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McKinney v. Davis

United States District Court, N.D. Texas, Fort Worth Division

August 12, 2019

BRUCE LEE MCKINNEY, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Bruce Lee McKinney, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice, against Lorie Davis, director of that division, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be dismissed as time-barred.

         I. BACKGROUND

         On March 30, 2017, pursuant to plea agreements in the 43rd Judicial District Court, Parker County, Texas, Nos. CR16-0807 and CR16-0808, Petitioner judicially confessed and pleaded guilty pursuant to one count of online solicitation of a minor and one count of sexual assault of a child and true to the felony-enhancement allegation in the indictments and was sentenced to fifteen years' imprisonment in each case, the sentences to run concurrently. 02SHR 37-44, ECF No. 18-4; 03SHR 24-31, ECF No. 18-9.[1] Petitioner did not appeal the convictions but did challenge the convictions in two post-conviction state habeas-corpus applications filed on November 17, 2017, which were denied without written order by the Texas Court of Criminal Appeals on January 10, 2018.[2] 02SHR 46, ECF No. 18-4; 03SHR 54, ECF No. 18-9; Action Taken, ECF Nos. 18-2 & 18-5. This federal petition for federal habeas relief was filed on October 5, 2018.[3] Resp't's Answer, Ex. A at 9-10, ECF No. 17-1.

         II. ISSUES

         In the petition, Petitioner claims in four grounds that he received ineffective assistance of trial counsel in various respects and that the state knowingly introduced false testimony. Pet. 6-7, ECF No. 1. Respondent contends that the petition is barred by the federal statute of limitations or, in the alternative, that one or more of the claims are unexhausted. Resp't's Answer 5, ECF No. 17.

         III. LEGAL DISCUSSION

         Title 28, United States Code, § 2244(d) imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. Section 2244(d) provides:

(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitations period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 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 that 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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any ...

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