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Yancy v. Davis

United States District Court, N.D. Texas, Dallas Division

November 20, 2017

CARL YANCY, JR., ID # 1433033, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         By Special Order 3-251, this habeas case has been referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the petition for writ of habeas corpus under 28 U.S.C. § 2254 should be DENIED as barred by the statute of limitations.

         I. BACKGROUND

         Carl Yancy, Jr. (Petitioner) challenges his conviction for murder. The respondent is Lorie Davis, Director of the Texas Department of Criminal Justice (TDCJ), Correctional Institutions Division (Respondent).

         A. Procedural History

         On February 16, 2006, the State of Texas indicted Petitioner for murder in Cause No. F05-40209. (Doc. 16-4 at 5-6.)[1] He pleaded not guilty and was tried before a jury in the 265th Judicial District Court of Dallas County, Texas; the jury convicted him on March 9, 2007, and he was sentenced to life imprisonment. (Doc. 16-5 at 6.) The judgment was affirmed on appeal. See Yancy v. State, No. 05-07-00457-CR, 2008 WL 2808931 (Tex. App. - Dallas July 28, 2008). His petition for discretionary review was refused. Yancy v. State, PD-1115-08 (Tex. Crim. App. Dec. 30, 2008).

         He did not file a petition for writ of certiorari.

         Petitioner's first state habeas application was signed on November 25, 2009, and received by the state court on December 16, 2009. (Doc. 17-16 at 5, 13.) It was dismissed on August 17, 2016, as non-compliant with Texas Rule of Appellate Procedure 73.1. (Doc. 17-14); see Ex parte Yancy, WR-85, 213-01 (Tex. Crim. App. Aug. 17, 2016). His second state habeas application was signed on November 1, 2016, and received by the state court on November 9, 2016. (Doc. 17-18 at 4, 17.) It was denied without written order on January 25, 2017. (Doc. 17-17); see Ex parte Yancy, WR-85, 213-02 (Tex. Crim. App. Jan. 25, 2017).

         B. Substantive Claims

         Petitioner's federal petition raises the following grounds:

(1) The state court failed to resolve issues during a five-year period;
(2) Trial counsel was ineffective for:
(a) failing to submit a jury instruction under Tex. Code Crim. ...

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