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Moss v. Davis

United States District Court, S.D. Texas

April 24, 2019

Evatrus Derjuan Moss, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM AND RECOMMENDATION

          Peter Bray United States Magistrate Judge

         Evatrus Derjuan Moss has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for capital murder. (D.E. 1.) The court recommends that the petition be dismissed with prejudice as time-barred.

         Moss was charged with capita murder with a deadly weapon on February 15, 1995. (D.E. 16-8 at 8.) The case was tried to a jury in the 228th Judicial District Court for Harris County, Texas. On April 24, 1995, the jury found Moss guilty. The district court entered judgment of conviction and sentenced Moss to life imprisonment in the Texas Department of Criminal Justice. (D.E. 16-16 at 67-69.)

         The court of appeals affirmed the district court's judgment. Moss v. State, No. 11-95-097-CR (Tex. App.-Eastland April 4, 1996). The Texas Court of Criminal Appeals refused Mo ss's petition for discretionary review on June 26, 1996. He did not seek review in the United States Supreme Court.

         Moss filed a state application for writ of habeas corpus on July 31, 2017, which the Texas Court of Criminal Appeals denied without a written order on the findings of the trial court an July 25, 2018. (D.E. 16-22.) Moss filed this federal petition for writ of habeas corpus on August 27, 2018, challenging his April 24, 1995, conviction and sentence.

         AEDPA sets a one-year limitations period for federal habeas petitions. See 28 U.S.C. § 2244(d). The statute provides:

(d)(i) 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(i)-(2).

         Moss is subject to the AEDPA statute of limitations even though he was convicted before AEDPA's effective date. See Carey v. Saffold,536 U.S. 214, 217 (2002). The statute of limitations runs from "the date on which the judgment became final by the conclusion of direct review or the ...


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