Petition for Writ of Certiorari — Donald Andre Jacobs, Petitioner v. United States

APPENDIX COVER PAGE

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

Donald Andre Jacobs v. United States

Supreme Court of the United States

INDEX TO APPENDICES

Appendix A

Unpublished opinion of the United States Court of Appeals for the Fifth Circuit

Appendix B

Order and judgment of the United States District Court

for the Northern District of Texas denying § 2255 relief

Appendix C

Relevant statutory provisions

(18 U.S.C. § 924(e); Fifth Amendment excerpt)

Appendix D

Resentencing Judgment of the

United States District Court

for the Northern District of Texas

United States v. Donald Andre Jacobs

Criminal Case No. 3:17-CR-00305-L (1)

APPENDIX E

State Court Judgments for Burglary of a Building

State of Texas v. Donald Andre Jacobs

Cause No. F-0318317-WP

Judgment: Negotiated Plea of Guilty

Sentence: 20 months State Jail

Date of Judgement: 6/17/2003

Cause No. F-0318318-WP

Judgment: Negotiated Plea of Guilty

Sentence: 20 Months State Jail

Date of Judgment: 6/17/2003

Cause No. F-0318305-WP

Judgment: Negotiated Plea of Guilty

Sentence: 20 Months State Jail

Date of Judgment: 6/17/2003

Cause No. F-0323459-WP

Judgment: Negotiated Plea of Guilty

Sentence: 20 Months State Jail

Date of Judgment: 6/17/2003

Cause No. F-0323458-WP

Judgment: Negotiated Plea of Guilty

Sentence: 20 Months State Jail

Date of Judgment: 6/17/2003

Cause No. F-0323456-WP

Judgment: Negotiated Plea of Guilty

Sentence: 20 Months State Jail

Date of Judgment: 6/17/2003

APPENDIX A

Unpublished Opinion and Orders of the

United States Court of Appeals

for the Fifth Circuit

United States v. Donald Andre Jacobs

No. 25-10529

Case: 25-10529

?-',7i.cv.02743-L

Document: 37-1

Page: 1

Date Filed: 12/01/2025

Document 17 Filed 12/01/25

Page lot 2 Page ID 66

Wniteh States: (Court of Appeals

for tlje Jfiftlj Circuit

Certified as a true copy and issued

as the mandate on Dec 01, 2025

A“es,;

United States Court of Appeals

Fifth Circuit

W. Ge

Ca

Clerk, U.S. Court of Appe: , Fifth Circuit

FILED

No. 25-10529

October 10, 2025

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Donald Andre Jacobs,

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:24-CV-2743

ORDER:

IT IS ORDERED that Appellant’s motion a certificate of

appealability is DENIED.

/s/Jennifer W. Elrod________

Jennifer Walker Elrod

United States Circuit Judge

Case: 25-10529

Case 3:24-cv-02743-L

Document: 37-2 Page: 1

Date Filed: 12/01/2025

Document 17 Filed 12/01/25

Page 2 of 2 PagelD 67

United States Court ofAppeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

December 01, 2025

Ms. Karen S. Mitchell

Northern District of Texas, Dallas

United States District Court

1100 Commerce Street

Earle Cabell Federal Building

Room 1452

Dallas, TX 75242

No. 25-10529

USA v. Jacobs

USDC No. 3:24-CV-2743

Dear Ms. Mitchell,

Enclosed is a copy of the judgment issued as the mandate.

Sincerely,

LYLE W. CAYCE, Clerk

By:

__________

Renee S. McDonough, Deputy Clerk

504-310-7673

cc:

Mr. Stephen S. Gilstrap

Mr. Donald Andre Jacobs

APPENDIX B

Order and Judgment of the

United States District Court

for the Northern District of Texas

Denying 28 U.S.C. § 2255 Relief

United States v. Donald Andre Jacobs

Civil Action No. 3:24-CV-2743-L

Case 3:24-cv-02743-L

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DONALD ANDRE JACOBS,

#35074-177,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

§

§

§

§

§

§

§

§

No. 3:24-cv-2743-L

(No. 3:17-cr-305-L-l)

MEMORANDUM OPINION AND ORDER

Before the court is Movant Donald Andre Jacobs’ (“Movant”) pro se Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

(“Motion”) (Doc. 2), filed October 29, 2024. On February 27, 2025, Movant filed a Motion to

Expedite Ruling (Doc. 7). Upon careful review of the relevant pleadings, the record, and the

applicable law, the § 2255 Motion is summarily dismissed with prejudice as time barred, and the

Motion to Expedite is denied as moot

I.

BACKGROUND

Movant pleaded guilty to being a felon in possession of a firearm under 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). On February 14, 2019, the court sentenced him to 114 months’

imprisonment, declining to apply the enhanced-penalty provision of the Armed Career Criminal

Act (“ACCA”) based on its determination that Movant’s Texas burglary conviction did not qualify

as a violent felony. Crim. Doc. 42. Movant appealed to the Fifth Circuit Court of Appeals, and

the Government filed a cross-appeal.

On January 14, 2020, the Fifth Circuit granted the

Government’s unopposed motion to vacate sentence and remand for resentencing pursuant to

United States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019) (en banc), which held that a burglary

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conviction under Texas Penal Code § 30.02(a)(3) qualifies as a predicate offense under the ACCA.

Crim. Doc. 56. On May 9, 2022, a resentencing hearing was held, and the court sentenced Movant

to 183 months and twenty-four days, an enhanced penalty under the ACCA. Crim. Doc. 92.

Movant did not appeal.

On July 31, 2023, Movant filed a Motion to Dismiss, which alleged that his conviction

under § 922(g)(1) was unconstitutional under the Second Amendment, relying on New York State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Crim. Doc. 94. Movant also filed a Motion

to Appoint Counsel. Doc. 95. The court denied both Motions. Liberally construing the Motion

to Dismiss as a motion for new trial, the court found that Movant was not entitled to relief because

he did not have a trial, and his motion was not timely filed under Rule 33 of the Federal Rules of

Criminal Procedure. Crim. Doc. 98.

On October 29, 2024, Movant filed this Motion to Vacate, Set Aside, or Correct Sentence

under 28 U.S.C. § 2255. Doc. 2. He alleges that he is “actually innocent” of the ACCA

enhancement because “the prior convictions used to enhance [his sentence] under the ACCA

[were] in violation of the Fifth and Sixth Amendments.” Doc. 2 at 4. Movant contends that the

court misapplied the holding in Wooden v. United States, 595 U.S. 360 (2022). Doc. 2 at 5, 1315. He also relies on the recent decision in Erlinger v. United States, 602 U.S. 821 (2024), which

held that a defendant is entitled under the Fifth and Sixth Amendments to have a jury unanimously

determine beyond a reasonable doubt whether his past offenses were committed on separate

occasions for ACCA purposes. Doc. 2 at 14-16. Movant requests that the court vacate his sentence

and reinstate his original 114-month sentence, without the ACCA enhancement. Doc. 2 at 12.

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Because Movant’s § 2255 motion appeared untimely, the court directed him to respond

regarding the application of the one-year limitations period, which he has now done. Doc. 3; Doc.

4; see also Doc. 5 (treating Movant’s motion to supplement, Doc. 4, as his response to the order

regarding the one-year statute of limitations). Upon review, the court concludes that Movant’s

§ 2255 motion is not timely and is denied as barred by the applicable limitations period.

II.

ANALYSIS

A motion under 28 U.S.C. § 2255 is subject to initial review and summary dismissal when

appropriate. Rule 4(b) of the Rules Governing Section 2255 Proceedings provides: “If it plainly

appears from the motion, any attached exhibits, and the record of prior proceedings that the moving

party is not entitled to relief, the judge must dismiss the motion ....”

A. The § 2255 Motion is Time Barred

Section 2255 contains a one-year statute of limitations. See 28 U.S.C. § 2255(f). The court

may consider the limitations period sua sponte after providing notice and an opportunity to

respond. See Day v. McDonough, 547 U.S. 198,209-10 (2006). The one-year limitations period

begins to run from the latest of the following:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the

United States is removed, if the movant was prevented from making a

motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review;

or

(4) the date on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due diligence.

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28 U.S.C. § 2255(f).

Movant does not allege any facts that could trigger a starting date under §§ 2255(f)(2) and

(f)(4). The court therefore analyzes the limitations period under §§ 2255(f)(1) and (f)(3).

1. Section 2255(f)(1)

Under § 2255(f)(1), Movant’s one-year limitations period began to run when his judgment

of conviction became final. The Supreme Court has held that a judgment of conviction becomes

final when the applicable period for seeking direct review of a conviction has expired. Clay v.

United States, 537 U.S. 522, 525 (2003).

Movant’s judgment of conviction became final on May 24, 2022—the last day he could

have filed a timely direct appeal from the May 10, 2022, amended judgment. See Fed. R. App. P.

4(b)(1)(A) (providing 14 days to file a notice of appeal). Calculated from that date, Movant’s

§ 2255 motion was due by May 24, 2023. Movant did not, however, file his § 2255 motion until

October 29,2024—considered filed at the earliest as of October 20,2024 under the prison mailbox

rule.1 His § 2255 motion is therefore untimely under § 2255(f)(1).

2. Section 2255(f)(3)

To overcome the limitations period, Movant relies on § 2255(f)(3) and the U.S. Supreme

Court’s decisions in Erlinger v. United States, 602 U.S. 821 (2024), and Wooden v. United States,

595 U.S. 360 (2022). Doc. 4 at 2. He asserts that the rulings in these cases “represent newly

1 Movant dated his § 2255 motion and certified placing it in the prison mailbox on October 20,

2024. Doc. 2 at 12. The envelope marked as “legal” was mailed from his prison unit and

postmarked on October 21, 2024. Doc. 2 at 17. The § 2255 motion is thus deemed filed at the

earliest on October 20, 2024. See Rule 3(d) of the Rules Governing Section 2255 Proceedings

(applying the “mailbox rule” to inmates who use the jail/prison’s mail system).

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recognized substantive rights” that “align with prior decisions like Apprendi v. New Jersey, 530

U.S. 466 (2000), which the courts have consistently applied retroactively to cases involving

substantive changes in sentencing laws.” Doc. 4 at 2. Movant also asserts that “[f]ailure to apply

Erlinger and Wooden retroactively would perpetuate unconstitutional sentences, violating the

principle of fundamental fairness.” Id. He adds that both rulings “ensure that enhanced sentences

under the ACCA are imposed only when constitutionally valid procedures and standards are

satisfied.” Id.

Movant’s reliance on § 2255(f)(3) is unavailing. Under that section, § 2255 applicants

have “one year from ‘the date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review.’” Dodd v. United States, 545 U.S. 353, 357 (2005)

(quoting 28 U.S.C. § 2255(f)(3)). Section 2255(f)(3) applies only if the right has been (1) “newly

recognized” by the Supreme Court and (2) made retroactively applicable to cases on collateral

review. Id. at 358. To decide “whether the Supreme Court initially recognized the asserted right,

and thus whether the § 2255(f)(3) clock has been reset,” the court must first “determine if a case

announces a ‘new rule’ that may be asserted retroactively on collateral review.” United States v.

London, 937 F.3d 502, 506 (5th Cir. 2019) (citations omitted). “‘[A] case announces a new rule

when it breaks new ground or imposes a new obligation on the States or the Federal Government.

...To put it differently, a case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.’” Id. at 507 (quoting Teague v. Lane,

489 U.S. 288, 301 (1989)).

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Erlinger does not extend the limitations period under § 2255(f)(3) because it announced

no newly recognized right. Erlinger merely clarified that the Fifth and Sixth Amendments of the

United States Constitution require a jury to determine whether a defendant committed three violent

felonies or serious drug offenses on separate occasions to impose a mandatory minimum sentence

under the ACCA. Erlinger, 602 U.S. 821, 835. The concepts on which Erlinger is premised—

that “[virtually any fact that increases the prescribed range of penalties to which a criminal

defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely

admitted in a guilty plea),” Id. at 834 (internal punctuation omitted)—originate from Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), which were

both well entrenched when Movant pleaded guilty and was resentenced. See United States v.

Casares-Cuevas, No. 3:12-CR-00038, 2024 WL 4216017, at *2 (D. Nev. Sept. 17, 2024); Yerkes

v. United States, No. l:18-CR-38, 2024 WL 3460108, at *2 n.l (E.D. Tenn. July 17, 2024).

Likewise, the Supreme Court’s decision in Erlinger did not hold that its decision was

retroactively applicable to cases on collateral review. See Yerkes, No. l:18-CR-38, 2024 WL

3460108, at *2 n.l. Movant has cited no case—and the court has found none—holding that any

right first recognized in Erlinger is retroactively applicable on collateral review. See CasaresCuevas, No. 3:12-CR-38, 2024 WL 4216017, at *2. Movant thus fails to establish that Erlinger

created a newly recognized and retroactive right that would initiate a new habeas limitations clock

under § 2255(f)(3).

Further, Wooden does not extend the limitations period under § 2255(f)(3). Like Erlinger,

the Wooden opinion announced no newly recognized right; it merely clarified the meaning of the

ACCA “occasions clause.” Wooden, 595 U.S. 360, 375; see also Weaver v. United States, No.

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8:17-CR-163, 2023 WL 4947937, at *2 (M.D. Fla. Aug. 3, 2023), certificate of appealability

denied,No. 23-12914,2024 WL 4102025 (llthCir. Mar. 25,2024). Moreover, given that Wooden

was decided in 2022 and that this court applied Wooden during Movant’s resentencing in May

2022, Movant cannot raise any plausible claim under § 2255(f)(3) based on Wooden. See Crim.

Doc. 90-1 at 1-2 (PSR Fifth Addendum concludes Movant’s burglaries occurred on different days

and were not part of a single criminal event or episode as determined in Wooden)', Crim. Doc. 93

(Statement of Reasons) (accepting PSR). Lastly, even if Movant were to rely solely on Wooden,

his § 2255 Motion is also untimely because he did not file it within one year of the Wooden

decision. See Dodd, 545 U.S. at 357.

In sum, § 2255(f)(3) is inapplicable here. Thus, Movant’s § 2255 motion is clearly outside

the one-year limitations period absent equitable tolling.

B. There is No Basis for Equitable Tolling

Movant posits no facts from which the court can find that equitable tolling applies. Doc.

2; Doc. 4. Even when liberally construed, Movant’s pleadings present no argument or fact

suggesting that he diligently pursued his rights or that some extraordinary circumstance prevented

him from timely filing his § 2255 motion earlier, and no grounds for equitable tolling are apparent

to the court. See Lawrence v. Florida, 549 U.S. 327, 336 (2007) (finding that equitable tolling

requires a petitioner to show “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing”).

Accordingly, Movant cannot carry his burden of establishing that equitable tolling is

warranted here. See United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008).

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C. Actual Innocence does not Apply

Next, Movant asserts that he is actually innocent of the ACCA enhancement. Doc. 2 at 4;

Doc. 4-1 at 1-5. He does not present a credible claim, however.

While a claim of actual innocence may provide “a gateway through which a petitioner

may pass” after the limitations period has elapsed, “tenable actual-innocence gateway pleas are

rare[.]” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). A gateway actual-innocence claim is

available only when a movant 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.” Id. at 401 (quotations and quoted case omitted). To meet the

threshold requirement, a movant must present new evidence in support of his claim and “‘show

that it is more likely than not that no reasonable juror would have convicted him in the light of

the new evidence.’” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

In this case, Movant presents no newly discovered evidence that would undermine this

court’s confidence regarding the finding of guilt. Rather, he challenges the ACCA enhancement

on the basis of actual innocence. Doc. 2 at 4; Doc. 4-1 at 1-5. “Actual innocence jurisprudence

does not apply to habeas claims based on actual innocence of the conduct supporting a sentence.”

Dirks v. United States, No. 3:20-CV-288-L-BK, 2020 WL 7700619, at *3 (N.D. Tex. Nov. 13,

2020) (cleaned up and collecting cases), rec. adopted, 2020 WL 7698132, at *1 (N.D. Tex. Dec.

28, 2020).

Consequently, the “actual innocence” exception is inapplicable here, and the § 2255

Motion is time barred.

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III.

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CONCLUSION

For all these reasons, Movant’s Motion to Vacate Sentence under 28 U.S.C. § 2255 is

denied, and this action is dismissed with prejudice as barred by the one-year statute of

limitations. See Rule 4(b) of the Rules Governing Section 2255 Proceedings. Movant’s Motion

to Expedite is denied as moot.

It is so ordered this 19th day of March, 2025.

Sam A. Lindsay

United States District Judge

Memorandum Opinion and Order - Page 9

APPENDIX C

Relevant Statutory and Constitutional Provisions

18 U.S.C. § 924(e)

(Armed Career Criminal Act)

(e)(1) In the case of a person who violates section 922(g) of this title and has three

previous convictions by any court referred to in section 922(g)(1) of this title for a

violent felony or a serious drug offense, or both, committed on occasions different

from one another, such person shall be fined under this title and imprisoned not less

than fifteen years, and, notwithstanding any other provision of law, the court shall

not suspend the sentence of, or grant a probationary sentence to, such person with

respect to the conviction under section 922(g).

(2) As used in this subsection—

(A) the term "serious drug offense" means—

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the

Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705

of title 46, for which a maximum term of imprisonment of ten years or more is

prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing, or possessing

with intent to manufacture or distribute, a controlled substance (as defined in

section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum

term of imprisonment of ten years or more is prescribed by law;

(B) the term "violent felony" means any crime punishable by imprisonment for a

term exceeding one year, or any act of juvenile delinquency involving the use or

carrying of a firearm, knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force

against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.

United States Constitution, Amendment V (excerpt)

No person shall be deprived of life, liberty, or property, without due process of law.

Additional material

from this filing is

available in the

Clerk's Office.