United States District Court, N.D. Texas, Wichita Falls Division
VINCENT EDWARD LILLY, TDCJ No. 00467486, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
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).
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).
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.
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