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Thomas v. Davis

United States District Court, S.D. Texas, Houston Division

April 26, 2019

ANTHONY D. THOMAS, TDCJ #1724123, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         State inmate Anthony D. Thomas (TDCJ #1724123) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") to challenge a state court conviction under 2 8 U.S.C. § 2254 (Docket Entry No. 1) . Now pending is Respondent Lorie Davis's Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 12), arguing that the Petition is barred by the governing one-year statute of limitations. Thomas has filed Petitioner's Request for Continuance with Brief in Support ("Petitioner's Response") (Docket Entry No. 14), arguing that the limitations period should be extended to allow review of his Petition. After considering all of the pleadings, the state court records, and the applicable law, the court will grant Respondent's MSJ and dismiss this case for the reasons explained below.

         I. Background

         A grand jury returned an Indictment against Thomas on October 5, 2010, charging him in Harris County cause number 1274840 with committing aggravated robbery with a deadly weapon -- a firearm.[1] The Indictment was enhanced for purposes of punishment with allegations that Thomas had a prior felony conviction for burglary of a habitation.[2] On June 16, 2011, a jury in the 339th District Court for Harris County, Texas, found Thomas guilty of aggravated robbery as charged in the Indictment.[3] The jury found that the enhancement allegation was "true" and sentenced Thomas to 25 years' imprisonment.[4]

         On direct appeal Thomas argued that the trial court erred by admitting certain testimony over his counsel's objections.[5] The intermediate court of appeals rejected his arguments and affirmed the conviction in an unpublished opinion. See Thomas v. State, No. 01-11-00518-CR, 2012 WL 1564311 (Tex. App. - Houston [1st Dist.] May 3, 2012).[6] The Texas Court of Criminal Appeals refused Thomas's petition for discretionary review on September 26, 2012.[7]Thomas did not appeal further by seeking certiorari review with the United States Supreme Court.

         On June 6, 2014, Thomas filed an Application for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction Under [Texas] Code of Criminal Procedure, Article 11.07 ("State Habeas Application").[8] Thomas argued that he was entitled to relief for the following reasons:

1. He was denied effective assistance of counsel because his attorney failed to (a) file a motion to dismiss for insufficient evidence, (b) file a motion to suppress, (c) file a motion to set aside the indictment, (d) file a subpoena for business records, and (e) investigate offense reports and witness accounts describing the perpetrator's identity.
2. The trial court erred by admitting testimony over his counsel's hearsay objections.
3. His pretrial and in-court identification as the perpetrator were obtained by police with impermissibly suggestive means.
4. A new trial was required because material evidence in the form of business records was destroyed, withheld, or not introduced under the exception to the rule against hearsay.[9]

         After considering a "credible" affidavit from Thomas's attorney, the state habeas corpus court concluded that Thomas was not entitled to relief and recommended that his State Habeas Application be denied.[10] The Texas Court of Criminal Appeals agreed and denied relief without a written order on September 16, 2015.[11]

         Nearly two years later on August 11, 2017, Thomas filed a second Application for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction Under [Texas] Code of Criminal Procedure, Article 11.07 ("Second State Habeas Application").[12] Thomas argued that he was denied effective assistance of counsel because his defense attorney did not investigate the validity of the prior felony conviction for burglary of a habitation that was alleged as an enhancement paragraph in the Indictment and did not object to or file a motion to quash that enhancement.[13] After finding that the claim could have been raised previously in his prior State Habeas Application, the trial court recommended dismissing it under the Texas statute that prohibits abuse of the writ, Article 11.07 § 4(a) of the Texas Code of Criminal Procedure.[14] The Texas Court of Criminal Appeals adopted the recommendation and dismissed Thomas's Second State Habeas Application under Article 11.07 § 4(a) on November 22, 2017.[15]

         On October 9, 2018, Thomas executed the pending Petition, seeking federal habeas corpus relief from his aggravated robbery-conviction under 28 U.S.C. § 2254.[16] Thomas raises the same claim presented in his Second State Habeas Application, alleging that he was denied effective assistance of counsel when his defense attorney failed to investigate or challenge the validity of the prior felony conviction alleged as an enhancement paragraph in the Indictment.[17] The respondent argues that the Petition must be dismissed because it is barred by the governing one-year statute of limitations on federal habeas corpus review.[18]

         II. Discussion A. One-Year Statute of Limitation

         According to the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), all federal habeas corpus petitions filed after April 24, 1996, are subject to a one-year limitations period found in 28 U.S.C. § 2244(d), which provides as follows:

(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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