Ramirez v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
OMAR ALBERTO RAMIREZ, §
TDCJ NO. 01072249 §
§
Petitioner, §
§ No. 3:25-cv-1655-K-BN
V. §
§
DIRECTOR, TDCJ-CID, §
§
Respondent. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Omar Alberto Ramirez, a Texas prisoner, submitted a pro se petition for writ
of habeas corpus under 28 U.S.C. § 2254 relating to his 2001 convictions from Dallas
County. See Dkt. No. 3, 9. And United States District Judge Ed Kinkeade referred
Ramirez’s petition to the undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order of reference.
This case was initially opened because Ramirez submitted a motion seeking
permission to file his petition out of time, which the undersigned construes as a
motion to equitably toll the limitations period under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). See Dkt. Nos. 3, 4. Because that motion focused
on the date his most recent state habeas petition was denied rather than the date his
conviction became final, the undersigned issued a questionnaire to Ramirez to
provide him with an opportunity to explain why his federal habeas action was not
time-barred and what (if anything) prevented him from filing sooner. See Dkt. No. 8.
And Ramirez filed his responses. See Dkt. No. 12.
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And the undersigned enters these findings of fact, conclusions of law, and
recommendation that, under the circumstances here and for the reasons set out
below, the Court should deny the motion seeking to equitably toll the limitations
period and dismiss this federal habeas challenge with prejudice as time barred under
Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 4).
Legal Standards
Habeas Rule 4 allows a district court to summarily dismiss a habeas
application “if it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” see also
Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (“This rule differentiates habeas
cases from other civil cases with respect to sua sponte consideration of affirmative
defenses. The district court has the power under [Habeas] Rule 4 to examine and
dismiss frivolous habeas petitions prior to any answer or other pleading by the state.
This power is rooted in “the duty of the court to screen out frivolous applications and
eliminate the burden that would be placed on the respondent by ordering an
unnecessary answer.” (citation omitted)).
While “the statute of limitations provision of the AEDPA is an affirmative
defense rather than jurisdictional,” a district court may dismiss a time barred Section
2254 application sua sponte under Habeas Rule 4. Kiser, 163 F.3d at 329.
But, “‘before acting on its own initiative’ to dismiss an apparently untimely
§ 2254 petition as time barred, a district court ‘must accord the parties fair notice and
an opportunity to present their positions.’” Wyatt v. Thaler, 395 F. App’x 113, 114 (5th
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Cir. 2010) (per curiam) (cleaned up; quoting Day v. McDonough, 547 U.S. 198, 210
(2006)).
Under the circumstances here, the questionnaire provided notice and
Petitioner has had an opportunity to respond. And these findings, conclusions, and
recommendation also provide Petitioner fair notice, and the opportunity to file
objections to them (further explained below) affords an additional chance to present
to the Court his position as to the limitations concerns explained below. See, e.g.,
Ingram v. Dir., TDCJ-CID, No. 6:12cv489, 2012 WL 3986857, at *1 (E.D. Tex. Sept.
10, 2012) (a magistrate judge’s report and recommendation gives the parties “fair
notice that the case may be dismissed as time-barred, which [gives a petitioner] the
opportunity to file objections to show that the case should not be dismissed based on
the statute of limitation” (collecting cases)).
AEDPA “introduced both ‘simple logic’ to the federal habeas landscape and
uniform rules for federal courts to apply.” Wallace v. Mississippi, 43 F.4th 482, 492
(5th Cir. 2022) (quoting Smith v. Titus, 141 S. Ct. 982, 987 (2021) (Sotomayor, J.,
dissenting from denial of cert.), then citing Day, 547 U.S. at 202 n.1).
“Namely, it implemented a host of greatly needed procedural requirements for
petitioners seeking habeas relief.” Id. (citing Brown v. Davenport, 142 S. Ct. 1510,
1524 (2022) (“In many ways, the statute represented a sea change in federal habeas
law.”)).
One such requirement is “the one-year period for an individual in custody
pursuant to a state-court judgment to file a § 2254 petition for habeas relief” that
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“begins running from the latest of four events.” Id. at 497 (citing 28 U.S.C. § 2244(d)):
(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.
28 U.S.C. § 2244(d)(1).
The time during which a properly filed application for state post-conviction or
other collateral review is pending is excluded from the limitations period. See id.
§ 2244(d)(2).
The one-year limitations period is also subject to equitable tolling – “a
discretionary doctrine that turns on the facts and circumstances of a particular case,”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), and only applies in “rare and
exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002)
(citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
“[A] litigant is entitled to equitable tolling of a statute of limitations only if the
litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.’” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016)
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(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
“‘The diligence required for equitable tolling purposes is reasonable diligence,
not maximum feasible diligence.’ What a petitioner did both before and after the
extraordinary circumstances that prevented him from timely filing may indicate
whether he was diligent overall.” Jackson v. Davis, 933 F.3d 408, 411 (5th Cir. 2019)
(quoting Holland, 560 U.S. at 653; footnote omitted).
But “[a] petitioner’s failure to satisfy the statute of limitations must result from
external factors beyond his control; delays of the petitioner’s own making do not
qualify.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (per curiam)
(citation omitted). So this “prong of the equitable tolling test is met only where the
circumstances that caused a litigant’s delay are both extraordinary and beyond [the
litigant’s] control.” Menominee Indian Tribe, 577 U.S. at 257.
A showing of “actual innocence” can also overcome AEDPA’s statute of
limitations. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But the actual
innocence gateway is only available to a petitioner who presents “evidence of
innocence 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 v. Delo, 513 U.S. 298, 316 (1995)).
That is, the petitioner’s new, reliable evidence must be enough to persuade the
Court that “‘no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.’” Id. at 386 (quoting Schlup, 513 U.S. at 329); see also Johnson v.
Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992) (“The Supreme Court has made clear
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that the term ‘actual innocence’ means factual, as opposed to legal, innocence – ‘legal’
innocence, of course, would arise whenever a constitutional violation by itself requires
reversal, whereas ‘actual’ innocence, as the Court stated in McCleskey [v. Zant, 499
U.S. 467 (1991)], means that the person did not commit the crime.” (footnotes
omitted)); Acker v. Davis, 693 F. App’x 384, 392-93 (5th Cir 2017) (per curiam)
(“Successful gateway claims of actual innocence are ‘extremely rare,’ and relief is
available only in the ‘extraordinary case’ where there was ‘manifest injustice.’”
(quoting Schlup, 513 U.S. at 324, 327)).
Analysis
The timeliness of most Section 2254 applications is determined under
Subsection A, based on the date on which the judgment became final.
And a state criminal judgment becomes final under AEDPA “when there is no
more ‘availability of direct appeal to the state courts.’” Frosch v. Thaler, No. 2:12-cv-
231, 2013 WL 271423, at *1 (N.D. Tex. Jan. 3, 2013) (quoting Jimenez v. Quarterman,
555 U.S. 113, 119 (2009)), rec. adopted, 2013 WL 271446 (N.D. Tex. Jan. 24, 2013).
In June 2001, Ramirez was convicted of aggravated sexual assault after a jury
trial and sentenced to life imprisonment. See State v. Ramirez, No. F00-50891 (195th
Dist. Ct., Dall. Cnty., Tex. June 6, 2001). He then pled guilty to counts of burglary of
a habitation and attempted aggravated sexual assault, two counts of aggravated
robbery, and two additional counts of aggravated sexual assault. See State v. Ramirez,
F00-50892, F00-71574, F00-71816, F00-71817, F00-72109, F00-72185 (195th Dist.
Ct., Dall. Cnty., Tex. Nov. 2, 2001). Ramirez appealed his first conviction for
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aggravated sexual assault. See Ramirez v. State, No. 11-01-00230-CR, 2002 WL
32344501 (Tex. App.—Eastland July 25, 2002, no pet.). But he did not file a petition
for discretionary review. So his state criminal judgment became final for federal-
limitations purposes on the thirtieth day that was not a Saturday, Sunday, or legal
holiday after the final ruling of the court of appeals (on July 25, 2002) when the time
to file a petition for discretionary review expired – which was Monday, August 26,
2002. See TEX. CODE CRIM. PRO. art. 44.45(b)(2). So the deadline to file a federal
habeas petition based on a limitations determination under Subsection A was
Tuesday, August 26, 2003.
And Ramirez did not file a state habeas application attacking his convictions
until December 31, 2012. See In re Ramirez, No. W-0050891-A (195th Dist. Ct., Dall.
Cnty. Tex.), denied, No. WR-79,962-01 (Tex. Crim. App. Nov. 13, 2013). So the
pendency of the state habeas application did not toll the limitations period since the
one-year period for seeking relief under Section 2254 expired more than two years
before the first state habeas application was filed.
Ramirez’s motion seeking equitable tolling focuses on the date he received a
ruling on his most recent state habeas application and the reasons that he did not file
his federal habeas application within one year of that decision, see Dkt. Nos. 3, but
that is not the relevant date for the AEDPA limitations period. And neither his
motion nor his responses to the Court’s questionnaire set out any basis for the
timeliness of the petition to be determined under any subsection other than
Subsection A.
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In his responses to the Court’s questionnaire, Ramirez asserts that he is not
attacking his sentence or conviction in this case but “only seeking a review of the
State’s discovery to ensure that the trial court did not seek to withhold evidence that
can prove [his] innocence.” See Dkt. No. 12 at 6. But “[t]he habeas statute
unambiguously provides that a federal court may issue a writ of habeas corpus to a
state prisoner only on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(cleaned up). So if Ramirez is not challenging his sentence or conviction, his claims
are not properly brought through an application for federal habeas relief.
And “federal habeas corpus relief does not lie for errors of state law.” Id.
(cleaned up). Further, Texas’s procedures providing district attorneys discretion over
disclosure of evidence unless a court orders discovery through a state habeas
proceeding do not violate due process on their face. See Milam v. Jimerson, 152 F.4th
678, 683 (5th Cir. 2025) (“Federal courts have routinely upheld state postconviction
relief procedures where discovery is based on court approval.”).
And to the extent that Ramirez is requesting this Court order discovery from
the State, his vague assertion that he would like to inspect the discovery does not
meet his burden under the Rules Governing Section 2254 Cases to show good cause.
See RULE 6(A) OF THE RULES GOVERNING 28 U.S.C. § 2254 CASES; see also Bracy v.
Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of ordinary course.”). “A
petitioner demonstrates ‘good cause’ under Rule 6(a) where specific allegations before
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the court show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is ... entitled to relief.” United States v.
Fields, 761 F.3d 443, 478 (5th Cir. 2014). Rule 6 “does not authorize fishing
expeditions.” Id.
Ramirez also states that he did not pursue relief sooner because he is not a
citizen, has limited understanding of English, is not familiar with American law, and
did not initially seek assistance from other prisoners sooner because he was afraid he
would be beaten or killed if other prisoners discovered he was convicted of sexual
assault. See Dkt. No. 12 at 4-5, 7, 13.
But “common problems of inmates who are trying to pursue postconviction
habeas relief” do not alone – or even in the aggregate – justify equitable tolling.
Webster v. Stephens, No. 4:13-cv-859-A, 2014 WL 201707, at *2 (N.D. Tex. Jan. 17,
2014) (“It is well settled ... that a petitioner’s pro se status, indigence and lack of
knowledge of the law, all common problems of inmates who are trying to pursue
postconviction habeas relief, do not warrant equitable tolling of the limitations
period.” (citing Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Turner v.
Johnson, 177 F.3d 390, 391 (5th Cir. 1999))); see also Tate v. Parker, 439 F. App’x 375,
376 (5th Cir. 2011) (per curiam) (“The alleged extraordinary circumstances endured
by Tate, such as ignorance of the law, lack of knowledge of filing deadlines, a claim of
actual innocence, temporary denial of access to research materials or the law library,
and inadequacies in the prison law library, are not sufficient to warrant equitable
tolling.” (citing Felder, 204 F.3d at 171-72; Scott, 227 F.3d at 263 & n.3)); Yang v.
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Archuleta, 525 F.3d 925, 929-30 (10th Cir. 2008) (collecting cases finding lack of
proficiency in the English language did not amount to extraordinary circumstances
warranting equitable tolling).
And, even if any of these reasons were grounds for equitable tolling, Ramirez
does not explain why he did not file a federal habeas petition until 2025 despite filing
his initial state habeas petition in 2012. See, e.g., Dkt. No. 12 at 5 (explaining that
Ramirez was able to obtain assistance starting in 2013).
The Court should therefore deny Ramirez’s motion seeking equitable tolling
and dismiss the Section 2254 petition with prejudice as time barred.
Recommendation
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court should
dismiss Petitioner Omar Alberto Ramirez’s 28 U.S.C. § 2254 habeas application with
prejudice as time barred and deny his motion seeking equitable tolling of the
limitations period [Dkt. No. 4]. And the Court should direct that the Clerk of Court
serve any order accepting or adopting this recommendation on the Texas Attorney
General.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
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specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific 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 Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: January 22, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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