Gonzales v. Collier

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BOBBY GONZALES, 	§
ID # 01092926, 	§
Petitioner, 	§
§
v. 	§ 	No. 3:24-CV-175-S-BW
§
DIRECTOR, TDCJ-CID, 	§
Respondent. 	§ 	Referred to U.S. Magistrate Judge1
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the Petition for a Writ of Habeas Corpus by a Person in
State Custody, filed on January 24, 2024. (Dkt. No. 3.) Based on the relevant filings
and applicable law, the Court should DISMISS the petition with prejudice.
I. BACKGROUND
Bobby Gonzales, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division (“TDCJ-CID”), filed a habeas petition under 28
U.S.C. § 2254 challenging two 1982 convictions and concurrent 30-year sentences in
Dallas County, Texas. (See id. at 2.)2 He names a Director of the TDCJ-CID as the
respondent (“State”). (See id. at 1.) Gonzales is currently serving a life sentence in
the TDCJ-CID on a 2002 murder conviction in Dallas County. (See Dkt. No. 17-1 at
1 By Special Order No. 3-251, this habeas case has been automatically referred for
full case management.
2 Citations to the record refer to the CM/ECF system page number at the top of each
page rather than the page numbers at the bottom of each filing.
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5-8); State v. Gonzales, No. F01-56584-MS (282nd Jud. Dist. Ct., Dallas Cnty., Tex.
Mar. 21, 2002).
In 1982, Gonzales pled guilty to two charges of aggravated robbery in Cause
No. F82-77115-JK and Cause No. F82-77116-JK in Criminal District Court No. 4 of
Dallas County, Texas. (See Dkt. No. 15-6 at 3-4, 7; Dkt. No. 15-14 at 3-4, 6); State v.
Gonzales, Nos. F82-77115-JK, F82-77116-JK (Crim. Dist. Ct. No. 4, Dallas Cnty.,
Tex. Sept. 7, 1982). On September 7, 1982, that state court sentenced him to 30
years’ imprisonment on each charge, to be served concurrently. (See Dkt. No. 15-6 at
7; Dkt. No. 15-14 at 6.) He did not appeal his 1982 convictions. (See Dkt. No. 3 at
3.) Gonzales discharged his sentences on the 1982 convictions on April 19, 2014.
(See Dkt. No. 17-1 at 20-21.)
In January 2019, Gonzales filed his first pair of state habeas applications
challenging the 1982 convictions. (See Dkt. No. 15-6 at 8-25; Dkt. No. 15-14 at 7-
24.) The Texas Court of Criminal Appeals (“TCCA”) denied the applications
without written order on June 5, 2019. (See Dkt. Nos. 15-8, 15-16); Ex parte Gonzales,
No. WR-59,274-03 (Tex. Crim. App. June 5, 2019); Ex parte Gonzales, No. WR-
59,274-04 (Tex. Crim. App. June 5, 2019). Gonzales filed a second pair of state
habeas applications challenging the 1982 convictions, and the TCCA dismissed them
without written order as subsequent applications on May 10, 2023. (See Dkt. No. 15-
23 at 4-22; Dkt. No. 15-24; Dkt. No. 15-31 at 4-22; Dkt. No. 15-32); Ex parte
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Gonzales, No. WR-59,274-06 (Tex. Crim. App. May 10, 2023); Ex parte Gonzales, No.
WR-59,274-07 (Tex. Crim. App. May 10, 2023).
Gonzales now challenges his 1982 convictions under § 2254 on the following
grounds:
(1) Convictions void due to improper juvenile transfer hearing, invalid
transfer order and void indictments in court that lacked jurisdiction to
convict juvenile as adult;
(2) Convictions void as juvenile was not afforded an examining trial as
mandated by statute. Therefore indictments are void in district court
that lacked jurisdiction over juvenile;
(3) Due process was violated as juvenile was induced to plead guilty in
adult district court to void indictments where court lacked proper
jurisdiction over juvenile; and
(4) Counsel was ineffective in deficient advi[c]e to juvenile to accept
plea bargain in court lacking jurisdiction over juvenile and his deficient
performance prejudiced petitioner.
(Dkt. No. 3 at 6-7 (capitalization altered).) The State filed a response on May 10,
2024. (See Dkt. No. 17.) Gonzales filed a reply on June 3, 2024. (See Dkt. No. 19.)
II. JURISDICTION
Federal district courts have jurisdiction to entertain petitions for writs of
habeas corpus only from persons who are “in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The “in custody”
requirement is a jurisdictional prerequisite, and a petitioner must be “‘in custody’
under the conviction or sentence under attack at the time his petition is filed.”
Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see also Rubio v. Davis, 907 F.3d 860, 862
(5th Cir. 2018). A petitioner need not be physically confined pursuant to the
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challenged conviction and may satisfy this “in custody” requirement “if there is a
positive, demonstrable relationship between the prior conviction and the petitioner’s
present incarceration.” Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir. 1979).
Even so, “once the sentence imposed for a conviction has completely expired,
the collateral consequences of that conviction”—such as its use to enhance a
subsequent sentence not challenged in the § 2254 petition—“are not themselves
sufficient to render an individual ‘in custody’ for purposes of a habeas attack upon
it.” Maleng, 490 U.S. at 492; see also Acosta v. Texas, No. 16-50883, 2017 WL
4574617, at *1 (5th Cir. 2017) (unpublished) (“If the petitioner was no longer serving
the challenged judgment when he filed his § 2254 petition because he fully
discharged the sentence imposed upon that judgment, the ‘in custody’ requirement is
not met, even if the challenged sentence was used to enhance a subsequent sentence
that is not under attack in the § 2254 petition.”). Relatedly, “once a state conviction
is no longer open to direct or collateral attack in its own right because the defendant
failed to pursue those remedies while they were available (or because the defendant
did so unsuccessfully), the conviction may be regarded as conclusively valid.”
Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 403 (2001). When a petitioner fails
to satisfy the “in custody” requirement under the challenged conviction, the court
lacks jurisdiction to consider a collateral attack on that conviction. See, e.g., Claybon
v. Texas, No. 3:16-cv-2479-K-BN, 2016 WL 5793767, at *3 (N.D. Tex. Aug. 29,
2016), rec. adopted, 2016 WL 5717532 (N.D. Tex. Sept. 28, 2016).
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Here, in each of his grounds for relief, Gonzales contends that he is suffering
“collateral consequences from the instant [1982] convictions” because they were
used to enhance his punishments on a subsequent 1993 criminal case and the 2002
life sentence for murder that he is currently serving.3 (Dkt. No. 3 at 6-7.) The State’s
evidence shows, however, that Gonzales’s 30-year sentences on his 1982 convictions
completely expired on April 19, 2014, and Gonzales does not provide any evidence
showing otherwise. (See Dkt. No. 17-1 at 20-21.) Moreover, the 1982 convictions
are “no longer open to collateral attack in [their] own right” given that the applicable
statute of limitations on those convictions expired years ago, as the Court explains
further below. Coss, 532 U.S. at 403.
As such, Gonzales’s expired 1982 convictions are conclusively valid, and he
does not satisfy the “in custody” requirement as to those convictions for purposes of
§ 2254.4 See Acosta, 2017 WL 4574617, at *1. The Court therefore lacks jurisdiction
3 Gonzales does not challenge his 1993 conviction or 2002 conviction in this § 2254
action. (See Dkt. No. 3 at 2.) Instead, he expressly seeks to vacate his expired convictions
“so that he can pursue to overturn his 1993 and the 200[2] current conviction.” (Id. at 7.)
He does not appear to have exhausted any available state remedies on his 1993 conviction,
and his prior § 2254 petitions challenging his 2002 conviction were unsuccessful. See
Gonzales v. Thaler, No. 3:10-CV-1043-B, Dkt. Nos. 14-16 (N.D. Tex. Jan. 21, 2011); Gonzales
v. Dretke, No. 3-05-CV-1777-N, 2006 WL 1737847 (N.D. Tex. June 23, 2006). In light of his
statement and because his 1993 conviction is, at minimum, unexhausted, and he has not
received authorization from the United States Court of Appeals for the Fifth Circuit to file a
successive § 2254 petition challenging his 2002 conviction, the Court does not construe the
petition as challenging either of his subsequent convictions. See Coss, 532 U.S. at 401-02.
4 Gonzales has not shown that any of the limited exceptions to the rule of conclusive
validity of an expired sentence applies in this case. See Coss, 532 U.S. at 404-06; Gideon v.
Wainwright, 372 U.S. 335 (1963).
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over Gonzales’s current challenges to his expired 1982 convictions, and it should
dismiss the petition on this basis.
III. STATUTE OF LIMITATIONS
Alternatively, even if the Court assumes that Gonzales could be “in custody”
pursuant to the challenged 1982 convictions for purposes of § 2254, his habeas
petition is barred by the applicable statute of limitations. See Wiley v. McClane, No.
7:22-CV-065-O, 2023 WL 8243036, at *5-7 (N.D. Tex. Nov. 28, 2023) (alternatively
dismissing § 2254 petition challenging discharged convictions as barred by the statute
of limitations).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
applies to all federal habeas petitions filed after its effective date of April 24, 1996.
See AEDPA, Pub. L. 104–132, 110 Stat. 1217-1221; Lindh v. Murphy, 521 U.S. 320,
326 (1997). Among its provisions, the AEDPA establishes a one-year limitations
period for state inmates seeking federal habeas relief. See 28 U.S.C. § 2244(d).
Section 2244(d) provides:
(1) A 1-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;
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(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). Gonzales’s 1982 convictions became final no later than
October 7, 1982, when the 30-day period to file a direct appeal expired.5 See, e.g.,
Tex. R. App. P. 26.2.
When a conviction becomes final before the AEDPA’s April 24, 1996 effective
date, as here, the petitioner has a one-year grace period following that date in which
to file a federal habeas petition. See Williams v. Cain, 217 F.3d 303, 304 n.1 (5th Cir.
2000). Because the AEDPA’s one-year period of limitations does not apply prior to
its effective date, Gonzales is entitled to the one-year grace period ending on April
24, 1997—absent any applicable tolling—within which to file a timely federal habeas
petition. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998).
Gonzales does not allege that state action prevented him from filing a § 2254
petition earlier, nor does he allege any newly recognized constitutional right made
retroactively applicable to cases on collateral review. See 28 U.S.C. § 2244(d)(1)(B),
(C). The facts supporting his habeas claims became known or could have become
5 In its response, the State erroneously calculated the date Gonzales’s conviction
became final by using the date of the charged offenses, February 19, 1982, as the date of the
judgments, rather than the actual date of the judgments, which was September 7, 1982.
(Compare Dkt. No. 17 at 7 with Dkt. No. 15-6 at 7, Dkt. No. 15-14 at 6.) The Court
calculates the date Gonzales’s conviction became final based on the correct judgment date
of September 7, 1982.
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known prior to the AEDPA’s enactment on April 24, 1996. See 28 U.S.C.
§ 2244(d)(1)(D). Because he filed his § 2254 petition over 26 years after the one-year
grace period expired, his § 2254 petition is untimely in the absence of statutory or
equitable tolling, or an applicable exception to the limitations period. Further, even
if Gonzales did not or could not have known about the facts supporting his habeas
claims until 2018, as he alleges, the § 2254 petition was filed over 4 years after the
limitations period would have expired, and it therefore is still untimely in the absence
of statutory or equitable tolling or an applicable exception to the limitations period.
(See Dkt. No. 5 at 26 (“Only since 2018 was [Gonzales] able to obtain the documents
. . . to determine[ ] that these two 1982 convictions are void.”).)
A. Statutory Tolling
Under § 2244(d)(2), “[t]he 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)(2).
Gonzales did not have any state habeas application pending at the time the
AEDPA was enacted, and his first pair of state habeas applications challenging the
1982 convictions after the AEDPA’s effective date were filed in January 2019,
almost 22 years after the statutory limitations and grace period ended on April 24,
1997. See Ex parte Gonzales, No. WR-59,274-03 (Tex. Crim. App. June 5, 2019); Ex
parte Gonzales, No. WR-59,274-04 (Tex. Crim. App. June 5, 2019). Those state
habeas applications therefore do not toll the limitations period under § 2244(d)(2).
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See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (holding that habeas
application filed in state court after expiration of the applicable limitations period
does not statutorily toll the limitations period).
Additionally, even if Gonzales’s one-year limitations period was not triggered
until 2018 under § 2244(d)(1)(D), it was statutorily tolled until no later than June 5,
2019, when the TCCA denied without written order his first pair of state habeas
applications challenging the 1982 convictions. See Ex parte Gonzales, No. WR-59,274-
03 (Tex. Crim. App. June 5, 2019); Ex parte Gonzales, No. WR-59,274-04 (Tex. Crim.
App. June 5, 2019). The one-year limitations period in these circumstances would
have expired no later than June 5, 2020, and Gonzales did not file his § 2254 petition
until over three years later.6 (See Dkt. No. 3 at 10.) Statutory tolling therefore does
not save the petition.
B. Equitable Tolling
The AEDPA’s one-year statutory deadline is not a jurisdictional bar and can,
in appropriate exceptional circumstances, be equitably tolled. See Holland v. Florida,
560 U.S. 631, 645 (2010). “The doctrine of equitable tolling preserves a [party’s]
claims when strict application of the statute of limitations would be inequitable.”
Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 2000) (quoting Lambert v. United States,
44 F.3d 296, 298 (5th Cir. 1995)). It “‘applies principally where [one party] is
6 Because Gonzales’s second pair of state habeas applications challenging his 1982
convictions were filed in 2023, after the expiration of the one-year limitations period in the
scenario most favorable to Gonzales, they do not toll that limitations period under
§ 2244(d)(2). See Scott, 227 F.3d at 263.
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actively misled by the [other party] about the cause of action or is prevented in some
extraordinary way from asserting his rights.’” Coleman v. Johnson, 184 F.3d 398, 402
(5th Cir. 1999) (citation omitted), abrogated on other grounds by Causey v. Cain, 450
F.3d 601, 605 (5th Cir. 2006).
A habeas petitioner is entitled to equitable tolling only if he shows that: (1) “he
has been pursuing his rights diligently,” and (2) some extraordinary circumstance
prevented a timely filing. Holland, 560 U.S. at 649 (citation and internal quotation
marks omitted). The petitioner bears the burden to show entitlement to equitable
tolling. See, e.g., Phillips v. Donnelly, 223 F.3d 797, 797 (5th Cir. 2000). Courts must
examine each case to determine if there are sufficient exceptional circumstances
warranting equitable tolling. See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
Gonzales’s pleadings can be liberally construed to argue that equitable tolling
is warranted because he lacked knowledge about the alleged violations he now raises
in his petition until 2018. (See, e.g., Dkt. No. 5 at 26.) Gonzales’s alleged lack of
knowledge of his claims over a period of more than 30 years does not justify
equitable tolling of his habeas petition, however. See Felder v. Johnson, 204 F.3d 168,
172 (5th Cir. 2000). As such, Gonzales has not met his burden to show that he has
been pursuing his rights diligently or that an extraordinary circumstance prevented
him from timely filing his petition. He therefore is not entitled to equitable tolling.
C. Actual Innocence
The Supreme Court has held that even when a habeas petitioner has failed to
demonstrate the due diligence required to equitably toll the statute of limitations, a
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claim of actual innocence, if proved, can overcome the AEDPA’s statute of
limitations. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). A tenable actual
innocence claim “must be supported by ‘new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.’” Floyd v. Vannoy, 894 F.3d 143, 155 (5th
Cir. 2018). It must show that it is more likely than not that no reasonable factfinder
would have convicted the petitioner in light of the new evidence and the evidence
presented at trial. See id.
Gonzales does not allege that he is actually innocent of the conduct
underlying his 1982 convictions, and his claims do not present evidence of actual
innocence. Accordingly, he cannot overcome the applicable AEDPA limitations
period under the actual innocence exception. His § 2254 petition is therefore
untimely, and the Court should dismiss the petition on this alternative basis.7
IV. RECOMMENDATION
The Court should DISMISS the Petition for a Writ of Habeas Corpus by a
Person in State Custody, filed on January 24, 2024 (Dkt. No. 3), with prejudice for
lack of jurisdiction. In the alternative, the Court should DISMISS the petition with
prejudice as barred by the statute of limitations.
7 Gonzales also appears to argue that the statute of limitations is inapplicable because
the challenged judgments are void. (See Dkt. No. 19 at 3; Dkt. No. 3 at 6-7.) “Courts in the
Fifth Circuit have held that there is no ‘void judgment’ exception to the statute of
limitations in federal habeas proceedings.” Wesley v. Director, TDCJ-CID, No. 5:24-CV-155-
RWS-KNM, 2025 WL 2698118, at *4 (E.D. Tex. Sept. 22, 2025) (citing cases). Gonzales’s
argument is therefore without merit and does not save the petition.
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SO RECOMMENDED on March 30, 2026.
____________________________________
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); F ED . R. C IV. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report 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 Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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