United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas case has been
referred for findings, conclusions, and recommendation. Based
on the relevant findings and applicable law, the petition for
writ of habeas corpus under 28 U.S.C. § 2254 should be
DENIED with prejudice.
McLemore (Petitioner) challenges his conviction for
aggravated assault. The respondent is Lorie Davis, Director
of the Texas Department of Criminal Justice (TDCJ),
Correctional Institutions Division (Respondent).
December 14, 2012, the State of Texas indicted Petitioner for
aggravated assault in Cause No. F12-71083. (See doc.
15-1 at 6.) He pleaded not guilty and was tried before
a jury in the 292nd Judicial District Court of Dallas County,
April 11, 2012, Kenneth Eakles (Victim) was in his front yard
with two friends, one of whom was working on Victim's
truck. Victim briefly went to his backyard. Petitioner, known
to the friends as “D-Dub, ” approached one of
them for money owed to him for auto parts to repair a car.
The friend said he did not have the money “at this
moment ... but give me a few minutes, ” and Petitioner
hit him with a pistol. When Victim returned to the front
yard, he saw blood coming from the friend's mouth, and he
seemed dazed. Victim told Petitioner, whom he did not know,
to leave because he did not want fighting in front of his
house, and he said he was going inside to call the police.
Petitioner said, “I wouldn't do that, old
man.” As Victim walked away, he heard two gunshots and
a third shot hit him in the back. The bullet entered his back
and exited near his neck. The friend saw Petitioner shoot the
gun one time, and then he heard two more shots. The other
friend saw Petitioner shoot the gun three times, and he saw
that two shots were fired directly towards Victim's home.
The other friend described the gun used as a nine millimeter.
A detective testified that the gun used was a .40 caliber.
The detective testified that to a lay person, a .40 caliber
and a nine millimeter gun would look “pretty
got into a Lincoln town car and drove away. Victim testified
he could not tell if the car was “burgundy, tan or
something.” One friend described it as “some sort
of burnt orange with a tan colored top ... copper like color
sort of, ” and the other one said it was burgundy.
Although there were some discrepancies among the witnesses
about the color of the car, Victim and both friend all agreed
that Petitioner drove away in a Lincoln after the shooting.
Victim went inside his home, and told his son that he had
been shot. When the son went outside, both friends said that
Petitioner shot Victim. The son looked up the street and saw
Petitioner's car driving away. Victim was taken to the
hospital, where he underwent surgery.
police arrived, the friend told officers that Petitioner shot
Victim. An officer learned from witnesses that the alleged
shooter's first name was Dejuan. “D-Dub” was
later confirmed to be Petitioner's nickname.
receiving information about the suspect, a detective
assembled a photo lineup. At that time, he believed that the
suspect was another person named Dejuan. Neither of the
friends identified the shooter from the first lineup. The
detective later talked with Victim's son, who said that
Petitioner was the possible suspect. Based on this new
information, the detective assembled another photo lineup
that included Petitioner. Both friends identified Petitioner
December 4, 2014, the jury convicted Petitioner, and he was
sentenced to 23 years' imprisonment. (See id. at
50.) The judgment was affirmed on appeal. (See doc.
15-13 at 10); see also McLemore v. State, No.
05-15-00160-CR, 2015 WL 9591398 (Tex. App. - Dallas Dec. 31,
2015). He was granted an extension until April 1, 2016, to
file a petition for discretionary review. (See doc.
15-16 at 66); McLemore v. State, PD-0100-16 (Tex.
Crim. App. Jan. 29, 2016). He did not file a petition for
discretionary review. See McLemore v. State,
PD-0100-16 (Tex. Crim. App. Apr. 27, 2016).
first state habeas application was signed on July 10, 2016,
and received by the state court on July 26, 2016.
(See doc. 15-16 at 5, 22.) It was denied without
written order on the findings of the trial court on September
28, 2016. (See doc. 15-14); see Ex parte
McLemore, WR-85, 661-01 (Tex. Crim. App. Sept. 28,
2016). Petitioner's second state habeas application was
signed on April 21, 2017, and received by the state court on
April 27, 2017. (See doc. 15-18 at 4, 20.) It was
dismissed as a subsequent application under Texas Code of
Criminal Procedure article 11.07, § 4 successive on July
12, 2017. (See doc. 15-17); see Ex parte
McLemore, WR-85, 661-02 (Tex. Crim. App. July 12, 2017).
federal petition, signed on August 9, 2017, raises the
(1) Trial counsel was ineffective for failing to:
(a) request a competency hearing;
(b) effectively cross-examine witnesses;
(2) The evidence was insufficient to support the
(See docs. 3 at 6-7; 4 at 2-5.) Respondent filed a
response, and Petitioner filed a reply. (See docs.
STATUTE OF LIMITATIONS
contends that the petition is barred by the statute of
limitations. Congress enacted the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat.
1217, on April 24, 1996. Title I of the Act applies to all
federal petitions for habeas corpus filed on or after its
effective date. Lindh v. Murphy, 521 U.S. 320, 326
(1997). Because Petitioner filed his petition after its
effective date, the Act applies to it. Title I of the Act
substantially changed the way federal courts handle habeas
corpus actions. One of the major changes is a one-year
statute of limitations. See 28 U.S.C. § 2244(d)(1).