United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
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.
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).
THE ONE-YEAR STATUTE OF LIMITATIONS
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:
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.
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
28 U.S.C. § 2244(d).
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 ...