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Hunter v. Davis

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

June 19, 2017

VICTOR CORNELL HUNTER, Petitioner,
v.
LORIE DAVIS, Director, [1]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, Victor Cornell Hunter, 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

         In August 2008 Petitioner was indicted in Tarrant County, Texas, Case No. 1114993D, on two counts of indecency with M.G., a child younger than 17 years of age, by touching her breast with the intent to arouse or gratify his sexual desire. Adm. R., Clerks' R. 2, ECF No. 10-11. On July 1, 2009, a jury found Petitioner guilty of count one, Petitioner pleaded true to the habitual-offender notice in the indictment, and the trial court assessed his punishment at 50 years' confinement. Id. at 70. Petitioner appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial's court judgment, and, on November 24, 2010, the Texas Court of Criminal Appeals refused his petition for discretionary review. Id., Mem. Op. & Docket Sheet, ECF Nos. 10-3 & 10-2, respectively. Petitioner did not seek writ of certiorari. Pet. 3, ECF No. 1. Petitioner also filed two relevant state habeas-corpus applications challenging his conviction. The first, filed on May 27, 2011, [2] was denied by the Texas Court of Criminal Appeals on June 6, 2012, without written order on the findings of the trial court. Adm. R., SH10 cover, 12, ECF No. 10-24. The second, filed on September 28, 2015, was dismissed by the Texas Court of Criminal Appeals on November 18, 2015, as a subsequent application pursuant to article 11.07, § 4(a)-(c) of the Texas Code of Criminal Procedure. Id., SH12 & Action Taken, ECF Nos. 10-26 & 10-25, respectively. Petitioner's federal petition raising five grounds for relief was filed on March 24, 2016.[3] Pet. 10, ECF No. 1.[4] Respondent asserts that the petition is time-barred in its entirety under the federal statute of limitations and, alternately, that three of petitioner's grounds are unexhausted and procedurally barred from federal habeas review. Resp't's Answer 1, 5, ECF No. 8.

         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 period of limitations under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

         Because Petitioner's claims involve matters related to the 2009 trial proceedings, subsection (A) applies to this case. Under that provision, the limitations period began to run on the date on which the judgment of conviction became final by the expiration of the time for seeking direct review or, as in this case, the expiration of the time for seeking further direct review. For purposes of this provision, the judgment became final upon expiration of the time that Petitioner had for filing a petition for writ of certiorari in the United States Supreme Court on February 22, 2011, triggering the one-year limitations period, which expired one year later on February 22, 2012. Id. § 2244(d)(1)(A); Gonzalez v. Thaler, 623 F.3d 222, 224 (5th Cir. 2010), aff'd, ...


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