IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

ELIZABETH A. RAMSEY, § 

TDCJ No. 1942389, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-1363-M-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Elizabeth A. Ramsey, a Texas prisoner, was convicted of 

intentionally or knowingly by omission causing serious bodily injury to a child and 

was sentenced to life imprisonment. See State v. Ramsey, No. F-1253926-I (Crim. 

Dist. Ct. No. 3, Dall. Cnty., Tex. July 23, 2014), aff’d, No. 05-14-01282-CR, 2015 WL 

6750810 (Tex. App. – Dallas Nov. 4, 2015, no pet.). 

She now challenges this state criminal judgment in federal court through a pro 

se application for a writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. No. 3. The 

State responded, arguing that Ramsey’s petition is time barred. See Dkt. No. 22. And 

Ramsey replied. See Dkt. No. 24. 

This case has now been referred to undersigned United States magistrate 

judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of 

reference from United States District Judge Barbara M. G. Lynn. And the 

undersigned enters these findings of fact, conclusions of law, and recommendation 

that, under the circumstances here and for the reasons and to the extent set out 

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 1 of 7 PageID 2165
- 2 - 

below, the Court should dismiss the federal habeas petition with prejudice as barred 

by the applicable statute of limitations. 

Legal Standards 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

“introduced both ‘simple logic’ to the federal habeas landscape and uniform rules for 

federal courts to apply.” Wallace v. Mississippi, 43 F.4th 482, 492 (5th Cir. 2022) 

(quoting Smith v. Titus, 141 S. Ct. 982, 987 (2021) (Sotomayor, J., dissenting from 

denial of cert.), then citing Day, 547 U.S. at 202 n.1). “Namely, it implemented a host 

of greatly needed procedural requirements for petitioners seeking habeas relief.” Id.

(citing Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022) (“In many ways, the statute 

represented a sea change in federal habeas law.”)). 

One such requirement is “the one-year period for an individual in custody 

pursuant to a state-court judgment to file a § 2254 petition for habeas relief” that 

“begins running from the latest of four events.” Id. at 497 (citing 28 U.S.C. § 2244(d)): 

(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. 

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 2 of 7 PageID 2166
- 3 - 

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. 

at 257. 

But “‘[t]he diligence required for equitable tolling purposes is reasonable 

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 3 of 7 PageID 2167
- 4 - 

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). 

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); 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 (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.’” (quoting Schlup, 513 U.S. 

at 324, 327)). 

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 4 of 7 PageID 2168
- 5 - 

Analysis 

The timeliness of most Section 2254 applications – Ramsey’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). 

After Ramsey’s judgment was affirmed, she sought an extension of time to file 

a petition for discretionary review (a PDR) in the Texas Court of Criminal Appeals 

(the CCA). See Ramsey v. State, PD-1610-15 (Tex. Crim. App.). The CCA granted her 

motion, extending the deadline to February 2, 2016. See Ramsey, PD-1610-15 (Tex. 

Crim. App. Dec. 11, 2015). But Ramsey never filed a PDR. See Ramsey, PD-1610-15 

(Tex. Crim. App. Mar. 2, 2016) (“This is to serve notice to the court of appeals that 

this Court granted a motion for extension of time to file a petition for discretionary 

review until February 2, 2016.”). 

So Ramsey’s state criminal judgment became final in early 2016. 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 does not become final 

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 5 of 7 PageID 2169
- 6 - 

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)))). 

While Ramsey then sought state habeas relief – the first petition was denied 

without written order on the findings of the trial court without a hearing, see Ex parte 

Ramsey, WR-86,122-01 (Tex. Crim. App. Jan. 11, 2017), and the second was dismissed 

as successive, see Ex parte Ramsey, WR-86,122-02 (Tex. Crim. App. Apr. 13, 2022) – 

Ramsey has not shown, particularly given that her second state petition was not filed 

in the trial court until 2022, see Dkt. No. 21-20, how the pendency of these 

applications tolls AEDPA’s statute of limitations such that this Section 2254 petition 

was timely filed under Subsection A on June 13, 2022, see Dkt. No. 3 at 15; Scott v. 

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

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

to be denied as untimely absent statutory or equitable tolling of the limitations period 

or establishment of actual innocence. 

But Ramsey neither explains how another provision of Section 2244(d)(1) could 

apply here, nor advances a claim of tolling under the narrow actual innocence 

gateway, nor makes allegations that could establish either prong of equitable tolling 

– that she pursued his rights diligently and that an extraordinary circumstance 

beyond her control prevented the timely filing of the federal petition. 

The Court should therefore dismiss the Section 2254 petition with prejudice as 

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 6 of 7 PageID 2170
- 7 - 

time barred. 

Recommendation

The Court should dismiss Petitioner Elizabeth A. Ramsey’s 28 U.S.C. § 2254 

habeas application with prejudice as time barred. 

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: February 14, 2023 

_________________________________________ 

 DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

Case 3:22-cv-01363-M-BN Document 26 Filed 02/14/23 Page 7 of 7 PageID 2171