Joseph v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CLARENCE JOSEPH, 	§
ID # 02435611, 	§
Petitioner, 	§
§
v. 	§ 	No. 3:26-CV-655-K-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 Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody, received on February 26, 2026. (Dkt. No. 3.)
Based on the relevant filings and applicable law, the Court should DISMISS the
petition with prejudice as barred by the statute of limitations.
I. BACKGROUND
Clarence Joseph, 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 a 2018 five-year term of deferred adjudication and
subsequent 2023 adjudication of guilt and 15-year sentence following revocation of
the deferred adjudication.2 (See id. at 1.)3 He names the Director of the TDCJ-CID
as the respondent. (See id.)
1 By Special Order No. 3-251, this habeas case has been automatically referred for
full case management.
2 Joseph also filed a motion for leave to proceed in forma pauperis (“IFP”) in this
action, despite having access to sufficient funds to pay the $5.00 filing fee as recently as the
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On November 1, 2018, Joseph pleaded guilty to one count of aggravated
assault with a deadly weapon in Cause No. F18-75874-M in the 194th Judicial
District Court of Dallas County, Texas; that state court deferred adjudication and
placed Joseph on a five-year period of community supervision. (See id.); Order of
Deferred Adjudication, State v. Joseph, No. F-18-75874-M (194th Jud. Dist. Ct., Dallas
Cnty., Tex. Nov. 1, 2018). Joseph’s community supervision was subsequently
revoked for violation of its terms, and on February 9, 2023, the state court
adjudicated him guilty and sentenced him to 15 years of imprisonment. See Judgment
Adjudicating Guilt, Joseph, No. F-18-75874-M (194th Jud. Dist. Ct., Dallas Cnty., Tex.
Feb. 9, 2023). Joseph did not appeal the deferred adjudication order or the
adjudication of guilt.
On June 13, 2024, the state trial court received Joseph’s only state habeas
application. See Ex parte Joseph, No. W-1875874-A (194th Jud. Dist. Ct., Dallas
Cnty., Tex. June 13, 2024). While his state habeas application was pending, Joseph
filed his first federal habeas petition under § 2254, which the Court dismissed for
failure to exhaust state remedies. See Joseph v. Director, TDCJ-CID, No. 3:24-CV-
2396-G-BN, 2024 WL 5294679 (N.D. Tex. Oct. 2, 2024), rec. adopted, 2025 WL
44277 (N.D. Tex. Jan. 7, 2025). On May 21, 2025, the Texas Court of Criminal
month before he filed this action. (See Dkt. No. 5 at 3.) Despite Joseph’s filing fee
deficiency, the administration of justice is better served in this instance by addressing the
substance of this action.
3 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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Appeals (“TCCA”) denied the claims in Joseph’s state habeas application pertaining
to his deferred adjudication and adjudication of guilt.4 See Ex parte Joseph, No. WR-
95,905-01 (Tex. Crim. App. May 21, 2025). The TCCA denied Joseph’s request for
reconsideration on July 25, 2025. See id.
Joseph now challenges his 2018 deferred adjudication and 2023 guilt
adjudication under § 2254 on the following grounds:
(1) Ineffective assistance of counsel actual innocence/miscarriage of
justice;
(2) Denial of due process- trial court error/prosecutorial misconduct/
Brady, actual innocence miscarriage of just;
(3) Ineffective assistance of counsel, conflict of interest- trial/plea
counsel Gaelle Abrey- miscarriage of justice;
(4) Ineffective assistance of counsel, conflict of interest- revocation
counsel Calvin Johnson- miscarriage of justice; and
(5) Actual innocence/miscarriage of justice ineffective assistance of
revocation counsel, denial of due process.
(Dkt. No. 3 at 5, 12, 15, 18, 24 (capitalization altered).) Joseph’s first, second, and
third grounds relate to the 2018 deferred adjudication, and his fourth and fifth
grounds relate to the 2023 adjudication of guilt.5 (See id.)
4 The TCCA also dismissed a claim in Joseph’s state habeas application challenging
the calculation of his time credits. See Ex parte Joseph, No. WR-95,905-01 (Tex. Crim. App.
May 21, 2025).
5 Joseph also appears to challenge events from and alleged deficiencies of the state
habeas proceedings. (See Dkt. No. 3 at 16; Dkt. No. 4 at 19-21.) Such “[a]n attack on a
state habeas proceeding does not entitle the petitioner to [federal] habeas relief in respect to
his conviction, as it ‘is an attack on a proceeding collateral to the detention and not the
detention itself.’” Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (citations omitted); see
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II. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
applies to all federal petitions for habeas corpus 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;
(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).
also Brown v. Dretke, 419 F.3d 365, 378 (5th Cir. 2005) (“[A]lleged infirmities in state habeas
proceedings are not grounds for federal habeas relief.”).
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For purposes of § 2244(d)(1)(A), there are two limitations periods when, as
here, a deferred adjudication is involved: one for claims relating to the order of
deferred adjudication and one for claims relating to the adjudication of guilt. See
Tharpe v. Thaler, 628 F.3d 719, 722-24 (5th Cir. 2010). The order of deferred
adjudication became final on December 3, 2018, after the expiration of the 30-day
period to appeal the order. See Tex. R. App. Proc. 4.1(a), 26.2(a); Roberts v. Cockrell,
319 F.3d 690, 694 (5th Cir. 2003) (holding that, when the petitioner has halted the
review process, “the conviction becomes final when the time for seeking further
direct review in the state court expires.”). The order adjudicating guilt became final
on March 13, 2023, after the expiration of the 30-day period to appeal. See id.
Joseph does not allege any facts showing 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 alleged facts supporting Joseph’s claims became known or could have
become known through the exercise of due diligence prior to the dates his deferred
adjudication and guilt adjudication respectively became final. Because the date his
deferred adjudication and guilt adjudication became final is the latest date under
§ 2244(d), the one-year statute of limitations began to run from those dates,
December 3, 2018 and March 13, 2023. Joseph filed this federal habeas action
approximately seven years and three years later, respectively. His § 2254 petition is
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therefore untimely in the absence of statutory or equitable tolling, or an applicable
exception to the limitations period.
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).
Joseph’s only state habeas application was filed in the state habeas court on
June 13, 2024, over four years after the December 3, 2019 expiration of the
limitations period for his claims relating to the order of deferred adjudication and
three months after the March 13, 2024 expiration of the limitations period for his
claims relating to the guilt adjudication. His state habeas application therefore does
not toll the limitations period under § 2244(d)(2). See Scott v. Johnson, 227 F.3d 260,
263 (5th Cir. 2000) (holding that a habeas application filed in state court after
expiration of the applicable limitations period does not statutorily toll the limitations
period).
The Court notes that the declaration to Joseph’s state habeas application is
dated January 23, 2024. See Ex parte Joseph, No. W-1875874-A (194th Jud. Dist. Ct.,
Dallas Cnty., Tex. June 13, 2024). Even if the Court assumes that January 23, 2024
was the filing date under the prison mailbox rule, statutory tolling still does not save
the petition. Assuming a January 23, 2024 filing date, the state habeas application
was filed over four years after the expiration of the limitations period for claims
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relating to the order of deferred adjudication. As to his claims relating to the guilt
adjudication, 316 days elapsed from the date the guilt adjudication became final,
leaving him 49 days to timely file a federal habeas petition. The limitations period
would have been tolled from January 23, 2024 through no later than July 25, 2025,
when the TCCA denied Joseph’s request for reconsideration of the denial of his state
habeas application. The limitations period would have begun to run again on July
26, 2025 for the remaining 49 days and would have expired on September 15, 2025;
Joseph would have had until that date to file his § 2254 petition as to his claims
relating to the guilt adjudication. He did not file his petition until over five months
later.
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
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).
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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).
Here, Joseph lists several bases on which he seeks equitable tolling of the
statute of limitations. (See Dkt. No. 3 at 27.) With the exception of his contention
that limitations should be tolled based on a miscarriage of justice, i.e., actual
innocence, he provides no explanations or evidence to support his listed grounds for
equitable tolling. (See id.) His conclusory list fails to show the existence of any rare
and exceptional circumstance preventing him from filing a timely § 2254 petition and
does not satisfy his burden to show that he entitled to equitable tolling. Further, as
to his actual innocence claim, actual innocence does not justify equitable tolling. See,
e.g., Tate v. Parker, 439 F. App’x 375, 376 & n.1 (5th Cir. 2011) (holding that a
petitioner’s claim of actual innocence was insufficient to warrant equitable tolling
and citing Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Scott v. Johnson, 227
F.3d 260, 263 & n.3 (5th Cir. 2000)).
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C. Actual Innocence
Joseph contends that the actual innocence, or miscarriage of justice, exception
to the statute of limitations applies in this case based on new evidence.6 (See Dkt.
No. 3 at 5, 12, 17-18, 24, 26; Dkt. No. 4 at 3.)
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner
may pass whether the impediment is a procedural bar. . . [or] expiration of the statute
of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Yet, “tenable actual-
innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of [ ] new evidence,
no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also House v. Bell,
547 U.S. 518, 538 (2006) (recognizing that the Schlup standard is “demanding” and
rarely satisfied). A credible claim of actual innocence requires the “petitioner to
support his allegations of constitutional error with new reliable evidence—whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. In the
Fifth Circuit, “[e]vidence does not qualify as ‘new’ under the Schlup actual-innocence
standard if ‘it was always within the reach of [petitioner’s] personal knowledge or
6 In his first ground, Joseph also makes passing reference to a “Martinez
exemption,” along with actual innocence. (Dkt. No. 3 at 5.) The Court understands Joseph
to be referencing the “narrow, equitable exception to procedural default” established by
Martinez v. Ryan, 566 U.S. 1 (2012). Moody v. Lumpkin, 70 F.4th 884, 892 (5th Cir. 2023).
The exception under Martinez “has no applicability to the statutory limitations period
prescribed by the AEDPA.” Id. His reliance on Martinez is unavailing here.
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reasonable investigation.’” Hancock v. Davis, 906 F.3d 387, 390 (5th Cir. 2018)
(quoting Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008)).
Here, Joseph alleges actual innocence of the aggravated assault charge in
Cause No. F18-75874-M based on new evidence:
A) G.P.S. coordinates of Petitioner and complain[]ant that would show
Petitioner was never on Interstate 45 with [the complainant] thus
Petitioner could not have chased [the complainant] onto the freeway[,]
pointed firearm[,] then discharged[; and]
B) 1. 911 Calls
2. Phone logs
would further support Petitioner[’]s actual innocence Dallas Police,
District Attorney’s Office prosecuted Petitioner based on a false
allegation of Petitioner[’]s conduct the new evidence under [B)] would
further support [A)] and show the false timelines, the false allegations,
coer[c]ion by 911 operator.
(Dkt. No. 3 at 26; see also Dkt. No. 4 at 3.) Notwithstanding that Joseph provides
only unsubstantiated and conclusory assertions regarding the existence and contents
of this purported new evidence, the evidence allegedly establishes Joseph’s
whereabouts and phone calls on the date of the offense. Joseph’s own whereabouts,
the phone calls he personally made, and the alleged evidence showing same “were
always within the reach of [his] personal knowledge or reasonable investigation.”
Hancock, 906 F.3d at 390. As such, they do not constitute “new” evidence sufficient
to overcome the AEDPA’s statute of limitations based on alleged actual innocence of
the aggravated assault offense. See id.
Regarding the violation of his community supervision that resulted in the
revocation of his deferred adjudication and entry of the order of adjudication, the
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only alleged new evidence on which Joseph appears to rely for his actual innocence
claim are the alleged recorded movements of a vehicle he was driving. (See Dkt. No.
3 at 24.) He appears to contend that these recorded movements would show that
“the vehicle was not driven in circles[.]” (Id.) Joseph again fails to provide this
purported new evidence, but because he was the one driving the vehicle, the way it
was driven was within his personal knowledge and evidence showing same was
within reach of his reasonable investigation. See Hancock, 906 F.3d at 390.
Additionally, to the extent he appears to argue that a second basis for the revocation
of his deferred adjudication involved charges that were ultimately dropped, the status
of charges against him likewise was always within his personal knowledge and
reasonable investigation. (See id. at 24.) Accordingly, Joseph fails to provide new
evidence sufficient to overcome the AEDPA’s statute of limitations based on actual
innocence as to the revocation of his deferred adjudication and entry of the guilt
adjudication.
Because Joseph fails to show the existence of any new, reliable evidence to
show actual innocence, he cannot overcome the applicable AEDPA limitations
period under the actual innocence exception. Joseph’s § 2254 petition therefore is
untimely, and the Court should dismiss it.
III. RECOMMENDATION
The Court should DISMISS the Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody, received on February 26, 2026 (Dkt.
No. 3), with prejudice as barred by the statute of limitations.
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SO RECOMMENDED on April 2, 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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