IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHARLES EDWARD MOORE, ) 

 #1048050, ) 

 Petitioner, ) 

 ) 

vs. ) No. 3:22-CV-2025-D (BH) 

 ) 

DIRECTOR, TDCJ-CID, ) 

 Respondent. ) Referred to U.S. Magistrate Judge1

SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

Before the Court are the petitioner’s Motion to Amend Complaint (Based on New Facts, 

New Rules and Objection to Magistrates [sic] (Findings and Conclusions, and Recommendation) 

[sic] Plus Motion for Reconsideration. [sic] Motion for Bond, received on December 21, 2022 

(doc. 25), and Motion to Amend, New Law, Motion for Reconsideration, New Law/Application For 

Certificate of Appealability/PR – Bond Requested, received on February 14, 2023 (doc. 31). Based 

on the relevant filings and applicable law, the filings are construed as motions for leave to amend 

the petition under 28 U.S.C. § 2254 and GRANTED, and the included request for release on bond 

is DENIED. As supplemented, the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus 

by a Person in State Custody, received on September 13, 2022 (doc. 3), should be DENIED with 

prejudice as barred by the statute of limitations. 

I. BACKGROUND 

Charles Edward Moore (Petitioner) filed a petition for a writ of habeas corpus under 28 

U.S.C. § 2254 challenging his 2001 sentence and conviction in Cause No. F01-50173-T in the 

283rd Judicial District Court of Dallas County, Texas. (See doc. 3.) On October 18, 2022, it was 

1

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

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 1 of 9 PageID 397
2 

recommended that the habeas petition be denied with prejudice as barred by the statute of 

limitations. (See doc. 13.) In response, Petitioner filed objections and several notices and 

memoranda on October 28, 2022, and November 15, 2022. (See docs. 16, 18-23.) 

On December 21, 2022, and February 14, 2023, respectively, Petitioner filed a 57-page 

motion and a 50-page motion, including exhibits; he objects to and requests reconsideration of the 

recommendation and to amend the § 2254 petition.2 (See docs. 25, 31.) The motions include and 

expand on his original § 2254 arguments and grounds for relief, appear to add new allegations of 

judicial bias, and add new allegations regarding the tolling of, and actual-innocence exception to, 

the applicable statute of limitations. (See generally id.) They also appear to allege civil claims 

unrelated to Petitioner’s conviction and sentence, and request release on bond pending a 

determination of the petition. The filings are liberally construed as motions for leave to amend the 

§ 2254 petition and GRANTED, and the new allegations and claims are considered. 

II. STATUTE OF LIMITATIONS 

As discussed in the initial recommendation, the AEDPA establishes a one-year limitations 

period for state inmates seeking federal habeas relief. See 28 U.S.C. § 2244(d). Petitioner’s 

conviction became final for purposes of § 2244(d)(1)(A) no later than June 9, 2003, when the 

Supreme Court denied his petition for a writ of certiorari. See Roberts v. Cockrell, 319 F.3d 690, 

694 (5th Cir. 2003) (“the ‘conclusion of direct review’ is when the Supreme Court either rejects 

the petition for certiorari or rules on its merits.”). 

In his motions, Petitioner now appears to argue that his claims relating to the alleged 

suppressed or incomplete medical records that were unavailable to him at trial and on appeal 

2

 Petitioner also filed a 2-page motion to amend the § 2254 petition on November 15, 2022. (See doc. 17.) Because 

he filed a subsequent 57-page motion to amend, the 2-page motion was deemed moot on December 23, 2022. (See 

doc. 28.) 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 2 of 9 PageID 398
3 

“satisfy § 2244(B) requirement.” (doc. 25 at 4.) To the extent this argument may be liberally 

construed to implicate § 2244(d)(1)(B), Petitioner was aware of and had access to the alleged 34 

pages of suppressed or incomplete medical records no later than December 2002.3

 (See No. 3:03-

CV-1808-G, doc. 1-2 at 8.) Even assuming for purposes of this motion only that his limitations 

period did not begin to run under § 2254(d)(1)(B) until the alleged state impediment of suppressed 

medical records was removed, i.e., when he first had access to the records, he did not file this 

habeas action until over 19 years later. 

Regarding § 2254(d)(1)(C), Movant alleges that that the Supreme Court’s decisions in 

Johnson v. United States, 576 U.S. 591 (2015), and Welch v. United States, 578 U.S. 120 (2016), 

apply to his case. (See doc. 25 at 29-30.) In Johnson, the Supreme Court held that the imposition 

of an increased sentence under the residual clause of the Armed Career Criminal Act (ACCA), 18 

U.S.C. § 924(e)(2)(B)(ii), which defines a prior violent felony conviction to include an offense 

that “otherwise involves conduct that presents a serious potential risk of physical injury to 

another,” violated the Constitution’s guarantee of due process because it was unconstitutionally 

vague. See Johnson, 576 U.S. at 606. Welch held that the holding of Johnson was retroactively 

available on collateral review. See Welch, 578 U.S. at 135. Petitioner was not convicted under 

the residual clause of ACCA, so Johnson is inapplicable to his case and does not trigger a later 

limitations date under § 2254(d)(1)(C).4

 

Regarding § 2254(d)(1)(D), Petitioner argues that the factual predicate for his ineffective 

assistance of counsel claims did not and could not have become known until sometime in 2022, 

3

 In his prior § 2254 petition challenging a companion conviction, Petitioner stated under penalty of perjury that the 

“34 pages of Medical Records from Baylor Hospital that conclusively proves [sic] the victim had no serious bodily 

injuries . . . . were made available for me on 12-29-02, for the first First Time.” (No. 3:03-CV-1808-G, doc. 1-2 at 8.) 

4

 Although Petitioner generally references “new laws,” he does not identify or cite any other constitutional right newly 

recognized by the Supreme Court. (See, e.g., doc. 25 at 3 (generally alleging that “[t]he new rule of law is IAC for 

bad advice”; doc. 31 at 1, 3 (citing recent Texas state bill as new law and referencing “new law for evidence”)). 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 3 of 9 PageID 399
4 

and that the factual predicate for his claim of judicial bias was not available until In re Halprin, 

788 F. App’x 941 (5th Cir. 2019), was decided. (See doc. 25 at 4-6.) Petitioner’s ineffective 

assistance of counsel claims are based on the performance of counsel at trial and on appeal; he has 

failed to allege the existence of any factual predicate for these claims that did not and could not 

have become known through the exercise of due diligence before his conviction became final under 

§ 2244(d)(1)(A). Further, Petitioner’s judicial bias claim is based on events and decisions by the 

trial judge that took place during the underlying criminal proceedings in the trial court, on appeal, 

and on discretionary review, as well as the trial judge’s alleged role in suppressing the full medical 

records which Petitioner ultimately received in December 2002, and removing filings from the 

record in 2007.5

 (See doc. 25 at 5-6, 9, 12-14; doc. 31 at 7, 10.) Even accepting for purposes of 

this motion only that these dates constitute a factual predicate for a judicial bias claim, he still filed 

his § 2254 petition approximately 15 years after the latest alleged events in 2007. 

Petitioner also appears to allege that the factual predicate for his challenges to the length 

of his sentence began on March 8, 2021, and September 29, 2022, when the enhanced portion of 

his sentence due to the deadly weapon determination caused him to remain incarcerated. (See doc. 

25 at 11, 13-14.) The factual predicate for his claim was known or could have become known 

prior to the date his conviction became final on June 9, 2003, because the challenged affirmative 

deadly weapon finding and enhanced sentence of 30 years’ imprisonment was imposed in 2001. 

See State v. Moore, No. F01-50173-T (283rd Jud. Dist. Ct., Dallas Cnty., Tex. June 13, 2001). 

5

 Further, even if the Fifth Circuit’s decision in In re Halprin, which did not involve his criminal case, provided a 

factual predicate for Petitioner’s judicial bias claim under § 2254(d)(1)(D), the decision was issued on September 23, 

2019, and Petitioner did not file this habeas action until nearly three years later. 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 4 of 9 PageID 400
5 

Accordingly, Petitioner has failed to show that he timely filed his § 2254 petition under 

any of the provisions of § 2244(d)(1), and his petition is untimely in the absence of statutory or 

equitable tolling, or an applicable exception to the limitations period. 

A. Equitable Tolling 

According to Petitioner, his trial and appellate attorneys “all committed a Fraud upon the 

court and Reported they gave me ‘all’ of the Medical Records, this is also perjury, but more 

oversight and IAC, but it Gives me ‘Cause’ to prove all my cases are entitle [sic] to Equittable 

[sic] tolling.” (doc. 25 at 10-11.) Since 2003, however, Petitioner has filed numerous habeas 

petitions in state and federal court involving this conviction, its companion conviction, and the 

same medical records of which he complains here. Further, the medical records at the center of 

his claims against trial and appellate counsel have been in his possession since 2002, as discussed, 

but he did not file this habeas action based on those records until nearly 20 years later. 

Petitioner has failed to show that he has been pursuing his rights diligently in this case or 

that some extraordinary circumstance prevented a timely filing, especially where he filed a timely 

§ 2254 petition for his companion conviction imposed on the same day. He has therefore failed to 

meet his burden to show that he is entitled to equitable tolling. 

B. Actual Innocence 

Petitioner contends that he “has a ‘gateway’ showing of Actual Innocence under the 

standard of Schlup v. Delo, 513 U.S. 298 and House v. Bell, 547 U.S. 518,” and is therefore 

“entitle[d] to an equitable exception from the Limitations period.” (doc. 31 at 17; see also id. at 

14.) 

In addition to reasserting the grounds for actual innocence raised in his original § 2254 

petition, Petitioner adds to his arguments for actual innocence in his motions to amend. He claims 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 5 of 9 PageID 401
6 

that he is actually innocent of the challenged offense because: (1) he exercised a “legal use of 

force” in the circumstances; (2) he did not use a deadly weapon, a tire tool, or a tire jack, but rather 

he used “nothing more than a coat hanger”;6

 (3) the victim “said she was hit but she was never in 

fear of Life or had any risk of Death”; (4) the victim’s injuries were “minor and superficial,” 

consisting of a “small split in her skin”; and (5) 90-95% of the victim’s injuries were self-inflicted. 

(doc. 25 at 5, 10, 14, 17-19, 27, 29; doc. 31 at 3-8, 12, 16-17.) 

Petitioner’s new allegations and arguments, and the alleged evidence on which they rely, 

at most challenge only the legal sufficiency of his conviction, and do not show actual innocence. 

United States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999) (“Actual innocence means ‘factual 

innocence, and not mere legal insufficiency.’”) (quoting Bousley v. United States, 523 U.S. 614, 

623 (1998)). For one, to the extent he argues that he did not use a deadly weapon despite his 

judicial confession to the contrary, he repeatedly admits in his motions that he used a coat hanger 

during the offense and that multiple officers could testify to that. (See doc. 25 at 14, 29; doc. 31 

at 6, 12.) In Texas, a “[d]eadly weapon” includes “anything that in the manner of its use or 

intended use is capable of causing death or serious bodily injury.” Tex. Pen. Code § 1.07(17). A 

coat hanger can constitute a deadly weapon under Texas law. See, e.g., Wright v. State, 679 S.W.2d 

23, 26-27 (Tex. App.—Tyler 1984, pet. ref’d). Also, as discussed, “[a] person can be found guilty 

of the offense of aggravated assault if he commits an assault with a deadly weapon and causes 

bodily injury or if he commits an assault and causes serious bodily injury.” Madden v. State, 911 

S.W.2d 236, 244 (Tex. App. –Waco 1995, pet. ref’d) (emphasis in original). 

6

 Petitioner disputes his signed judicial confession admitting that a tire tool and a tire iron were used, and he argues 

that the “written judicial confession is Structural Error.” (doc. 25 at 17.) 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 6 of 9 PageID 402
7 

Petitioner has failed to satisfy the high burden for his gateway claim of actual innocence. 

He has not shown he is entitled to the actual-innocence exception to the AEDPA’s statute of 

limitations, and his § 2254 petition, as supplemented by the motions to amend, should be denied 

as barred by the statute of limitations.7 

III. CIVIL CLAIMS 

As discussed, Petitioner also appears to raise civil claims that are unrelated to his 

conviction and sentence. (See, e.g., doc. 25 at 13-14, 19, 25-26; doc. 31 at 13.) To the extent he 

seeks to assert separate claims against individuals or other entities, or to seek non-habeas relief, 

claims that do not challenge his custody may not be raised in this habeas action. Courts may only 

consider federal habeas petitions under 28 U.S.C. § 2254 on grounds that the petitioner is in 

custody in violation of the Constitution or federal laws. See 28 U.S.C. § 2254(a); Preiser v. 

Rodriguez, 411 U.S. 475, 484-87 (1973). Petitioner’s non-habeas civil claims may be liberally 

construed either as a civil rights action under 42 U.S.C. § 1983, or as a mandamus action under 28 

U.S.C. § 1651 that must be raised in a separate civil action against the appropriate parties. Because 

Petitioner may only raise habeas claims in this habeas case, his non-habeas civil claims should be 

dismissed without prejudice to seeking relief in a separate civil action. See Davis v. Valdez, No. 

3:15-CV-3952-D (BH), 2016 WL 749899, at *2 (N.D. Tex. Jan. 4, 2016), rec. adopted 2016 WL 

728817 (N.D. Tex. Feb. 24, 2016). 

If Petitioner wishes to pursue relief on any non-habeas civil claims, he must file a separate 

civil action using the appropriate forms and pay the applicable filing fees. The Prison Litigation 

7

 To the extent Petitioner “requests a certificate of Appealability to determine whether the district court abused its 

discretion in denying petitioner [sic] request to develope [sic] his claim of Actual Innocence,” his request is premature 

as no final order has been issued in this habeas case. (doc. 31 at 18; see also id. at 1); United States v. Samuels, 342 

F. App’x 995, 996 (5th Cir. 2009) (“A certificate of appealability (COA) is required from ‘the final order in a habeas 

corpus proceeding.’”) (quoting 28 U.S.C. § 2253(c)(1)). 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 7 of 9 PageID 403
8 

Reform Act (PLRA) requires that all prisoners who bring a civil action pay the full $402 filing fee. 

See 28 U.S.C. § 1915(b)(1).8 A prisoner who is granted leave to proceed in forma pauperis must 

still pay the full filing fee, but he is allowed to pay in installments that are automatically withdrawn 

from the prisoner’s trust account. Because of the filing fee, Petitioner’s filings are not liberally 

construed as seeking to open a new case at this time. The Clerk’s Office is INSTRUCTED to 

forward Petitioner a copy of this Court’s standard forms for filing a civil complaint and an 

application to proceed in forma pauperis in case he wishes to file a new civil action.

IV. REQUEST FOR BOND 

Petitioner also appears to request a bond pending determination of his habeas petition. (See 

doc. 31 at 9.) He claims that “[o]ne of the primary Reasons why I’m Requesting a Bond is because 

I can make a Bond and hire an attorney, so I can prove my Factual Innocence.” (doc. 31 at 9.) His 

request for a bond is denied for the same reasons discussed in the orders entered on September 15, 

2022, October 18, 2022, and March 9, 2023, denying his prior requests to be released on bond 

pending determination of his § 2254 petition. (See docs. 10, 15, 34.) 

V. RECOMMENDATION 

Petitioner’s Motion to Amend Complaint (Based on New Facts, New Rules and Objection 

to Magistrates [sic] (Findings and Conclusions, and Recommendation) [sic] Plus Motion for 

Reconsideration. [sic] Motion for Bond, received on December 21, 2022 (doc. 25), and Motion to 

Amend, New Law, Motion for Reconsideration, New Law/Application For Certificate of 

Appealability/PR – Bond Requested, received on February 14, 2023 (doc. 31), are construed as 

8

 A $52 administrative fee will be assessed in addition to the $350 filing fee, resulting in a total filing fee of $402 for 

a civil action in which the plaintiff has not sought or been granted leave to proceed in forma pauperis. See District 

Court Miscellaneous Fee Schedule. Where a prisoner plaintiff has been granted leave to proceed in forma pauperis, 

only the $350 filing fee will be deducted from the prisoner’s account. See id. The $52 administrative fee will not be 

deducted. Id.

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 8 of 9 PageID 404
9 

motions for leave to amend the petition under 28 U.S.C. § 2254 and GRANTED, and the included 

request for release on bond is DENIED. As supplemented, the Petition Under 28 U.S.C. § 2254 

for Writ of Habeas Corpus by a Person in State Custody, received on September 13, 2022 (doc. 

3), should be DENIED with prejudice as barred by the statute of limitations. 

SIGNED this 10th day of March, 2023. 

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). 

Case 3:22-cv-02025-D-BH Document 35 Filed 03/10/23 Page 9 of 9 PageID 405