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Jones v. Davis

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

July 2, 2019

DEDRICK JONES, Petitioner,
v.
LORIE DAVIS-DIRECTOR TDCJ, Respondent.

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

          REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

         Dedrick Jones, a Texas prisoner, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, the Court should dismiss the petition as barred by limitations.

         I.

         In 2007, a jury convicted Petitioner of capital murder and sentenced him to life in prison. State of Texas v. Jones, No. F-0700898-I (2nd Crim. Dist. Ct., Dallas County, Tex., Aug. 24, 2007). On April 13, 2009, the Fifth District Court of Appeals affirmed Petitioner's conviction and sentence, Jones v. State, No. 05-07-01163-CR, 2009 WL 988647 (Tex. App. - Dallas 2009, pet. ref'd); and on September 16, 2009, the Court of Criminal Appeals denied a petition for discretionary review. PDR No. 0568-09.

         Next, Petitioner filed a state habeas petition on April 23, 2010, Ex parte Jones, No. 74, 353-01, and amended the petition on September 23, 2010. The Court of Criminal Appeals dismissed the petition as noncompliant on October 27, 2010. Almost one year later, on October 5, 2011, Petitioner filed a second state habeas petition, Ex parte Jones, No. 74, 353-03, which the Court of Criminal Appeals denied on February 1, 2012 without written order on the findings of the trial court without a hearing.

         Petitioner filed this § 2254 petition on August 15, 2018 in which he argues the State failed to file a complaint, affidavit, and jurat in violation of state law. He claims this failure rendered the indictment void and deprived the court of jurisdiction over his case. He also claims his trial and appellate counsel were ineffective when they failed to argue the indictment was void and the court lacked jurisdiction. On October 16, 2018, Respondent filed a preliminary response arguing 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 (“AEDPA”) which governs the present petition 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). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A).[1]

         Here, the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review on September 16, 2009. Therefore, Petitioner's conviction became final 90 days later, on December 15, 2009. See Sup. Ct. R. 13; see also Roberts v. Cockrell 319 F.3d 690, 694-95 (5th Cir. 2003) (state conviction becomes final for limitations purposes when time for seeking further direct review expires regardless of when mandate issues). Petitioner then had one year, or until December 15, 2010, to file his federal petition.

         The filing of a state petition for habeas corpus tolls the statute of limitations. See 28 U.S.C. § 2244 (d)(2). Statutory tolling, however, applies only during the pendency of a “properly filed” state habeas petition. 28 U.S.C. § 2244(d)(2). Petitioner's first habeas petition was dismissed because it failed to comply with Rule 73.1 of the Texas Rules of Appellate Procedure. (See ECF No. 12-2 at 2.) The petition thus was not “properly filed” within the meaning of § 2244(d). See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.”); see also Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999). Because Petitioner's first state habeas petition was not properly filed, it did not statutorily toll the limitations period.

         On October 5, 2011, Petitioner filed his second state habeas petition. This petition was filed after the AEDPA limitations period expired, and thus did not toll the limitations period either.

         Petitioner was required to file his § 2254 petition by December 15, 2010. He did not file his petition until August 15, 2018. His ...


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