Grimes v. Davis

Filing 23

MEMORANDUM OPINION AND ORDER granting 21 MOTION to Supplement Rebuttal to Summary Judgement as to 20 Reply, granting 18 MOTION for Summary Judgment with Brief in Support, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JAMES MAURICE GRIMES,
TDCJ #619562,
Petitioner,
v.

LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§
§
§

March 08, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2482

MEMORANDUM OPINION AND ORDER

James Maurice Grimes (TDCJ #619562) has filed a Petition for
a Writ of Habeas Corpus By a Person in State Custody ("Petition")
(Docket Entry No. 1) to challenge a state court murder conviction
that was entered against him in 1995.
filed

a

Motion

("Respondent's
Petition

is

limitations.

Respondent Lorie Davis has

for

Summary

Judgment

MSJ")

(Docket

Entry

barred

by

the

With

No.

governing

18) ,

Brief

in

arguing

one-year

Support
that

the

statute

of

In response Grimes has filed Petitioner's Rebuttal of

Summary Judgment

("Petitioner's Rebuttal")

(Docket Entry No. 20)

and Petitioner's Motion to Supplement Rebut tal
Summary Judgment
Entry No. 21).

to Respondents'

("Petitioner's Supplemental Rebuttal")

(Docket

After considering the pleadings, the state court

records, and the applicable law, the court will grant Respondent's
MSJ and will dismiss this case for the reasons explained below.

I.
On January
against Grimes,

Background and Procedural History

6,

1994,

a

grand

jury returned

an

indictment

charging him with murder in Harris County Cause

No. 9400486, for causing the death of Leah Carol Bandaries. 1

After

a jury in the 177th District Court for Harris County, Texas, found
Grimes guilty as charged, the trial court sentenced Grimes to life
imprisonment on September 5, 1995. 2
to run consecutive to a

The sentence was "cumulated"

40-year term that was

imposed against

Grimes previously when he was convicted in Harris County Cause
No. 643491 of aggravated kidnapping in connection with Bandaries's
death. 3
A.

Direct Appeal

Grimes' direct appeal from his conviction in Cause No. 9400486
was initially dismissed as untimely.
95-1329-CR
pet.) . 4
newly

(Tex.

App.- Houston

See Grimes v. State, No. 14-

[14th Dist.]

Dec.

14,

1995,

no

He was granted leave to file an out-of-time appeal after
appointed

counsel

argued

successfully

that

Grimes

was

1

See Indictment, Docket Entry No. 17-6, p. 70.
For purposes
of identification, all page numbers refer to the pagination
imprinted by the court's electronic filing system, CM/ECF.
2

See Judgment on
No. 17-6, pp. 71-72.

Jury

Verdict

of

Guilty,

Docket

3

Entry

See id. at 71.
See also Indictment in Cause No. 6434 91,
Docket Entry No. 17-6, p. 31; Judgment on Jury Verdict of Guilty in
Cause No. 643491, Docket Entry No. 17-6, p. 40.
4

See Corrected Opinion, Docket Entry No. 17-5, p. 17.
-2-

prevented from filing a timely notice of appeal through no fault of
his own. 5
During

his

direct

appeal

Grimes

argued

that

there

was

insufficient evidence to show that he caused the victim's death by
striking her in the neck as alleged in the indictment. 6

He argued

further that there was a fatal variance between the theory alleged
in the indictment and the proof presented at trial, which showed
that

she

was

strangled. 7

The

intermediate

court

of

appeals

rejected all of Grimes' arguments and affirmed the conviction after
summarizing the evidence presented at trial:
The complainant, Leah Carol Bandaries was a small,
23 -year-old woman who was mentally slow.
She was
somewhat obsessive about her pursei she carried it under
her arm and did not want anyone to see what was in it.
About two weeks before her murder [Grimes] told a friend
that "we ought to take the silly ass bitch down to the
woods and beat her to death because you could have
thousands of dollars in that purse."
[Grimes] 's brother
heard [Grimes] talking with several other men about the
"crazy girl" with the purse.
They speculated that she
must have a lot of money in that purse because of the way
she held it so close to her.
They said that they would
not mind taking the purse from her, and that if they had
to they would "beat the s
out of her."
Two days
before the complainant was murdered, [Grimes] 's brother
again heard [Grimes] talking to another man about trying
to get the complainant's purse.
[Grimes] said he was
1

5

See Ex parte Grimes, Docket Entry No. 14-1, p. 1i see also
Application for Writ of Habeas Corpus for an Out-Of-Time Appeal,
Writ No. 9400486-A, Docket Entry No. 17-5, pp. 6-16.
6

See Appellant's Brief

(part one)

1

Docket Entry No.

14-4,

p. 3.
7

See id. at 3, 7 i see also Appellant's Brief
Docket Entry No. 14-5, pp. 3-4.
-3-

(part

two) ,

going to be real nice to her and try to get the purse
then. The other man told [Grimes] that "if that does not
work you know what you have to do."
On the night the complainant was murdered, an
eyewitness saw her with [Grimes] outside a bar.
They
were arguing;
[Grimes] hugged the complainant in a
"forceful" way. She was crying and trying to get away.
He saw them walk away together.
The complainant's bruised and battered body was
discovered in a wooded area the next morning.
When
[Grimes] came home that morning, he had blood on his
pants and shoes. He also had scratches on his face and
hand that were not there the day before.
Grimes v. State, No. 01-96-01303-CR, slip op. at 1-2 (Tex. App. Houston [1st Dist.] Oct. 1, 1998)

(unpublished)

of Criminal Appeals refused Grimes'
review on March 17, 1999.
Crim. App.)
certiorari

8

The Texas Court

petition for discretionary

See Grimes v. State, PD-0124-99 (Tex.

Because Grimes did not appeal further by seeking
review

with

the

United

States

Supreme

Court,

his

conviction became final 90 days later on June 15, 1999. 9
B.

State Collateral Review

State court records show that Grimes filed four state habeas
corpus applications

under Article

11. 07

of

the

Texas

Code of

Criminal Procedure and a motion for post-conviction DNA testing
under

Chapter

64

of

the

Texas

Code

of

Criminal

challenge his murder conviction in Cause No.

Procedure

9400486.

to

To the

extent that these proceedings are relevant to the chronology of

8

0pinion, Docket Entry No. 14-3, pp. 1-2.

9

See Sup. Ct. R. 13.1.
-4-

this case and the running of the statute of limitations on federal
habeas review, these state court proceedings are summarized briefly
below . 10
1.

Grimes' First State Habeas Application

Grimes filed his first

state habeas corpus application on

February 16, 1996, in an effort to file an out-of-time appeal from
his

conviction

in

Cause

No.

9400486. 11

That

application

was

granted, and Grimes was given leave to file an out-of-time appeal
on September 11, 1996. 12
2.

Grimes' Second State Habeas Application

After Grimes' direct appeal concluded, he filed a second state
habeas application to challenge his conviction in Cause No. 9400486

10

Grimes also filed a separate state habeas corpus proceeding
to challenge his aggravated kidnapping conviction in Cause
No. 643491 on March 21, 2016, and two separate applications for a
writ of mandamus on October 10, 2016, and October 14, 2016.
See
State Habeas Application No. 6434 91-A, Docket Entry No. 17-19,
pp. 6-30; Plaintiff's Original Application for Writ of Mandamus,
Docket Entry No. 17-11; and Plaintiff's Original Application for
Writ of Mandamus, Docket Entry No. 17-16.
The Texas Court of
Criminal Appeals denied Grimes' state habeas corpus application in
Cause No. 643491-A without a written order on February 1, 2017.
See Action Taken on Writ No. 31,243-06, Docket Entry No. 17-18.
The Texas Court of Criminal Appeals denied both mandamus
applications without a written order on February 1, 2017, and
March 1, 2017.
See Ex parte Grimes, Writ No. 31,243-04, Docket
Entry No. 17-8, and Ex parte Grimes, Writ No. 31,243-05, Docket
Entry No. 17-13.
Because these proceedings are not pertinent to
the resolution of Respondent's MSJ, they are not addressed further.
11

See Application for Writ of Habeas Corpus for an Out-Of-Time
Appeal, Writ No. 9400486-A, Docket Entry No. 17-5, pp. 6-16.
12

See Ex parte Grimes, Docket Entry No. 14-1, p. 1.
-5-

on June

13,

2000. 13

Grimes

argued that

his murder conviction

violated the prohibition against double jeopardy because he was
convicted

previously

in

a

separate

aggravated kidnapping in Cause No.

case,

charging

643491. 14

The

him

with

state habeas

corpus court concluded that the claim lacked merit and recommended
that relief be denied. 15

The Texas Court of Criminal Appeals agreed

and denied relief without a written order on January 31, 2001. 16
3.

Grimes' Third State Habeas Application

On October 4,

2001,

Grimes filed another application for a

state writ of habeas corpus, challenging the trial court's decision
to cumulate the sentence he received in Cause No. 9400486 with the
sentence

he

No. 643491. 17

received

for

aggravated

kidnapping

in

Cause

The trial court found that the claim could have been

raised in his prior application and, alternatively, that the claim
lacked merit. 18

Based on those findings the Texas Court of Criminal

13

Application for Writ of Habeas Corpus, Art. 11.07, V.A.C.C.P.
("State Habeas Application No. 9400486-B"), Docket Entry No. 17-6,
pp. 1-30.
14

Id. at 9.

15

Respondent's Proposed Findings of Fact and Order ("Findings
and Order"), Docket Entry No. 17-6, p. 61.
16

Action Taken on Writ No. 31,243-02, Docket Entry No. 17-6,

p. 1.
17

Application for a Writ of Habeas Corpus Seeking Relief from
Final Felony Conviction Under Code of Criminal Procedure, Article
11.07 ("State Habeas Application No. 9400486-C"), Docket Entry
No. 17-7, pp. 6, 9.
18

Findings and Order, Docket Entry No. 17-7, p. 38.
-6-

Appeals

dismissed

the

application

on

January

30,

2002,

as

subsequent or successive and barred by the Texas abuse-of-the-writ
statute,

Article

11.07,

4 (a)

§

of

the

Texas

Code of

Criminal

Procedure . 19
4.

Grimes' Post-Conviction DNA Proceedings

On April 17, 2009, Grimes filed a pro se motion pursuant to
Chapter 64

of

the

Texas

Code of

Criminal

Procedure

for post-

conviction DNA testing of biological evidence collected in his
case. 20

The trial court appointed counsel to represent Grimes and

granted the motion for post-conviction DNA testing on June 3,
2010. 21

Testing done by the Texas Department of Public Safety

determined that DNA extracted from sperm cells found on an oral
swab of the victim were consistent with Grimes' DNA profile. 22
July 1,

2014,

the

trial

court

found

that

the

test

On

results of

biological evidence recovered during the murder investigation were
"not favorable" to Grimes. 23

19

In making those findings,

the trial

Action Taken on Writ No. 31,243-03, Docket Entry No. 17-7,

p. 1.
20

State's Proposed Findings of Fact After DNA Testing
("Findings After DNA Testing"), Docket Entry No. 17-20, p. 89.
21

State's Proposed Findings and Order Pursuant to Tex.
Crim. Proc. 64.03, Docket Entry No. 17-20, pp. 69-71.

Code

22

Findings After DNA Testing, Docket Entry No. 17-20, p. 91
19 (referencing State's Exhibit E, Texas Department of Public
Safety, Serology\DNA Report, Docket Entry No. 17-20, p. 101).
~

23

~

Findings After DNA Testing, Docket Entry No.
23 (emphasis in original) .
-7-

17-20, p.

91

court observed that fingernail scrapings were collected from the
victim and turned over to the prosecutor, Mike Anderson, by one of
the case agents. 24
these

items,

In response to the request for DNA testing of

however,

Anderson

reported

that

he

was

not

in

possession of the nail scrapings and that he "did not have any
knowledge of their whereabouts or existence." 25
5.

Grimes' Fourth State Habeas Application

On November 2, 2015, Grimes filed another state habeas corpus
application. 26

Grimes raised the following arguments:

1.

He was
entitled to
relief
based on
"Newly
Discovered Evidence" disclosed during his postconviction DNA proceeding. 27

2.

He was entitled to additional DNA testing of "ALL"
existing untested biological evidence in custody of
the Harris County Crime Lab, namely, "Hair and
Blood found at the scene of the crime[.]" 28

3.

He is "actually innocent" of the offense based on
"newly discovered evidence" uncovered during postconviction DNA testing, showing that the prosecutor
violated "the Brady Rule" by hiding or destroying

24

Id. at 89-90

~~

10-11.

Id. at 90 ~ 12 (citing State's Exhibit C, Affidavit of Mike
Anderson dated Feb. 18, 2013).
25

26

Application for a Writ of Habeas Corpus Seeking Relief from
Final Felony Conviction Under Code of Criminal Procedure, Article
11. 07 ("State Habeas Corpus Application No. 94 0 04 8 6 -D") , Docket
Entry No. 17-24, pp. 4-24.
27

Id. at 9 (Ground One)

28

Id. at 11 (Ground Two) .
-8-

"biological evidence of blood
scrapings from the victim [.] " 29

and

fingernail

4.

The trial court denied him the right to confront
and cross-examine a witness (Daniel Velasquez) at
trial. 30

5.

The evidence was legally and factually insufficient
to support the conviction. 31

6.

The prosecutor engaged in misconduct by suppressing
biological evidence (fingernail scrapings) that was
never returned, coaching a 12-year-old witness
(Michael Edwards) to give perjured testimony, and
making false statements during his closing argument
to the jury. 32

7.

He was denied effective
before and during trial. 33

assistance

of

counsel

The trial court found that the application was subject to dismissal
as a subsequent writ barred by Article 11.07, § 4(a) . 34

The Texas

Court of Criminal Appeals agreed and dismissed the application
under Article 11.07,
C.

§

4(a) on March 1, 2017. 35

Grimes' Federal Petition

On August
seeking

federal

12,

2017,

habeas

Grimes
corpus

executed the

pending

relief

his

from

1995

Petition
murder

29Id. at 13 (Ground Three) .
3oid. at 15 (Ground Four) .
31Id. at 17 (Ground Five) .
32Id. at 18-19 (Ground Six)
33Id. at 20 (Ground Seven) .
34 The State's Proposed Findings of Fact, Conclusions of Law,
and Order on Application No. 9400486-D, Docket Entry No. 17-23,
p. 18.
35 Action Taken on Writ No. 31,234-07, Docket Entry No. 17-22,
p. 1.
-9-

conviction under 28 U.S.C.

§

2254. 36

Grimes contends that he is

entitled to relief for the following reasons:
1.

The Texas Court of Criminal Appeals erred by
refusing to consider the merits of his 2015
state writ application.

2.

He is "actually innocent" of the offense based
on
"newly
discovered
evidence"
of
prosecutorial misconduct uncovered during his
post-conviction DNA proceeding.

3.

He is entitled to additional DNA testing of
"all" biological evidence still in the state's
possession.

4.

He was denied the right to confront and crossexamine a witness (Daniel Velasquez) at trial.

Sa.

The
prosecutor
committed
misconduct
by
suppressing biological evidence (fingernail
scrapings from the victim) that was signed out
to him, but never returned to the Houston
Police Department Evidence Room.

5b.

The
prosecutor
committed
misconduct
by
coaching
a
12 -year-old
witness
(Michael
Edwards) to give perjured testimony and making
false arguments to the jury at trial.

6.

The
evidence
is
legally
and
factually
insufficient to support the conviction.

7.

He was denied effective assistance of counsel
throughout his entire case. 37

The respondent argues that the Petition must be dismissed because
all of the claims are barred by the governing one-year statute of
limitations on federal habeas corpus review.

36

Peti tion, Docket Entry No. 1, p. 12.

37

Id. at 6-9; Memorandum of Law in Support of Petitioner's Writ
of Habeas Corpus, 28 U.S.C. § 2254 ("Memorandum of Law"), Docket
Entry No. 2, pp. 1-51.
-10-

II.
A.

Discussion

The One-Year Statute of Limitations

According to the Antiterrorism and Effective Death Penalty Act
of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
all federal habeas corpus petitions filed after April 24, 1996, are
subject
§

to

a

one-year

limitations

period

found

in

28

U.S.C.

2244(d), which provides as follows:
(d) (1)

A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by
a person in custody pursuant to the judgment
of a State court. The limitation period shall
run from the latest of--

(A)

(B)

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)

u.s.c.

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)

28

the date on which the judgment became final by
the conclusion of direct review or the
expiration of the time for seeking such
review;

the date on which the factual predicate of the
claim or claims presented could have been
discovered
through
the
exercise
of
due
diligence.

§

2244 (d) (1).

Because the pending Petition was filed

well after April 24, 1996, the one-year limitations period clearly
applies.
1998)

See Flanagan v.

Johnson,

(citation omitted).
-11-

154 F.3d 196,

198

(5th Cir.

To the extent that Grimes challenges a state court judgment of
conviction,

the

limitations

period

began

to

run

pursuant

to

§ 2244(d) (1) (A) on June 15, 1999, when his conviction became final
upon the expiration of his time to pursue direct review.
Gonzalez v. Thaler, 132 S. Ct. 641,

644, 647

(2012)

See

(noting that

where Supreme Court review is not sought a conviction becomes final
"when the time for seeking further direct review in the state court
expires").

That date triggered the statute of limitations, which

expired one year later on June 15, 2000.

Because Grimes did not

execute his pending Petition until August 2, 2017, review is barred
by the

statute of

limitations unless

a

statutory or equitable

exception applies.
B.

The Availability of Tolling Under 28 U.S.C.

§

Under

during

28

U.S.C.

§

2244(d) (2),

"properly filed application for
collateral

review"

is

the

time

state

which

a

[s]tate post-conviction or other

pending

shall

not

limitations period on federal habeas review.
Grimes'

2244(d} (2}

post-conviction proceedings

count

toward

the

The chronology of

shows

that

only

his

second state habeas corpus application, which was filed two days
before the statute of limitations expired,
period pursuant to§ 2244(d) (2).

tolls the limitations

That application, which was filed

on June 13, 2000, and denied by the Texas Court of Criminal Appeals
on January 31, 2001, tolled the statute of limitations for federal
review for 234 days, from June 15, 2000, to February 2, 2001.
-12-

None

of Grimes'

subsequent state habeas applications or motions for

collateral

review

extend

the

statute

of

limitations

under

§ 2244(d) (2) because they were filed after the extended limitations

period expired in February of 2001.
260, 263 (5th Cir. 2000).

See Scott v. Johnson, 227 F.3d

38

The pending Petition, executed on August 2, 2017, is late by
more than 16 years and must therefore be dismissed unless Grimes
establishes that some other statutory or equitable basis exists to
excuse his failure to comply with the statute of limitations that
limits federal habeas review.
C.

There is No Other Basis for Statutory or Equitable Tolling

The

court

has

Petitioner's

considered

Petitioner's Supplemental Rebuttal,

39

Rebuttal

and

and notes that he does not

assert that he was subject to state action that impeded him from
filing
§

his

Petition

2244 (d) (1) (B).

in

a

Likewise,

timely

manner.

See

28

u.s.c.

none of his claims are based on a

constitutional right that has been newly recognized by the Supreme
Court.

See 28 U.S.C.

addressed

separately

§

2244 (d) (1) (C).

below,

none

of

constitutional issue that is based on a

Moreover,
his

for reasons

claims

raise

a

"new factual predicate"

that could not have been discovered previously if the petitioner
38

Grimes' first state habeas application, which was filed in
1996 and resulted in an out-of-time appeal, does not toll the
limitations period because it was filed before the conviction
became final in 1999.
39

Docket Entry Nos. 20, 21.
-13-

had acted with due diligence.

See 28 U.S.C. § 2244(d) (1) (D); Pace

v. DiGuglielmo, 125 S. Ct. 1807, 1813 n.6

(2005)

(observing that

the availability of review under§ 2244(d) (1) (D) for claims based

a

on

"new

factual

consideration") ;
2004)

predicate"

Fielder v.

(concluding

that

U.S. C. § 2244 (d) ( 1)

the

requires

"claim-by-claim

Varner,

3 7 9 F. 3d 113,

statute

of

122

limitations

(3d Cir.

found

in 28

"must be applied on a claim-by- claim basis") .

Grimes does not otherwise show that federal review is available for
any of his claims.
1.
Two

Claims Concerning State Court Proceedings
of

Grimes'

claims

complain of

rulings

occurred on collateral review in state court.

that

allegedly

In Claim 1 Grimes

complains of the decision issued by the Texas Court of Criminal
Appeals

on March 1,

application

as

2017,

barred

to

by

dismiss

the

subsequent writ applications. 40
a

decision

made

by

the

his

fourth

prohibition

on

state

habeas

successive

or

In Claim 3 Grimes appears to fault

trial

court

on

May

24,

2016,

which

effectively denied a request that he had made on January 25, 2016,
for additional DNA testing under Chapter 64 of the Texas Code of
Criminal Procedure and for the appointment of counsel. 41

40

See Action Taken on Writ No. 31,243-07, Docket Entry No. 1722, p. 1 (citing Tex. Code Crim. Proc. art. 11.07, § 4(a)-(c)).
41

See Motion for Forensic DNA Testing Pursuant to Article
64.01, Texas Code of Criminal Procedure, Docket Entry No. 17-20,
pp. 103-11; Request for Appointment of Counsel Pursuant to Article
(continued ... )
-14-

Although Grimes'
U.S.C.

§

federal

Petition may be

timely under

28

2244(d) (1) (D) as to the factual predicates for Claims 1

and 3, this does not benefit Grimes because the substance of his
allegations do not articulate viable claims for relief on federal
habeas

review.

The

Fifth

Circuit

has

repeatedly

held

that

"infirmities" or errors that occur during state collateral review
proceedings
court."

"do

not

Rudd v.

constitute

Johnson,

(quoting Trevino v.
(citations omitted) .

Johnson,

256

grounds
F.3d

for

relief

in

federal

317,

319

(5th

Cir.

2001)

168 F.3d 173,

180

(5th Cir. 1999))

Accordingly, Claim 1 must be dismissed for

failure to state a claim.
Likewise,

a

request

for DNA testing is not

cognizable on

federal habeas review, which is limited to determining whether a
petitioner is "'in custody in violation of the Constitution or laws
or treaties

of

the

United States.'"

Malone v.

Thaler,

No. 3:11-2304-M(BK), 2012 WL 760319, *2 (N.D. Tex. 2012)
28 U.S.C.

§

2254(a)).

131

S.

Ct.

(quoting

Instead, claims for DNA testing must be made

in a civil rights action under 42 U.S.C.
Switzer,

Civil

1289,

1297-98

§

(2011)

1983.

See Skinner v.

(cone l uding

that

a

convicted state prisoner may press a procedural due process claim
concerning access to DNA testing under 42 U.S.C.

§

1983); but see

District Attorney's Office for Third Judicial Dist. v. Osborne, 129

41

( • • • continued)
64, Code of Criminal Procedure, Docket Entry No. 17-20, p. 112;
Order [Denying Appointment of Attorney], Docket Entry No. 17-20,
p. 113.

-15-

S. Ct. 2308, 2322-23 (2009)

(declining to recognize a free-standing

substantive due process right to access DNA evidence for testing) .
Accordingly,
purposes of

even

assuming

that

2244(d) (1) (D),

§

Claim

Grimes'

3

is

timely

filed

for

request for additional DNA

testing must be dismissed because it fails to state a claim upon
which

relief

may

be

granted

under

the

federal

habeas

corpus

statutes.
2.

Claims Based on Facts Available at Trial

The following claims are based on facts that were available at
or near the time of trial:
(a)

Grimes was unable to confront or cross-examine a
witness (Claim 4);

(b)

the prosecutor engaged in misconduct by coaching a
witness to commit perjury and by making false
arguments to the jury (Claim Sb) ;

(c)

the evidence was legally and factually insufficient
(Claim 6); and

(d)

he was denied effective assistance
before and during trial (Claim 7) . 42

of

counsel

Grimes has not shown that the factual predicates for these claims
were unavailable before his conviction became final on June 15,
1999.

Because Grimes does not offer any reason for his failure to

pursue

federal

review

of

these

claims

before

the

statute

of

limitations expired in 2001, he is not entitled to tolling under
§

2244(d) (1) (D).

See Petition, Docket Entry No. 1, pp. 7, 8, 9; Memorandum of
Law, Docket Entry No. 2, pp. 23-28.
42

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Likewise, Grimes has not demonstrated that he pursued federal
review

of

these

claims

with

extraordinary circumstance
Florida,

130

S.

Ct.

due

diligence

stood
2562

2549,

in his

way.

(2010).

(Claims 4,

5b,

6,

and 7)

See

Therefore,

tolling is not available to preserve federal
claims

or

review,

that

some

Holland v.
equitable
and these

are barred by the statute of

limitations.
3.

Claims of Actual Innocence

In Claim 2 Grimes
because he is

asserts

"actually innocent"

suppressed by the prosecutor. 43
he was

that

he

is

entitled to

relief

based on biological evidence

Grimes elaborates in Claim Sa that

prevented from proving his

actual

innocence previously

because the prosecutor suppressed "exculpatory" biological evidence
in the form of fingernail scrapings, which -

if subjected to DNA

testing- may have been favorable to his defense. 44
A free-standing

allegation of

actual

innocence

is

not

an

"independent constitutional claim" that is actionable on federal
habeas corpus review.

See Herrerra v. Collins, 113 S. Ct. 853, 869

(1993); see also Graves v. Cockrell, 351 F. 3d 143, 151 (5th Cir.
2003)

(observing that the Fifth Circuit has repeatedly held that

claims of actual innocence are "not cognizable" on federal habeas
review) (citations omitted)).

If proven, however, actual innocence

43

Peti tion, Docket Entry No. 1, p. 6.

44

Memorandum of Law, Docket Entry No. 2, pp. 9-10, 23, 25.
-17-

may

excuse

a

failure

to

comply

with

the

one-year

limitations on federal habeas corpus review.
Perkins, 133 S. Ct. 1924, 1928 (2013).
must

support

evidence

a

claim

whether

of
it

actual
be

statute

of

See McOuiggin v.

To be credible a petitioner

innocence

exculpatory

with

"new

scientific

reliable
evidence,

trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial."
865

(1995) .

Schlup v. Delo, 115 S. Ct. 851,

To prevail on such a claim a petitioner must 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 867.

Grimes points to post-conviction DNA testing in his case and
argues

that

newly

discovered

evidence

disclosed

during

that

proceeding somehow proves that he is actually innocent and that the
prosecutor suppressed evidence in violation of Brady v. Maryland,
83 S. Ct. 1194 (1963)

Grimes does not allege facts showing that

there is exculpatory evidence or that any material evidence was
suppressed by the prosecutor for purposes of making a Brady claim. 45
The trial court found that the newly tested DNA evidence was "not

45

To establish a Brady violation a defendant must prove that:
(1) evidence was withheld or suppressed by the prosecutor, either
willfully or inadvertently; (2) the evidence was favorable to the
defendant, either because it was exculpatory or because it has
impeachment value; and (3) the evidence was material such that
prejudice ensued. See Strickler v. Greene, 119 S. Ct. 1936, 1948
(1999) .
Evidence is material under Brady "only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Bagley, 105 S. Ct. 3375, 3383 (1985).
-18-

favorable" to Grimes. 46

A state court's fact findings are presumed

correct on federal habeas review unless the petitioner rebuts those
findings

with

2254(e) (1).

clear

and

convincing

evidence.

28

u.s.c.

§

Grimes does not present any evidence to contradict the

state court's

findings.

Because he has

not

shown that he is

actually innocent, he is not entitled to tolling under McQuiggin.
Accordingly,

these claims

(Claims 2 and Sa)

are barred by the

statute of limitations.
Because Grimes fails to establish that an exception to the
AEDPA statute of limitations applies with respect to any of his
claims, the Respondent's MSJ will be granted and the Petition will
be dismissed as untimely under 28 U.S.C.
III.

2244(d) (1).

§

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a

final

order that

is adverse

to

the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate
court's

"that

assessment

§

2253 (c) (2),

reasonable
of

the

which requires a petitioner to

jurists

would

constitutional

46

~

constitutional

Findings After DNA Testing,
23 (emphasis in original).
-19-

find

claims

Docket Entry No.

the

district

debatable

or

17-20, p.

91

wrong."

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).

(quoting

Where denial of

relief is based on procedural grounds, the petitioner must show not
only that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."

Slack, 120

S. Ct. at 1604.
A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.

See

Alexander v.

For

reasons

set

Johnson,

211 F.3d 895,

forth above,

this

court

898

(5th Cir.

concludes

that

2000).

jurists of

reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
relief.

Therefore, a certificate of appealability will not issue.
IV.

Conclusion and Order

Accordingly, the court ORDERS as follows:
1.

Respondent's Motion for Summary Judgment
Entry No. 18) is GRANTED.

2.

Petitioner's Motion to Supplement Rebuttal to
Respondent's Motion for Summary Judgment (Docket
Entry No. 21) is GRANTED.

3.

The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by James Maurice
Grimes (Docket Entry No. 1) is DISMISSED with
prejudice.

4.

A certificate of appealability is DENIED.
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(Docket

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 8th day of March, 2018.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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