IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JAMES WESLEY FOOTE, § 

TDCJ No. 394740, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-2430-S-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

ORDER VACATING ORDER REQUIRING RESPONSE AND FINDINGS, 

CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner James Wesley Foote, a Texas prisoner, filed (in the Eastern District 

of Texas) a pro se application for a writ of habeas corpus under 28 U.S.C. § 2254 

collaterally attacking his 1985 Johnson County conviction for aggravated kidnapping, 

which resulted in a sentence of life imprisonment. See Dkt. No. 1. His application was 

transferred to this district, see Dkt. No. 3, and the presiding United States district 

judge has now referred it to the undersigned United States magistrate judge for 

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

While the Court previously ordered a response to the habeas petition, see Dkt. 

No. 8, that order is VACATED, 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 below, the Court should dismiss Foote’s federal 

habeas challenge with prejudice as time barred under Rule 4 of the Rules Governing 

Section 2254 Cases (Habeas Rule 4). 

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Legal Standards 

Habeas Rule 4 allows a district court to summarily dismiss a 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.; see 

also Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (“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.” (quoting 28 U.S.C. foll. § 2254 Rule 4 Advisory 

Committee Notes)). 

While “the statute of limitations provision of the [Antiterrorism and Effective 

Death Penalty Act of 1996 (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 § 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) 

(cleaned up; quoting Day v. McDonough, 547 U.S. 198, 210 (2006)). 

Under the circumstances here, these findings, conclusions, and 

recommendation provide Foote fair notice, and the opportunity to file objections to 

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them (further explained below) affords a chance to present to the Court his position 

as to the limitations concerns explained below. See, e.g., Ingram v. Dir., 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 time-barred, 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 “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 

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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). 

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. 

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). 

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 

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‘extraordinary case’ where there was ‘manifest injustice.’” (quoting Schlup, 513 U.S. 

at 324, 327)). 

Analysis 

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

Foote filed a direct appeal, and the state judgment he now challenges under 

Section 2254 was affirmed in 1988. See Foote v. State, No. 10-88-00013-CR (Tex. App. 

– Waco Sept. 8, 1988); Dkt. No. 1 at 3. Foote does not recall whether he then petitioned 

the Texas Court of Criminal Appeals for discretionary review. See Dkt. No. 1 at 3. 

But there is no record that he did. 

He has instead sought state habeas relief on multiple occasions. See Ex parte 

Foote, WR-16,138-01, -02, -03, -04, -05, -06, -07, -08 (Tex. Crim. App.). His initial state 

habeas petition was denied without written order in 1986. See Ex parte Foote, WR16,138-01 (Tex. Crim. App. Sept. 10, 1986). And his most recent was dismissed as 

successive in 2022. See Ex parte Foote, WR-16,138-08 (Tex. Crim. App. July 13, 2022) 

(citing TEX. CODE CRIM. PROC. art. 11.07 § 4(a)-(c)); Dkt. No. 1 at 3-4. 

Foote then filed this (his first) Section 2254 application concerning this state 

judgment no sooner than October 25, 2022, the date that he certifies that he placed 

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it in the prison mailing system. See Dkt. No. 1 at 10; RULE 3(d), RULES GOVERNING 

SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS (“A paper filed by an 

inmate confined in an institution is timely if deposited in the institution’s internal 

mailing system on or before the last day for filing.”); Uranga v. Davis, 893 F.3d 282, 

286 (5th Cir. 2018) (“We reaffirm that the operative date of the prison mailbox rule 

remains the date the pleading is delivered to prison authorities.”). 

Under Subsection A, this application is untimely by decades. That is, the 

availability for direct appeal to the state courts ended, at the latest, when Foote failed 

to file a timely petition for discretionary review after the Waco Court of Appeals 

affirmed the Johnson County criminal judgment in 1988. See 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 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 Foote has not shown how the pendency of his many applications for state 

habeas review toll AEDPA’s statute of limitations such that this Section 2254 petition 

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was timely filed under Subsection A. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 

2000). Under Section 2244(d)(1)(A), the Section 2254 application is therefore due to 

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

or establishment of actual innocence. 

Foote 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 generally

Dkt. No. 1. But he does assert that he is actually innocent, claiming that he was never 

indicted for the offense under which he was convicted (that is, the applicable 

indictment cites to unlawful restraint, not aggravated kidnapping). See id. at 4, 6. 

Actual innocence, “‘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 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 

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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”). 

First, it is not even clear if Foote’s sole ground for federal habeas relief is 

cognizable under the exacting standards of review. “Federal habeas courts look to the 

‘substantive elements of the criminal offense as defined by state law’ to determine the 

constitutional sufficiency of a state conviction and do not demand ‘exactitude with 

respect to the conformance of the evidence to the indictment and jury charge.’” Lott 

v. Stephens, No. 3:13-cv-2699-P-BH, 2015 WL 3898091, at *15 (N.D. Tex. June 23, 

2015) (quoting Brown v. Collins, 937 F.2d 175, 181-82 (5th Cir. 1991)). 

But, even if it is cognizable, the evidence in support of his ground for relief is 

neither new nor reliable evidence that Foote is factually innocent. See Johnson, 978 

F.2d at 859-60. The Court should therefore dismiss the Section 2254 petition with 

prejudice as time barred. 

Recommendation

Under Rule 4 of the Rules Governing Section 2254 Cases, the Court should 

dismiss Petitioner James Wesley Foote’s 28 U.S.C. § 2254 habeas application as time 

barred. 

A copy of these findings, conclusions, and recommendation shall be served on 

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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

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