IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

MILTON LEE TARVER, § 

TDCJ No. 855937, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-1616-X-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

In 1998, Petitioner Milton Lee Tarver, a Texas prisoner, was convicted of 

aggravated sexual assault and sentenced to life imprisonment. See State v. Tarver, 

F98-02379-QU (291st Jud. Dist. Ct., Dall. Cnty., Tex.), aff’d, No. 05-98-01964-CR, 

2000 WL 1835305 (Tex. App. – Dallas Dec. 14, 2000, pet. dismissed). The Texas Court 

of Criminal Appeals (the CCA) dismissed his petition for discretionary review (PDR) 

as untimely. See Tarver v. State, PD-1006-01 (Tex. Crim. App.). And, since then, 

Tarver has sought post-conviction relief as to this conviction and sentence in state 

court. See, e.g., Ex parte Tarver, WR-51,378-01, -02, -03, -04, -05, -06, -07, -08, -09 

(Tex. Crim. App.). 

He has now filed pro se what appears to be his initial application for a writ of 

habeas corpus under 28 U.S.C. § 2254, urging the Court to review the claims he 

makes as timely under the actual innocence exception to the statute of limitations. 

See Dkt. No. 3. 

United States District Judge Brantley Starr referred the Section 2254 

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application to the 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 habeas application with prejudice 

as time barred under Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 

4). 

Legal Standards 

Under Habeas Rule 4, a district court may summarily dismiss a 28 U.S.C. § 

2254 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.

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.” 

Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 

Rule 4 Advisory Committee Notes). 

And the Court may exercise this power to summarily dismiss Jackson’s 

application with prejudice as time barred under Habeas Rule 4. 

“[E]ven though 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. But, “‘before acting on its own initiative’ to dismiss an apparently untimely § 

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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 Tarver fair notice, and the period to file objections to them 

affords him an opportunity to present his position as to limitations concerns 

explained below. See, e.g., Ingram v. Director, 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 timebarred, 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 

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 

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(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, 799 (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 

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. 

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at 257.1

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 

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).2

1 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)). 

2 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 

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Analysis 

The timeliness of most Section 2254 applications – Tarver’s is no exception –is 

determined under Subsection A, based on the date on which the judgment became 

final. A state criminal judgment becomes final under AEDPA “when there is no more 

‘availability of direct appeal to the state courts.’” Frosch v. Thaler, No. 2:12-cv-231, 

2013 WL 271423, at *1 (N.D. Tex. Jan. 3, 2013) (quoting Jimenez v. Quarterman, 555 

U.S. 113, 119 (2009)), rec. adopted, 2013 WL 271446 (N.D. Tex. Jan. 24, 2013). 

Here, that availability ended – and the state criminal judgment he now 

collaterally attacks under Section 2254 became final – when Tarver failed to file a 

timely PDR in 2001. See TEX. R. APP. P. 68.2; Engle v. Davis, 804 F. App’x 283, 284 

(5th Cir. 2020) (per curiam) (“Engle’s judgment therefore became final, for purposes 

of § 2244(d)(1)(A), only when the time for seeking direct review of the Texas Court of 

Appeals’ judgment dismissing his appeal expired upon his failure to file a timely 

petition for discretionary review, with the Texas Court of Criminal Appeals.” (citation 

omitted; citing Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (“If the conviction 

(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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does not become final by the conclusion of direct review, it becomes final by ‘the 

expiration of the time for seeking such review.’ ... [But, i]f the defendant stops the 

appeal process before that point, the conviction becomes final when the time for 

seeking further direct review in the state court expires.” (footnote omitted)))). 

And Tarver has not shown how the pendency of his subsequent applications 

for state post-conviction or other collateral review toll AEDPA’s statute of limitations 

such that this Section 2254 is timely filed under Subsection A. See Scott v. Johnson, 

227 F.3d 260, 263 (5th Cir. 2000). 

Accordingly, under Section 2244(d)(1)(A), the Section 2254 application was 

filed some two decades too late. The application is therefore due to be denied as 

untimely absent statutory or equitable tolling of the limitations period or 

establishment of actual innocence. 

But Tarver fails to explain how another provision of Section 2244(d)(1) could 

apply here and fails to provide allegations that could establish either prong of 

equitable tolling – that he pursued his rights diligently and that an extraordinary 

circumstance beyond his control prevented his timely filing of the federal petition. 

See Dkt. No. 3. 

So, the Court turns to actual innocence, which “‘if proved, serves as a gateway 

through which a petitioner may pass [even if] the impediment is a procedural bar ... 

or ... expiration of the statute of limitations.’” Hancock v. Davis, 906 F.3d 387, 389 

(5th Cir. 2018) (quoting Perkins, 569 U.S. at 386). 

But “a credible gateway ‘claim [of actual innocence] requires [the] petitioner to 

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support his allegations of constitutional error with new reliable evidence ... that was 

not presented at trial.’” Id. (quoting Schlup, 513 U.S. at 324). “Examples of ‘new 

reliable evidence’ are ‘exculpatory scientific evidence, trustworthy eyewitness 

accounts, or critical physical evidence.’” Fratta v. Davis, 889 F.3d 225, 232 (5th Cir. 

2018) (quoting Schlup, 513 U.S. at 324). 

And, “as the Supreme Court has explained, ‘impeachment evidence provides 

no basis for finding’ actual innocence because ‘the evidence is a step removed from 

evidence pertaining to the crime itself.’” Riley v. Dir., TDCJ-CID, No. 3:18-cv-2439-

S-BN, 2021 WL 4355379, at *5 (N.D. Tex. Sept. 24, 2021) (quoting Calderon v. 

Thompson, 523 U.S. 538, 563 (1998)); see also Lucas v. Johnson, 132 F.3d 1069, 1076 

n.3 (5th Cir. 1998) (explaining that new evidence of actual innocence must be 

“material, not merely cumulative or impeaching” and thus capable of “produc[ing] 

acquittal at a new trial”). 

Tarver’s federal habeas petition includes multiple conclusory claims. But he 

offers no new reliable evidence in support of actual innocence. The Court should 

therefore dismiss the Section 2254 petition 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 Milton Lee Tarver’s 28 U.S.C. § 2254 habeas application with 

prejudice. 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: August 5, 2022 

_________________________________________ 

 DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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