United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
Statute of Limitations
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. §
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
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
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
was required to file his § 2254 petition by December 15,
2010. He did not file his petition until August 15, 2018. His