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Roberts v. Davis

United States District Court, N.D. Texas, Wichita Falls Division

October 1, 2019

FREDERICK JEROME ROBERTS, TDCJ No. 01967238, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R. RAY, JR., UNITED STATES MAGISTRATE JUDGE.

         Before the Court are the Petition for Writ of Habeas Corpus (“Petition”), ECF No. 1, filed March 25, 2019 by Petitioner Frederick Jerome Roberts (“Petitioner”) pursuant to 28 U.S.C. § 2254; Respondent's Answer with Brief in Support (“Answer”), ECF No. 19; and Petitioner's Response to Respondent's Answer, ECF No. 23. After considering the pleadings and the applicable legal authorities, the undersigned RECOMMENDS that United States District Judge Reed O'Connor DISMISS the Petition for Writ of Habeas Corpus with prejudice as time-barred.

         I. BACKGROUND

         Petitioner is a prisoner confined in the Allred Unit of the Texas Department of Criminal Justice (“TDCJ”) in Iowa Park, Texas. ECF No. 25. He challenges the validity of his Wilbarger County convictions of aggravated assault with a deadly weapon, evading arrest with a vehicle, and unlawful possession of a firearm. ECF Nos. 1 at 2; 16-14 at 1. He was sentenced on November 20, 2014. ECF No. 16-1 at 3. The Seventh District Court of Appeals affirmed his conviction on November 14, 2016. Id. at 2. Petitioner did not file a Petition for Discretionary Review (“PDR”) with the Texas Court of Criminal Appeals (“TCCA”). ECF No. 19-1.

         Petitioner signed his state habeas application on July 10, 2017, and the application was filed on July 20, 2017. ECF No. 16-31 at 5, 21. On September 27, 2017, the TCCA remanded the state habeas application for an evidentiary hearing. ECF No. 16-25. The TCCA denied his application on March 21, 2018. ECF No. 16-17. Petitioner did not file a petition for writ of certiorari with the Supreme Court of the United States. See ECF No. 1 at 3-4. He filed the instant Petition on March 25, 2019. ECF No. 1.

         II. LEGAL STANDARD AND ANALYSIS

         District courts are permitted to consider, sua sponte, the timeliness of a motion filed under 28 U.S.C. § 2254. Day v. McDonough, 547 U.S. 198, 209 (2006); Kiser v. Johnson, 163 F.3d 326, 329 (5th Cir. 1999).

         A. Petitioner is Time-Barred by the AEDPA Limitation Period

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year statute of limitations for an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d); Harrington v. Richter, 562 U.S. 86, 97 (2011). AEDPA provides in pertinent 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 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 ...

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