Wasserman v. Guerrero

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
CHARLES DEVON WASSERMAN,
Petitioner,
VS.
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§
CIVIL ACTION NO. 6:25-CV-00039
ERIC GUERRERO,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner, who is represented by counsel, is a state prisoner incarcerated at the
Wynne Unit in Huntsville, TX. (D.E. 1). He filed this habeas corpus petition pursuant to
28 U.S.C. § 2254, challenging his 2013 DeWitt County conviction for aggravated sexual
assault to a child. (D.E. 9-1, Page 1). Pending is Respondent’s Motion for Summary
Judgment filed on December 2, 2025, to which Petitioner responded on January 6, 2026.
(D.E. 23 and D.E. 27). The relevant state court records have been filed, and Petitioner has
also submitted additional exhibits. (D.E. 13; D.E. 17 and D.E. 22). For the reasons stated
below, it is respectfully RECOMMENDED the Court GRANT Respondent’s Motion for
Summary Judgment and DISMISS this action. (D.E. 23). The undersigned further
RECOMMENDS the Court DENY a Certificate of Appealability.
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
United States District Court
Southern District of Texas
ENTERED
March 16, 2026
Nathan Ochsner, Clerk
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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 Victoria Division of
the Southern District of Texas. Id.; 28 U.S.C. § 124(b)(5). This case was referred to the
undersigned pursuant to 28 U.S.C. § 636.
II. BACKGROUND
On March 4, 2013, after a jury trial, Petitioner was found guilty of aggravated sexual
assault to a child and sentenced to 99 years’ incarceration. (D.E. 22-13, Pages 6 and 16-
17). The full factual background relevant to this case was summarized by the state
appellate court and submitted here by Respondent, and therefore, need not be repeated
again at length. (D.E. 17-1, Pages 2-5 and D.E. 23, Pages 3-6). In short, Petitioner was
convicted of sexually abusing his girlfriend’s 17-month-old son. A CT scan of the child’s
abdomen revealed he “suffered a rectal injury caused by penetration of his anus with a
blunt object.” (D.E. 17-1, Page 3). Dr. James Lukefahr, a pediatrician specializing in child
abuse pediatrics, testified at trial that the “penetrating injury to the anus [] extended quite
a ways up into the abdominal cavity and that that penetration allowed for infection and
toxins to then cause massive inflammation of [the child’s] entire intestinal tract and led to
shock and his loss of consciousness.” (D.E. 17-1, Page 4). Dr. Lukefahr further testified
“the penetration was likely with a razor and ‘was definitely more likely to be a deliberate
injury,’” not an accident such as “falling off the bed, diarrhea or a rash.” (D.E. 17-1, Pages
4-5). “Due to an infection related to the rectal injury and resulting loss of consciousness,
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[the child] suffered permanent brain damage as well as injuries to his liver, lungs, and
kidneys…[and] the removal of one of the muscles in [his] lower leg.” (D.E. 17-1, Page 3).
Additionally, the child “also exhibited various injuries such as a fractured wrist, a cut on
his buttocks, a ruptured eardrum, and cigarette burns to his toes,” which were less than two
weeks old at the time he arrived at the hospital, according to Dr. Lukefahr’s testimony.
(D.E. 17-1, Pages 4 and 5). Officer Carl Bown testified a razor with a stain appearing to
be blood on the blunt end was recovered from Petitioner’s bathroom as well as a stained t-
shirt and towel from the laundry hamper. (D.E. 17-1, Page 5). The victim’s mother
testified all three items belonged to Petitioner and a forensic scientist from the Department
of Public Safety Crime Laboratory in Corpus Christi, Texas, testified all three items tested
positive for the victim’s DNA. (D.E. 17-1, Page 5).
Petitioner filed a direct appeal and his conviction was affirmed on August 14, 2014.
Wasserman v. State, No. 13-13-144-CR (Tex. App. – Corpus Christi-Edinburg 2014, pet.
ref’d); (D.E. 17-1). Petitioner then filed a petition for discretionary review (“PDR”) which
was refused on March 4, 2015. Wasserman v. State, PD-1360-14 (Tex. Crim. App. 2015);
(D.E. 17-13 and D.E. 17-14). Petitioner’s writ of certiorari was denied by the United States
Supreme Court on October 5, 2015. (D.E. 9-1, Page 3). Over six years later, on November
12, 2021, Petitioner, through counsel, filed a state habeas application challenging his
conviction which was denied on August 24, 2022, by the Texas Court of Criminal Appeals
(“CCA”) without a written order on findings of the trial court after a hearing and on its
independent review of the record. (D.E. 22-13, Pages 51-142 and D.E. 17-36). Just under
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three years later, on June 4, 2025, Petitioner, through counsel, filed the pending federal
habeas petition. (D.E. 1).
III. SUMMARY JUDGMENT STANDARD
In deciding a motion for summary judgment, the district court must determine
whether the pleadings, discovery materials, and the summary judgment evidence show
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56. Once the movant presents a properly
supported motion for summary judgment, the burden shifts to the non-movant to show
with significant probative evidence the existence of a genuine issue of material fact.
Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).
Generally, Rule 56 of the Federal Rules of Civil Procedure, which governs summary
judgment procedure, applies with equal force to federal habeas corpus cases. Clark v.
Johnson, 202 F.3d 760, 764-65 (5th Cir. 2000) (citations omitted); see also Fed. R. Civ. P.
81(a)(4) (“These rules apply to proceedings for habeas corpus…”). However, Rule 56
applies only to the extent that it does not conflict with the federal rules governing habeas
proceedings. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other
grounds by Tennard v. Dretke, 542 U.S. 274 (2004). Accordingly, § 2254(e)(1), mandating
that a state court’s findings are presumed to be correct, overrides the summary judgment
rule that all disputed facts must be construed in the light most favorable to the non-movant.
Smith, 311 F.3d at 668. Unless a petitioner can rebut the presumption of correctness of a
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state court’s factual findings by clear and convincing evidence, such findings must be
accepted as correct by the federal habeas court. § 2254(e)(1); Id.
IV. Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 28 U.S.C.
§2254
Federal habeas corpus petitions are governed by the AEDPA. Relief shall not
extend to a prisoner unless he is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3) & § 2254(a); Brecht v. Abrahamson,
507 U.S. 619, 633-34 (1993). Under AEDPA, a state prisoner may not obtain relief with
respect to any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim:
(a) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(b) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by the U.S. Supreme Court on a
question of law or if the state court decides a case differently than the Court on a set of
materially indistinguishable facts. Under the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court identifies the correct governing legal
principle from the Court’s decisions but unreasonably applies the principle to the facts of
the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Although
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“unreasonable” is difficult to define, the Court noted it is an objective, rather than
subjective, standard and emphasized that there is a critical difference between an
unreasonable application of federal law and a merely “incorrect” or “erroneous”
application of federal law. Neal v. Puckett, 239 F.3d 683, 687 (5th Cir. 2001) (citing
Williams, U.S. 362 at 412-13).
“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fair minded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). A federal habeas court must determine what theories
or arguments supported, or could have supported, that state court’s decision. If a decision
by a state court is silent as to the reasons for the denial, a federal habeas court can “look
through” the decision and evaluate the last reasoned state court decision. Bledsue v.
Johnson, 188 F.3d 250, 256 (5th Cir. 1999).1 Then, the federal habeas court must ask
whether it is possible that fair-minded jurists could disagree that the arguments or theories
are inconsistent with the holding in a prior decision of the Supreme Court. Richter, 562
U.S. at 101-02. Even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable. Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
1The Texas Court of Criminal Appeals (“TCCA”) has explained a “denial” signifies the Court
addressed and rejected the merits of a particular claim while a “dismissal” means the Court has
declined to consider the claim for reasons unrelated to the claim’s merits. Bledsue, 188 F.3d at
257 (citing Ex parte Thomas, 953 S.W.2d 286, 289 (Tex. Crim. App. 1997)).
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This standard is very difficult to meet. “As amended by AEDPA, § 2254(d) stops
short of the imposing a complete bar on federal court litigation of claims already rejected
in state proceedings…It preserves authority to issue the writ in cases where there is no
possibility fair minded jurists could disagree that the state court’s decision conflicts with
this Court’s precedents. It goes no further.” Richter, 562 U.S. at 102. “[A] state prisoner
must show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fair minded disagreement.” Id. at 103.
A state court’s factual findings are presumed to be correct, and a petitioner has the
burden of rebutting the presumption with clear and convincing evidence. Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006). This deference extends not only to express
findings of fact, but to the implicit findings of the state court. Id. In addition, “[w]here a
state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court to deny
relief.” Richter, 562 U.S. at 784.
V. STATUTE OF LIMITATIONS
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 become final by the conclusion of direct
review or the expiration of the time for seeking such review;
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(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).
Petitioner’s writ of certiorari was denied by the United States Supreme Court on
October 5, 2015. (D.E. 9-1, Page 3). As such, Petitioner had one year, until October 5,
2016, to timely file a federal application for habeas corpus relief. 28 U.S.C. § 224(d)(1)(A).
Petitioner’s November 12, 2021, state habeas application filed well 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 on June 4,
2025, over eight 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
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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
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 eight
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.
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VI. 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 he “makes claims of actual innocence
based on newly discovery evidence unavailable and/or unknown to him at the time of trial.
Applicant’s family was only able to afford a habeas investigation in 2019. Experts were
then found and needed [] time to review the volumes of medical documentation. Applicant
acted diligently with the resources available to him and his family.” (D.E. 9-1, Page 9).
Petitioner asserts that “[w]ithin the State’s file was medical documentation indicating that
no sexual assault or crime had occurred. Such evidence was not presented to trial counsel
or at trial.” (D.E. 9-1, Pages 6-7; D.E. 9-2, Pages 33-38 and 48-49; D.E. 13-2; D.E. 13-9;
and D.E. 13-10). Specifically, Plaintiff proffers the medical records of Dr. Karen Guillary
and an unnamed surgeon, who both treated the child. (D.E. 9-2, Pages 48-49 and D.E. 13-
11). The referenced medical records were not presented at trial and the surgeon and Dr.
Guillory did not testify. (D.E. 23, Page 12). Relying on the reports of three experts who
have reviewed these records, Petitioner asserts the child had no perforation in his rectum
or bowel and therefore, he was never sexually assaulted but instead was suffering from
severe diarrhea which caused the infection and resulting organ damage. (D.E. 9-2, Pages
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33-38 and 48-49; D.E. 13-2;2 D.E. 13-9;3 D.E. 13-10;4 D.E. 13-11, Page 15;5 and D.E. 27,
Page 6, FN 2). Petitioner further argues the referenced medical records were not available
2Dr. James M. Betts opined:
I have reviewed pertinent medical records, radiographs, physical photographs, and court
documents relative to this case. From this provided information it is my conclusion that the child’s
condition and physical finding were not from NAT (Non-Accidental Trauma) and child sexual and
physical abuse. Rather this as the result of a medical condition leading to severe dehydration,
diarrhea, and excoriation of his buttocks and perianal area. There is no evidence of perforation of
his bowel on the CT scan which I reviewed. (D.E. 13-2, Page 2).
3Dr. James E. Crawford-Jakubiak noted and opined, in relevant part:
As we have discussed, there are very limited medical records included in the file that you provided
me to review. It is my understanding that the trial attorney did not maintain a case file, and did
not have any additional records that might be of assistance to you at this time. It is also my
understanding that the trial attorney neither retained an independent medical expert to review any
medical records prior to trial, nor did he call any of his own medical witnesses (including any other
of [the child’s] treating physicians).
Dr. Guillory ordered an immediate surgical consultation to further evaluate whether or not [the
child] had a perforation of his bowel that would require immediate surgical repair.
Consequently, [the child] was urgently evaluated by a surgeon (I am unable to read the
name/signature of the surgeon) shortly after the abdominal CT was obtained, on the date of the
admission. The surgeon examining [the child] noted “foul smelling liquid stool, normal color (vs.
colon (difficult to read)) and no gross blood.” His review of the abdominal CT was summarized
as “[consistent with] shock physiology with pan abdominal edema. No evidence of intestine or
intraperitoneal perforation.” The surgeon recommended “continue stabilization/resuscitation” and
“careful stool evaluation as source of dehydration/decompensation.” Of note, the surgeon did not
identify any acute traumatic injuries to the child’s buttocks or anus at the time of his examination.
The surgeon examined [the child] within hours after his presentation to Methodist Children’s
Hospital.
It is clear that the surgeon felt that [the child] had a medical issue as the cause of his
decompensation and critical condition; it is clear that he did not feel that [the child] had an injury
to his bowel (i.e. there was no bowel perforation) that required surgical repair.
The following day, 4/4/11, Dr. Guillory documented “gen surg [general surgery] w/o [without]
evidence for surgical intervention/exploration last pm.” On 4/15/11, Dr. Guillory again
documented “No surgical issue” related to his GI issues.
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To my knowledge [the child] never had any operative procedures to repair a perforation of his
rectum.
The SART examiner [on 4/15/11] did not identify any acute injuries to [the child’s] buttocks or
anus.
In this case…the medical record is quite clear that while the radiologist who read the initial
abdominal CT had initially shared a concern that [the child] may have had a perforated bowel, [the
child] was formally evaluated for this possibility by the surgical team. It is clear from the medical
record that the surgeon who evaluated [the child] did not feel that he had a rectal perforation. The
surgeon documented clearly that he felt that the child was very sick as a result of medical issues
(the dehydration and decompensation had occurred as a result of his days of severe diarrhea
associated with poor oral intake due to his viral gastroenteritis), not surgical issues (i.e. not a
perforation).
Bowel perforations are considered surgical emergencies, and if a surgeon believes that a patient
has a bow[e]l perforation (or even a strong concern that they may have a bowel perforation) they
will routinely take that patient to the operating room to either further assess for this issue, or to
repair it in the event that it is present. In this case, the fact that the surgeon did not take the child
to the operating room is yet another reflection of the fact that they did not feel the child had a
bowel perforation.
Similarly, Dr. Guillory repeatedly documented in her notes that [the child] did not have surgical
issues (i.e. no bowel perforation) related to his GI issues.
In my opinion, I am in agreement with the surgeon and Dr. Guillory in this case as to the cause of
[the child’s] illness. It is clear that [the child] had days of severe diarrhea prior to admission, with
poor oral intake and he developed severe dehydration and decompensated, developing shock and
HIE (hypoxic ischemic encephalopathy) as a result. The ongoing diarrhea resulted in extremely
excoriated/irritated skin of the buttocks as well as anal fissures. He also became septic with Group
A strep as a result of his condition.
Review of the documented examination findings as well as the images of the buttocks and anal
area of the child clearly demonstration that there were no acute injuries, such as anal bruises or
significant acute anal lacerations that would be considered specific for or even suggestive of a
recent event of violent sodomy. All the findings documented in the written record and seen in the
images are all consistent with what can be seen when a young toddler experiences days of severe
diarrhea.
(D.E. 13-9, Pages 2-7) (emphasis in original).
4Dr. Kenneth W. Martin opined:
There is no specific evidence of colonic or rectal perforation. The presence of acute gastroenteritis,
sepsis, shock, and massive fluid hydration is sufficient to account for all findings. While it was
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until after he hired habeas counsel in 2019 because they were withheld from the defense in
violation of Brady6 and/or due to ineffective assistance of his trial counsel who had access
to them but failed to discover or utilize them by retaining an expert. (D.E. 9-1, Pages 6-7
and D.E. 9-2, Pages 49-60). Petitioner also asserts that if the State’s experts, specifically
Dr. Lukefahr, “had access to these records, it is likely he would not have concluded that
abuse occurred against the complainant.” (D.E. 9-2, Page 52).
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’
prudent to mention the possibility of recto-sigmoid perforation, the diagnosis appears to have been
excluded on clinical grounds by the consulting surgeon. The absence of radiographic signs of
peritonitis and abscess formation would also make recto-sigmoid perforation unlikely.
(D.E. 13-10, Page 6).
5This page contains notes regarding a CT scan which, upon review, are difficult to read. Petitioner
asserts they state there was “[n]o evidence of [illegible] intestine or intraperitoneal perforation.”
(D.E. 9-2, Page 48 and D.E. 13-9).
6A successful Brady claim that the State suppressed evidence requires the evidence to be favorable
to the accused as exculpatory or impeaching, suppressed by the State either willfully or
inadvertently and the exclusion caused resulting prejudice. Brady v. Maryland, 373 U.S. 83
(1963). “Case often add a fourth requirement: ‘nondiscovery of the allegedly favorable evidence
was not the result of a lack of due diligence.’” Cruz-Garcia v. Lumpkin, No. 17-cv-3621, 2023
WL 6221444, at *60 (S.D. Tex. Sept. 25, 2023) (“A Brady claim fails if the suppressed evidence
was discoverable through reasonable due diligence.”) (citations omitted).
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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 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).
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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. All the medical records referenced by Petitioner and relied on by his
three experts were available during the original proceedings. (D.E. 22-15, Page 140) (Open
File Agreement);7 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
7While Petitioner repeatedly asserts the referenced medical documents from an unnamed treating
surgeon and Dr. Guillory were not “available to Petitioner at the time of his trial,” Petitioner does
not respond to the pending Motion’s citation to the Open File Agreement or otherwise demonstrate
the child’s referenced medical records were unavailable or undisclosed at or prior to trial as part
of the State’s file. (D.E. 9-2, Page 52 and D.E. 27).
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reach of [petitioner’s] personal knowledge or reasonable investigation.”) (citations
omitted). Additionally, Petitioner’s allegations here were already rejected by the state
court during Petitioner’s state habeas proceedings. The state habeas court found, in
relevant part:
Applicant did not complain of alleged ineffectiveness of his trial counsel on
appeal. Applicant did not obtain reports of purported experts contradicting
trial expert witnesses for more than 5 years after all Texas appellate review
was concluded, unfavorably to Applicant’s interests. Applicant refused to
authorize his trial counsel to retain independent medical experts prior to trial.
Applicant’s trial counsel reviewed all evidence in the possession of the State
prior to trial and interviewed witnesses who would submit to pre-trial
inquiry. Applicant’s trial counsel cross examined all State witnesses
appropriately, in light of evidence available to Applicant at time of trial.
Considering the totality of the evidence presented at trial, Applicant’s trial
counsel’s representation of Applicant was not deficient…[and] Applicant
was not prejudiced due to the representation by trial counsel.
(D.E. 22-15, Pages 8-9 and D.E. 17-36); Bledsue, 188 F.3d at 257; 28 U.S.C. § 2254 (d)
and (e)(1).8
Further, to the extent Petitioner contends the evidence support 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. Petitioner overstates the
substance and effect of the purportedly “new” evidence and after trial expert opinions. At
8Petitioner’s trial counsel, Neftali Villfranca, averred, “Even though Undersigned Counsel did
raise the need for possible experts in this case, Mr. Wasserman, who had the financial ability, (was
not indigent), to hire experts, repeatedly refused to do so, claiming Undersigned Counsel was
simply trying to get more money from him. Besides, Mr. Wasserman continued to profess his
innocence and did not feel the need for experts, medical or otherwise.” (D.E. 17-28, Page 6). Mr.
Villafranca further averred that initially, the jury was deadlocked six to six on guilt or innocence
and a plea offer of 12 years incarceration was made at that time. (D.E. 17-28, Page 7). Against
his counsel’s advice, Petitioner rejected the plea offer and the jury later found Petitioner guilty,
assessing a life sentence. (D.E. 17-28, Page 7).
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most, they provide conflicting medical opinions to those of the State’s experts as to the
cause of the child’s injuries that would have then been considered and weighed by the jury,
along with the DNA evidence on Petitioner’s razor, t-shirt and towel, discussed above.
Petitioner’s argument that “[h]ad Dr. Lukefahr had access to these records, it is likely he
would not have concluded that abuse occurred against the complainant” is entirely
speculative and conclusory. (D.E. 9-2, Page 52). Therefore, as argued by Respondent,
Petitioner’s “proffered evidence, if presented to a jury, would only result in a battle of the
experts; it would not, in of itself, exculpate [Petitioner] of aggravated sexual assault of a
child.” (D.E. 23, Page 15).
In short, Petitioner has failed to demonstrate that in light of this evidence, no juror
would have voted to find him guilty given the other 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.
VII. DISCOVERY AND HEARING
Petitioner argues discovery is warranted in this case. However, a habeas petitioner
is generally not entitled to discovery. Rather, “Rule 6 of the Rules Governing § 2254 cases
permits discovery only if and only to the extent that the district court finds good cause.”
Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000) (emphasis added); see also United
States v. Webster, 392 F.3d 787, 801 (5th Cir. 2004) (“A habeas petitioner may ‘invoke the
process of discovery available under the Federal Rules of Civil Procedure if, and to the
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extent that, the judge in the exercise of his discretion and for good cause shown grants
leave to do so, but not otherwise.’”) (citation omitted). The Fifth Circuit has explained that
“[i]n order to establish good cause, the petitioner must demonstrate that ‘a factual dispute,
if resolved in the petitioner’s favor, would entitle him to relief and the state has not afforded
the petitioner a full and fair evidentiary hearing.’” Lave v. Dretke, 416 F.3d 372, 381 (5th
Cir. 2005) (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)). For the reasons
stated above, Petitioner has failed to show good cause here. Additionally, Rule 8 of the
Rules Governing Section 2254 Cases in the United States District Courts provides that an
evidentiary hearing may be held, at the Court’s discretion, after the Court considers the
Respondent’s answer or other responsive pleading. Specifically, Rule 8(a) states:
If a petition is not dismissed, the judge must review the answer, any transcripts and
records of state-court proceedings, and any materials submitted under Rule 7 to
determine whether an evidentiary hearing is warranted.
The undersigned, recommending this case be dismissed, further recommends there is no
basis for an evidentiary hearing in this case.
VIII. 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.
IX. RECOMMENDATION
Based on the foregoing, it is respectfully RECOMMENDED that the Court
GRANT Respondent’s Motion (D.E. 23) and DISMISS this case as time barred. It is
further recommended that the Court DENY a certificate of appealability.
Respectfully submitted on March 16, 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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