] him handle the case,” and that Fishburn told him that “he was going to 

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wait a while, before filing in Federal Court[.]” Doc. 10 at 1. Hernandez’s bare assertions do not 

establish the type of egregious behavior of counsel that prevented him, in some extraordinary 

way, from timely asserting his rights. 

Further, Hernandez’s argument that the one-year period began on March 30, 2022—when 

the TCCA denied his state habeas application—is baseless. Doc. 1 at 11. Again, the AEDPA 

one-year period commences upon the conclusion of direct review of a judgment of conviction or 

upon the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1); Roberts v. 

Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). The running of the limitations period is simply 

suspended if state post-conviction proceedings are pending in any state court. 28 U.S.C. § 

2244(d)(2) (“The time during which a properly filed application for State post-conviction . . . is 

pending shall not be counted toward any period of limitation under this subsection”). See also 

Gonzalez v. Thaler, 623 F.3d 222, 225 (5th Cir. 2010) (distinguishing the AEDPA’s “tolling 

provision, § 2244(d)(2)” from its “triggering provision, § 2244(d)(1)”). As reiterated, that was 

not the case here.

Hernandez also argues that section 2244(d) is unconstitutional because it prevents him 

from petitioning the government for a redress of grievances. Doc. 10 at 2 (citing U.S. Const., 

amend I). His argument is futile. Prisoners have a constitutional right of access to the court 

concerning their convictions. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to 

the courts, however, is limited to the initiation of a court action, and does not include the right to 

litigate effectively or successfully once in court. Id. at 354. While the limitations period may 

prevent some habeas petitions from succeeding, it does not prevent a prisoner from timely filing 

a habeas action in federal court and having a meaningful opportunity to pursue it. Lockett v. 

Day, 264 F.3d 1140, 2001 WL 822505, at *1 (5th Cir. June 20, 2001) (unpublished). 

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That notwithstanding, even if Hernandez relies on the Suspension Clause, his argument is 

foreclosed by circuit precedent. Because the one-year limitations period only alters the 

procedure for bringing a habeas petition, it does not unconstitutionally suspend the writ. See 

Molo, 207 F.3d at 775 (the AEDPA one-year limitations period does not violate the Suspension 

Clause unless it “renders the habeas remedy ‘inadequate or ineffective’ to test the legality of 

detention.”); Turner v. Johnson, 177 F.3d 390, 392-93 (5th Cir. 1999) (same). And Hernandez

does not allege, much less show, how the limitations period made the habeas remedy inadequate 

or ineffective for him, since nothing prevented him from filing a timely federal petition. See

Madden v. Thaler, No. 3:10-CV-1461-B-BK, 2011 WL 2162910, at *6 (N.D. Tex. May 9, 2011)

(rejecting Suspension Clause argument), R. & R. adopted, 2011 WL 2164154 (N.D. Tex. June 2, 

2011), aff’d, 521 F. App’x 316 (5th Cir. 2013). 

Further, while the one-year limitations period might raise serious constitutional questions 

where it forecloses the opportunity for habeas relief for one who is actually innocent of the crime 

for which he was convicted, Hernandez does not allege an actual innocence claim. See

McQuiggin v. Perkins, 569 US 383, 386 (2013) (actual innocence may provide “a gateway 

through which a petitioner may pass” when the limitations period has elapsed, but that “tenable 

actual-innocence gateway pleas are rare.”); Molo, 207 F.3d at 775 (no factual innocence shown).

Lastly, Hernandez’s pro se status and unfamiliarity with the law do not suffice as a basis 

for equitable tolling. See Felder, 204 F.3d at 171 (“[P]roceeding pro se is not a ‘rare and 

exceptional’ circumstance because it is typical of those bringing a § 2254 claim.”); Turner, 177 

F.3d at 391-92 (neither unfamiliarity with the legal process nor lack of representation justify 

equitable tolling).

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For the foregoing reasons, Hernandez has not met his burden to establish that equitable 

tolling is warranted in this case. See Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).

III. CONCLUSION

Hernandez’s petition for writ of habeas corpus should be summarily DISMISSED

WITH PREJUDICE as barred by the one-year statute of limitations. See 28 U.S.C. § 

2244(d)(1); Rule 4(b) of the RULES GOVERNING SECTION 2254 PROCEEDINGS.

SO RECOMMENDED on March 24, 2023.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report 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). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and where in the magistrate judge’s report and recommendation 

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), modified by 

statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).

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