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Cummings v. Davis

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

September 7, 2017

AARON CUMMINGS, Petitioner,
v.
LORIE DAVIS, Director, [1]Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Aaron Cummings, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.

         I. Factual and Procedural History

         On March 6, 2015, pursuant to a plea agreement in the 396th District Court of Tarrant County, Texas, Case No. 1362455D, petitioner pleaded guilty to one count of aggravated sexual assault of a child under 14 years of age and was sentenced to 20 years' confinement. (SHR[2] at 65-77.) As part of the written plea admonishments, petitioner waived his right to appeal, and the trial court signed a certification that he had no right to appeal. (Id. at 70-83.) Nevertheless, petitioner filed an untimely notice of appeal on April 21, 2015, which was dismissed by the Second District Court of Appeals of Texas on July 16, 2015, based on the trial court's certification of no right to appeal.[3] (Id. at 82-83.) On April 11, 2016, petitioner filed a state habeas-corpus application challenging his conviction, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court.[4] (SHR, "Action Taken.") Petitioner filed this federal petition for habeas relief on August 16, 2016.[5] (Pet. at 10.) In two grounds for relief, petitioner claims that he was not given the Miranda warnings before being interrogated by the police and that his trial counsel was ineffective by failing to file a motion to suppress his statements to police. (Pet. at 6.) Respondent asserts that the petition is barred by the federal statute of limitations.

         II. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), Title 28 U.S.C., § 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) .

         Under subsection (A), applicable to this case, the limitations period began to run on the date on which the judgment of conviction became final "by the conclusion of direct review or the expiration of the time for seeking such review."[6] For purposes of this provision, the trial court's judgment of conviction became final upon expiration of the time petitioner for filing a timely notice of appeal on Monday April 6, 2015.[7] Therefore, limitations commenced the following day and closed one year later on April 5, 2016, [8] absent any tolling. See Tex.R.App.P. 68.2(a); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003}. Petitioner's untimely notice of appeal failed to maintain "direct review" of his conviction for purposes of § 2244(d)(1)(A). See Tharpe v. Quarterman, No. 4:08-CV-366-A, 2009 WL 1505195, at *2 (N.D.Tex. May 27, 2009); Alexander v. Stephens, No. H-13-3051, 2014 WL 580762, at *2 (S.D.Tex. Feb. 13, 2014).

         Tolling of the limitations period may be appropriate under the statutory tolling provision in § 2244(d)(2) and/or as a matter of equity. Under the statute, petitioner's state habeas application filed on April 11, 2016, after limitations had already expired did not operate to toll the limitations period. Moore v. Cain,298 F.3d 361, 366-67 (5th Cir. 2002); Scott v. Johnson,227 F.3d ...


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