United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
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.
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. 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. 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. Resp't's Answer, Ex. A at 9-10,
ECF No. 17-1.
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.
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)
(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 ...