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Black v. Davis

United States District Court, S.D. Texas, Galveston Division

August 29, 2019

BRANDON MICHAEL BLACK, TDCJ # 01636419, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM OPINION AND ORDER

          George C. Hanks Jr. United States District Judge.

         Petitioner Brandon Michael Black, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”), filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent filed a motion for summary judgment (Dkt. 9) and a copy of the state court records (Dkt. 8). Petitioner has not responded to the summary judgment motion, and the deadline to respond has expired. Having reviewed the petition, the summary judgment motion, the applicable legal authorities, and all matters of record, the Court will dismiss the petition as time-barred under 28 U.S.C. § 2244(d) for the reasons explained below.

         I. BACKGROUND

         On April 15, 2010, Black was convicted by a jury of three counts of aggravated sexual assault in the 56th Judicial District Court of Galveston County, Nos. 09CR2591, 09CR2802 & 09CR2803. The jury sentenced Black to 75 years for each conviction, with sentences to be served concurrently (Dkt. 8-23, at 33; Dkt. 8-25, at 33; Dkt. 8-27, at 32; see Dkt. 1, at 2).[1] On September 29, 2011, the Fourteenth Court of Appeals affirmed his convictions. Black v. State, Nos. 14-10-00453-CR, 14-10-00454-CR, 14-10-00455-CR, 2011 WL 4489840 (Tex. App.-Hou. [14th Dist.] Sept. 29, 2011); see Dkt 8-15. On April 25, 2012, the Texas Court of Criminal Appeals dismissed his three petitions for discretionary review as untimely filed. See Black v. State of Texas, Nos. PD-1609-11, PD-1610-11, PD-1611-11 (available at http://search.txcourts.gov/ CaseSearch.aspx?coa=coscca&s=c) (last visited Aug. 21, 2019).

         Black filed three applications for state habeas relief. Each application was executed by Black on July 24, 2018 and filed in the trial court on July 31, 2018. See Dkt. 8-23 (WR-88, 883-01); Dkt. 8-25 (WR-88, 883-02); Dkt. 8-27 (WR-88, 883-03). On October 10, 2018, the Court of Criminal Appeals denied all three applications without written orders on the findings of the trial court. See Dkt. 8-22 (WR-88, 883-01); Dkt. 8-24 (WR-88, 883-02); Dkt. 8-25 (WR-88, 883-03).

         Black signed and dated his federal habeas petition on October 8, 2018, two days before the Texas Court of Criminal Appeals denied his state habeas applications. The petition was docketed with the Court on November 1, 2018 (Dkt. 1). He brings one claim of ineffective assistance of trial counsel.

         II. THE ONE-YEAR STATUTE OF LIMITATIONS

         Because Black filed this federal habeas petition after the 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), his federal petition is subject to the one-year limitations period found in 28 U.S.C. § 2244(d). The limitations period runs from the latest of four accrual dates:

(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 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). The time period during which a “properly filed application for State post-conviction or other collateral review” is pending is not counted toward the limitation period. Id. § 2244(d)(2).

         Respondent argues that Black's petition is time-barred under § 2244(d). In the section of his form habeas petition regarding limitations, when asked to explain why the petition is not time-barred, Black wrote only, “I believe it[']s timely” ...


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