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Brown v. Davis

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

April 17, 2019

FRANK HENDERSON BROWN
v.
LORIE DAVIS

          LEE YEAKEL JUDGE

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE 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 of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before 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 be dismissed.

         I. STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According 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' imprisonment.

         The 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.

         Petitioner 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, 733-01.

         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 ...

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