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Ebanez v. Davis

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

May 20, 2019

DAVID EBANEZ, Petitioner,
v.
LORIE DAVIS, Director, TDCJ-CID Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHEFORD UNITED STATES MAGSTRATE JUDGE

         Petitioner David Ebanez, a Texas prisoner, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The Court referred the resulting civil action to the United States magistrate judge, pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the Court should dismiss the petition as barred by limitations.

         I.

         Petitioner is in custody pursuant to convictions in two cases for escape and aggravated assault and a ten-year sentence in each case, which run concurrently. State of Texas v. David Ebanez, Nos. 17221-A and 17095-A (2nd Jud. Dist. Ct., Cherokee County, Tex., July 10, 2008).[1] But Petitioner does not challenge his convictions or sentences. Instead, he argues Respondent unlawfully denied him street-time credits after his parole was revoked. Respondent filed an answer arguing, among other things, that the petition is time-barred. Petitioner did not file a reply.

         II.

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) establishes a one-year statute of limitations for federal habeas proceedings. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). Under 28 U.S.C. § 2244(d), the statute of limitations runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking direct 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.

28 U.S.C. § 2244(d)(1).

         In this case, Petitioner does not challenge his criminal judgment under § 2244(d)(1)(A); nor does he assert a state-created impediment or newly-recognized constitutional right under § 2244(d)(1)(B) or (C). The Court therefore analyzes Petitioner's claims under § 2244(d)(1)(D), which states the limitations period begins to run on the date the factual predicate of the claim could have been discovered through the exercise of due diligence.

         Respondent argues the limitations period started on November 4, 2016, when Petitioner's parole was revoked. Respondent states Petitioner knew, or could have known with the exercise of due diligence, that once his parole was revoked, he forfeited all previously earned street-time credits. Petitioner did not respond to Respondent's limitations arguments. The Court therefore finds that the statute of limitations began to run on November 4, 2016, ...


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