United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
petitioner, Clarence Martin (TDCJ #01640933), seeks a federal
writ of habeas corpus under 28 U.S.C. § 2254 to
challenge a state court conviction. The Court ordered Martin
to show cause why his petition should not be dismissed as
time-barred (Dkt. 7). Martin has argued, both in his petition
and his response to the Court's show cause order, that he
is entitled to equitable tolling (Dkt. 1 at p. 13; Dkt. 10).
The Court will not apply equitable tolling and will dismiss
the petition as barred by the statute of limitations.
was convicted in 2010 of aggravated assault with a deadly
weapon. Martin's retained trial counsel also handled the
direct appeal; and on appeal he argued, as relevant to this
petition, that evidence of Martin's affiliation with the
Aryan Brotherhood (which was offered by the State partly to
show motive for the assault-the victim was
African-American-and partly to establish Martin's
identity as the attacker through distinctive Aryan
Brotherhood tattoos) was inadmissible at trial. The
Thirteenth Court of Appeals of Texas affirmed his conviction,
along the way holding that Martin's counsel had failed to
preserve an objection to the Aryan Brotherhood evidence under
Texas Rule of Evidence 403. The Texas Court of Criminal
Appeals ("TCCA") issued a final ruling denying
review on December 9, 2011. See Martin v. State, No.
13-10-00365-CR, 2011 WL 2937423 (Tex. App.-Corpus Christi
July 21, 2011, pet. ref d); see also Texas Court of
Criminal Appeals Case Number PD-1316-11.
to his show cause response, Martin knew as soon as his direct
appeal was complete that he wanted to challenge the adequacy
of his trial counsel's representation in a habeas
proceeding, and he "began requesting his trial record to
perfect errors regarding ineffective assistance at
trial" (Dkt. 10 at p. 2). Martin wrote to the state
trial court several times, and to a state appellate court
(Martin does not say which court) once, over the years
between 2012 and 2015 requesting the trial transcript and was
unable to procure it (though Martin mentions the possibility
that some responses were confiscated) (Dkt. 10 at p. 2).
Martin also requested the trial transcript from his trial
counsel several times between 2012 and 2015 and got repeated
assurances from his trial counsel that the transcript would
be sent (Dkt. 10 at pp. 2-3). Those assurances proved empty
until Martin finally received the transcript from his counsel
in May of 2015 (Dkt. 10 at p. 3). Martin filed a state habeas
petition on July 21, 2015, and that petition was denied on
March 2, 2016 (Dkt. 10 at p. 4). See Texas Court of
Criminal Appeals Case Number WR-84, 392-01. Martin filed this
federal habeas petition on July 19, 2016 (Dkt. 1 at p.
been his intention since the conclusion of his direct appeal,
Martin argues in this petition that his counsel provided
ineffective assistance at trial (Dkt. 1 at pp. 6-11).
Specifically, he argues that his counsel failed to object
when a juror became unfit to serve; failed to preserve the
403 objection mentioned above; failed to challenge the
State's serologist and DNA expert; failed to obtain his
own DNA expert; and abandoned a defense theory suggested by
Martin that the victim's identification of Martin as the
attacker could be impeached with evidence that the
victim's blood tested positive for multiple
hallucinogenic drugs (Dkt. 1 at pp. 6-11).
THE ONE-YEAR STATUTE OF LIMITATIONS
federal habeas petition is subject to the one-year
limitations period found in 28 U.S.C. § 2244(d).
Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir.
1998). Section 2244(d) provides as follows:
(d)(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.
(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 ...