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Davis v. Davis

United States District Court, N.D. Texas, Fort Worth Division

May 1, 2019

BELINDA LONELL DAVIS, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Belinda Lonell Davis, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ), respondent. After having considered the pleadings and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.

         I. Factual and Procedural History

         In 2007 petitioner was indicted in Palo Pinto County, Texas, No. 13414, for capital murder in the murder-for-hire of her husband, Roy Dean Davis, by James Neil Cook. (Clerk's R, 1, 12-2.) On July 9, 2010, a jury found petitioner guilty of the offense and she was sentenced to an automatic life sentence without parole. (Id. at 52-53.} The trial court's judgment of conviction by jury was affirmed on appeal and, on December 5, 2012, the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review. (Docket Sheet 2, doc. 12-1.) Petitioner did not seek writ of certiorari in the United States Supreme Court. (Pet. 4, doc. 2.) On February 20, 2014, [1] petitioner filed a state habeas-corpus application challenging her conviction, which was denied by the Texas Court of Criminal Appeals on October 8, 2014, without written order. (SHR-02[2] 65, doc. 12-28; Action Taken, doc. 12-25; Mot. 1, doc. 12-27.) Petitioner's motion for reconsideration was denied on October 22, 2014. (Mot. 1, doc. 12-27.) Thereafter, on August 10, 2016, petitioner filed a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure, which was denied by the trial court on August 25, 2016.[3] (Clerk's R. of DNA Proceeding 14, doc. 12-17.} The order of denial was affirmed on appeal and the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review. (Pet'r's Mot. to Supp. 1, doc. 16.) Petitioner filed this federal habeas-corpus petition challenging her conviction on July 2, 2018.[4] (Pet. 16, doc. 2.)

         II. Issues

         In the petition, petitioner raises the following grounds for habeas relief:

(1) the evidence is insufficient to support the jury's verdict;
(2) petitioner possesses new evidence of her innocence that was not previously presented;
(3) petitioner received ineffective assistance of trial and sentencing counsel; and
(4) the trial court's decision to deny her motion for DNA testing was contrary to clearly established federal law.

(Id. at 6-11.) She also claims that she is entitled to an evidentiary hearing. (Pet'r's Mem. in Support 15, doc. 1.) Respondent contends that the petition is untimely under the federal one-year statute of limitations. (Resp't's Preliminary Answer 15-19, doc. 14.)

         Ill. Statute of Limitations

         Title 28, United States Code, § 2244(d) imposes a one-year statute of limitations on federal petitions for writs of habeas corpus filed by state prisoners. Section 2244(d) provides:

(1) A 1-year period of limitations 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 ...

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