United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge
Robert Lee Hicks, a state inmate proceeding pro se,
filed this section 2254 habeas petition challenging his 2012
conviction and twenty-year sentence for possession of
cocaine. Respondent has filed a motion to dismiss based on
expiration of limitations (Docket Entry No. 13), to which
petitioner has filed a response (Docket Entry No. 15).
considered the motion, the response, the pleadings, the
record, and the applicable law, the Court GRANTS the motion
to dismiss and dismisses this lawsuit as barred by
found petitioner guilty of possession of cocaine and, after
finding two enhancements true, assessed punishment at
twenty-years' imprisonment. The conviction was affirmed
on appeal, Hicks v. State, No. 01-12-00641-CR, 2014
WL 50808 (Tex. App. [1st Dist.] Jan. 7, 2014, pet.
ref'd), and his petition for discretionary review was
refused on April 30, 2014.
filed an application for state habeas relief with the trial
court on July 7, 2014. The Texas Court of Criminal Appeals
denied the application of October 1, 2014. Petitioner filed a
second application for state habeas relief on May 21, 2015,
but it was dismissed as an abuse of the writ on May 4, 2016.
filed the instant federal habeas petition no earlier than
December 30, 2016, raising the following claims for relief:
(1) The trial court erred in overruling his verbal motion to
elect jury sentencing.
(2) The trial court erred in refusing to allow him to seek
(3) The trial court erred in denying his motion to appoint a
(4) The trial court erred in failing to rule on his motions.
Respondent argues that these claims should be dismissed as
petition is governed by provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA,
federal habeas corpus petitions 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 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