United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
Q'CONNOR UNITED STATES DISTRICT JUDGE.
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.
March 31, 2001, in Parker County, Texas, Petitioner called
911 and confessed to shooting his wife, Tracy Leatherman,
numerous times with a shotgun. 01SHR 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,
No. 1. However, he filed four state habeas-corpus
applications challenging the conviction. The first, filed on
September 8, 2003,  was denied without written order on
February 18, 2004. 01SHR 2, 16, ECF No. 17-1. The second,
filed on October 30, 2006,  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. 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.
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 period of limitations under this
28 U.S.C. § 2244(d)(1)-(2).
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. §
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.