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Johnson v. Davis

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

October 2, 2019

KURLEY JOHNSON, TDCJ No. 1422624, 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 is the Petition for Writ of Habeas Corpus (“Petition”) filed by Petitioner Kurley Johnson (“Petitioner”) pursuant to 28 U.S.C. § 2254. ECF No. 1. After consideration of the pleadings and applicable legal authorities, the undersigned RECOMMENDS that United States District Judge Reed O'Connor DISMISS the Petition with prejudice as time-barred.

         I. BACKGROUND

         Petitioner is confined in the James V. Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. ECF No. 1. According to the Petition, Petitioner challenges the validity of his state conviction of three counts of indecency with a child by sexual contact with intent for sexual gratification. Id. at 2. He seeks federal habeas relief based on a claim of ineffective assistance of counsel. Id. at 6. The Court has not ordered Respondent to file a response in this case.

         Sentence for Petitioner was imposed on September 26, 2013. Id. at 2; see also Offender Information Details, Texas Dep't of Criminal Justice, https://offender.tdcj.texas.gov/Offender Search/offenderDetail.action?sid= 08981585 (last visited October 2, 2019). Petitioner alleges that he filed a direct appeal in the 89th District Court of Wichita County, Texas, and that a final decision was rendered on April 16, 2016. ECF No. 1 at 3. Upon review of the state court record, the undersigned finds that Petitioner misstated the court in which he filed the direct appeal and the date on which a final decision was rendered. As shown in the Second Court of Appeal's (“COA”) opinion for Petitioner's direct appeal in Johnson v. State, No. 02-13-00482-CR, 2015 WL 1792971, at *1 (Tex. App.-Fort Worth Apr. 16, 2015, pet. ref'd), Petitioner filed the direct appeal in the COA in Fort Worth, Texas, and the COA affirmed the trial court's judgment on April 16, 2015. The Texas Court of Criminal Appeals (“TCCA”) refused Petitioner's petition for discretionary review (“PDR”) on October 7, 2015. ECF No. 1 at 3; see also Case Information, Court of Criminal Appeals, http://search.txcourts.gov/Case.aspx?cn=PD-0611-15&coa =coscca (last visited October 2, 2019).

         Petitioner also contends that he filed a state habeas application on October 19, 2016, which was denied by the TCCA on November 16, 2016. ECF No. 1 at 3-4; see also Case Information, Court of Criminal Appeals, http://search.txcourts.gov/Case.aspx?cn=WR-85, 892-01&coa =coscca (last visited October 2, 2019). On May 7, 2019, Petitioner filed the instant Petition for Writ of Habeas Corpus. 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 ...

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