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Rhone v. Davis

United States District Court, N.D. Texas, Fort Worth Division

March 31, 2017

DAVID L. RHONE, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYED JUDGE

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, David L. Rhone, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.

         I. Factual and Procedural History

         On June 20, 2014, in Criminal District Court Number One of Tarrant County, Texas, Case No. 13 60187D, petitioner waived his right to a jury trial, pleaded guilty to one count of sexual assault of a child under 17 years of age and was sentenced to 15 years' confinement. (SHR at 50-55.[1]) Petitioner did not directly appeal his conviction or sentence. (Pet. at 3.) On August 31, 2015, [2] petitioner filed a state habeas application challenging his conviction, which was denied by the Texas Court of Criminal Appeals on April 6, 2016, without written order on the findings of the trial court. (SHR, "Action Taken.") Petitioner filed this federal petition for habeas relief on May 10, 2016.[3] (Pet. at 10.) Generally, petitioner raises four grounds for habeas relief alleging ineffective assistance of trial counsel. (Id. at 6.) Respondent contends the petition is untimely under the federal statute of limitations. (Resp't's Preliminary Answer at 4-9.)

         II. Statute of Limitations

         Title 28 U.S.C., § 2244(d) imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. Section 2244(d) provides:

(1) A 1-year period of limitations 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 limitations 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 that 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 toward any period of limitations under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

         Because petitioner's claims involve matters related to his 2014 conviction, subsection (A) applies to his case. Under subsection (A), the limitations period began to run on the date on which the judgment of conviction became final by the expiration of the time for seeking direct review. For purposes of this provision, the judgment became final upon expiration of the time petitioner had for filing a timely notice of appeal on Monday, July 21, 2014. Thus, the limitations period commenced on July 22, 2014, and expired ...


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