Solomon v. Guerrero

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
LEONARD MAURICE SOLOMON,
Petitioner,
VS.
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CIVIL ACTION NO. 2:25-CV-00238
ERIC GUERRERO,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner, Leonard Maurice Solomon, is a state prisoner incarcerated at the
Stevenson Unit in Cuero, TX. Proceeding pro se, he filed this habeas corpus petition
pursuant to 28 U.S.C. § 2254, challenging his 2018 Nueces County conviction for murder.
(D.E. 1, Page 1 and D.E. 18, Page 1).1 Pending is Respondent’s Motion to Dismiss filed
on December 16, 2025, to which Petitioner responded, after extension, on March 19, 2026.
(D.E. 12 and D.E. 19). For the reasons stated below, it is respectfully recommended the
Court GRANT Respondent’s Motion to Dismiss and DISMISS this action as time barred.
(D.E. 12). The undersigned further recommends the Court DENY a Certificate of
Appealability.
1Petitioner’s brother signed the original petition. (D.E. 1). Accordingly, the undersigned ordered
Petitioner to submit an amended petition with his own signature if he wished to proceed. (D.E.
17). Petitioner submitted an amended petition with his own signature received by this Court on
March 9, 2026. (D.E. 18).
United States District Court
Southern District of Texas
ENTERED
March 27, 2026
Nathan Ochsner, Clerk
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I. JURISDICTION
The Court has jurisdiction over the subject matter and the parties pursuant to 28
U.S.C. §§ 2241 and 2254. A habeas action may be filed either in the district where
petitioner is in custody or in the district in which petitioner was convicted. 28 U.S.C. §
2241(d); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). Jurisdiction and venue
are proper in this Court because Petitioner was convicted within the Corpus Christi
Division of the Southern District of Texas. Id.; 28 U.S.C. § 124(b)(6). This case has been
referred to the undersigned pursuant to 28 U.S.C. § 636.
II. BACKGROUND
On December 19, 2018, Petitioner was found guilty of murder after a jury trial in
the 117th District Court of Nueces County and was sentenced to 40-year incarceration.
(D.E. 7-3, Page 464).2 Petitioner filed an appeal and on June 18, 2020, the Thirteenth Court
of Appeals of Texas affirmed the trial court’s judgment. (D.E. 7-22). Petitioner filed a
Petition for Discretionary Review which was refused by the Texas Court of Criminal
Appeals (“CCA”) on September 16, 2020. (D.E. 7-27, Page 2). Petitioner did not file a
petition for certiorari review in the Supreme Court. (D.E. 18, Page 3). Just under two
years later, on August 23, 2022, Petitioner filed a state habeas application which was denied
on October 19, 2022. (D.E. 7-29, Page 25 and D.E. 7-30). Petitioner, through his brother,
2The underlying facts of Petitioner’s conviction are contained in the pending Motion to Dismiss
and need not be repeated here at length. (D.E. 12, Pages 4-5). In short, Petitioner shot and killed
Franco Bucato. Id. Four witnesses provided testimony identifying Petitioner as the shooter. (D.E.
12, Page 5).
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then filed this federal habeas action on September 2, 2025, almost three years later. (D.E.
1, Page 10). Petitioner then submitted an Amended Petition with his own signature on
February 27, 2026, and received by this Court on March 9, 2026. (D.E. 18).
III. RESPONDENT’S MOTION TO DISMISS
Respondent asserts this action should be dismissed as time barred. The undersigned
agrees. Petitioner’s habeas petition is not timely filed pursuant to the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) which establishes a one-year statute of limitations
period runs from the latest of four alternative dates:
(A) the date on which the judgment becomes 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 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). This period is tolled during the time a petitioner properly files for
state post-conviction writ review. 28 U.S.C. § 2244(d)(2) (“The 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.”) Petitioner filed his current petition after the effective
date of AEDPA and so is subject to its provisions. Lindh v. Murphy, 521 U.S. 320 (1997).
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Petitioner did not file a petition for writ of certiorari and therefore, his conviction
became final on February 15, 2021, when the time for filing a petition for writ of certiorari
expired 150 days after his PDR was refused on September 16, 2020. See COVID Order of
the United States Supreme Court dated March 19, 2020 extending the usual 90 day deadline
for filing certiorari review for cases filed with judgments issued between March 19, 2020
and July 19, 2021 https://www.supremecourt.gov/orders/courtorders /031920zr_d1o3.pdf
(last visited March 20, 2026); 28 U.S.C. § 2244(d)(1)(A); Bradshaw v. Davis, 736 F. App’x
457, 459-61 (5th Cir. 2018); Fed. R. Civ. P. 6(a)(3) (September 16, 2020 plus 150 days is
February 13, 2021, a Saturday. The next available day for filing was February 15, 2021).
As such, Petitioner had one year, until February 15, 2022, to timely file a federal
application for habeas corpus relief. Petitioner’s state habeas application signed on August
23, 2022, and denied on October 19, 2022, after the limitations period ended, “did not
statutorily toll the limitation clock.” Palacios v. Stephens, 723 F.3d 600, 604 (5th Cir.
2013). Petitioner filed the pending federal habeas petition, at the earliest, on August 29,
2025, over three years too late. 28 U.S.C. §2244(d).
However, the one-year period of limitations in § 2244(d)(1) of AEDPA is not a
jurisdictional bar and can be equitably tolled in rare and exceptional circumstances. Davis
v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). A petitioner is entitled to equitable tolling
if he shows that he has been pursuing his rights diligently and that some extraordinary
circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S.
631, 649 (2010) (citations omitted); see also Palacios v. Stephens, 723 F.3d 600, 604 (5th
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Cir. 2013) (citing Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (citations omitted)).
“[N]either excusable neglect nor ignorance of the law is sufficient to justify equitable
tolling.” Id.; See also Sutton v. Cain, 722 F.3d 312, 317 (5th Cir. 2013) (citing Fierro v.
Cockrell, 294 F.3d 674, 683 (5th Cir. 2002) (It is “clear that a lack of knowledge of the
law, however understandable it may be, does not ordinarily justify equitable tolling.”)
(citation omitted). Nor does unfamiliarity with the legal process (whether the unfamiliarity
is due to illiteracy or any other reason) or lack of representation during the applicable filing
period merit equitable tolling. Turner v. Johnson, 177 F.3d 390, 393 (5th Cir. 1999)
(citation omitted).
Petitioner does not allege any reasons to suggest equitable tolling applies. Petitioner
fails to allege sufficient “extraordinary circumstances” that prevented him from timely
filing his claim. Petitioner also did not diligently pursue his rights, delaying over three
years past the deadline to pursue his federal habeas remedy, including several years after
his state habeas petition was denied. Additionally, Petitioner’s claims do not concern a
constitutional right recognized by the Supreme Court within the last year and made
retroactive to cases on collateral review. Lastly, as discussed below, Petitioner’s claim is
based upon evidence that was available to him during the limitations period. Without a
basis for equitable or statutory tolling, Petitioner’s writ should be dismissed as time barred.
IV. ACTUAL INNOCENCE
Petitioner asserts actual innocence as the gateway through which this Court should
hear his claim on the merits. In his Petition, he states his claims are not barred by
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limitations “due to the fact that Petitioner is actually innocent of the offense” because he
committed the offense in self-defense. (D.E. 18, Pages 13-14; D.E. 1-1, Pages 12-17 and
D.E. 19). While Petitioner asserts his actual innocence presents extraordinary
circumstances which warrant an equitable exception to the limitations period, it is
respectfully recommended Petitioner fails to meet the actual innocence standard. “The
Fifth Circuit does not recognize freestanding claims of actual innocence on federal habeas
review.” Banks v. Dir., TDCJ-CID, No. 1:24-cv-12-H, 2025 WL 105672, at *3 (N.D. Tex.
Jan. 15, 2025) (citing In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009) (other citation
omitted). “A claim of actual innocence, standing alone, is not a ‘rare and exceptional
circumstance’ that warrants equitable tolling of the statute of limitations ‘given that many
prisoners maintain they are innocent.’” Jones v. Quarterman, CIVA H-08-3212, 2009 WL
5216873, at *3–4 (S.D. Tex. Dec. 29, 2009) (citing Felder v. Johnson, 204 F.3d 168, 171
(5th Cir.2000) (other citations omitted). However, the Supreme Court has held that a plea
of actual innocence may serve as a gateway exception through which a petitioner may
avoid procedural bars or the expiration of the statute of limitations. McQuiggins v. Perkins,
569 U.S. 383, 386 (2013) (Referencing the decisions in Schlup v. Delo, 513 U.S. 298
(1995) and House v. Bell, 547 U.S. 518 (2006) where “a convincing showing of actual
innocence enabled habeas petitioners to overcome a procedural bar to consideration of the
merits of their constitutional claims.”) The Supreme Court made it clear, however, that
“tenable actual-innocence gateway pleas are rare” and “a petitioner does not meet the
threshold requirement unless he persuades the district court that, in light of the new
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evidence, no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Id. (citing Schlup, 513 U.S. at 329 and House, 547 U.S. at 538)
(“[E]mphasizing that the Schlup standard is “demanding” and seldom met”); Banks, 2025
WL 105672, at *3 (To present a credible claim of actual innocence, a petitioner must
present new, reliable evidence not available at the time of trial and “does not merely require
a showing that a reasonable doubt exists in light of the new evidence, but rather that no
reasonable juror would have found the defendant guilty.”) (citing Schlup, 513 U.S. at 329);
Cruz-Garcia v. Lumpkin, 2023 WL 6221444, at *49 (“When a habeas litigant reaches
federal court, it is without any presumption of innocence.”) (citation omitted).
Additionally, “[t]he Fifth Circuit places strict requirements on what kind of
evidence may support a valid actual-innocence argument. A petitioner’s ‘newly discovery
evidence’ must meet certain conditions: ‘(1) the evidence is newly discovered and was
unknown to the defendant at the time of trial; (2) the defendant’s failure to detect the
evidence was not due to a lack of diligence; (3) the evidence is material, not merely
cumulative or impeaching; and (4) the evidence would probably produce acquittal at a new
trial.’” Cruz-Garcia, 2023 WL 6221444, at *49 (“Examples of new, reliable evidence that
may establish factual innocence include exculpatory scientific evidence, credible
declarations of guilt by another, trustworthy eyewitness accounts, and certain physical
evidence.”) (citations omitted).
Petitioner fails to make a credible showing he satisfies the demanding actual
innocence standard. Petitioner does not support his claim of actual innocence with any
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new, reliable evidence that was not presented, or available, at trial. Banks, 2025 WL
105672, at * 4 (Finding petitioner’s claim was time barred where petitioner’s evidence
were available at the time of trial, even though petitioner argued his attorney should have
been better prepared and conducted more investigation); Hancock v. Davis, 906 F.3d 387,
389-90 (5th Cir. 2018) (“Evidence does not qualify as “new” under the Schlup actual-
innocence standard if “it was always within reach of [petitioner’s] personal knowledge or
reasonable investigation.”) (citations omitted).
Further, to the extent Petitioner contends he has evidence supporting that his
conviction was insufficient, it is important to note that “actual innocence” means factual
innocence, not mere legal insufficiency. Banks, 2025 WL 105672, at *3. In short,
Petitioner has failed to demonstrate no juror would have voted to find him guilty given the
testimony and evidence presented at trial. Therefore, it is respectfully recommended that
the Court find Petitioner fails to meet the actual innocence standard and, accordingly,
Petitioner’s federal habeas claims are time barred.
V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the Court of Appeals from a final order in a habeas
corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). Although Petitioner has not yet filed a notice of appeal, it is
respectfully recommended that this Court nonetheless address whether he would be entitled
to a certificate of appealability (“COA”). A district court ruling on a petitioner’s relief may
sua sponte rule on a COA because it “is in the best position to determine whether the
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petitioner has made a substantial showing of a denial of a constitutional right on the issues
before that court. Further briefing and argument on the very issues the court has just ruled
on would be repetitious.” Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per
curiam).
A COA “may issue...only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As to claims
the Court rejects solely on their merits, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As to claims the Court rejects solely
on procedural grounds, the Petitioner must show both that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. (emphasis added).
In Petitioner’s case, it is recommended that the Court find his claims be dismissed
on procedural grounds. Reasonable jurists would not find that Petitioner has stated a valid
claim of denial of a constitutional right, or that the assessment of limitations in this case is
debatable. If the District Judge orders that Petitioner’s habeas petition be denied and
Petitioner seeks a COA in order to proceed with his case, it is further recommended that
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the Court find a COA be denied because he has not made the necessary showing for
issuance.
VI. RECOMMENDATION
Because there is no evidence that an extraordinary circumstance actually prevented
Petitioner from filing a timely federal petition, the undersigned RECOMMENDS he is not
entitled to equitable tolling and his petition is untimely. Therefore, it is respectfully
RECOMMENDED that the Court GRANT Respondent’s Motion to Dismiss (D.E. 12)
and DISMISS this action as time barred. The undersigned further RECOMMENDS the
Court DENY a Certificate of Appealability.
Respectfully submitted on March 27, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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