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Leatherman v. Davis

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

September 9, 2019

PAT DEE LEATHERMAN, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED Q'CONNOR UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Pat Dee Leatherman, a state prisoner confined in the Correctional Institutions Division of the Texas Departent 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 31, 2001, in Parker County, Texas, Petitioner called 911 and confessed to shooting his wife, Tracy Leatherman, numerous times with a shotgun. 01SHR[1] 33, ECF No. 17-1. On September 9, 2002, Petitioner pleaded guilty and judicially confessed to murder and was sentenced to thirty years' confinement. Clerk's R. 7-9, ECF No. 17-21. Petitioner did not directly appeal his conviction or sentence. Pet. 3, [2] ECF No. 1. However, he filed four state habeas-corpus applications challenging the conviction. The first, filed on September 8, 2003, [3] was denied without written order on February 18, 2004. 01SHR 2, 16, ECF No. 17-1. The second, filed on October 30, 2006, [4] was dismissed for noncompliance with the Texas appellate rules on November 15, 2006. 02SHR 2, 7, ECF No. 17-3. The third, filed on January 12, 2007, was dismissed as a successive petition under Texas Code of Criminal Procedure article 11.07, § (4)(a)-(c) on May 9, 2007. 03SHR 2, 14, ECF No. 17-5. Over ten years later, on August 7, 2017, the clerk of court in the Corpus Christi division of the United States District Court for the Southern District of Texas received a “letter motion” from Petitioner, which was construed by that division as a habeas action under 28 U.S.C. § 2254 and transferred to this division. That prior federal petition was dismissed by this Court on February 20, 2018, for failure to exhaust state-court remedies. Order & Op., Leatherman v. Davis, No. 4:17-cv-660-O, ECF Nos. 2 & 49. Petitioner returned to state court and filed his fourth state habeas application on April 16, 2018, which was dismissed as a subsequent application under Texas Code of Criminal Procedure article 11, § 4(a)-(c) on June 6, 2018. 04SHR 31 & Action Taken, ECF Nos. 17-21 & 17-6. This second federal habeas petition challenging his 2002 conviction was filed on January 23, 2019.[5] Petitioner raises four grounds for relief. Pet. 6-7, 10, ECF No. 1. Respondent asserts that the petition is procedurally-barred under the procedural-default doctrine or, in the alternative, that the petition is time-barred under the federal statute of limitations. Resp't's Preliminary Answer 1, 4-17, ECF No. 16. Because the Court finds that the petition is untimely, it is not necessary to address the procedural-default defense.

         II. 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 period of limitations under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

         With limited exceptions not applicable here, the limitations period begins to run from the date on which the challenged “judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” under subsection (A). Id. ยง 2244(d)(1)(A). For purposes of that provision, Petitioner's judgment of conviction became final upon expiration of the time he had for filing a notice of appeal on October 9, 2002. Tex.R.App.P. 26.2. Once triggered, the limitations period expired one year later on October 9, 2003. ...


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