IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

DARRELL BILLINGSLEA, ) 

 ID # 1588458, ) 

 Petitioner, ) 

 ) 

vs. ) No. 3:22-CV-999-L-BH 

 ) 

DIRECTOR, Texas Department of Criminal ) 

Justice, Correctional Institutions Division, ) 

 Respondent. ) Referred to U.S. Magistrate Judge1

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

 Based on the relevant filings and applicable law, the Petition Under 28 U.S.C. § 2254 for 

Writ of Habeas Corpus by a Person in State Custody, received on May 3, 2022 (doc. 3), should be 

DENIED with prejudice as barred by the statute of limitations. 

I. BACKGROUND 

Darrell Billingslea (Petitioner), an inmate currently incarcerated in the Texas Department 

of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed a petition for a writ of 

habeas corpus under 28 U.S.C. § 2254 challenging his 2009 conviction in the Criminal District 

Court No. 4 of Dallas County, Texas. (See doc. 3 at 1.) The respondent is the Director of TDCJCID. (See id.) 

After pleading guilty, Petitioner was convicted of “Murder/2nd” on July 28, 2009, in Case 

No. F-08-50283-K in the Criminal District Court No. 4 of Dallas County, Texas, and was 

sentenced to 50 years’ imprisonment and fined $3,000. See State v. Billingslea, No. F-08-50283-

K (Crim. Dist. Ct. No. 4, Dallas Cnty., Tex. July 28, 2009). He did not appeal his conviction or 

sentence. (See doc. 3 at 2.) 

1

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

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Petitioner’s first state habeas application, signed on March 3, 2013, was received by the 

trial court on May 6, 2013. See Ex parte Billingslea, No. W-08-50283-K(A) (Crim. Dist. Ct. No. 

4, Dallas Cnty., Tex. May 6, 2013). It was denied without written order on November 20, 2013, 

by the Texas Court of Criminal Appeals. See Ex parte Billingslea, No. WR-50,132-02 (Tex. Crim. 

App. Nov. 20, 2013). His motion for reconsideration was denied on January 22, 2014. See id.

(Tex. Crim. App. Jan. 22, 2014). His second state habeas application, received by the trial court 

on February 14, 2022, was dismissed by the Texas Court of Criminal Appeals as a subsequent 

application on April 20, 2022. See Ex parte Billingslea, No. WR-50,132-05 (Tex. Crim. App. Apr. 

20, 2022); Ex parte Billingslea, No. W-08-50283-K(B) (Crim. Dist. Ct. No. 4, Dallas Cnty., Tex. 

Feb. 14, 2022). 

Petitioner’s § 2254 petition raises the following claims: 

(1) “5th And 14th Amendment Violation For A Wrongfull [sic] Conviction”; and 

(2) “6th Amendment Violation of inneffective [sic] Assistance of Counsel”. 

(doc. 3 at 5, 7.) 

II. STATUTE OF LIMITATIONS 

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); see also 110 Stat. 

1217-1221 (governing habeas petitions in federal court). Among its provisions, the AEDPA 

establishes a one-year limitations period for state inmates seeking federal habeas relief. See 28 

U.S.C. § 2244(d). Section 2244(d) provides: 

(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 – 

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(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). Petitioner did not appeal his conviction or sentence to the state appellate 

court. (See doc. 3 at 2.) His conviction therefore became final on August 27, 2009, when the 

thirty-day period for filing an appeal expired. See Tex. R. App. P. 26.2(a) (appeal must be filed 

within thirty days of judgment); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (holding 

that, when the petitioner has halted the review process, “the conviction becomes final when the 

time for seeking further direct review in the state court expires.”). Petitioner does not allege that 

state action prevented him from filing a § 2254 petition earlier, and he has not alleged any newly 

recognized constitutional right made retroactively applicable to cases on collateral review. See 28 

U.S.C. § 2244(d)(1)(B), (C). 

 Petitioner’s allegations became known or could have become known through the exercise 

of due diligence prior to the date his conviction became final. Because the date his conviction 

became final is the latest date under § 2244(d), the one-year statute of limitations began to run 

from that date, August 27, 2009. Because he filed it over 12 years later, his § 2254 petition is 

untimely in the absence of statutory or equitable tolling, or an applicable exception to the 

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limitations period. 

A. Statutory Tolling 

Section 2244 mandates that “[t]he 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.” 28 U.S.C. § 

2244(d)(2). Petitioner’s first state habeas application, signed on March 3, 2013, was received by 

the trial court on May 6, 2013, over two years after his limitations period expired on August 27, 

2010. It therefore does not toll the limitations period under § 2244(d)(2). Scott v. Johnson, 227 

F.3d 260, 263 (5th Cir. 2000) (holding that habeas application filed in state court after expiration 

of the limitations period does not statutorily toll the limitations period). 

B. Equitable Tolling 

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, 645 (2010); 

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 2000) (recognizing that only “rare and exceptional 

circumstances” warrant equitable tolling). “The doctrine of equitable tolling preserves a [party’s] 

claims when strict application of the statute of limitations would be inequitable.” Davis, 158 F.3d 

at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995)). It “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. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)), abrogated 

on other grounds by Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013). 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 

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(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the burden to show 

entitlement to equitable tolling. See, e.g., Phillips v. Donnelly, 223 F.3d 797, 797 (5th Cir. 2000) 

(per curiam). Courts must examine each case in order to determine if there are sufficient 

exceptional circumstances that warrant equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 

(5th Cir. 1999). 

Here, Petitioner appears to contend that his petition is not barred by the statute of 

limitations because the “High Court of Criminal Appeals Denied writ without A written order 

which Means The County was without Jurisdiction But Still is not The Final disposition.” (doc. 3 

at 13.) Contrary to his allegations, a state habeas application that is denied without written order 

by the Texas Court of Criminal Appeals, as here, is a final disposition on the merits of the state 

habeas claims. See Singleton v. Johnson, 178 F. 3d 381, 384 (5th Cir. 1999); Ex parte Santana, 

227 S.W.3d 700, 704 (Tex. Crim. App. 2007). He has not shown that Dallas County lacked 

jurisdiction over his criminal proceedings or that there was no final adjudication on his state habeas 

application. Accordingly, Petitioner has not met his burden to show that he has been pursuing his 

rights diligently, or that an extraordinary circumstance prevented him from timely filing his 

petition. He has failed to meet his burden to show that he is entitled to equitable tolling. 

C. Actual Innocence 

In McQuiggin v. Perkins, 569 U.S. 383, 386-92 (2013), the Supreme Court held that even

where a habeas petitioner has failed to demonstrate the due diligence required to equitably toll the 

statute of limitations, a plea of actual innocence can overcome the AEDPA statute of limitations 

under the “miscarriage of justice” exception to a procedural bar. A tenable actual innocence claim 

must persuade a district court that it is more likely than not that no rational fact-finder would have 

found the petitioner guilty beyond a reasonable doubt in light of the new evidence and the evidence 

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presented at trial. Floyd v. Vannoy, 894 F.3d 143, 155 (5th Cir. 2018) (citing McQuiggin, 569 

U.S. at 386). The untimeliness of a plea of actual innocence does bear on the credibility of the 

evidence offered. McQuiggin, 569 U.S. at 399-400. “[A] credible claim [of actual innocence to 

excuse the untimeliness of a habeas petition] must be supported by ‘new reliable evidence–whether 

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 

evidence–that was not presented at trial.’” Floyd, 894 F.3d at 155 (quoting Schlup v. Delo, 513 

U.S. 298, 324 (1995)). “This exception’s demanding standard requires ‘evidence of 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.’ . . . The standard is seldom 

met.” Id. at 154-55 (citing McQuiggin, 569 U.S. at 401; House v. Bell, 547 U.S. 518, 538 (2006)). 

Here, Petitioner asks the Court “To Extend The Actual innocence exception of This 

petition[.]” (doc. 4 at 4.) He alleges that he “was wrongfully Convicted and Sentenced . . . with 

no DNA Evidence Connecting The petitioner To the Crime and only Accusation, Speculation prior 

Convictions and Tainted Testimony is a Failure to Moral Justice.” (Id. at 1.) Even if McQuiggin 

applies to Petitioner’s guilty plea, Petitioner fails to support his conclusory allegations with any 

new reliable evidence of actual innocence, and fails to show that it is more likely than not, in light 

of such new evidence, that no reasonable fact-finder would have found him guilty beyond a 

reasonable doubt. He therefore has failed to show that he is entitled to the actual-innocence 

exception to the AEDPA’s statute of limitations. His § 2254 petition should be denied as untimely. 

III. RECOMMENDATION 

The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State 

Custody, received on May 3, 2022 (doc. 3), should be DENIED with prejudice as barred by the 

statute of limitations. 

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SIGNED this 16th day of June, 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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