United States District Court, N.D. Texas
MEMORANDUM OPINION AND ORDER
MCBRYDEUNITED STATES DISTRICT JUDGE.
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.
Factual and Procedural History
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.)
also sought postconviction state habeas-corpus relief by
filing a state habeas application in the trial court on July
30, 2015,  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. 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.)
Statute of Limitations
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 ...