United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LANE 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 of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
States Magistrate Judges.
the Court are Petitioner's Application for Habeas Corpus
Relief under 28 U.S.C. § 2254 (Document 1);
Respondent's Motion to Dismiss (Document 7); and
Petitioner's reply (Document 9). Petitioner, proceeding
pro se, has paid the filing fee for this case. For the
reasons set forth below, the undersigned finds that
Petitioner's application for writ of habeas corpus should
STATEMENT OF THE CASE
Petitioner's Criminal History
to Respondent, the Director has custody of Petitioner
pursuant to a judgment and sentence of the 147th Judicial
District Court of Travis County, Texas. Petitioner was
charged by indictment with unlawful possession of a firearm
by a felon before the fifth anniversary of release, enhanced
by two prior convictions for burglary of a habitation. He
pleaded not guilty to the primary offense but true to the
enhancements. On February 4, 2015, a jury found him guilty
and the court assessed punishment at 25 years'
Third Court of Appeals affirmed Petitioner's conviction.
Brown v. State, No. 03-15-00154-CR, 2016 WL 3144338
(Tex. App. - Austin 2016, pet. ref'd.). The Court of
Criminal Appeals refused his petition for discretionary
review on November 2, 2016. Brown v. State, PDR No.
693-16. On or about January 23, 2017, Petitioner submitted to
the United States Supreme Court a petition for writ of
certiorari. The Supreme Court provided notice to Petitioner
that his petition did not comply with the Court's rules.
The Court directed Petitioner to correct the petition and
resubmit it for filing. The Court warned, unless Petitioner
resubmitted the petition in corrected form, the petition
would not be filed. There is no record that Petitioner
submitted a corrected petition.
also challenged his conviction in a state application for
habeas corpus relief filed on May 21, 2018. The Texas Court
of Criminal Appeals denied it without written order on
November 21, 2018. Ex parte Brown, Appl. No. 88,
DISCUSSION AND ANALYSIS
Statute of Limitations
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 ...