Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McMorris v. Davis

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

March 28, 2018

JIMMIE MCMORRIS, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE 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 Jimmie McMorris, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ), 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 April 11, 2011, in the 371st District Court of Tarrant County, Texas, No. 1177999D, a jury found petitioner guilty on two counts of sexual assault. (Clerk's R. 151-54.) Petitioner appealed his convictions, but the Eighth District Court of Appeals of Texas affirmed the trial court's judgments and, on June 12, 2013, the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review. (Op. 18; Pet. 3.) Petitioner did not seek writ of certiorari in the United States Supreme Court. (Pet. 3.) On June 9, 2014, [1] Petitioner filed his first of two postconviction state habeas-corpus applications challenging his convictions, which was denied by the Texas Court of Criminal Appeals on February 11, 2015, without written order on the findings of the trial court. (WR-84, 656-0118 & Action Taken.) The second, filed on June 14, 2016, was dismissed as a subsequent application on August 3, 2016. (WR-84, 656-02 18 & Action Taken.) Petitioner filed this federal habeas-corpus petition challenging his state-court convictions on October 3, 2016.[2] (Pet. 10.)

         II. Issues

         In five grounds for relief, Petitioner claims that (1) he is actually innocent; (2) he was denied due process during the police investigation; (3) there was "no evidence on each essential element of the offense"; (4) the state engaged in prosecutorial misconduct; and (5) the state habeas court erred and abused its discretion by not granting an evidentiary hearing to resolve his ineffective-assistance-of-counsel claim. (Pet. 6-7 & Insert.)

         III. Statute of Limitations

         Respondent asserts that the petition is untimely under the federal statute of limitations. (Resp't's Preliminary Answer 4-10.) 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.