IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN WESLEY ROBINSON, )

ID # 394824, )

Petitioner, )

vs. ) No. 3:03-CV-1898-N

 )

DOUGLAS DRETKE, Director, )

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate

pursuant to 28 U.S.C. § 2254. 

B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of

Criminal Justice - Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke,

Director of TDCJ-CID.

C. Procedural History: On March 21, 1985, a jury convicted petitioner of aggravated

sexual assault of a child, and he received a life sentence. (Pet. Writ of Habeas Corpus (Pet.) at 2.)

On January 26, 1986, the court of appeals affirmed the conviction on direct appeal. (Id. ¶ 9.)

Petitioner filed no petition for discretionary review. (Id.) On August 1, 2001, petitioner filed a

motion with the trial court for DNA testing. (See Mem. Supp. at 2.) On February 18, 2002, the trial

 

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court denied that motion. (See Order Denying Robinson’s Mot. for Post-Conviction DNA Testing,

attached to Answers to Magistrate Judge’s Questionnaire (MJQ).) 

On December 13, 2002, the court of appeals affirmed the denial of petitioner’s motion for

DNA testing. See Robinson v. State, No. 05-02-00516-CR, 2002 WL 31780847, at *1-2 (Tex. App.

– Dallas Dec. 13, 2002). “On or about December 30, 2002,” petitioner filed a state application for

writ of habeas corpus related to the denial of his motion for DNA testing. (See Mem. Supp. at 2.)

On June 26, 2003, the Texas Court of Criminal Appeals denied that application. See Texas Judiciary

Online, http://www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=216771 (accessed Apr. 11,

2005). 

Petitioner filed the instant petition on August 14, 2003, when he placed it in the prison mail

system. (Pet. at 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that

prisoners file their federal pleadings when they place them in the prison mail system). He asserts

that he has newly discovered evidence from Southwestern Institute of Forensic Sciences (SWIFS)

related to his innocence. (Pet. at 7.) He specifically asserts that he has discovered evidence from

SWIFS which shows the discovery of no seminal fluid or spermatozoa from a rape examination of

the complainant. (Mem. Supp. at 3.) He further asserts that a pubic hair combing revealed the

presence of no foreign hairs. (Id.) He states: “There is no way that a man could penetrate a 13 year

old child’s vagina without leaving trace of evidence of that penetrated act, almost impossible, just

no way. I am innocen[t].” (See Answer to Question 1 of MJQ.) 

Petitioner further claims that the prosecution failed to disclose the evidence from SWIFS,

although they had access to such evidence prior to trial. (Pet. at 7; Answer to Question 2 of MJQ.)

 

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In addition, he claims that he was denied the effective assistance of counsel when his attorney told

him that he did not need family members to be present at trial; counsel failed to present the SWIFS

evidence; counsel selected a jury without his presence; and counsel did not adequately consult with

petitioner in preparation for trial. (Pet. at 8.) He also claims that the jury was unconstitutionally

selected outside of his presence. (Id. at 7.) 

II. STATUTE OF LIMITATIONS

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of the Act substantially changed the way federal courts handle habeas corpus actions.

One of the major changes is a one-year statute of limitations. See 28 U.S.C. § 2244(d)(1). The oneyear period is calculated from the latest of either (A) the date on which the judgment of conviction

became final; (B) the date on which an 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 Supreme Court initially recognizes

a new constitutional right and makes the right retroactively applicable to cases on collateral review;

or (D) the date on which the facts supporting the claim became known or could have become known

through the exercise of due diligence. See id. § 2244(d)(1)(A)-(D). 

Petitioner has alleged no state-created impediment under subparagraph (B) that prevented

him from filing his federal petition. Nor does he base his petition on any new constitutional right

 

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under subparagraph (C)). Thus, as § 2244(d)(1) relates to this case, the Court will calculate the

one-year statute of limitations from the latest of (A) the date petitioner’s conviction became final

or (D) the date on which he knew or should have known with the exercise of due diligence the facts

supporting his claims. 

A. Finality of Conviction

In this case, petitioner appealed his conviction but filed no petition for discretionary review

(PDR). (See Pet. at 3.) The state conviction therefore becomes final for purposes of § 2244(d) upon

the expiration of the time for seeking further review through the filing of a PDR, i.e. thirty days after

the appellate court affirmed the conviction on January 23, 1986. See Roberts v. Cockrell, 319 F.3d

690, 692 (5th Cir. 2003) (rejecting reliance upon the date of mandate and relying on TEX. R. APP.

P. 68.2 for the thirty day period to file a PDR). Petitioner’s judgment of conviction thus became

final in February 1986.

B. One-year Grace Period

When a conviction becomes final before the April 24, 1996 enactment of the AEDPA, the

petitioner has one year following the effective date of the Act in which to file a federal petition for

a writ of habeas corpus. Williams v. Cain, 217 F.3d 303, 304 n.1 (5th Cir. 2000). “[W]hen computing the one year time period applicable to petitions raising claims that would otherwise be timebarred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed

on or before April 24, 1997 are timely.” Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The

one-year period of limitations does not apply prior to its effective date. Thus, no time may be count-

 

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ed against an inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner

is entitled to the one-year grace period which would end, in the absence of tolling, on April 24, 1997.

C. Factual Predicate

With regard to subparagraph (D), the Court determines that the facts supporting the claims

raised in the instant petition for habeas relief also became known or could have become known prior

to the date petitioner’s grace period expired on April 24, 1997. At or before trial, petitioner would

have known, or should have known through the exercise of due diligence, the factual predicate of

his claims of ineffective assistance of trial counsel and his claim that his jury was unconstitutionally

selected outside his presence. With respect to his claims of newly discovered evidence of actual

innocence and prosecutorial suppression of evidence, petitioner appears to assert that he did not

know of such evidence until his attorney mailed him the trial court’s denial of his motion for DNA

testing on February 25, 2002. (See Answer to Question 3 of MJQ.) While is not clear precisely

when petitioner learned of the allegedly suppressed evidence related to his innocence, through the

exercise of due diligence, he undoubtedly should have known the facts supporting such claims by the

date his grace period expired on April 24, 1997, more than twelve years after he was convicted. 

Because petitioner filed his petition more than one year after his grace period expired in April

1997, a literal application of § 2244(d)(1) renders petitioner’s August 14, 2003 filing untimely. 

III. TOLLING

The AEDPA expressly and unequivocally provides that “[t]he time during which a properly

filed application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”

 

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28 U.S.C. § 2244(d)(2) (emphasis added). Thus, the clear language of § 2244(d)(2) mandates that

petitioner’s time calculation be tolled during the period in which his state habeas application was

pending before the Texas state courts. See also, Henderson v. Johnson, 1 F. Supp. 2d 650, 652 (N.D.

Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling

on state application). 

When petitioner filed his state petition on or about December 30, 2002, the statutory tolling

period had already expired. Accordingly, the statutory tolling provision does not save the federal

petition filed August 14, 2003. Further, nothing in the petition or other filings in this case indicates

that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260,

263 (5th Cir. 2000) (recognizing that statute of limitations is subject to equitable tolling). Although

petitioner claims to be actually innocent of the crime for which he has been convicted, (see Mem.

Supp. at 1; Answer to Question 1 of MJQ), a claim of actual innocence “does not constitute a ‘rare

and exceptional’ circumstance, given that many prisoners maintain they are innocent”, see Felder v.

Johnson, 204 F.3d 168, 171 & n.8 (5th Cir. 2000). 

In addition, petitioner has not shown himself to be actually innocent of aggravated sexual

assault. The assertion of such claim encumbers petitioners with a heavy burden:

To establish the requisite probability that he was actually innocent, the petitioner

must support his allegations with new, reliable evidence that was not presented at

trial and must show that it was “more likely than not that no reasonable juror would

have convicted him in the light of the new evidence.” 

Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)); accord Finley v. Johnson, 243 F.3d 215, 221 (5th Cir. 2001). Petitioner believes that the

allegedly withheld evidence from SWIFS demonstrates his actual innocence. (See Answer to

 

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Question 1 of MJQ.) The report from SWIFS, however, merely shows that no “foreign hairs were

found” in pubic hair combings of the complainant. (See SWIFS Report, attached to Answers to

MJQ.) The SWIFS report does not support a claim of actual innocence. One may be guilty of

aggravated sexual assault whether or not a pubic hair combing reveals a hair from the alleged

assailant. In addition, although the trial court noted that results from rape testing revealed no

seminal fluid or spermatozoa, (see Order Denying Robinson’s Mot. for Post-Conviction DNA

Testing), such revelation does support a claim of actual innocence. An individual may be guilty of

sexual assault whether or not he leaves seminal fluid or spermatozoa behind. The Court does not

find that the allegedly withheld evidence satisfies the heavy burden that petitioner carries with

respect to a claim of actual innocence. 

Because neither statutory nor equitable tolling save petitioner’s August 14, 2003 filing, the

filing falls outside the statutory period of limitations and should be deemed untimely. 

IV. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court find the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 barred by

statute of limitations and DENY it with prejudice.

SIGNED this 18th day of April, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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