United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
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.
STATEMENT OF THE CASE
Petitioner's Criminal History
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.
Petitioner's Grounds for Relief
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.
DISCUSSION AND ANALYSIS A.
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
(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