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Hanzik v. Davis

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

November 8, 2017

MICHAEL WAYNE HANZIK, 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.

         Former 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.

         I. BACKGROUND

         According 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. 10).[1] The Court ordered Hanzik to show cause why the petition should not be dismissed as time-barred (Dkt. 6); Hanzik has responded (Dkt. 7).

         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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