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Marin v. Davis

United States District Court, W.D. Texas, Austin Division

September 18, 2019

JOSE MANUEL MARIN
v.
LORIE DAVIS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1) and response to the Court’s show cause order (Document 5). Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth below, the undersigned finds that Petitioner’s application for writ of habeas corpus should be dismissed.

         I. STATEMENT OF THE CASE

         A. Petitioner’s Criminal History

         Before the Court is Petitioner’s application for habeas corpus relief in which he challenges his conviction in cause number CR-15-0259 out of Hays County, Texas. Petitioner was convicted of felony driving while intoxicated. On October 12, 2016, Petitioner was sentenced to 99 years’ imprisonment. The Third Court of Appeals affirmed Petitioner’s conviction on December 1, 2017, 2016. Marin v. State, No. 03-16-00731-CR, 2017 WL 5985496 (Tex.App. – Austin 2017, no pet.). Petitioner did not file a petition for discretionary review. He did, however, file a state application for habeas corpus relief on or about March 29, 2019. The Texas Court of Criminal Appeals denied the application without written order on June 5, 2019. Ex parte Marin, No. 89, 764-01.

         B. Petitioner’s Grounds for Relief

         Petitioner contends there is no evidence to prove an enhancement in the indictment. In his response to the Court’s order to show cause he also argues the indictment was not complete, because it did not contain the phrase “against the peace and dignity of the state.”

         II. DISCUSSION AND ANALYSIS

         A. Statute of Limitations

         Federal law establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part:

(d)(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 ...

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