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Duran v. Davis

United States District Court, S.D. Texas, Brownsville Division

April 11, 2019

FRANCISCO DURAN, JR., Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Ignacio Torteya, III, United States Magistrate Judge.

         Before 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.

         I. Jurisdiction

         The 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.

         II. Background and Procedural History

         On March 28, 2012, a grand jury returned an indictment charging Duran with Burglary of a Habitation, [1] Aggravated Assault with a Deadly Weapon, [2] and an enhancement count for being a repeat/habitual felony offender.[3] 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.[4] Dkt. No. 19-33 at 6-8. Judgment was entered on April 23, 2012. Dkt. No. 19-25 at 87-88.

         The 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).

         After 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.[5] Dkt. No. 19-38 at 1.

         Subsequently, 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.

         On April 21, 2017, Duran signed a state habeas petition, [6] 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.

         III. Legal Standards

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”)[7] 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) provides:

(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 ...

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