IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

VEROD WOODARD, ) 

 ID # 2018735, ) 

 Movant, ) 

 ) No. 3:22-CV-2058-M-BH 

vs. ) No. 3:15-CR-412-M(1) 

 ) 

UNITED STATES OF AMERICA, ) 

 Respondent. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

 The Amended Motion Under 28 U.S.C. Section 2255, to Vacate, Set Aside, or Correct 

Sentence by a Person in Federal Custody, received on October 17, 2022 (doc. 5), should be 

DENIED with prejudice as barred by the statute of limitations. 

I. BACKGROUND 

Verod Woodard (Movant), an inmate currently confined in the Texas Department of 

Criminal Justice (TDCJ), was charged by federal indictment on September 23, 2015 with two 

counts of carjacking in violation of 18 U.S.C. § 2119 (Counts One and Three); one count of using, 

carrying, and brandishing a firearm during and in relation to a crime of violence in violation of 18 

U.S.C. § 924(c)(1)(A)(ii) (Count Two); one count of using, carrying, and brandishing a firearm 

during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(C)(i) (Count 

Four); and one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. 

§ 922(g)(1) (Count Five). (See doc. 1.)2

 On May 2, 2016, he pled guilty to Count Four of the 

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

recommendation. 

2

 Unless otherwise indicated, all document numbers refer to the docket number assigned in the underlying criminal 

action, 3:15-CR-412-M(1).

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indictment, under a plea agreement. (See docs. 37, 41.) He was sentenced to 283 months’ 

imprisonment on Count Four, to run concurrently with the balance of the state sentences he was 

serving, and to be followed by a three-year term of supervised release. (See doc. 59.) On August 

28, 2017, the judgment was affirmed on direct appeal. See United States v. Woodard, 697 F. App’x 

287 (5th Cir. 2017). His petition for a writ of certiorari was denied by the Supreme Court on 

March 5, 2018. See Woodard v. United States, 138 S. Ct. 1272 (2018). 

In a pro se letter request dated August 11, 2022, Movant sought to challenge a federal 

detainer that he alleged was on his TDCJ record; he contends that his 924(c) conviction in the 

underlying criminal case was to be vacated. (See doc. 70.) Because the docket in the underlying 

criminal case showed that Movant had not filed any post-judgment motion or request challenging 

his conviction, the letter was construed as a § 2255 motion and this action was opened. (See doc. 

71; No. 3:22-CV-2058-M-BH, doc. 3.) By order dated September 22, 2022, Movant was provided 

with the required warnings and instructions under Castro v. United States, 540 U.S. 375, 383 

(2003), and he was given an opportunity to amend his filing if he intended to proceed with a § 

2255 motion. (See No. 3:22-CV-2058-M-BH, doc. 4.) 

Movant’s amended § 2255 motion was received on October 17, 2022. (See id., doc. 5.) 

He challenges his conviction and sentence on the following ground: “My 924(c) conviction is 

unconstitional [sic] and should be vaccated [sic] in light of the Supreme Courts [sic] ruling.” (Id.,

doc. 5 at 6.) 

II. STATUTE OF LIMITATIONS 

Section 2255 of Title 28 “establishes a ‘1-year period of limitation’ within which a federal 

prisoner may file a motion to vacate, set aside, or correct his sentence under that section.” Dodd 

v. United States, 545 U.S. 353, 354 (2005). It states that: 

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A 1-year period of limitation shall apply to a motion under this section. The 

limitation period shall run from the latest of – 

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by 

governmental action in violation of the Constitution or laws of the 

United States is removed, if the movant was prevented from making 

a motion by such governmental action; 

(3) the date on which the right asserted was initially recognized by 

the Supreme Court, if that right has been newly recognized by the 

Supreme Court and made retroactively applicable to cases on 

collateral review; or 

(4) the date on which the facts supporting the claim or claims 

presented could have been discovered through the exercise of due 

diligence. 

28 U.S.C. § 2255(f). Under § 2255(f)(1), Movant’s conviction became final on March 5, 2018, 

when the Supreme Court denied his petition for a writ of certiorari. See Clay v. United States, 537 

U.S. 522, 527 (2003) (holding that “[f]inality attaches when this Court affirms a conviction on the 

merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a 

certiorari petition expires.”). He does not allege that government action prevented him from filing 

a § 2255 motion earlier. See 28 U.S.C. § 2255(f)(2). 

Regarding § 2255(f)(3), Movant appears to rely on United States v. Davis, 139 S. Ct. 2319 

(2019), to argue that “[t]he Supreme Court of the United States ruled that 924(c) covictions [sic] 

are unconstitional [sic] and convictions have been vaccated [sic].”3

 (No. 3:22-CV-2058-M-BH, 

doc. 5 at 6.) He “believe[s] my case should recieve [sic] the same treatment.” (Id.) In Davis, the 

Supreme Court held that the definition of “crime of violence” in the residual clause of 18 U.S.C. 

§ 924(c)(3)(B) was unconstitutionally vague. See Davis, 139 S. Ct. at 2336. To the extent he 

3

 To the extent Movant is not relying on Davis, he has not identified any decision in which the Supreme Court initially 

recognized a new right made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255(f)(3). 

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relies on the Davis decision in support of his § 2255 claim, it was decided on June 24, 2019, so a 

habeas action relying on it must have been brought by June 24, 2020. See 28 U.S.C. § 2255(f)(3). 

Additionally, the facts underlying Movant’s Davis claim became known or could have become 

known through the exercise of due diligence prior to the date his conviction became final. See 28 

U.S.C. § 2255(f)(4). 

Because the date his conviction became final is the latest date under § 2255(f), the oneyear statute of limitations began to run from June 24, 2019, the date on which Movant’s claim was 

initially recognized by the Supreme Court and made retroactively applicable to cases on collateral 

review. Movant’s pro se letter request and amended § 2255 motion were filed over two years 

later. (See No. 3:22-CV-2058-M-BH, doc. 3.) Accordingly, the § 2255 motion is untimely in the 

absence of equitable tolling or an applicable exception to the limitations period. 

A. Equitable Tolling 

“[T]he statute of limitations in § 2255 may be equitably tolled in ‘rare and exceptional 

circumstances.’” United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quoting Davis v. 

Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “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. American 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). 

In the context of a habeas petition filed by a state prisoner, the Supreme Court has stated that a 

habeas petitioner is entitled to equitable tolling only if he shows that: (1) “he has been pursuing 

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his rights diligently,” and (2) some extraordinary circumstance prevented a timely filing. Holland 

v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 

“[E]quity is not intended for those who sleep on their rights.” Covey v. Arkansas River Co., 865 

F.2d 660, 662 (5th Cir. 1989). Movant 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 to determine if there are sufficient exceptional circumstances that warrant 

equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). 

Movant provides no basis for equitably tolling the limitations period, and he has therefore 

failed to satisfy his burden to establish circumstances warranting equitable tolling.

B. 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 one-year 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 movant guilty beyond a reasonable doubt in light of the newly discovered evidence and 

the evidence 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 

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‘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)). 

There is a split among district courts about whether McQuiggin applies to a guilty plea 

case, as here. See Thomas v. Stephens, No. 4:13-CV-875-A, 2014 WL 929031, at *3 n.3 (N.D. 

Tex. Mar. 7, 2014) (citing cases). Even if it does, Movant does not allege that he is actually 

innocent, and his claim does not present evidence of actual innocence. Accordingly, he cannot 

overcome the applicable AEDPA limitations period on the basis of actual innocence. His § 2255 

motion should be denied as untimely. 

III. RECOMMENDATION 

The Amended Motion Under 28 U.S.C. Section 2255, to Vacate, Set Aside, or Correct 

Sentence by a Person in Federal Custody, received on October 17, 2022 (doc. 5), should be 

DENIED with prejudice as barred by the statute of limitations. 

SIGNED this 21st day of October, 2022. 

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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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