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Fruge v. Davis

United States District Court, W.D. Texas, Austin Division

December 15, 2017

MARK FRUGE
v.
LORIE DAVIS

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES MAGISTRATE JUDGE.

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before the Court is Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1). Petitioner, proceeding pro se, has paid the filing fee for this case. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed.

         I. STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According to Petitioner, the Director has custody of him pursuant to a judgment and sentence of the 331st Judicial District Court of Travis County, Texas. Petitioner was convicted of aggravated robbery with a deadly weapon, aggravated assault with a deadly weapon and aggravated assault of a public servant and was sentenced to life in prison on October 20, 2014. Petitioner's convictions were affirmed on December 3, 2015. Fruge v. State, Nos. 03-14-00722-CR, 03-14-00723-CR, and 03-14-00724-CR, 2015 WL 7969209 (Tex. App. - Austin 2015, pet. ref'd.). The Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review on May 4, 2016. Fruge v. State, Nos. PD-0043-16, PD-0044-16, PD-0045-16.

         Petitioner also challenged his conviction in three state applications for habeas corpus relief filed on July 16, 2016. The Texas Court of Criminal Appeals denied them without written order on the findings of the trial court without a hearing on September 14, 2016. Ex parte Fruge, Appl. Nos. 85, 629-01, -02, -03.

         B. Petitioner's Grounds for Relief

         Petitioner raises the following grounds for relief:

1. The trial court denied Petitioner a fair and impartial jury, because it granted the State's challenge for cause with regard to venire member number 12; and
2. The trial court erred in allowing the State to impeach a witness with Petitioner's prior conviction and bad act.

         II. DISCUSSION AND ANALYSIS

         A. Statute ...


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