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Hailey v. Davis

United States District Court, N.D. Texas, Fort Worth Division

December 6, 2017

KIMBALL D. HAILEY II, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          TERRY R. MEANS, UNITED STATES DISTRICT JUDGE

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Kimball D. Hailey II, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be dismissed as time barred.

         I. Factual and Procedural History

         On June 14, 2010, in the 213th Criminal District Court, Tarrant County, Texas, Case No. 1152280D, a jury found Petitioner guilty of capital murder of a child younger than 6 years of age, and the trial court assessed an automatic life sentence without the possibility of parole. (Clerk's R., vol. 1, 138, doc. 11-19.) On appeal, Petitioner's conviction was affirmed and, on April 17, 2013, the Texas Court of Criminal Appeals refused his petition for discretionary review. (Mem. Op., doc. 11-2; Docket Sheet, doc. 11-1.) Petitioner did not seek writ of certiorari. (Pet.3, doc. 1.) On June 23, 2015, [1] Petitioner filed a postconviction state habeas-corpus application challenging his conviction, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (SH04, WR-84, 353-01 Writ Rec'd 18, doc. 11-39.) On April 8, 2016, [2] Petitioner filed this federal habeas petition challenging his conviction. (Pet. 10, doc. 1.)

         II. Issues

         In four grounds for relief, Petitioner claims he received ineffective assistance of trial counsel. He seeks a remand to the trial court for a new trial. (Id. at 6-7.)

         III. Statute of Limitations

         Respondent alleges the petition is untimely under the federal statute of limitations. (Resp't's Answer 3-8, doc. 12.) Title 28, United States Code, § 2244(d) imposes a one-year statute of limitations on federal petitions for writs of habeas corpus filed by state prisoners. Section 2244(d) provides:

(1) A 1-year period of limitations 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 limitations 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 that 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 ...

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