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Lilly v. Davis

United States District Court, N.D. Texas, Wichita Falls Division

February 26, 2019

VINCENT EDWARD LILLY, TDCJ No. 00467486, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

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

          HAL R. RAY, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Petitioner Vincent Edward Lilly's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. (ECF No. 1). After consideration of the pleadings and applicable law, the undersigned RECOMMENDS that United States District Judge Reed O'Connor DISMISS the Petition with prejudice as time-barred.

         I. BACKGROUND

         This suit involves a Petition for Writ of Habeas Corpus filed by Vincent Edward Lilly (“Petitioner”), an inmate confined in the Ramsey Unit of the Texas Department of Criminal Justice in Rosharon, Texas. (ECF Nos. 1, 46). Petitioner challenges the validity of his state conviction of sexual assault of a child. (ECF No. 1 at 2). Petitioner seeks federal habeas relief based on actual innocence, ineffective assistance of counsel, due process violation, and lack of notice of a jury note. (Id. at 4-8).

         Petitioner was convicted on November 4, 1987. (Id. at 2). Petitioner filed a direct appeal that was affirmed by the Court of Appeals on August 18, 1988. (Id. at 3). Petitioner did not file a petition for discretionary review with the Texas Court of Criminal Appeals (“TCCA”). (See id.). On February 1, 2013, Petitioner filed a state habeas application. (Id.). The application was denied on February 7, 2017. (Id.). Petitioner filed the instant petition on July 3, 2017.[1]

         On July 12, 2017, the undersigned issued Findings, Conclusions, and a Recommendation (ECF No. 9) recommending that Judge O'Connor dismiss with prejudice Petitioner's petition, which Judge O'Connor accepted on August 4, 2017. (ECF No. 10). Petitioner filed objections to the Findings, Conclusions, and Recommendation on August 7, 2017. (ECF No. 13). On August 9, 2017, Judge O'Connor entered an order clarifying that he had reviewed and considered Petitioner's objections and affirming his previous order. (ECF No. 14). On August 22, 2017, Petitioner filed a motion to amend judgment requesting that his objections be deemed timely and considered by the Court. (ECF No. 15). On September 6, 2017, Judge O'Connor granted the motion to amend judgment, and entered an Amended Judgment that same day, affirming the previous order and dismissing Petitioner's claims as time-barred. (ECF No. 18).

         On October 2, 2017, Petitioner filed a Notice of Appeal to the United States Court of Appeals for the Fifth Circuit. On February 26, 2018, he filed a letter with the Court stating that upon review of the record on appeal he discovered that the appendix he attached to his memorandum of law was missing. (ECF No. 26). In reviewing the record, it is clear that Petitioner's appendix was not before the undersigned for consideration before entering the Findings, Conclusions, and Recommendation on July 12, 2017. Therefore, on March 7, 2018, Judge O'Connor requested that the Fifth Circuit remand the case pursuant to Federal Rule of Civil Procedure 60(b) so that the Court might consider the full record. (ECF No. 27). The Fifth Circuit granted Judge O'Connor's request on March 16, 2018. (ECF No. 29). On March 22, 2018, Judge O'Connor referred this action to the undersigned for reconsideration. (ECF No. 30).

         On March 29, 2018, the undersigned entered an Order requiring the United States Marshals Service to effect service of process upon the Defendant and for the Defendant to answer Petitioner's petition. (ECF No. 31). Defendant filed her Answer on June 27, 2018. (ECF No. 37). After considering the petition and Defendant's Answer, the undersigned entered a second Findings, Conclusions, and Recommendation on June 28, 2018. (ECF No. 38). The undersigned subsequently withdrew this Findings, Conclusions, and Recommendation because Petitioner had not filed his Response to Defendant's Answer before entry of that Findings, Conclusions, and Recommendation. (ECF No. 40). Petitioner filed his Response to Defendant's Answer on September 27, 2018. (ECF No. 45). The undersigned now considers the full record in this case, including Petitioner's sixty-two page appendix previously omitted from the file, his Response to Defendant's Answer (ECF No. 40), and the parties' fully briefed pleadings.

         II. LEGAL STANDARD

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year statute of limitations for an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d). The AEDPA provides in pertinent part:

(d)(1) A 1-year period of limitation 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 limitation 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 the right has been newly recognized by the Supreme Court and made ...

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