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, 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.
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,  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. Pet. 10, ECF No. 1. 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.
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 period of limitations under this
28 U.S.C. § 2244(d)(1)-(2).
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, ...