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Deaver v. Davis

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

August 29, 2019

ROBERT NEWTON DEAVER, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Robert Newton Deaver, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of that division, respondent. After having considered the pleadings and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.

         I. PROCEDURAL HISTORY

         The pleadings and documentary evidence presented by the parties reflect that in 2004 petitioner pleaded guilty pursuant to a plea agreement in Tarrant County, Texas, No. 0917184D, to unlawful possession of a firearm by a felon and received a 30- year sentence. (O6SHR 6.[1]) He was released on parole on April 11, 2008, and was arrested on various pre-revocation warrants and re-released in the intervening years. His parole was finally revoked on November 19, 2012, and he was returned to TDCJ custody on December 5, 2012. The revocation resulted in the forfeiture of 3 years and 3 months of street time credit. (Resp't's Preliminary Answer, Ex. A, doc. 22.) Petitioner sought administrative and state-court remedies, to no avail. He filed this federal habeas petition in the Beaumont division on August 13, 2018, and the case was subsequently transferred to this division.[2] (Pet. 14, doc. 1; Order, doc. 3.)

         II. ISSUES

         In two grounds, petitioner claims that he is entitled to credit for his street time and that the state has extended his sentence by adding the 3 years and 3 months to the end of his 30-year sentence in breach of contract. Respondent contends that the petition is time-barred or, in the alternative, that petitioner is not entitled to relief. (Resp't's Preliminary Answer 5-20, doc. 22.)

         III. STATUTE OF LIMITATIONS

         28 U.S.C. § 2244(d) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Specifically, the provision provides:

(1) A 1-year period of limitation 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 limitation 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 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.
(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 ...

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