IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LIONEL BERNARD ADKINS §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1185-P

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Lionel Bernard Adkins, appearing pro se, has filed an application for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should

be dismissed in part and denied in part.

I.

Petitioner was convicted by a jury of aggravated sexual assault and sentenced to 75 years

confinement. His conviction and sentence were affirmed on direct appeal. Adkins v. State, No. 05-

98-00991-CR (Tex. App.--Dallas, Aug. 21, 2000, pet. ref’d). Petitioner also filed two applications

for state post-conviction relief. The first application was denied without written order. Ex parte

Adkins, No. 54,111-01 (Tex. Crim. App. Nov. 20, 2002). The second application was dismissed as

successive. Ex parte Adkins, No. 54,111-02 (Tex. Crim. App. Dec. 15, 2004). Petitioner then filed

this action in federal court.

 

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II.

In multiple grounds for relief, petitioner contends that: (1) he was denied the right to call

witnesses favorable to the defense; (2) the prosecutor committed numerous acts of misconduct; (3)

he received ineffective assistance of counsel; (4) newly discovered evidence establishes his actual

innocence; and (5) the state habeas court improperly dismissed his second writ as successive.

By order dated June 17, 2005, the court sua sponte questioned whether this case was timebarred and invited petitioner to address the limitations issue in a written reply. Petitioner filed a

reply on July 20, 2005. The court now determines that this case should be dismissed on limitations

grounds.

A.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a oneyear statute of limitations for federal habeas proceedings brought under 28 U.S.C. § 2254. See

ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). The

limitations period runs from the latest of:

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking

direct 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.

 

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See 28 U.S.C. § 2244(d)(1). The time during which a properly filed application for state postconviction relief or other collateral review is pending is excluded from the limitations period. Id.

§ 2244(d)(2). In addition, the AEDPA statute of limitations is subject to equitable tolling in "rare

and exceptional" circumstances. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert.

denied, 119 S.Ct. 1474 (1999). 

B.

Petitioner was sentenced to 75 years confinement for aggravated sexual assault. The court

of appeals affirmed his conviction on August 21, 2000. The Texas Court of Criminal Appeals

refused a petition for discretionary review on February 28, 2001 and denied rehearing on March 21,

2001. Petitioner did not file a writ of certiorari in the United States Supreme Court. Therefore, his

conviction became final on June 19, 2001--90 days after the Texas Court of Criminal Appeals denied

rehearing. See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes

final for limitations purposes when time for seeking further direct review expires). Petitioner filed

two applications for state post-conviction relief. The first application was filed on May 14, 2002

and denied on November 20, 2002. The second application was filed on August 5, 2004 and

dismissed on December 15, 2004. Petitioner filed this action in federal court on June 6, 2005.

The AEDPA statute of limitations started to run on June 19, 2001 when petitioner's

conviction became final. See 28 U.S.C. § 2244(d)(1)(A). The limitations period was tolled from

May 14, 2002 to November 20, 2002, a total of 190 days, while a properly filed application for state

post-conviction relief was pending. Even allowing for this tolling period, petitioner waited more

than a year to seek federal habeas relief. In an attempt to excuse this delay, petitioner argues that

he did not discover the factual predicate of his claims until December 23, 2003--the date Linda

Haynes signed an affidavit recanting her claim of rape. (See Hab. Pet., Exh. A). However, the

 

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operative date for limitations purposes is "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)(D) (emphasis added). The evidence submitted by petitioner shows that Haynes recanted

her rape allegation in an affidavit dated February 12, 2002. In that affidavit, Haynes states that she

told the prosecutor and petitioner's attorney before trial that her sexual encounter with petitioner was

consensual. (Hab. Pet., Exh. H at 3). Petitioner does not deny knowledge of the prior affidavit or

the facts contained therein. The court therefore concludes that petitioner could have discovered the

factual predicate of this claim earlier through the exercise of due diligence. See Chism v. Johnson,

2000 WL 256875 at *2 (N.D. Tex. Mar. 7, 2000) (rejecting argument that petitioner could not have

discovered factual predicate of claim until witness executed affidavit recanting trial testimony).

Nor is equitable tolling permitted merely because petitioner believes he is entitled to relief.

See Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) ("Equitable tolling applies principally

where the plaintiff is actively misled by the defendant about the cause of action or is prevented in

some extraordinary way from asserting his rights."). Even a claim of actual innocence does not

constitute a "rare and exceptional" circumstance sufficient to toll the statute of limitations. See

Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 121 S.Ct. 622 (2000); Mason v.

Cockrell, 2003 WL 21488226 at *2 (N.D. Tex. Apr. 23, 2003); Rhinehart v. Cockrell, 2001 WL

1512029 at *2 (N.D. Tex. Nov. 21, 2001). The court therefore concludes that all claims relating to

petitioner's trial and his resulting conviction are time-barred and should be dismissed. 

C.

Petitioner also complains that the state habeas court improperly dismissed his second writ

as successive. This claim, which did not accrue until the writ was dismissed on December 15, 2004,

is not barred by limitations. However, the Fifth Circuit has repeatedly held that defects in a state

 

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habeas proceeding are not cognizable under 28 U.S.C. § 2254. See Rudd v. Johnson, 256 F.3d 317,

319-20 (5th Cir.), cert. denied, 122 S.Ct. 477 (2001) (citing cases). "That is because an attack on

the state habeas proceeding is an attack on a proceeding collateral to the detention and not the

detention itself." Id. at 320, citing Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied,

116 S.Ct. 2559 (1996). Consequently, this ground for relief should be overruled.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be dismissed in part and denied in

part. All claims relating to petitioner's trial and his resulting conviction are time-barred and should

be dismissed on limitations grounds. Petitioner's claim that the state habeas court improperly

dismissed his second writ as successive should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

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 Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: July 26, 2005.

 

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