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Graves v. Davis

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

May 24, 2018

LORENZO CECIL GRAVES, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

          LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

         Before the Court is LORENZO CECIL GRAVES' Petition for a Writ of Habeas Corpus by a Person in State Custody. For the following reasons, the Court recommends respondent's motion should be granted and petitioner's habeas application should be DISMISSED as time-barred.

         I.

         STATEMENT OF THE CASE

         In July 2012, petitioner was charged by Indictment in Randall County, Texas, with the offense of continuous sexual abuse of a child. State v. Graves, No. 23, 535-A. The Indictment alleged petitioner, from on or about January 21, 2012 to on or about June 4, 2012, did intentionally and knowingly (a) with intent to arouse and gratify the sexual desire of petitioner engage in sexual contact with MH, a child younger than 17, by touching the genitals of MH, and this act occurred on more than one occasion; and (b) cause the female sexual organ of MH, a child younger than 14, to contact the sexual organ of petitioner, and this act occurred on more than one occasion. [ECF 9-12 at 6]. A jury found petitioner guilty of the offense as charged and, on June 14, 2013, assessed petitioner's punishment at twenty-six (26) years imprisonment in the Texas Department of Criminal Justice, Correctional Institutions Division. [ECF 9-12 at 83].

         Petitioner filed a direct appeal of his conviction and sentence to the Court of Appeals for the Seventh District of Texas. On March 5, 2014, the state intermediate appellate court affirmed petitioner's conviction. Graves v. State, No. 07-13-00204-CR. Petitioner sought review of the affirmance of his conviction by filing a petition for discretionary review with the Texas Court of Criminal Appeals. On August 20, 2014, that court refused petitioner's petition. Graves v. State, PD-0437-14. Petitioner did not seek further review of his conviction and sentence by filing a petition for a writ of certiorari in the Supreme Court of the United States.

         Petitioner filed a state application for habeas corpus relief collaterally attacking his conviction by signing it on January 14, 2015. [ECF 10-4 at 13]. On February 18, 2015, the Texas Court of Criminal Appeals denied petitioner's state habeas application without written order. Ex parte Graves, No. 82, 799-01. [ECF 10-1]. Petitioner filed second and third state applications for habeas corpus relief on January 13, 2017 and October 6, 2017 respectively. Ex parte Graves, Nos. 82, 799-02, 82, 799-03 [ECF 10-6 at 20; 10-10 at 22]. On March 8, 2017 and December 7, 2017 respectively, the Texas Court of Criminal Appeals dismissed those applications as successive. [ECF 10-5; 10-7].

         On January 3, 2018, petitioner placed the instant federal application for habeas corpus in the prison mail system, on January 29, 2018, this Court received and filed petitioner's application. Respondent filed her Motion to Dismiss on March 14, 2018.[1]

         II.

         PETITIONER'S ALLEGATIONS

         Petitioner contends he is being held in violation of the Constitution and laws of the United States because his counsel was ineffective for failing to investigate.

         III.

         RESPONDENT'S MOTION TO DISMISS

         On March 14, 2018, respondent filed a Motion to Dismiss requesting dismissal of petitioner's habeas application as time-barred. In her motion, respondent fully and accurately briefed statutory and case law regarding the statute of limitations in federal habeas corpus cases.

         Respondent also fully and accurately set forth relevant dates in this case, and analyzed the timeliness of petitioner's habeas application.

         IV.

         STATUTE ...


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