United States District Court, S.D. Texas, Brownsville Division
MAGISTRATE JUDGE'S REPORT AND
Ignacio Torteya, III, United States Magistrate Judge.
the Court is Petitioner Francisco Duran, Jr.'s 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus (hereinafter,
Duran's “Petition”), and Respondent Lorie
Davis's “Motion for Summary Judgment with Brief in
Support” (hereinafter, Davis's “Motion”
or “Motion for Summary Judgment”). Dkt. Nos. 1,
29. For the reasons set forth below, it is recommended that
the Court GRANT Davis's Motion, and that
Duran's Petition be DISMISSED, because
it is time-barred. It is further recommended that a
certificate of appealability not issue.
Court has jurisdiction over the subject matter and the
parties pursuant to 28 U.S.C. §§ 2241, 2254, which
provide that jurisdiction is proper where the inmate is
confined, or where his state conviction was obtained.
Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir.
2000). Duran was convicted in Cameron County, Texas, which is
located in the Brownsville Division of the Southern District
of Texas. See Dkt. No. 19-25 at 84-88; see
also 28 U.S.C. 124(b)(5). Jurisdiction is therefore
proper in this Court.
Background and Procedural History
March 28, 2012, a grand jury returned an indictment charging
Duran with Burglary of a Habitation,  Aggravated Assault with a
Deadly Weapon,  and an enhancement count for being a
repeat/habitual felony offender. See Dkt. No. 19-25
at 15-17. Duran's jury trial for these offenses began on
April 16, 2012, in the 445th Judicial District Court in
Cameron County, Texas. Dkt. No. 19-27 at 3. The jury returned
a verdict of “guilty” on both counts, found the
enhancement allegation to be “true, ” and
assessed punishment at 25 years imprisonment. Dkt. No. 19-33 at
6-8. Judgment was entered on April 23, 2012. Dkt. No. 19-25
Thirteenth Court of Appeals modified and affirmed Duran's
conviction on July 3, 2013. See Duran v. State, No.
13-12-00344-CR, 2013 WL 3378327 (Tex. App.- Corpus
Christi-Edinburg, July 3, 2013) (not designated); see
also Dkt. No. 19-4 (containing a copy of the decision).
Pursuant to Texas law, Duran had 30 days from the date of
that decision to file a Petition for Discretionary Review
(“PDR”). Tex. R. App. Pro. 68.2(a).
missing the 30-day window, Duran signed and mailed a state
application for permission to file an out-of-time PDR. Dkt.
No. 19-41 at 4-21. On March 25, 2015, the 445th District
Court permitted Duran to file his out-of-time PDR, which
Duran had originally mailed more than one year past the
deadline. Dkt. No. 19-38 at 1.
on June 22, 2016, the Texas Court of Criminal Appeals
modified and affirmed Duran's conviction. Dkt. No. 19-7.
Duran did not file a petition for a writ of certiorari with
the Supreme Court of the United States.
April 21, 2017, Duran signed a state habeas petition,
which was received and filed on April 24, 2017. Dkt. No.
19-47 at 4-23. The Texas Court of Criminal Appeals denied his
request for relief without written order on November 15,
2017. Dkt. No. 19-43 at 1. Duran alleges that he was first
informed of the Texas Court of Criminal Appeals' decision
on February 15, 2018. Dkt. No. 27 at 3-4. Duran signed the
instant Petition on May 2, 2018, and avers that it was placed
in the prison mail system on May 3, 2018. Dkt. No. 1 at 10.
Davis responded by filing her Motion for Summary Judgment.
Dkt. No. 29.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs petitions brought under 28 U.S.C.
§ 2254. See Lindh v. Murphy, 521 U.S. 320,
335-36, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Codified as
amended at 28 U.S.C. § 2244(d), the AEDPA establishes a
one-year limitations period applicable to § 2254
petitions. Lindh, 521 U.S. at 336. Section 2244(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 ...