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Allen v. Davis

United States District Court, S.D. Texas, Houston Division

September 27, 2019

MARCUS TREMAINE ALLEN, TDCJ #1478404, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORER

          SIM LAKE UNITED STATES DISTRICT JUDGE

         Marcus Tremaine Allen has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1) to challenge a conviction that was entered against him in Harris County, Texas, in 2015. Now pending is Respondent [Lorie] Davis's Motion to Dismiss With Brief in Support ("Respondent's Motion") (Docket Entry No. 15), arguing that the Petition is barred by the governing one-year statute of limitations. In response Allen has filed "Petitioner's Motion to Dismiss Respondent's Motion to Dismiss with Supporting Brief" ("Petitioner's Motion") (Docket Entry No. 17). After considering the pleadings, the state court records, and the applicable law, the court will grant Respondent's Motion and will dismiss this action for the reasons explained below.

         I. Background and Procedural History

         A Harris County grand jury returned an indictment against Allen in No. 1472030, charging him with possession of a controlled substance, namely methamphatamine weighing less than one gram by aggregate weight.[1] That indictment was enhanced for purposes of punishment with allegations that Allen had two prior felony convictions for possession with intent to deliver a controlled substance and for unlawful possession of a firearm as a felon.[2] After a jury in the 185th District Court for Harris County found Allen guilty as charged in the indictment, the trial court found that the enhancement allegations were "true" and sentenced Allen to 10 years' imprisonment on November 6, 2015.[3]

         On direct appeal Allen's appointed counsel filed a motion to withdraw and a brief pursuant to Anders v. California, 87 S.Ct. 1396 (1967), certifying that a review of the record disclosed no reversible error and that the appeal was without merit.[4] After conducting an independent review of the record, the court of appeals concluded that the appeal was frivolous and affirmed the judgment. See Allen v. State, No. 01-15-000984-CR, 2016 WL 4368571, at *l (Tex.App. - Houston [1st Dist.] Aug. 16, 2016) (per curiam). Because Allen did not appeal further by filing a petition for discretionary review with the Texas Court of Criminal Appeals, his conviction became final thirty days later on September 15, 2016.[5]

         While his direct appeal was still pending Allen executed the first of two Applications for a Writ of Habeas Corpus Seeking Relief from [a] Final Felony Conviction Under [Texas] Code of Criminal Procedure Article 11.07 ("First State Habeas Application"), challenging the trial court's failure to grant him credit for time spent in custody while a pretrial detainee in No. 1472030.[6] The state habeas corpus court found that it lacked jurisdiction because Allen's conviction was not yet final and recommended dismissing the Application.[7] The Texas Court of Criminal Appeals adopted that finding and dismissed Allen's First State Habeas Application for lack of jurisdiction on October 5, 2016 .[8]

         On May 29, 2017, Allen executed a second Application for a Writ of Habeas Corpus Seeking Relief from [a] Final Felony Conviction Under [Texas] Code of Criminal Procedure Article 11.07 ("Second State Habeas Application"), which raised the following grounds for relief from his conviction in No. 1472030:

1. The trial court erred by denying him a continuance to obtain testimony from unspecified witnesses.
2. The trial court made an improper statement during voir dire, advising jurors that it was their "lucky day" because this was "going to be a pretty quick case" to try.
3. He was denied effective assistance of counsel because his attorney did not investigate potential witnesses and would not allow him to testify on his own behalf.
4. His trial attorney was ineffective because she did not prepare a defense.
5. His trial attorney was deficient for not investigating the validity of the enhancement paragraphs in the indictment.
6. The trial court erred by denying his attorney's motion for a directed verdict based on "favorable" evidence in the offense report about the number of pills found in Allen's possession.
7. His trial attorney was ineffective because she did not object to arguments by the prosecutor, who described Allen as a "drug dealer." 8. He was denied due process because the State did not file its complaint against him within the proper time limit after his arrest.
9. He was denied due process because the State failed to convene a prompt probable cause hearing after his arrest.
10. He was denied due process because he was not arraigned in a timely manner by the trial court.
11. His trial attorney was ineffective for failing to object to the body of the indictment for not "showing the jurisdiction" or location of the offense.
12. His trial attorney was ineffective for failing to investigate whether there was an illegal search and seizure in violation of the Fourth Amendment.[9]

         The state habeas corpus court forwarded the record to the Texas Court of Criminal Appeals without a recommendation after Allen filed a petition for a writ of mandamus .[10] The Texas Court of Criminal Appeals considered Allen's Second State Habeas Application and denied relief without a written order on October 3, 2018. [11]

         On March 11, 2019, Allen filed the pending Petition for federal habeas corpus relief under 28 U.S.C. § 2254 from his state court conviction in No. 1472030.[12] Allen raises the following grounds for relief:

1. The trial court erred by denying him a continuance to obtain testimony from unspecified witnesses.
2. The trial court made an improper statement during voir dire, advising jurors that it was their "lucky day" because the case would likely be over ...

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