United States District Court, S.D. Texas
MEMORANDUM AND RECOMMENDATION
Bray United States Magistrate Judge.
Stephen Carpenter ha; filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 challenging his conviction
for continuous family violence. (D.E. 1.) He also filed a
Motion for Leave to Utilize Discovery (D.E. 11) and an
Amended Motion for Leave to Utilize Discovery. (D.E. 12.) The
court recommends that the petition be dismissed with
prejudice as time-barred. The motion for discovery is denied.
6, 2014, Carpenter pleaded guilty in the 435th Judicial
District Court for Montgomery County, Texas, to continuous
family violence and was placed on deferred adjudication for
five years. (D.E. 9-15 at 74-77.) The charges were based on
two instances when Carpenter committed acts of violence
against his grandparents. (D.E. 9-15 at 73.) On December 5,
2014, the State filed a mction to adjudicate guilt alleging
that Carpenter violated the conditions of his deferred
adjudication. (D.E. 9-15 at 78-79.) The State filed an
amended motion to adjudicate guilt on June 24, 2015. (D.E.
9-15 at 80-81.) On October 22, 2015, Carpenter pleaded true
to technical violations. (D.E. 9-15 at 85.) On the same day,
the district court sentenced him to ten years confinement in
the Texas Department of Criminal Justice and a $1, 000 fine.
(D.E. 9-15 at 85.)
court of appeals affirmed the district court's judgment.
Carpenter v. State, No. 12-17-00015-CR (Tex.
App.-Tyler Aug. 9, 2017). Carpenter did not file a petition
for discretionary review in the Texas Court of Criminal
Appeals. He filed three state court habeas applications.
After the first application, filed on April 28, 2016, the
Texas Court of Criminal Appeals permitted him to file an
out-of-time appeal of the judgment revoking his probation. He
filed the second state court habeas application on November
13, 2017, which the TCCA dismissed on March 28, 2018, for
non-compliance with the Texas Rules of Appellate Procedure.
He filed the third application on April 2, 2018. (D.E. 9-15
at 6.) The TCCA denied the application without written order
on the findings of the trial court without a hearing on June
27, 2018. (D.E. 9-14 at 1.)
filed this federal petition for writ of habeas corpus on July
25, 2018. Carpenter identifies his October 22, 2015, judgment
adjudicating guilt as the conviction he is challenging, but
his petition concerns only events leading up to his guilty
plea on June 6, 2014. He raises three grounds for relief: (1)
thai his guilty plea was involuntary due to ineffective
assistance of counsel; (2) that he received ineffective
assistance of counsel when his lawyer failed to object to the
district court's jurisdiction; and (3) that he was
deprived of Due Process under the Fourteenth Amendment
because the district court lacked subject matter
jurisdiction. (D.E. 1 at 6-9.)
Statute of limitations
sets a one-year limitations period for federal habeas
petitions. See 28 U.S.C. § 2244(d). The statute
(d)(i) A l-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 udgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which tie 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
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 ...