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Byrd v. Davis

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

May 9, 2018

FRANK EDWARD BYRD III, 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, Frank Edward Byrd III, 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 December 11, 2012, in the 372nd District Court, Tarrant County, Texas, No. 1266668D, a jury, having found petitioner guilty of murder, assessed his punishment at life imprisonment. (Clerk's R, 145, doc. 12-7.) His conviction was affirmed on appeal and, on November 19, 2014, the Texas Court of Criminal Appeals refused his petition for discretionary review. (COA Notice of Refusal, doc. 12-5.) Petitioner did not seek writ of certiorari in the United States Supreme Court. (Pet. 3, doc. 1.) On December 7, 2015, [1] petitioner filed his first of two postconviction state habeas-corpus applications challenging his conviction, which was denied by the Texas Court of Criminal Appeals on August 24, 2016, without written order on the findings of the trial court. (WR-85, 6227-0118 & Action Taken, docs. 12-13 & 12-16.) The second, filed on October 24, 2016, was dismissed by the Texas Court of Criminal Appeals on December 14, 2016, for noncompliance with the state's procedural requirements under Texas Rule of Appellate Procedure 73.1. (WR-85, 227-02 30 & Action Taken, docs. 12-23 & 12-22.} Petitioner filed this federal habeas-corpus petition challenging his conviction on January 17, 2017.[2] (Pet. 10.)

         II. Issues

         Petitioner raises ten grounds for relief. (Pet. 6-7 (c), doc. 1.)

         III. Statute of Limitations

         Respondent asserts that the petition is untimely under the federal one-year statute of limitations. (Resp't's Preliminary Resp. 4-7, doc. 13.) Petitioner contends that, despite the fact that his second state habeas application was still pending at the time, he filed this "protective petition" because he had only five days remaining "on his AEDPA clock." (Pet. 9, doc. 1.} 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 ...

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