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McLemore v. Davis

United States District Court, N.D. Texas, Dallas Division

May 6, 2019

DEJUAN MCLEMORE, ID # 1981623, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.

         By 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.

         I. BACKGROUND

         DeJuan 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).

         A. Procedural History

         On December 14, 2012, the State of Texas indicted Petitioner for aggravated assault in Cause No. F12-71083. (See doc. 15-1 at 6.)[1] He pleaded not guilty and was tried before a jury in the 292nd Judicial District Court of Dallas County, Texas.

         On 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 similar.”

         Petitioner 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.

         When 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.

         After 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 the shooter.

         On 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).

         Petitioner's 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).

         B. Substantive Claims

         Petitioner's federal petition, signed on August 9, 2017, raises the following grounds:

(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 conviction.[2]

(See docs. 3 at 6-7; 4 at 2-5.) Respondent filed a response, and Petitioner filed a reply. (See docs. 13, 16.)

         II. STATUTE OF LIMITATIONS

         Respondent 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).

         A. Calculation ...


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