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Graham v. Davis

United States District Court, W.D. Texas, Austin Division

April 12, 2019

BOBBY EVERETT GRAHAM
v.
LORIE DAVIS

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules. Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1) and Memorandum in Support (Document 2). Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should dismissed as time-barred.

         I. STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According to Petitioner, the Director has custody of him pursuant to a judgment and sentence of the 331st Judicial District Court of Travis County, Texas. After pleading guilty, Petitioner was convicted of aggravated assault with a deadly weapon and was sentenced to 30 years in prison on January 16, 2015. Petitioner did not file a direct appeal. He did, however, challenge his conviction in two state applications for habeas corpus relief. The first was executed by Petitioner on April 8, 2017. The Texas Court of Criminal Appeals denied it without written order on July 19, 2017. Ex parte Graham, Appl. No. 86, 941-01. The second was executed on July 30, 2018. The Texas Court of Criminal Appeals dismissed it as successive on September 26, 2018. Ex parte Graham, Appl. No. 86, 941-02.

         B. Petitioner's Grounds for Relief

         Petitioner argues he did not commit an aggravated assault with a deadly weapon because no one was touched and he had no weapon. Petitioner also accuses the state courts of violating his rights because counsel was not appointed to assist with his state habeas corpus proceedings.

         II. DISCUSSION AND ANALYSIS A.

         Statute of Limitations

         Federal law establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant 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 ...

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