United States District Court, N.D. Texas, Wichita Falls Division
KURLEY JOHNSON, TDCJ No. 1422624, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Ray, Jr. UNITED STATES MAGISTRATE JUDGE
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.
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.
for Petitioner was imposed on September 26, 2013.
Id. at 2; see also Offender Information
Details, Texas Dep't of Criminal Justice,
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
=coscca (last visited October 2, 2019).
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,
=coscca (last visited October 2, 2019). On May 7, 2019,
Petitioner filed the instant Petition for Writ of Habeas
Corpus. ECF No. 1.
LEGAL STANDARD AND ANALYSIS
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).
Petitioner is Time-Barred by the AEDPA Limitation
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
(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