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Whitten v. Davis

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

December 20, 2017

WILLIAM WHITTEN
v.
LORIE DAVIS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT 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 been granted leave to proceed in forma pauperis. 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

         Petitioner was convicted by a jury of one count of aggravated sexual assault of a child (enhanced), one count of aggravated sexual assault of a child, two counts of indecency with a child by contact, and two counts of indecency with a child by exposure. The trial court subsequently sentenced appellant to 50 years incarceration on each of the aggravated sexual assault of a child counts, 20 years incarceration on each of the indecency by contact counts, and 10 years incarceration on each of the indecency by exposure counts. All sentences are to be served concurrently. The Seventh Court of Appeals reversed and rendered as to the two counts of indecency with a child by exposure and affirmed the judgment otherwise on August 27, 2013. Whitten v. State, No. 07-12-00200-CR, 2013 WL 4711198 (Tex. App. - Amarillo 2013, pet. ref'd). The Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review on January 15, 2014. Whitten v. State, No. 1386-13.

         Petitioner also challenged his conviction in a state application for habeas corpus relief filed on February 14, 2017. The Texas Court of Criminal Appeals denied it without written order on the trial court findings without a hearing on April 26, 2017. Ex parte Whitten, Appl. No. 86, 646-01.

         B. Petitioner's Grounds for Relief

         Petitioner asserts the trial court erred in its determination of the proper outcry witness and violated Petitioner's Sixth Amendment right to confront and cross-examine the proper outcry witness.

         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 ...

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