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Brown v. Davis

United States District Court, N.D. Texas, Dallas Division

April 3, 2018

ALVIN STEVEN BROWN, Petitioner,
v.
LORIE DAVIS, Director, TDCJ-CID Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions, and Recommendation of the Magistrate Judge are as follows:

         I.

         Petitioner filed this petition for writ of habeas corpus under 28 U.S.C. §2254. For the following reasons, the Court recommends that the petition be dismissed.

         Petitioner challenges his conviction for injury to a child. State of Texas v. Alvin Steve Brown, No. F-0900704-J (3rd Jud. Dist. Ct., Dallas County, Tex., June 22, 2009). He was sentenced to ten years in prison. He did not file an appeal.

         On October 24, 2013, Petitioner filed a state habeas petition. Ex parte Brown, No. 80, 862-02. On October 1, 2014, the Texas Court of Criminal Appeals denied the petition without written order on the findings of the trial court without a hearing. On November 15, 2013, Petitioner filed a supplemental habeas petition. Ex parte Brown, No. 80, 862-01. On March 5, 2014, the Texas Court of Criminal Appeals denied the petition.

         On January 2, 2017, Petitioner filed his §2254 petition. He argues:

         1. His due process rights were violated when the indictment did not provide proper notice of the charge;

         2. He received ineffective assistance of counsel that rendered his guilty plea invalid; and

         3. The indictment lacked probable cause.

         II.

         A. Statute of Limitations

         Petitioner filed his §2254 petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996).

         In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has ...


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