Granger v. Davis-Director TDCJ-CID

February 03, 2021

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ALLEN JAMES § CIVIL ACTION NO.

GRANGER, § 4:19-cv-00456

(TDCJ–CID #1293857) §

Petitioner, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

LORIE DAVIS, §

Respondent. §

MEMORANDUM ON DISMISSAL

The motion to dismiss by Respondent Lorie Davis is

granted. Dkt 9. The statute of limitations bars the petition by

Petitioner Allen James Granger for a writ of habeas corpus under

28 USC § 2254.

1. Background

A jury in March 2005 found Granger guilty of aggravated

robbery with a deadly weapon in Cause Number 1010803 before

the 184th Judicial District Court of Harris County, Texas. He was

sentenced to life in prison. Dkt 10-22 at 35–36. The First Court

of Appeals affirmed his conviction in May 2006. Granger v State,

2006 WL 1223516 (Tex App—Houston [1st Dist] 2006,

pet refd). The Texas Court of Criminal Appeals refused his

petition for discretionary review in September 2006. In re Granger,

2006 Tex Crim App LEXIS 1853.

The First Court of Appeals summarized the trial testimony

this way:

At approximately 4:00 p.m. on February 16,

2003, the complainant, Catherine Cisneros, was

accosted by appellant as she walked to her

apartment from the complex parking lot at

12905 Woodforest in Harris County. The

complainant testified that appellant pointed a

gun at her face and demanded the keys to her

vehicle. The complainant surrendered her keys,

and, after a brief struggle, appellant took the

complainant’s bag. At this point, appellant took

possession of the complainant’s white Toyota

SUV and, upon being warned by an accomplice

waiting nearby in a vehicle that the complainant

was using her cell phone, sped away.

Ten days after the incident, while on patrol,

Constable L. Clark spotted appellant parked in

a white Toyota SUV in the parking lot of

Cunningham Middle School. Recognizing

appellant from their prior relationship and

knowing that appellant had no driver’s license,

Clark approached appellant and asked who

owned the car and whether or not appellant had

a driver’s license. After appellant told Clark that

the vehicle belonged to his girlfriend’s mother,

Clark told him that she would have to come get

the car because appellant did not have a license.

Clark allowed appellant to leave on foot to find

her, but appellant never returned. While

appellant was gone, Clark checked the vehicle’s

plates and learned that the sheriff’s department

wanted the vehicle for its involvement in a

robbery.

Harris County Deputy Sheriff S. Davis

found appellant’s fingerprint inside the stolen

vehicle. When the complainant picked up her

vehicle from the sheriff’s storage lot, she

noticed a gun between the driver’s seat and

console. Although Davis did not recover any

latent fingerprints on the gun, the complainant

confirmed at trial, while being cross-examined,

that she was sure that the gun found was the

gun (Exhibit 6) used in the robbery.

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J. Dupre, a firearms examiner with the

Harris County Sherriff’s Department, testified

that Exhibit 6 was an “air soft gun,” a replica of

existing firearms, capable of shooting

6 millimeter plastic BB’s. Dupre testified that by

the time Exhibit 6 came into the laboratory the

gun did not function, but that she could not

determine when it had stopped functioning.

Dupre identified the pellet found inside the

magazine of the gun as potentially capable of

being fired from the gun if it was, in fact,

functioning at the time of the robbery, although

she could not say at what velocity. When asked

if a BB shot by an air soft gun was capable of

causing serious bodily injury, Dupre testified

that was outside the scope of her expertise.

Dupre further testified that Exhibit 6 looked

similar to a Heckler and Koch nine millimeter

pistol, which she conceded was a deadly

weapon. The jury also heard testimony from

Officer S. McCoy, who testified that a BB gun

can cause serious bodily injury.

The trial court granted appellant’s motion

for an instruction of acquittal as to paragraph

one of the indictment, which alleged that

appellant had used a firearm in the commission

of the robbery. The second count of the

indictment included a charge for aggravated

robbery with a deadly weapon, namely a

BB gun, and the lesser-included offense of

robbery. The jury returned a verdict of guilty as

to aggravated robbery with a deadly weapon

and assessed punishment at life in prison.

Granger, 2006 WL 1223516 at *1–2.

Granger didn’t file a state application for a writ of habeas

corpus until May 2017, over ten years later. Dkt 10-20 at 7–30. The

state court conducted a hearing in June 2018. See Dkt 10-19

(transcript). It denied relief with findings of fact issued in August

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2018. See Dkt 10-22 at 1–7, 10. The Texas Court of Criminal

Appeals denied the application in December 2018 without

written order on findings of the trial court. Dkt 10-17.

Granger filed his federal petition with the assistance of

counsel in February 2019. See Dkt 1. Granger contends that his

conviction is void for several reasons. He first asserts that his trial

counsel, Alvin Nunnery, was ineffective because he failed to call

witness Clarence Craig to testify about the inoperability of the

gun used in the crime; refused Granger’s request to testify in his

own defense; and failed to file a motion to permit Granger to

testify free of impeachment with extraneous offenses. He also

argues that the State violated his due process rights by presenting

insufficient evidence that he used a deadly weapon. He last claims

that he is actually innocent of aggravated robbery. See id at 6–16.

2. Legal standard

The Anti-Terrorism and Effective Death Penalty Act of 1996

imposes a one-year statute of limitations for federal habeas corpus

petitions. The statute provides in part:

(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

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the claim or claims presented could have been

discovered through the exercise of due

diligence.

28 USC § 2244(d)(1).

Most directly at issue here is § 2244(d)(1)(A), pertaining to

limitations running from judgment finality at the conclusion of

direct review. The Fifth Circuit explained in Roberts v Cockrell that

a decision becomes final “by the conclusion of direct review or

the expiration of the time for seeking such review.” 319 F3d 690,

692 (5th Cir 2003) (quotations and citations omitted). Direct

review includes a petition for certiorari to the United States

Supreme Court, and so direct review concludes when the

Supreme Court either rejects the petition or rules on its merits.

Ibid (citation omitted). Absent appeal to the state’s highest court,

judgment becomes final when the time for seeking such review

expires. Gonzalez v Thaler, 565 US 134, 137 (2012).

3. Analysis

a. Limitations

The Texas Court of Criminal Appeals refused Granger’s

petition for discretionary review on September 20, 2006. Granger

had ninety days to file a petition for a writ of certiorari. Supreme

Court Rule 13.1 (West 2002). He didn’t do so. His conviction was

thus final in December 2006, and the one-year limitations period

ended on December 19, 2007. Granger waited until February 10,

2019 before filing his federal petition. It is untimely under

§ 2244(d)(1)(A).

Granger did file an application for state habeas corpus relief in

May 2017, which the Texas Court of Criminal Appeals denied

without written order on findings of the trial court in December

2018. Dkt 10-17. “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.” 28 USC § 2244(d)(2). But the limitations period had

already run by then, and so the state application had no tolling

effect. See Scott v Johnson, 227 F3d 260, 263 (5th Cir 2000).

Granger doesn’t allege or demonstrate that alternate

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AEDPA triggers set a different end to the limitations period. As

to § 2244(d)(1)(B), nothing in the record indicates that any

unconstitutional action by the State imposed an impediment to

Granger filing an application for federal habeas corpus relief before

the end of the limitations period. As to § 2244(d)(1)(C), the

claims by Granger don’t concern a constitutional right recognized

by the Supreme Court within the last year and made retroactive

to cases on collateral review. And as to § 2244(d)(1)(D), Granger

hasn’t proven that any factual predicate was unknown or couldn’t

have been discovered with due diligence prior to the time his

conviction became final.

Absent equitable tolling, Granger’s petition is more than a

decade late.

b. Equitable tolling

Equitable tolling preserves claims in situations “‘when strict

application of the statute of limitations would be inequitable.’”

United States v Patterson, 211 F3d 927, 930 (5th Cir 2000), quoting

Davis v Johnson, 158 F3d 806, 810 (5th Cir 1998). The Fifth Circuit

holds that cases presenting “rare and exceptional circumstances”

can equitably toll the one-year AEDPA statute of limitations.

Jackson v Davis, 933 F3d 408, 410 (5th Cir 2019) (quotation

omitted); see also Holland v Florida, 560 US 631, 649 (2010). It

applies principally where the plaintiff is actively misled by the

defendant about the cause of action or is prevented in some

extraordinary way from asserting his rights. United States v

Wheaten, 826 F3d 843, 851 (5th Cir 2016) (citations omitted)

(discussing equitable tolling in context of § 2255); see also

Melancon v Kaylo, 259 F3d 401, 408 (5th Cir 2001) (citations

omitted).

A petitioner seeking a writ of habeas corpus has to prove

entitlement to equitable tolling. Phillips v Donnelly, 216 F3d 508,

511 (5th Cir 2000, per curiam). To do this, he must show diligence

in the pursuit of rights and extraordinary circumstances that

prevented timely filing. Manning v Epps, 688 F3d 177, 183–84

(5th Cir 2012) (citations omitted). The required diligence is that

which is reasonable, not that which is maximumly feasible.

Holland, 560 US at 653 (citations omitted). But the Fifth Circuit

has found delays much shorter than those at issue here to

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preclude a finding of diligence. See Palacios v Stephens, 723 F3d

600, 606, 608 (5th Cir 2013) (citations omitted) (petitioner

couldn’t show reasonable diligence due to delay of seven months

in filing petition); Koumjian v Thaler, 484 F Appx 966, 969–70 (5th

Cir 2012) (no abuse of discretion in denying equitable tolling due

to delay of more than eight months).

Granger fails to show that any extraordinary circumstance

prevented him from timely filing his federal petition. The record

in no way suggests that the State of Texas misled him or

otherwise prevented him from filing within the deadline.

He also fails to establish diligence in the pursuit of his rights.

The record instead shows that Granger let nearly ten years pass

between the dates when his conviction became final in December

2007 and when he first sought to file a state petition in May 2017.

Such delay in filing his state petition counsels against the

application of the tolling doctrine. Ott v Johnson, 192 F3d 510, 514

(5th Cir 1999).

Granger filed both his state application and this petition with

the assistance of counsel. Even if he hadn’t, ignorance of the law

and lack of legal assistance generally don’t excuse late filing. For

example, see Wheaten, 826 F3d at 853 (citations omitted) (no

excuse where failure to file petition within applicable limitations

period was attributable solely to mistaken assumption that statute

of limitations didn’t apply to petition); Turner v Johnson, 177 F3d

390, 392 (5th Cir 1999, per curiam) (citation omitted) (no excuse

where due to unfamiliarity with legal process and lack of

representation during applicable filing period). In short, the

record doesn’t support Granger’s entitlement to equitable tolling.

c. Actual innocence

A petitioner seeking habeas corpus relief may overcome the

expiration of the AEDPA limitations period if the asserted claim

qualifies under an exception to avoid a fundamental miscarriage

of justice. McQuiggin v Perkins, 569 US 383, 392–94 (2013). Actual

innocence serves as a gateway to bypass a procedural bar (such

as the expiration of the statute of limitations) so that a

constitutional claim may be heard. Id at 386, 392. But the

standard is “demanding” and opens “only when a petition

presents ‘evidence of innocence so strong that a court cannot

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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 US 298, 316 (1995);

see also Floyd v Vannoy, 894 F3d 143, 154–55 (5th Cir 2018)

(citations omitted).

Actual innocence in this context means “factual innocence, not

mere legal insufficiency.” Bousley v United States, 523 US 614, 623

(1998), citing Sawyer v Whitley, 505 US 333, 339 (1992); see also

Calderon v Thompson, 523 US 538, 559 (1998), citing Sawyer, 505 US

at 339. And a petitioner must support the allegations with new

and reliable evidence that was not presented at trial, while

establishing that it is “‘more likely than not that no reasonable

juror would have convicted him in the light of the new

evidence.’” Fairman v Anderson, 188 F3d 635, 644 (5th Cir 1999),

quoting Schlup, 513 US at 327; accord Finley v Johnson, 243 F3d

215, 221 (5th Cir 2001); United States v Jones, 172 F3d 381, 384 (5th

Cir 1999) (citation omitted). The untimeliness of a petition itself

bears “on the credibility of evidence proffered to show actual

innocence.” McQuiggin, 569 US at 401.

The Fifth Circuit recently observed that the Supreme Court

hasn’t yet “explicitly defined” what constitutes “new reliable

evidence” under the Schlup actual-innocence standard. Hancock v

Davis, 906 F3d 387, 389 (5th Cir 2018) (quotation omitted). And

it has yet to weigh in on a circuit split concerning whether the

new evidence must be “newly discovered, previously unavailable

evidence, or, instead, evidence that was available but not

presented at trial.” Id at 389 & n 1 (collecting and comparing

cases); see also Fratta v Davis, 889 F3d 225, 232 (5th Cir 2018),

cert denied, ––– US –––, 139 S Ct 803 (2019).

But it is clear that evidence “does not qualify as ‘new’ under

the Schlup actual-innocence standard if ‘it was always within the

reach of [petitioner’s] personal knowledge or reasonable

investigation.’” Hancock, 906 F3d at 389, quoting Moore v

Quarterman, 534 F3d 454, 465 (5th Cir 2008) (alteration in

original). For instance, the petitioner in Hancock supported his

claim of actual innocence with affidavits obtained close to the

date of the murder from four state witnesses who testified at trial.

Id at 388. But there was no assertion that those affidavits were

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unavailable to counsel at the time of trial. Ibid. The Fifth Circuit

thus found that they weren’t new evidence that could support an

assertion of actual innocence overcoming the limitations bar of

§ 2244(d)(1). 906 F3d at 390.

The Supreme Court also instructs the reviewing court to

assess more than just the new evidence when considering an

assertion of actual innocence:

[T]he habeas court must consider all the

evidence, old and new, incriminating and

exculpatory, without regard to whether it would

necessarily be admitted under rules of

admissibility that would govern at trial. Based

on this total record, the court must make a

probabilistic determination about what

reasonable, properly instructed jurors would do.

The court’s function is not to make an

independent factual determination about what

likely occurred, but rather to assess the likely

impact of the evidence on reasonable jurors.

House v Bell, 547 US 518, 537–38 (2006) (internal citations and

quotations omitted).

Granger waited over eleven years after his conviction became

final to bring his federal petition. He contends that new evidence

of actual innocence excuses application of the statute of

limitations. He asserts that a witness named Clarence Craig would

have testified that he shared a BB gun with Granger and that it

never worked. Granger submits an affidavit by Craig that avers:

o He was very familiar with the BB gun that Granger

had in his possession on February 16, 2003—the

date that Granger robbed Cisneros;

o Several friends and Granger had possessed that BB

gun for several weeks before the date of the robbery;

o Craig had handled that BB gun several times prior

to and up to the date of the robbery;

o The BB gun was inoperable and wouldn’t fire a BB

or anything else on the date of the robbery; and

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o He was available to testify and would have testified

for the defense had he been asked.

Dkt 10-20 at 29.

Granger argues that this fits the actual-innocence exception to

the AEDPA statute of limitations. Dkt 1 at 15. To the contrary,

he fails to make a sufficient showing for three independent

reasons. First, the affidavit isn’t properly considered new

evidence. Second, it isn’t reliable. Third, it wouldn’t alter the verdict.

As to whether the affidavit constitutes new evidence. Granger asserts

that Craig’s testimony regarding the inoperability of the gun

“could not have been reasonably obtained prior to the date of the

affidavit . . . .” Dkt 1 at 15. He provides nothing to support this

bald assertion. And to the contrary, it is quite clear that the

proffered testimony from Craig isn’t new evidence within the

meaning of an assertion of actual innocence.

For instance, Craig made similar assertions during the state

hearing in June 2018. He testified that it was common knowledge

among Granger’s friends that the gun was inoperable. Dkt 10-19

at 47. And he testified that there was a group of ten or eleven

young people that would play with the gun and knew it wasn’t

functional. Id at 41–42. Granger also testified at that hearing that

the BB gun was never operable prior to and during the offense

date and that it was like a toy. Id at 38, 52.

The substance of Craig’s affidavit was at all times within the

reach of Granger’s personal knowledge or reasonable

investigation. The affidavit itself asserts that Craig was available

to testify at the time of trial. And any one of the ten or eleven

friends that Granger played with in the apartment complex could

have testified to this fact. Dkt 10-20 at 29.

The Court finds that Craig’s affidavit isn’t new evidence as it

was clearly and substantially available at the time of trial.

As to whether the affidavit constitutes reliable evidence. The standard

in Schlup demands credible, reliable, or otherwise trustworthy

evidence to establish factual innocence. For instance, the Fifth

Circuit found in Williams v Thaler that a petitioner failed to meet

the Schlup standard when relying on an affidavit stating that

another man claimed to be the killer, noting that the trial evidence

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contradicted the new account. 602 F3d 291, 307–08 (5th Cir

2010). It likewise denied relief in Foster v Thaler upon finding that

new exculpatory evidence wasn’t reliable, stating, “One more

contradictory story would not have compelled jurors to find [the

petitioner] not guilty.” 369 F Appx 598, 602 (5th Cir 2010).

Evidence at trial suggested that Granger used more than one

air pistol or BB gun to commit offenses. State’s Exhibit 43 was

an air pistol or BB gun recovered in a 1998 Chevrolet Malibu that

was taken at gunpoint by Granger from a woman named Linda

Ledesma. Dkt 10-13 at 17, 23. State’s Exhibit 6 was a different

air pistol or BB gun that was recovered from the vehicle of

Catherine Cisneros in the primary case. Dkt 10-11 at 25. Cisneros

testified that she found the gun in between the seat and the

console. Id at 33. And she testified that she saw Exhibit 6 when

Granger pointed it in her face. Ibid.

Craig testified at the state hearing in June 2018 that he didn’t

know whether the gun he was talking about was the same gun

used in Granger’s crime. Dkt 10-19 at 48–49. And he couldn’t

definitively state that the BB gun Granger used on February 16,

2003 was the same BB gun that Craig knew to be inoperable. Ibid.

The proffered testimony from Craig thus doesn’t reliably

establish the point asserted by Granger.

A number of findings by the state court also entirely

undermine these present contentions by Granger:

5. In addition to committing the aggravated

robbery against Cisneros, the State presented

evidence during the punishment phase that the

applicant committed aggravated robbery against

three other females by pointing a firearm or an

air soft pistol at them and taking their vehicles

(VI R.R. at 7, 35, 91). On at least one occasion,

the applicant chose to sexually assault one of

the women (VI R.R. at 48–56).

. . .

8. The trial court conducted an evidentiary

hearing on June 18, 2018, where testimony was

presented from Mr. Nunnery, the applicant, and

an individual named Clarence Craig.

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9. The Court finds that the testimony

provided by Mr. Nunnery at the writ hearing

was credible.

10. The Court finds that the testimony

provided by the applicant at the writ hearing to

be incredible.

11. The Court finds that the testimony

provided by Clarence Craig at the writ hearing

to be incredible.

12. The Court finds based, on the credible

testimony of Mr. Nunnery, that due to the

passage of time and due to the destruction of

his file he does not have an independent

recollection of his representation of the

applicant (II R.R. - Writ Hearing at 8, 14, 18,

28).

. . .

17. The Court finds, based on the credible

testimony of Mr. Nunnery, that he had no

personal recollection of the name of Clarence

Craig or ever seeing him prior to the writ

hearing (II R.R. - Writ Hearing at 14).

18. The Court finds, based on the clerk’s

record, that Mr. Nunnery was appointed to

represent the applicant on December 16, 2003;

he filed a motion for investigative fees on

January 29, 2004; and the applicant’s trial

occurred in March 2005 (I C.R. at 17–19, 135).

19. The Court finds, based on the credible

testimony of Mr. Nunnery, that due to Mr.

Nunnery’s customary practice and due to the

fact that he had the assistance of an investigator,

that had the name of Clarence Craig ever been

mentioned to himself or the investigator that

Craig would have been interviewed (II R.R. -

Writ Hearing at 14). Furthermore, it is

reasonable to assume that because Craig was

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not called as a witness to testify, that if Nunnery

was in-fact aware of him, that Nunnery

determined that Craig’s testimony would not

have been beneficial or necessary for the

applicant’s defense (II R.R. - Writ Hearing

at 26).

20. The Court finds, based on the reporter’s

record, that Clarence Craig and the applicant

have known each other since Craig was 9 or 10

years old as they grew up in the same apartment

complex (II R.R. - Writ Hearing at 30–31, 35).

21. The Court finds, based on the reporter’s

record, that Craig was aware that the applicant

was arrested for the primary charge “like a

couple of weeks later” after the applicant’s

arrest in February 2003 (II R.R. - Writ Hearing

at 31).

22. The Court finds, based on the reporter’s

record, that at least 10 or 11 people would play

with the same alleged BB gun at the apartment

complex that the applicant and Craig lived at (II

R.R. - Writ Hearing at 35–36).

23. The Court finds, based on the reporter’s

record, that in addition to Clarence Craig the

applicant was also friends with an individual

named Michael Roberts who also lived at the

same apartment complex.

24. The Court finds, based on the trial

reporter’s record, on the same date that the

applicant was committing the primary offense

of aggravated robbery for taking the

complainant’s Toyota Sequoia he had taken a

tan Lincoln Navigator. The owner of the tan

Lincoln Navigator, Julissa Alanis, testified at

trial, that she advised that she saw two black

men in a white Honda vehicle before the

applicant forced her into her vehicle at gunpoint

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and ultimately took her vehicle (VI R.R. at 13–

14).

25. The Court finds, based on the writ

reporter’s record that Mr. Roberts was driving a

White Honda Civic on February 16, 2003 (II

R.R. - Writ Hearing at 39). Craig was a

passenger in the Honda Civic and they evaded

from the police and Craig was arrested (II R.R.

- Writ Hearing at 39).

26. The applicant admitted that Mr. Roberts

assisted him in committing the primary offense

that occurred on the same date but later in time

to the aggravated robbery of the tan Lincoln

Navigator (II R.R. - Writ Hearing at 53–54).

27. The Court finds, based on the reporter’s

record, that Craig has never looked or

compared the BB gun that was admitted at trial

to determine if it is the same BB gun that was

allegedly played with by the applicant, Craig,

and the 10 or 11 other individuals at the

apartment complex (II R.R. - Writ Hearing at

42–43).

28. The Court finds, based on the reporter’s

record, that an air pistol or BB gun was also

recovered in a 1998 Chevrolet Malibu that was

taken at gunpoint from the complainant, Linda

Ledesma, by the applicant (VI R.R. at 55, 79).

This is a different air pistol or BB gun that was

recovered from Catherine Cisneros’ vehicle in

the primary case (IV R.R. at 79–80, 109–111).

Therefore, the applicant used more than one air

pistol or BB gun to commit his multitude of

offenses.

29. The Court finds that the applicant has

offered no justifiable excused [sic] for his almost

11 year delay in seeking habeas relief.

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30. The Court finds that the applicant’s delay

in pursuing habeas relief has affected the

credibility of his claims.

31. The applicant fails to show that there is

newly discovered evidence to support his claim

of actual innocence. The Court finds, based

upon the reporter’s record, according to the

applicant’s own witness that there were

allegedly 10 or 11 witnesses that could have

testified as to the inoperability as to the BB gun.

Dkt 10-22 at 2–7.

These factual findings by the state court are presumed to be

correct, and Granger bears the burden of rebutting that

presumption by clear and convincing evidence. 28 USC

§ 2254(e)(1). Granger fails to meet that burden.

The delay by Granger in presenting this new testimony

also factors into whether the proffered testimony from Craig

is reliable. The Supreme Court in McQuiggin held that no

threshold diligence requirement applies to actual-innocence

claims, but delay is a factor in the evaluation of reliability.

569 US at 387 (citation omitted). To assess reliability, it is

appropriate for a court to “consider how the timing of the

submission and the likely credibility of the affiants bear on the

probable reliability” of the proffered new evidence. Schlup,

513 US at 332. Granger states in his petition that he “lost

contact with Craig.” Dkt 1 at 15. He also testified at the state

hearing that he had written letters while in the Harris County

Jail but didn’t try to contact Craig or the other ten or eleven

friends in the apartment complex because he didn’t know their

apartment numbers. Dkt 10-19 at 57–58. Even so, this doesn’t

explain why it took him almost twelve years to present this

evidence. Such an unexplained delay negatively impacts the

weight of the proffered testimony from Craig. See McQuiggin,

569 US at 399.

The Fifth Circuit in Fairman v Anderson stated that examples

of credible, reliable evidence of factual innocence identified in

Schlup can include such items as “exculpatory scientific evidence,

credible declarations of guilt by another, trustworthy eyewitness

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accounts, and certain physical evidence.” 188 F3d 635, 644

(5th Cir 1999) (citations omitted). The information provided in

the Craig affidavit in no way approaches this type of evidence.

It is instead conclusory, self-serving, and contrary to certain

factual findings by the state court. In short, Granger hasn’t

supported his claim of factual innocence with the necessary

level of credible, reliable, or otherwise trustworthy evidence

required by Schlup.

As to whether the affidavit would alter the verdict. The newly

presented evidence submitted by Granger also doesn’t

demonstrate that it is more likely than not that no reasonable

juror would have convicted him in light of that evidence.

Schlup, 513 US at 327.

Granger raised the sufficiency of the evidence to support

his conviction on appeal. The appellate court rejected the claim

and overruled the point of error, stating:

A conviction for aggravated robbery

requires that the State prove that the

defendant committed a robbery and either

“causes serious bodily injury to another,” or

“uses or exhibits a deadly weapon.” Tex. Pen.

Code Ann. § 29.03(a)(1), (2). A deadly weapon

is “anything that in the manner of its use or

intended use is capable of causing death or

serious bodily injury.” Id. § 1.07(a)(17)(B)

(Vernon Supp. 2005).

Here, Officer S. McCoy testified that a BB

gun can cause serious bodily injury.

Accordingly, legally sufficient evidence

supports the jury’s finding that the BB gun

was a deadly weapon. See Adame v. State, 69

S.W.3d 581, 582 (Tex. Crim. App. 2002)

(holding that, “[w]ith testimony that a BB gun

is capable of causing serious bodily injury, it is

reasonable for a jury to make a deadly weapon

finding”).

Granger, 2006 WL 1223516 at *2.

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Under Texas law, the government “is required to prove

only the use of a deadly weapon; if its proof shows a firearm,

it need not prove that it was operable.” Wright v State,

582 SW2d 845, 847 (Tex Crim App 1979). For example, in

Walker v State, the Texas Court of Criminal appeals held that a

forty-five-caliber pistol without a firing pin or clip was a deadly

weapon because it was “manifestly designed and made for the

purpose of inflicting . . . serious bodily injury and that this fact

was evident to the senses and understanding of the victim.”

543 SW2d 634, 637 (Tex Crim App 1976) (emphasis in

original). The point is the understanding of and effect upon

the victim against whom the accused brandishes the weapon.

The case cited above by the First Court of Appeals in

review of this action—Adame v State, 69 SW3d 581 (Tex Crim

App 2002)—extends this to consideration on use of an airsoft

or BB gun. Texas law establishes that an airsoft pistol is neither

a firearm nor a deadly weapon per se. Id at 582. But that isn’t

the end of the inquiry. “With testimony that a BB gun is

capable of causing serious bodily injury, it is reasonable for a

jury to make a deadly weapon finding.” Ibid. And the State isn’t

required to prove, for instance, that a pistol was loaded when

it was used or exhibited during the commission of the robbery,

only that it “was capable of causing serious bodily injury or

death in its use or intended use.” Ibid. Likewise, a jury may

infer that a gun is loaded—and thus operable—under some

circumstances, such as when a defendant in the midst of a

convenience-store robbery “threatens serious bodily injury” to

the store clerk “by pointing a BB gun at her.” Ibid (citation

omitted).

The jury trying Granger’s case heard Cisneros testify that

he pointed a gun inches from her face, demanded the keys to

her vehicle, and took her backpack after a struggle. Dkt 10-11

at 29. An officer testified that he later saw Granger in

Cisneros’s vehicle. Dkt 10-11 at 16. Evidence established that

Granger’s fingerprint was found in her vehicle. Cisneros also

testified that she later found a gun in the vehicle that didn’t

belong to her. And she identified it as the one Granger used

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during the robbery. All of this connects Granger to the BB gun

submitted as State’s Exhibit 6.

The jury could also have reasonably inferred that the

BB gun was loaded and operable based on Cisneros’s

testimony that she feared for her life when Granger

approached her with what Cisneros reasonably believed to be

a handgun and demanded the keys to her vehicle. See Adame,

69 SW3d at 582 (finding it “reasonable to infer that defendants

use loaded guns to facilitate convenience store robberies”).

Indeed, Dupre (the firearms examiner) testified that Exhibit 6

was a replica of existing firearms and capable of shooting six

millimeter plastic BB’s—and further, that when working, it

fires the BB at 250 feet per second. Dkt 10-11 at 41. She also

testified that the BB gun had been modified, making it hard

from a few feet away to distinguish it from an actual nine-

millimeter semiautomatic firearm. Ibid. Officer S. McCoy also

testified that a BB gun can cause serious bodily injury. Id at 47.

The jury heard this evidence and apparently chose to credit

it. And based on this evidence, the Court cannot find that it is

more likely than not that no reasonable juror would have

convicted Granger in light of the new evidence he seeks to

present. To the extent that there was conflicting testimony

regarding the functionality of the airsoft pistol or its capability

to cause serious bodily injury, it was the province of the jury

to resolve those conflicts. The jury’s guilty verdict shows that

they believed that the BB gun was a deadly weapon, regardless

of whether it was working or not.

The Fifth Circuit holds, “The Schlup standard ‘does not

merely require a showing that a reasonable doubt exists in the

light of the new evidence, but rather that no reasonable juror

would have found the defendant guilty.’” Bosley v Cain, 409 F3d

657, 664 (5th Cir 2005), quoting Schlup, 513 US at 329

(emphasis added). The standard is a demanding one. “The

gateway should open only when a petition 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.’”

McQuiggin, 569 US at 401, quoting Schlup, 513 US at 316.

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Granger has failed to meet his burden under McQuiggin.

d. Request for an evidentiary hearing

Granger seeks an evidentiary hearing to address his actual

innocence claim. Dkt 11.

28 USC § 2254(e)(2) provides:

If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the

court shall not hold an evidentiary hearing on

the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable;

or

(ii) a factual predicate that could not have been

previously discovered through the exercise of

due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable factfinder would have found the

applicant guilty of the underlying offense.

The Supreme Court has stated that this reflects “Congress’

intent to avoid unneeded evidentiary hearings” in federal

habeas corpus proceedings. Williams v Taylor, 529 US 420, 436

(2000). No hearing is required “if the record refutes the

applicant’s factual allegations or otherwise precludes habeas

relief.” Schriro v Landrigan, 550 US 465, 474 (2007). “If it appears

that an evidentiary hearing is not required, the judge shall make

such disposition of the petition as justice shall require.” Rule 8 of

the Rules Governing Section 2254 Cases.

The reviewing court has discretion to reject the need for an

evidentiary hearing. See Conner v Quarterman, 477 F3d 287, 293

(5th Cir 2007), citing Roberts v Dretke, 381 F3d 491, 497 (5th Cir

2004). On the one hand, a petitioner seeking a federal writ of

habeas corpus can have an evidentiary hearing if there is a genuine

factual dispute and the state hasn’t yet afforded the petitioner a

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“full and fair hearing.” Clark v Johnson, 202 F3d 760, 766 (5th Cir

2000), quoting Perillo v Johnson, 79 F3d 441, 444 (5th Cir 1996).

But on the other, a petitioner isn’t entitled to an evidentiary

hearing “if his claims are merely ‘conclusory allegations

unsupported by specifics’ or ‘contentions that in the face of the

record are wholly incredible.” Young v Herring, 938 F2d 543, 560

(5th Cir 1991), quoting Blackledge v Allison, 431 US 63, 74 (1977);

see also Washington v Davis, 715 P Appx 380, 385 (5th Cir 2017).

The above analysis shows that the statute of limitations

plainly bars the § 2254 application brought by Granger. He also

fails to show entitlement to equitable tolling. Those issues can be

and were resolved based on the pleadings and state-court records.

An evidentiary hearing is unnecessary where there are no relevant

factual disputes that require development in order to assess the

claims. Robison v Johnson, 151 P3d 256, 268-69 (5th Cir 1998),

cert denied, 526 US 1100 (1999).

Granger provides no factual basis to support the need for an

evidentiary hearing. The motion for such hearing is denied.

4. Conclusion

The pleadings and state court records show that the federal

petition for a writ of habeas corpus brought by Petitioner Allen

James Granger is untimely.

The motion by Respondent Lorie Davis to dismiss based on

limitations is GRANTED. Dkt 9.

The petition for a writ of habeas corpus is DENIED. Dkt 1.

The motion for evidentiary hearing is DENIED. Dkt 11.

Any other pending motions are DENIED as moot.

This case is DISMISSED WITH PREJUDICE.

SO ORDERED.

Signed on February 3, 2021, at Houston, Texas.

1S

Hon. Charles Eskridge

United States District Judge

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