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Hicks v. Davis

United States District Court, S.D. Texas, Houston Division

May 31, 2017

Robert Lee Hicks, Petitioner,
v.
Lorie Davis, Respondent.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller United States District Judge

         Petitioner 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).

         Having 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 limitations.

         Background and Claims

         A jury 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.

         Petitioner 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.

         Petitioner 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 new counsel.
(3) The trial court erred in denying his motion to appoint a private investigator.
(4) The trial court erred in failing to rule on his motions. Respondent argues that these claims should be dismissed as untimely.

         Analysis

         This 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 ...

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