IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GENE W. JACKSON, # 306777, )

Petitioner, )

)

v. ) 3:05-CV-1301-N

) ECF

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 District Court in

implementation thereof, the subject cause has been referred to the United States Magistrate

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

FINDINGS AND CONCLUSIONS:

Type Case: This is a petition for a writ of habeas corpus brought by a state inmate

pursuant to 28 U.S.C. § 2254. 

Parties: Petitioner is presently confined at the Clements Unit of the Texas Department of

Criminal Justice -- Correctional Institutions Division (TDCJ-CID) in Amarillo, Texas. 

Respondent is the Director of TDCJ-CID. The court issued process in this case. 

Statement of Case: Following his plea of not guilty, a jury convicted Petitioner of

burglary of a habitation in the 265th District Court of Dallas County, Texas, in Cause No. F79-

8188-HR. Punishment was assessed at seventy-five years imprisonment. The Fifth District

Court of Appeals affirmed his conviction on direct appeal. Jackson v. State, No. 05-81-00301-

CR (Tex. App. – Dallas, 1981, pet. ref’d). (Pet. at 3). On March 31, 1982, the Texas Court of

Criminal Appeals refused his petition for discretionary review. Jackson v. State, PDR No. 084-

 

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1 For purposes of this recommendation and in light of the "mailbox rule" adopted

by the Fifth Circuit in Spotville v. Cain, 149 F.3d 374, 377 (5th Cir.1998), the Court assumes the

petition was placed in the prison mail system on May 31, 2005, the date on which Petitioner

signed the same. However, it is difficult to believe that almost one month elapsed from the date

on which Petitioner purportedly placed his petition in the prison mail and June 27, 2005, the date

on which it was received and filed by this Court. Nevertheless as noted more fully below, the

petition is time barred regardless of whether it is deemed "filed" as of May 31, 2005.

2

82. 

Petitioner has filed two state applications for a writ of habeas corpus pursuant to art.

11.07, Texas Code of Criminal Procedure, and a motion for DNA testing in the convicting court. 

On August 14, 2003, Petitioner filed his first application, which was denied August 25, 2004. 

Ex parte Jackson, No. 58,584-02, at cover and 2. On November 11, 2004, following the denial

of his motion for DNA testing, Petitioner filed the second application, which was dismissed

without written order on April 20, 2005. Ex parte Jackson, No. 58,584-03, at cover and 2. 

In his federal petition, filed on June 27, 2005, Petitioner alleges actual innocence as a

result of the state withholding exculpatory evidence and presenting false testimony, constructive

amendment of the indictment, denial of right to consult with his mother during police

questioning, ineffective assistance of trial counsel, and denial of right to a speedy trial.1

In response to this Court’s order to show cause, Respondent filed his original and

supplemental answer along with the state court record. Petitioner filed a reply. 

Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) establishes a one-year statute of limitations for state inmates seeking federal habeas

corpus relief. See 28 U.S.C. § 2244(d).

The one-year 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

 

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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, if that 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 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's conviction became final under § 2244(d)(1)(A) on June 29, 1982, ninety days

after the Court of Criminal Appeals refused his petition for discretionary review. See Sup. Ct. R.

13.1, 13.3; Clay v. United States, 537 U.S. 522, 528 n. 3, 123 S. Ct. 1072, 1077 n. 3, 155 L. Ed.

2d 88 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); 28 U.S.C. §

2244(d)(1)(A). Because the above date preceded the enactment of the AEDPA, Petitioner had a

one-year grace period, from April 25, 1996, through April 24, 1997, within which to seek habeas

corpus relief. See Flanagan v. Johnson, 154 F.3d 196, 199-200 n. 2 and 202 (5th Cir. 1998)

(citing United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998). Petitioner did not file this

federal habeas petition until May 31, 2005, more than eight years after the running of the oneyear grace period. Although 28 U.S.C. § 2244(d)(2) tolls the limitation period during the

pendency of state habeas proceedings, see Sonnier v. Johnson, 161 F.3d 941 (5th Cir. 1998);

Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), Petitioner's state habeas applications were

not pending in state court during the one-year grace period. Scott v. Johnson, 227 F.3d 260, 263

(5th Cir. 2000) (state habeas application did not toll limitation period where it was not filed until

after the limitation period had expired). In fact Petitioner’s state applications were filed and

denied long after the expiration of the one-year grace period. Therefore, Petitioner's federal

 

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habeas petition is clearly untimely.

In his reply, Petitioner alleges that a state-created impediment under § 2244(d)(1)(B)

prevented him from filing this federal petition within the one-year grace period. He argues the

prosecutor withheld exculpatory evidence in violation of Brady that was disclosed to Petitioner

for the first time on April 6, 2004, in response to his motion for DNA testing. (Pet’s Reply at 3). 

The evidence allegedly suppressed included (1) a statement that the victim gave to the police,

shortly after the assault, that the assailant attempted to rape her, and (2) the results of forensic

tests conducted prior to trial, which were inconclusive in naming Petitioner as the assailant.

28 U.S.C. § 2244(d)(1)(B) provides that the one-year limitation period begins to run on

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." To invoke this section, a petitioner must establish that: "(1) he was

prevented from filing a petition, (2) by State action (3) in violation of the Constitution or federal

law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).

There is nothing in the record to suggest that the State actively or negligently suppressed

or failed to disclose the victim’s statement to the police or the results of the tests conducted prior

to trial, or that the statement and/or the test results contained material, exculpatory evidence in

this case. Further, the State's failure to provide Petitioner with a copy of the victim’s statement

and the test results did not prevent him from filing his federal petition. Had he filed a timely

petition, he could have then sought the District Court's help in obtaining the victim’s statement

and test results through discovery. See Davis v. Dretke, 2001 WL 2693002, *2 -3 (N.D. Tex., 2005)

(citing Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir.2001)); Rules Governing § 2254 Cases,

 

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Rule 6. Therefore, § 2244(d)(1)(B) is inapplicable.

Insofar as Petitioner seeks to rely on § 2244(d)(1)(D) – the date on which the facts

supporting the claim became known or could have become known through the exercise of due

diligence – he cannot demonstrate that neither he nor his attorney had knowledge of either the

victim’s statement or the forensic results at the time of his trial in 1980. Petitioner’s own

pleadings confirm that his attorney had a copy of the victim’s statement. (Mem. in Support at

31). Moreover, the forensic serologist at his trial, Ms. Benita Harwood, specifically testified

about the test results and explained the opinion that she drew from the findings. (SF 293-299). 

Thus, even assuming the document containing the forensic results were not given to Petitioner’s

attorney, the information contained therein was available at trial. Accordingly, the Court

concludes § 2244(d)(1)(D) is likewise inapplicable. 

Next Petitioner asserts that he is actually innocent. To the extent Petitioner asserts his

actual innocence precludes the dismissal of this § 2254 petition, his claim is meritless. The oneyear limitation period contains no explicit exemption for litigants claiming actual innocence of

the crimes of which they have been convicted. In this respect, the Fifth Circuit Court of Appeals

has recognized that a petitioner's claims of actual innocence are relevant to the timeliness of his

petition if they justify equitable tolling of the limitation period. See Felder v. Johnson, 204 F.3d

168, 171 (5th Cir. 2000); accord Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002). 

Equitable tolling is available only in cases presenting “rare and exceptional

circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998). “‘The doctrine of

equitable tolling preserves a plaintiff’s claims when strict application of the statute of limitations

would be inequitable.’” United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000) (quoted

 

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case omitted). “‘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.’” 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)); see also Melancon v. Kaylo, 259 F.3d 401,

408 (5th Cir. 2001). Neither “a plaintiff’s unfamiliarity with the legal process nor his lack of

representation during the applicable filing period merits equitable tolling.” Turner v. Johnson,

177 F.3d 390, 392 (5th Cir. 1999). Further, “equity is not intended for those who sleep on their

rights.” Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). Rather, “[e]quitable tolling is

appropriate when, despite all due diligence, a plaintiff is unable to discover essential information

bearing on the existence of his claim.” Id. at 715, n. 14. Finally, a habeas petitioner has the

burden of proving that he or she is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d

508, 511 (5th Cir. 2000). 

Insofar as Movant requests the court to toll the limitation period on equitable grounds

because of his alleged actual innocence, his claim is likewise meritless. A claim of actual

innocence "does not constitute a 'rare and exceptional' circumstance, given that many prisoners

maintain they are innocent." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); see also

Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); United States v. Riggs, 314 F.3d 796, 800

n. 9 (5th Cir. 2002). In addition, Movant has not shown that he has reliable new evidence that

establishes his actual innocence. See Schlup v. Delo, 513 U.S. 298, 329 (1995).

An actual innocence claim carries a heavy burden:

To establish the requisite probability that he was actually innocent, the [movant]

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.”

 

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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); United States v. Jones,

172 F.3d 381, 384 (5th Cir. 1999). 

Movant merely points to a statement given by the victim to the police. In this statement

the victim stated that Petitioner attempted to rape her. According to Petitioner, this statement is

inconsistent with the victim’s trial testimony that Petitioner had raped her. Petitioner correctly

points out that attempted rape is not the same as rape. However, if Petitioner had intended to

commit either, he would have been convicted of burglary of a habitation with intent to commit

rape as charged in the indictment. See Ex parte Jackson, No. 58,584-03, at 44 (for copy of

indictment). 

Next Petitioner alleges that Ms. Harwood’s testimony was inconsistent with the forensic

results that he received in response to his motion for DNA testing. This claim is unsupported

and conclusory at best. Ms. Harwood specifically explained the limited nature of her findings

and the fact that since Petitioner was a non-secretor that he, along with 20% of the population,

could have been the depositor of the semen. (SF 293-299). 

Neither of the above assertions carries Petitioner’s heavy burden of showing that he is

actually innocent. Movant has not shown that it is more likely than not that no reasonable juror

would have convicted him in light of new evidence not submitted at trial. See United States v.

Espinoza, 2005 WL 2291620, *3 (N.D. Tex. 2005), report & recommendation adopted by, 2005

WL 2546925 (N.D. Tex. 2005) (3:97cr257-G, 3:05cv944-G). The party seeking equitable tolling

has the burden to show entitlement to such tolling. See Alexander v. Cockrell, 294 F.3d 626, 629

(5th Cir. 2002). Because Petitioner has not carried his burden to show that equitable tolling is

 

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2 The Court further notes that Movant did not diligently pursue his rights. See

United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). It appears he did nothing for at

least twenty years from the refusal of his petition for discretionary review until the filing of his

first art. 11.07 application. Following the dismissal of his second state applications, he delayed

for at least an additional month before submitting this petition for filing. These delays – clearly

of Petitioner’s own making – do not evince due diligence. “[E]quity is not intended for those

who sleep on their rights. Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999).

8

warranted, such tolling does not save the instant petition.2

RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court dismiss the habeas

corpus petition as barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d).

It is further recommended that Petitioner’s motion for an evidentiary hearing (docket

#17) be denied as moot. 

The Clerk will transmit a copy of this recommendation to Petitioner and counsel for

Respondent.

Signed this 1st day of February, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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