United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by petitioner, Deanna Lynn
Keith, a state prisoner confined in the Correctional
Institutions Division of the Texas Department of Criminal
Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition
should be dismissed as time-barred.
November 5, 2013, pursuant to a plea agreement, Petitioner
pleaded guilty in the 355th Judicial District Court of Hood
County, Texas, Case No. CR12432, to evading arrest and true
to the two enhancements paragraphs in the indictment, and the
trial court found Petitioner guilty and the enhancement
paragraphs true and assessed her punishment at 17 years'
imprisonment and a $3000 fine. Adm. R., State Writ 52-58, ECF
No. 16-10. Having waived her right of appeal, Petitioner did
not directly appeal her conviction or sentence. Id.
at 51. On October 1, 2014,  Petitioner filed a state
habeas-corpus application, raising one or more of the claims
presented herein, which was denied by the Texas Court of
Criminal Appeals on April 1, 2015, without written order on
the findings of the trial court. Id. at 21 &
“Action Taken, ” ECF No. 16-8. Petitioner filed
this federal habeas petition on January 30, 2015,
wherein she claims that her enhanced sentence under
Texas's repeat-offender statute is illegal and excessive
(grounds one, two, and four), that she received ineffective
assistance of trial counsel (ground three), and that the
state engaged in prosecutorial misconduct (ground five). Pet.
6-7 & Pet'r's Mem. 5, ECF No. 1.
Court issued a show cause order upon Respondent on February
5, 2015, and she filed a responsive pleading on the merits.
Order, ECF No. 5; Resp't's Answer, ECF No. 17.
Thereafter, upon review of the pleadings and state court
records, this Court issued a second show cause order upon
Respondent on April 17, 2017, directing her to file a
supplemental answer addressing the issue of limitations.
Supp. Order, ECF No. 31. Respondent contends in her
supplemental answer that the petition is time-barred under
the federal statute of limitations. Resp't's Supp.
Answer 1-4, ECF No. 33. Petitioner, on the other hand,
asserts in her supplemental reply that Respondent waived the
limitations defense by not raising it in her original answer
and that this Court had no authority to raise the issue sua
sponte. Pet'r's Resp. 3-5, ECF No. 34. The United
States Supreme Court has made clear that, although a federal
court is under no obligation to raise the limitations defense
sua sponte, it may do so as long as, before acting on its own
initiative, the court accords the parties fair notice and an
opportunity to present their positions on the issue. Day
v. McDonough, 547 U.S. 198, 209-10 (2006). Such notice
and opportunity were afforded the parties here. Thus, this
Court was within its authority to raise the issue sua sponte.
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)
(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 ...