United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
state inmate Michael Wayne Hanzik (TDCJ #01857305) has filed
a petition for a writ of habeas corpus under 28 U.S.C. §
2254 (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 Hanzik's petition must
be dismissed as time-barred.
to his petition and supporting memorandum, Hanzik pled guilty
in state court cause number 70047-A to a felony charge of
driving while intoxicated (Dkt. 1 at pp. 2-7). On May 13,
2013, the 23rd District Court of Brazoria County, Texas,
sentenced Hanzik to serve six years in prison (Dkt. 1 at p.
2). Hanzik did not file a motion for new trial and did not
appeal (Dkt. 1 at p. 3; Dkt. 2 at p. 2). On July 20, 2016,
Hanzik filed a state habeas petition, which the Texas Court
of Criminal Appeals denied without a written order on
September 21, 2016 (Dkt. 1 at p. 4). See Texas Court
of Criminal Appeals Case Number WR-85, 605-01. Hanzik filed
this federal habeas petition on October 3, 2016 (Dkt. 1 at p.
The Court ordered Hanzik to show cause why the petition
should not be dismissed as time-barred (Dkt. 6); Hanzik has
responded (Dkt. 7).
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:
(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
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 ...