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Johnson v. Davis

United States District Court, S.D. Texas

September 6, 2019

Joseph Johnson, Jr., Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM AND RECOMMENDATION

          PETER BRAY UNITED STATES MAGISTRATE JUDGE

         Joseph Johnson, Jr. filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for aggravated robbery with a deadly weapon. (D.E. 1.) The court recommends that the petition be dismissed with prejudice as time-barred.

         1. Background

         On November 29, 2011, Johnson pleaded guilty in the 184th District Court of Harris County, Texas, to aggravated robbery. (D.E. 11-9 at 5-11.) The district court sentenced him to 20 years confinement in the Texas Department of Criminal Justice. (D.E. 11-10 at 95-96.) Johnson did not appeal.

         Johnson filed a state application for writ of habeas corpus on September 7, 2013. (D.E. 11-10 at 6-24.) On August 27, 2014, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. (D.E. 11-1.) Johnson filed a second state application on May 18, 2015. (D.E. 11-12 at 24-41.) His second application was denied on October 21, 2015. (D.E. 11-20 at 31.) Johnson filed a third state application on April 30, 2018. (D.E. 11-20 at 5-30.) His third application was dismissed as a subsequent application on July 18, 2018. (D.E. 11-16.) Johnson filed this federal habeas corpus petition on January 16, 2019. (D.E. 1.)

         2. Statute of Limitations under 28 U.S.C. § 2244

         AEDPA sets a one-year limitations period for federal habeas petitions. See 28 U.S.C. § 2244(d). The statute provides:

(d)(i) A l-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 any period of limitation under this subsection.

28 U.S.C. § 2244(d)(i)-(2).

         Because Johnson challenges a state-court conviction, the limitations period began to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Johnson's conviction became final on December 29, 2011, when his time to file a direct appeal expired. See Tex R. App. P. 68.2(a); ...


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