# Granger v. Davis-Director TDCJ-CID

> District Court, S.D. Texas · February 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10674129

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** February 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10674129

## How later opinions describe it (automated extraction)

- finding it “reasonable to infer that defendants use loaded guns to facilitate convenience store robberies”
- 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”

## Opinion text

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
3
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
5
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
6
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
7
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
8
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
9
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
10
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.
11
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
12
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
13
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
15
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
17
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10674129. Public record. Not legal advice.