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Moore v. Davis

United States District Court, N.D. Texas

April 14, 2017

JODIE MOORE, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDEUNITED STATES DISTRICT JUDGE.

         This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Jodie Moore, 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 August 3, 2006, in the Criminal District Court Number Two of Tarrant County, Texas, Case No. 0944359D, a jury found petitioner guilty of aggravated robbery with a deadly weapon and the next day assessed his punishment at 45 years' confinement. (Clerk's R. 106, ECF No. 14-11.) Petitioner appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial court's judgment. (Mem. Op. 35, ECF No. 14-3.) Petitioner was granted an extension until November 23, 2007, to file a petition for discretionary review in the Texas Court of Criminal Appeals, but failed to do so within the time allowed, and, on February 6, 2008, the Texas Court of Criminal Appeals dismissed his untimely petition. (Resp't's Preliminary Answer, Ex. A, ECF No. 15.)

         Petitioner also sought postconviction state habeas-corpus relief by filing a state habeas application in the trial court on July 30, 2015, [1] which was denied by the Texas Court of Criminal Appeals on March 2, 2016, without written order or hearing on the findings of the trial court. (State Habeas R. 2, ECF Nos. 14-16 & 14-19.) The instant federal habeas-corpus petition was filed on March 4, 2016.[2] In two grounds, petitioner claims that he was constructively denied counsel at a critical stage of the state adversarial proceedings because his appellate counsel filed a frivolous motion for new trial and that his appellate counsel was ineffective by failing to raise the issue of ineffective assistance of trial counsel in his motion for new trial and on appeal. (Pet. 6-6B, ECF No. 1.)

         II. Statute of Limitations

         Respondent contends the petition is untimely. (Resp't's Preliminary Answer 4-8, ECF No. 15.) Title 28, United States Code, § 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 ...

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