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Smith v. Davis

United States District Court, S.D. Texas, Galveston Division

November 7, 2017

DANNY RAY SMITH, TDCJ #01493545, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE

         The petitioner, Danny Ray Smith (TDCJ #01493545), seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state court conviction (Dkt. 1). After reviewing all of the pleadings, the record, and the applicable law under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court concludes that Smith's petition must be dismissed as time-barred.

         I. BACKGROUND

         Smith's petition does not explain when, where, or of what he was convicted; but publicly available records indicate that he pled guilty to felony theft in 2008 in Chambers County. See First Court of Appeals of Texas Case Number 01-12-00552-CR Smith concedes that, absent tolling, his petition is barred by the governing one-year statute of limitations found in 28 U.S.C. § 2244(d). He claims that he is actually innocent of the crime and that his otherwise time-barred claim of ineffective assistance of counsel should therefore be considered. The Court ordered Smith to show cause why this case should not be dismissed as time-barred (Dkt. 4). Smith did not respond, and the show cause order was returned to the Court marked as undeliverable (Dkt. 5).

         II. THE ONE-YEAR STATUTE OF LIMITATIONS

         This federal habeas petition is subject to the one-year limitations period found in 28 U.S.C. § 2244(d). Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Section 2244(d) provides as follows:

         (d)(1) A 1-year period of limitation 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 limitation 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 the 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 limitation under this subsection.

28 U.S.C. § 2244(d).

         Essentially, subsections (B), (C), and (D) outline exceptions to the general rule, set forth in subsection (A), that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. Flanagan, 154 F.3d at 198. Section (d)(2) tolls ...


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