GARY WAYNE PYRTLE, TDCJ-CID NO. 1581835. Petitioner,
WILLIAM STEPHENS, DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Respondent.
MEMORANDUM OPINION AND ORDER
SIM LAKE, District Judge.
Gary Wayne Pyrtle (TDCJ No. 1581835) is a state inmate incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division pursuant to a state court judgment. Pyrtle filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254 (Docket Entry No. 1). The court ordered Pyrtle to show cause within thirty days why this case should not be dismissed since it appears that the petition is untimely. Having reviewed the petition, available state records, and Pyrtle's response (Docket Entry No. 7), the court concludes that Pyrtle's habeas petition is untimely. Accordingly, this action will be dismissed under the provisions of 28 U.S.C. § 2244(d).
I. Facts and Procedural History
Pyrtle was convicted on June 29, 2009, based on a guilty plea for failure to register as a sex offender. State v. Pyrtle, No. 1188837A (338th Dist. Ct., Harris County, Tex.) (Docket Entry No. 1, p. 2). Pyrtle did not file a direct appeal. Id . On September 12, 2011, Pyrtle filed a state application for a writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. See Harris County District Clerk's Website, http://www.hcdistrictclerk.com. The Texas Court of Criminal Appeals denied his application on December 19, 2012. Ex parte Pyrtle, Writ No. 52, 200-02. Id .; see also Court of Criminal Appeals Website, http://www.cca.courts.state.tx.us. Pyrtle filed a second state habeas application on August 13, 2012, which was also denied by the Court of Criminal Appeals on December 19, 2012. Ex parte Pyrtle, Writ No. 52, 200-03. Id.
Pyrtle had previously filed a federal petition for a writ of habeas corpus challenging the conviction, which was dismissed for failure to exhaust state court remedies. Pyrtle v. Thaler, H-11-2092 (S.D. Tex. June 7, 2011). The pending habeas petition was filed on May 14, 2013, the date he apparently gave the petition to prison officials for mailing to the district court. See Docket Entry No. 1, p. 10; Starns v. Andrews , 524 F.3d 612, 616 n.1 (5th Cir. 2008) ("prison mailbox rule").
II. One-Year Statute of Limitations
Pyrtle's habeas petition is subject to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provisions, which restrict the time in which a state conviction may be challenged. Flanagan v. Johnson , 154 F.3d 196, 198 (5th Cir. 1998). Under the AEDPA federal habeas petitions that challenge state court judgments are subject to a one-year limitations period as set forth by the following statutory language:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...