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Joseph v. Davis

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

December 18, 2017

FRANK JOSEPH
v.
LORIE DAVIS

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Frank Joseph's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1). Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth below, Petitioner's application is dismissed as time-barred.

         I. STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         In 2005, a jury convicted appellant of aggravated sexual assault of a child and indecency with a child by sexual contact for sexually abusing two young girls who attended the day care operated by Petitioner's wife in their home. See Joseph v. State, Nos. 03-05-00433-CR & 03-05-00434-CR, 2007 WL 283030, at * 1 (Tex. App.-Austin Jan. 31, 2007, pet. ref d) (mem. op., not designated). The Third Court of Appeals affirmed the convictions. Id. at *4. The Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review on August 22, 2007.

         Petitioner also challenged his convictions in two state applications for habeas corpus relief. Petitioner does not indicate the date he filed his applications. However, they were denied without written order on September 24, 2008. Ex parte Joseph, Appl. No. 70, 629-01, -02.

         On March 24, 2016, Petitioner filed a motion requesting post-conviction DNA testing pursuant to Chapter 64 of the Code of Criminal Procedure. The trial court denied the motion on May 17, 2016. The Third Court of Appeals affirmed the denial on August 9, 2017. Joseph v. State, No. 03-16-0040-CR and 03-16-00405-CR, 2017 WL 3471038 (Tex. App. -Austin Aug. 9, 2017, no pet.).

         B. Petitioner's Grounds for Relief

         Petitioner asserts the trial court erred in multiple grounds for relief.

         II. DISCUSSION AND ANALYSIS

         A. Statute of Limitations

         Federal law establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part:

(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 ...

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