Latner v. Lumpkin

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TIMOTHY ALAN LATNER,
TDCJ #02186145,
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Petitioner,
VS .
ERIC GUERRERO, 1
Respondent.
§ 	CIVIL ACTION NO. H-24-04837
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MEMORANDUM AND ORDER
Petitioner Timothy Alan Latner (TDCJ #02186145), an inmate in custody of the
Texas Department of Criminal Justice - Correctional Institutions Division ( "TDCJ"), has
filed a federal petition under 28 U.S.C. § 2254 seeking a writ of habeas corpus to challenge
his conviction and sentence (Doc. No . 1). 	Respondent has filed an Answer (Doc. No . 6).
Petitioner has not filed a response in opposition, and his time to do so has expired. For the
reasons that follow, this petition will be dismissed as barred by the one-year statute of
limitations found in 28 U.S.C. § 2244(d) .
1 Bobby Lumpkin was the previous named respondent in this action. Eric Guerrero has succeeded
Lumpkin as Director of the Texas Department of Criminal Justice, Correctional Institutions
Division. 	Under Rule 25(d) of the Federal Rules of Civil Procedure, Guerrero is automatically
substituted as a party.
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United States District Court
Southern District of Texas
ENTERED
December 19, 2025
Nathan Ochsner, Clerk
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I. 	BACKGROUND AND PROCEDURAL HISTORY
On March 5, 2018, Petitioner was convicted of two charges of aggravated sexual
assault of a child after a jury trial in the 359th District Court of Montgomery County, Texas,
in case numbers 15-12-12824 and 15-07-07313, and sentenced to two life sentences. Doc.
No. 1 at l; Doc. No. 7-1 at 106 (Judgment in 15-12-12824), Doc. No. 7-2 at 109 (Judgment
in 15-07-7313). 	His convictions were affirmed on direct appeal on March 4, 2020. 	Se e
Latner v. State , Nos. 9-18-00117-CR & 09-18-00118-CR, 2020 WL 1036446 (Tex. App .-
Beaumont March 4, 2020, no pet.). Petitioner did not file a petition for discretionary review
with the Texas Court of Criminal Appeals. 	Doc. No. 1 at 3. 	Therefore, his convictions
became final on April 3, 2020. See Tex. R. App. P. 68.2(A).
On July 11 , 2024, Petitioner filed a state application for habeas corpus challenging
his conviction in case number 15-07-07313, and the Texas Court of Criminal Appeals
denied his application without written order on November 6, 2024. 2 Ex Parte Latner, No.
WR-96,113-01 (Tex. Crim. App . Nov. 4, 2024), at Action Taken Sheet, Doc. No. 7-18.
Petitioner filed this federal petition on December 4, 2024. Doc. No. 1 at 16.
Respondent contends that this petition is time-barred and that no exceptional
circumstances exist to justify equitable tolling in this case. 	Petitioner asserts that he is
innocent of the offenses.
2 It does not appear that petitioner filed a state application to challenge his other conviction in
case number 15-12-12824.
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II. 	LEGAL STANDARD
Under the Anti-terrorism and Effective Death Penalty Act (the "AEDPA"), Pub. L.
No. 104-132, 110 Stat. 1214 (1996), a federal habeas corpus petition is subject to a one-
year limitations period found in 28 U.S.C. § 2244(d), which provides as follows :
( 1) 	A I- year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court. The limitation period shall run 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 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.
(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.
28 U.S.C. § 2244(d).
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III. 	DISCUSSION
Because Petitioner challenges his state court convictions, the statute of limitations
for federal habeas corpus review began to run at "the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review." 	28 U.S.C. 	§ 2244(d)(l)(A). 	Petitioner' s direct review concluded, and his
conviction became final for the purposes of federal habeas corpus review on April 3, 2020,
when the time to file a petition for discretionary review in the Texas Court of Criminal
Appeals expired. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (holding that
a state court conviction becomes final for the purposes of the AEDPA at the conclusion of
direct review, i.e., when either (1) the United States Supreme Court rejects a certiorari
petition or rules on the merits or (2) time for seeking such review expires); see also Tex.
R. App . P. 68.2(a) (requiring that a petition for review be filed within 30 days after either
the date of the judgment in the court of appeals or the date a timely filed motion for
rehearing was overruled). 	That date triggered the statute of limitations for purposes of
federal 	review, which 	expired 	on 	April 	5, 	2021 , 	one year 	later. 3 	See 	28 	U.S.C.
§2244(d)(l)(A). Petitioner' s pending federal habeas corpus petition, filed on December 4,
2024, is outside the limitations period and is therefore time-barred unless an exception
applies.
3 April 3, 2021 , fell on a Saturday; accordingly, the federal petition was due on April 5, 2021 , the
following Monday . See FED. R. CIV . P. 6.
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A. 	Statutory Tolling
The statute of limitations is tolled for the time during which a properly filed
application for habeas corpus or other collateral relief is pending in the state courts. 	See
28 U.S .C. §2244(d)(2). 	Petitioner's July 11 , 2024, state habeas corpus application was
filed outside of the limitation period and does not toll the statute of limitations for purposes
of28 U.S.C. § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (noting
that the statute of limitations is not tolled by a state habeas corpus application filed after
the expiration of the limitations period). 	Petitioner does not show any other grounds for
statutory tolling, nor does the record disclose any.
B. 	Equitable Tolling
Equitable tolling is an extraordinary remedy that is sparingly applied. 	See Irwin v.
Department of Veterans Affairs, 498 U .S. 89 , 96 (1990). 	The Fifth Circuit has held that
the statute of limitation found in the AEDPA may be equitably tolled, at the district court's
discretion, only " in rare and exceptional circumstances." Davis v. Johnson , 15 8 F .3 d 806,
811 (5th Cir. 1998). The habeas petitioner bears the burden of establishing that equitable
tolling is warranted. See Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007). The
Supreme Court has clarified that a '" [habeas] petitioner' is ' entitled to equitable tolling'
only if he shows ' (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way ' and prevented timely filing. "' Holland v.
Florida, 560 	U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S . 408, 418
(2005)). A "garden variety claim of excusable neglect" does not support equitable tolling.
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Lookingbill v. Cockrell, 293 	F.3d 256, 264 (5th Cir. 2002) (citations omitted). 	An
unawareness of the law, lack of knowledge of filing deadlines, pro se status, or lack of
legal training are not valid bases for equitable tolling. 	Felder v. Johnson, 204 F.3d 168 ,
171-72 (5th Cir. 2000) (citing cases).
Petitioner does not assert any grounds for equitable tolling other than to assert that
he is innocent. 	However, Latner does not meet the demanding standard for excusing the
limitations period based on actual innocence. 	A defendant who demonstrates actual
innocence of his crime of conviction may be excused for failing to comply with the one-
year statute oflimitations on federal habeas corpus review. See McQuiggin v. Perkins, 569
U.S. 383 , 386 (2013). 	A habeas petitioner who seeks to overcome a procedural default
through a showing of actual innocence must "raise a substantial doubt about his guilt."
Dowhitt v. Johnson , 230 F.3d 733 , 741 (5th Cir. 2000).
To establish an actual-innocence claim in this context, a habeas petitioner must
present "new reliable evidence- 	whether it by exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence- 	that was not presented at trial." Schlup
v. Delo, 513 U.S . 298, 324 (1995). 	A "properly supported" claim of actual innocence
requires a showing that "it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence." Id. at 327 ; McQuiggin , 569 U.S. at 395. The
Supreme Court emphasized that the actual innocence exception "applies to a severely
confined category" of cases and that the standard set forth in Schlup is "demanding."
McQuiggin, 569 U.S. at 395 , 401 . "The gateway should open only when a petition presents
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'evidence 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, 513 U.S. at 316).
Petitioner 	does 	not 	meet 	the 	demanding 	standard 	articulated 	in 	Schlup 	and
McQuiggin to show that he is actually innocent of the crime of conviction because he
submits no new, competent evidence that is probative of his possible innocence, much less
"evidence so strong that a court cannot have confidence in the outcome of the trial." 	Id.
The Fifth Circuit has held that "[a]bsent evidence in the record, a court cannot consider a
habeas petitioner 's bald assertions on a critical issue in his pro se petition (in state and
federal court), unsupported and unsubstantiated by anything else contained in the record,
to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011- 12 and n.2 (5th
Cir. 1983); see Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). 	Petitioner does not
meet his burden to establish actual innocence with new reliable evidence as is required
under the standard in McQuiggin and Schlup to excuse his tardiness in filing his federal
petition. Accordingly, his petition is barred by the one-year statute oflimitations under the
AEDP A and must be dismissed.
IV. 	CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or
deny a certificate of appealability when entering a final order adverse to the petitioner. 	See 28
U.S .C . § 2253. 	A certificate of appealability will not issue unless the petitioner makes "a
substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), which requires
a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the
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constitutional claims debatable or wrong. " Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473 , 484 (2000)). 	Under the controlling standard, this requires a
petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were ' adequate
to deserve encouragement to proceed further."' Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Where denial of relief is based on procedural grounds, the petitioner must show not only that
"jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right," but also that they "would find it debatable whether the district court was
correct in its procedural ruling." Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. Se e Al exander v. Johns on , 211 F.3d 895 , 898 (5th Cir. 2000). 	For
reasons set forth above, this court concludes that jurists of reason would not debate whether any
procedural ruling in this case was correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
V. 	CONCLUSION AND ORDER
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Based on the foregoing, the Court ORDERS as follows:
1. 	The pending petition (Doc. No. 1) is DISMISSED with prejudice as ban-ed by the
one-year statute of limitations.
2. 	A certificate of appealability is DENIED.
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3. 	All other motions, if any, are DENIED.
The Clerk will enter this Order, providing a correct copy to all parties of record.
SIG 	ED on this 	I 7 ~ day of December 2025.
AN DREWS. HANEN
UNITED STATES DISTRICT JU DGE
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