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Dickerson v. Davis

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

May 30, 2018

SANDY RAY DICKERSON, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Sandy Ray Dickerson, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.

         I. Factual and Procedural History

         On January 17, 2008, in Criminal District Court Number Four, Tarrant County, Texas, Nos. 0966689D and 1043378D, pursuant to a plea agreement, petitioner pleaded guilty to one count of murder and three counts of aggravated robbery with a deadly weapon and was sentenced to 12 years' confinement in TDCJ for each offense, the sentences to run concurrently. (Pet. 12-13, 19- 20, doc. I.[1]) Having waived his right to appeal as part of the plea agreement, petitioner did not directly appeal his convictions but did file multiple state postconviction habeas-corpus applications challenging the convictions between April 2010 and November 2015. Petitioner filed this federal petition for habeas-corpus relief on January 13, 2017.[2] (Pet. at 11.)

         Petitioner raises two grounds for habeas relief alleging that his pleas were involuntary due to the erroneous advice of trial counsel. Specifically, he claims trial counsel erroneously advised him that he would discharge his 12-year sentences at the same time and that he would be eligible for parole after serving three or more years. (Id. at 7.) Apparently, this was not the case because the state trial court awarded 1068 days of jail time credit toward petitioner's 12-year sentence in the judgment in No. 0966689D (murder) but only 437 days of jail time credit toward his 12-year sentences in the judgement in No. 1043378D (three counts of aggravated assault with a deadly weapon). Respondent contends the petition is untimely under the federal statute of limitations. (Resp't's Preliminary Answer 5-14, doc. 14.)

         II. Statute of Limitations

         Title 28 U.S.C., § 2244(d) imposes a one-year statute of limitations on federal petitions for writ 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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