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Keith v. Davis

United States District Court, N.D. Texas, Fort Worth Division

June 12, 2017

DEANNA LYNN KEITH, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED O'CONNOR, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         On 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, [1] 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, [2] 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.

         This 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.

         II. DISCUSSION

         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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