Atkins v. Director, TDCJ-CID

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
JOHN LOUIS ATKINS,
Petitioner,
No. 1:23-CV-00192-H
DIRECTOR, TDCJ-CID,
Respondent.
OPIMONANDORDER
Petitioner John Louis Atkins, a self-represented state prisoner, filed this petition for
writ of habeas corpus under 28 U.S.C. $2254to challenge his conviction and 67-year
sentence for murder. Respondent filed an answer with copies ofPetitioner's relevant state-
court records, arguing that the petition is untimely and, altematively, that it is partially
unexhausted and that one of his claims is not cognizable. Dkt. No. 28, 29. Petitioner fi.led
a reply. Dkt. No. 38. Then he filed a morion to supplement his petition with additional
records. Dkt. No.43. He also filed a motion to compel the Texas Court of Criminal
Appeals (TCCA) to disclose the names of the judges that adjudicated his state habeas
application. Dkt. No. 46. As explained below, the Court denies Petitioner's motion to
compel for lack ofjurisdiction. Additionally, the Court denies the motion to supplement as
futile and concludes that the petition must be denied and dismissed with prejudice because it
is untimely.
1. Background
A. Procedural History
A Taylor County jury found Petitioner guilty of murder on February 2,2018, and
sentenced him to 67 years in prison. The Eleventh Court of Appeals affirmed his
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conviction, and, after granting him permission to file an out-of-time petition for
discretionary review, the Texas Court of Criminal Appeals (TCCA) refused his petition for
discretionary review on March 17, 2021. He did not file a petition for writ of certiorari in
the Supreme Court.
Petitioner fi.led a state application for writ of habeas corpus on March 14,2022,but
the TCCA denied it on May 25,2022 without written order. Petitioner filed another state
habeas application on June 18,2023, but the TCCA dismissed it as subsequent on July 26,
2023.
Petitioner fi.led this federal habeas action on September 18,2023.t He later filed an
amended petition. Dkt. No. 19.
B. The Parties' Arguments
The Court understands Petitioner to challenge his conviction and sentence on these
grounds:
1)
2)
He is acrually innocent because Giani Tedeschi shot the victim;
The TCCA erroneously denied his second state habeas application as
subsequent even though it was the fust application to substantively challenge
his conviction;
4)
He received ineffective assistance of trial counsel when his aftomey failed to
adequately develop crucial facts to prove that his arrest was illegal;
I See Spotville v. Cain, 149 F .3d 374,3 78 (5th Cir. 1998) (Providing that a prisoner's habeas petition is
deemed to be filed when he delivers the papers to prison authorities for mailing).
s)
2
Officer Walker never drafted a police report, and the prosecutor did not
disclose the undrafted report in violation of Brady v. Maryland;
He received ineffective assistance of appellate counsel when his attomey
failed to present the totality of the circumstances of his wanantless arest;
3)
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6) He received ineffective assistance of trial counsel when his attomey failed to
investigate, interview, or subpoena favorable available wimesses;
7) He received ineffective assistance of trial counsel when his attomey failed to
follow his defense directives or provide a coherent trial strategy;
8) He received ineffective assistance oftrial counsel when his attomey failed to
properly argue a motion to suppress the fruits of his wanantless arest;
e) He received ineffective assistance of frial counsel when his attomey failed to
argue the violation of his Miranda rights during his custodial interrogation;
11) He received ineffective assistance of appellate counsel when his attorney
failed to raise the sufficiency ofthe evidence;
12) He received ineffective assistance of trial counsel when his attomey failed to
review grand jury proceedings; and
l3) He received ineffective assistance oftrial counsel and the trial court abused its
discretion by not understanding and applying collateral estoppel to preclude
the admission of the murder weapon.
Dkt. No. 19.
Respondent argues that the Court should deny Petitioner's claims and dismiss the
petition with prejudice because it is barred by the applicable statute of limitations. Dkt. No.
29. Alternatively, Respondent argues that Petitioner's fust and fourth grounds for relief are
unexhausted, and his thild ground for relief is not cognizable. Id. Thus, Respondent argues
that Petitioner is not entitled to federal habeas reliefand urges the Court to dismiss the
petition with prejudice. 1d.
Petitioner filed a reply. He argues that he is entitled to equitable tolling because he
did not receive timely notice ofthe state habeas court's decision and because the state trial
judge unethically refused to recuse himself from the habeas review process. He also
contends that the respondent incorrectly calculated the date that his conviction became final
because it did not account for the Supreme Court's extending the time for filing a petition
3
10) He received ineffective assistance of trial counsel when his attomey failed to
request a proper jury instruction on illegally obtained evidence;
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for writ of certiorari. Thus, he argues that his petition should be deemed timely, but even if
it was untimely, he asserts that he has shown cause and prejudice to excuse his untimeliness
and his failure to exhaust certain claims because he has diligently sought, and found, new
evidence.
C. Petitioner'sPost-BriefingMotions
Well after briefing was completed in this case, Petitioner moved to supplement his
petition with "new evidence" consisting of leners he wrote to the Taylor County District
Attomey's office from prison, and conespondence he received back from the DA's office.
Dkt. No.43. In essence, the proposed supplement shows that Petitioner asked the DA's
office (1) why OfEcer Walker was not subpoenaed to testiry, and (2) why he was not
required to write a report. The DA's office answered that (1) Officer Walker's military duty
prevented service of the subpoena, and (2) OfrEcer Walker did write a report, which the
DA's office produced to Petitioner during discovery in his underlying state oiminal
proceeding. Dkt. No. 43-l at2. And the DA's office attached supporting documents to the
conespondence. Dkt. No. 43-1 at 3-5. Now, Petitioner asks to supplement his petition
with the post-conviction correspondence and attached documentation, as well as an
additional statement from Petitioner's sister. Dkt. No. 43. But he has not shown that the
proposed supplement may be properly considered in this proceeding. See Cullen v. Pinholster,
563 U.S. 170, 181-82 (2011); Rule 7 of the Rules Goveming Section 2254 Cases. Nor has
he shown that the documents provided by the DA's office were unavailable at the time of
his trial. And in any event, even if the Court permitted the supplement, it would not alter
the Court's conclusion that Petitioner's claims are time barred. Thus, the motion to
supplement, Dkt. No. 43, is denied.
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Petitioner also seeks mandamus relief, seeking to compel the TCCA to disclose the
names of the judges who reviewed his state habeas application. He asserts that he has "very
good reason to believe that the Texas Court of Criminal Appeals . . . 'rubber-stamped' the . .
. adjudication" of his application, and "not even one judge reviewed the writ ofhabeas
corpus in the Texas Court of Criminal Appeals." Dkt. No. 46 at 1. Thus, he asks for a writ
of mandamus to "[r]esolv[e] this dubious issue." 1d at 2.
Under 28 U.S.C. 0 1361, federal district courts have mandamus jurisdiction "to
compel an officer or employee of the United States or any agency thereof to perform a duty
owed" to a petitioner. "But a federal court lack the general power to issue writs of
mandamus to dtect state courts and their judicial officers in the performance of their
duties." Moyev.Clerk,DeKalbCty.Super.Ct.,474F.2dL275,1276(5thCn.D73). Thus,the
Court lacks the authority to compel the TCCA to disclose the identity of the judges
responsible for the per curiam denial of habeas relief. Petitioner's motion, Dkt. No. 46, is
denied as frivolous.
2. Discussion
The Court has reviewed Petitioner's pleadings, Respondent's answer, and the state
court records submitted by Respondent. The Court finds that an evidentiary hearing is not
necessary to resolve the instant petition. See Young v. Heting,938 F.2d 543, 560 n.12 (5th
Cil. 1991) (explaining that "a petitioner need not receive an evidentiary hearing if it would
not develop material facts relevant to the constitutionality of his conviction"). As explained
below, regardless ofwhether Petitioner's claims are exhausted, cognizable, or otherwise
procedurally barred, the petition must be dismissed as untimely.
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A. Statute of Limitations
Petitioner's petition is subject to review under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). AEDPA establishes a one-year limitation on fi.ling federal
habeas corpus petitions. Specifically,28 U.S.C. 52244(d) provides:
(l) A 1-year period of limitation shall apply to an application for a writ ofhabeas
corpus by a person in custody pursuant to a judgment ofa 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 fi.ling 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 recogrrized 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 tfuough the exercise ofdue 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.
B. Relevant Timeline and Statutory Tolling
Petitioner's conviction became final on August 16, 2021, when his time for filing a
petition for writ ofcertiorari expired.2 Thus, absent any tolling, Petitioner's federal petition
was due one year later, on August 16, 2022. Petitioner's relevant state habeas application,
WR 91,551-02, was properly filed and tolled the limitations period for 72 days, making his
2The Texas Coun of Criminal Appeals refused Petitioner's Petition for Discretionary Review on
March 17, 2021. Ordinarily, a petition for writ of certiorari to the Supreme Court would have been
due 90 days later. See Sup. Ct. R. 13. I . But because Petitioner's state-court proceedings took place
between March 20, 2020 and July 19,2021, he was subject to the Supreme Court's COVID-era
extension otthe deadline to 150 days. See Guidance Conceming Clerk's Office Operations, July 19,
2021, https: / /www.supremecourt.govlannouncements/COVID- l9-Guidance-July-2021 .pdf (last
visited Jan. 14,2026).
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federal petition due on October 27,2022. Petitioner's subsequent state habeas application
did not toll the limitations period because it was filed after the limitations period expired.
Pedrioner did not file his federal petition until September 18, 2023, Thus, absent any
equitable tolling, the petition was nearly eleven months late.
C. Equitable Tolling
In "rare and exceptional circumstances, " the doctrine of equitable tolling may
preserve a petitioner's claims when the strict application of the statute of limitations would
be inequitable. Dayis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); Iary v. Drake,361F,3d
890, 896-97 (5th Ck. 2004). Equitable tolling does not apply when an applicant has "failed
to diligently pursue his ights." Lany,361 F.3d at 897. Additionally, the Petitioner must
show that "some extraordinary circumstance stood in his way and prevented timely filing."
Holland v, Fla.,560 U.S. 631, 649 (2010).
Petitioner acknowledges that his petition was likely filed after the expiration of the
limitation period. He argues that he should be entitled to equitable tolling because he did
not receive timely notice of the TCCA's denial of his claims. He contends that he never
received the TCCA's white-card denial; rather, he leamed about the denial when the habeas
court referred to it in separate conespondence on January 24,2023. Dkt. No. 19 at 19.
Assuming that's true, Petitioner would be entitled to 244 days of equitable tolling (from
May 25, 2022 to Ianvary 24,2023). See Hardy v. Quartetman, 577 F.3d 596, 598-99 (5th Cir.
2009) (explaining that long delays in receiving notice ofstate court acrion may warrant
equitable tolling). That moves his deadline to June 28, 2023, which in tum, renders his
subsequent state habeas application properly f,led, which provides an additional 38 days of
tolling. Sae Villegas v. Johnson, 184F.3d467,470 (5th Cir. 1999) (explaining that a second
state petition, although ultimately dismissed as successive, may be properly filed for
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purposes of tolling the limitations period). Considering all applicable statutory and
equitable tolling, Petitioner's federal petrtion was due on Monday, August 7, 2023.i But
again, Petitioner did not initiate this federal habeas action until September 18, 2023-more
than a month too late.
Petitioner argues that he is entitled to additional equitable tolling because he lost
access to his personal property, including his legal work, when he was transferred between
prison units on May 1,2023. He contends that he did not receive his legal papers until
October 2023. The Court finds that Petitioner is not entitled to equitable tolling for this
period, however. First, the conditions Petitioner complains of-difficulty obtaining records,
prison lockdowns, and transfers between units-are common parts of prison life and not
extraordinary circumstances that warrant equitable tolling. Saa, e.g., Brown v, Dretke,3:02-
CV-I186-R, 2004 WL 60266, at *2 (N.D Tex. 2004); Ford v. Stephens, No. 4:13-CV-661-C,
2013 WL 5813013, at *3 (N.D. Tex. Oct. 29,2013); United Statesv. Cockerham,2012WL
12867870, at *2 (W.D. Tex. Aug. 27 , 2012) ("Transfers to other facilities resulting in
separation from legal papers are not rare and extraordinary and do not warrant equitable
tolling. ").
Moreover, the Court notes that Petitioner filed his subsequent state habeas
application in June 2023-about a month after he claims to have lost access to his legal
work. He has not shown that his prison ffansfer, lockdown, or inability to access records
presented an extraordinary ctcumstance that stood in the way of his timely filing. This is
also supported by the fact that his federal petition was ultimately filed before his access to
the lost legal documents was restored.
sThe deadline would have been August 5, 2023, which was a Saturday
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Finally, Petitioner's demonstrated lack ofdiligence in pursuing habeas relief
precludes him from any additional tolling. He waited more than seven months after his
conviction became final before fi.ling his state habeas application. And he failed to inquire
about the starus of his state habeas application for nearly ten months. Then, when he
inadvertently discovered that the TCCA had denied relief, he waited another eight months
before initiating this habeas action. Thus, Petitioner is not entitled to additional tolling, and
his federal petition remains untimely.
D. Actual Innocence
Next, the Court must consider whether Petitioner's actual-innocence claim entitles
him to bypass the application of the statute of limitations. "The Fifth Circuit does not
recognize freestanding claims of actual innocence on federal habeas review. " .Ia re
Swearingen,556 F.3d 3M,348 (5th Cir. 2009); Gravesv. Cockrell,35l F.3d 143, 151 (5th Cir.
2003) (collecting cases). However, a credible claim ofactual innocence may serve as a
gateway to overcome impediments such as procedural default or the expiration of the
statute of limitations. McQuiggin v. Perkins,569 U.S. 383, 386 (2013).
This rule, also known as the "fundamental miscarriage ofjustice exception," is based
on equitable principles to ensure that "constitutional errors do not result in the incarceration
of innocent persons." Id. at392 (quottngHerrerav. Collins,506 U.S. 390,404 (1993).
Importantly, innocence here refers to factual innocence and not mere legal insufficiency.
Bousley v. United States,523 U.S. 614, 623 (1998); Sawyer v. Ilhitky,505 U.S. 333, 339
(teez).
"The meaning of actual ilnocence . . . does not merely require a showing that a
reasonable doubt exists in the light olthe new evidence, but rather that no reasonable juror
would have found the defendant gtrlty." Schlup v. Delo, 5l3 U.S. 298, 329 (1995). "[T]he
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Schlup standard is demanding and permits review only in the 'extraordinary' case." House y.
Bell, 547 U.S. 518, 538 (2006) (citing Schlup v. Delo, 513 U.S. at 329). The Supreme Court
has emphasized that this exception applies to a very narrow category ofcases. McQuiggin,
569 U. S. at 394-95. To present a credible claim of actual innocence, a petitioner must
present new evidence that was unavailable at the time of trial, based on which it is more
likely than not that no reasonable juror would have convicted the petitioner. See Calderon v.
Thompson,523 U.S. 538, 559 (1998) (explaining that, to be credible, a claim of actual
ilnocence must be based on reliable evidence not presented at trial).
Here, Petitioner has failed to make a credible showing of actual innocence. He
claims that he was present when the victim was shot and killed, but that he was not the one
who fired the gun. But he does not rely on any new evidence to support that allegation.
And he necessarily would have known those alleged facts before his trial. He does not offer
or identifu any evidence that was unavailable during the original proceedings.a And at
most, he offers an altemative theory of the case that a jury could either accept or reject. But
that is not enough to satisfu the demanding Schlup standard. In short, Petitioner has failed
to present any new evidence to support his claim of acrual innocence, nor has he shown *rat
no reasonable juror would have found him guilty. Thus, he has not made a credible claim
of acrual innocence sufficient to overcome the application of the statute of limitations or
other procedural bars. Thus, his petition must be dismissed as untimely.
3. Conclusion
In sum, even with the benefit of significant statutory and equitable tolling,
Petitioner's claims are time baned. Thus, the Court dismisses the petition with prejudice.
{ As discussed above, Petitioner claimed to have discovered new evidence for purposes ofhis motion
to supplement the petition. Dkt. No. 43. But Petitioner's proposed supplemental records have no
bearrng on his claim ofactual innocence.
l0
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The Court therefore orders:
(1) The petition for writ of habeas corpus is dismissed with prejudice.
(2) A11 reliefnot granted is denied, and any pending motions are denied.
(3) Under Rule 22 of the Federal Rules of Appellate Procedure and 28 U.S.C.
0 2253(c), this Court finds that a certificate of appealability should be denied. For the
reasons set forth above and in Respondent's answer, Petitioner has failed to show that
reasonable jurists would find (1) this Court's "assessment of the constitutional claims
debatable or wrong," or (2) "it debatable whether the petition states a valid claim ofthe
denial ofa constitutional right" and "debatable whether [this Court] was correct in its
procedural ruling." Slack v. McDaniel,529 U.S. 473,484 (2000).
The Court will enter judgment accordingly.
DatedJantaryLL,2026.
J
U d States District Judge
WESLEY HENDRIX
il
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