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Carr v. Davis

United States District Court, N.D. Texas, Fort Worth Division

October 24, 2019

DAVID EUGENE CARR, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES/DISTRICT JUDGE.

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, David Eugene Carr, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of that division, respondent. After having considered the pleadings and relief sought by petitioner, the court has concluded that the petition should be dismissed as time-barred.

         I. PROCEDURAL HISTORY

         The pleadings and documentary evidence presented by the parties reflect that in 2008 petitioner pleaded guilty pursuant to a plea agreement in Tarrant County, Texas, No. 1074254D, to assault with bodily injury of a family member and "true" to the repeat-offender allegation in the indictment and was sentenced to 12 years' confinement. (OlSHR 31-36.[1]) He was released on parole on October 24, 2012, and was arrested on various pre-revocation warrants and re-released in the intervening years, culminating in his transfer to an Intermediate Sanction Facility (ISF) on July 10, 2015. (Resp't's Answer Ex. B 2-3.) His parole was finally revoked on April 8, 2016, and he was returned to TDCJ custody on April 28, 2016. (Id. at 3.) The revocation resulted in the forfeiture of 2 years, 9 months, and 4 days of street time credit. (Id. at 4.) Petitioner sought administrative and state court remedies, to no avail. He filed this federal habeas petition on October 5, 2018.[2] (Pet. 10.) By way of the petition, he seeks credit for his street time. (Id. at 6-7.) Respondent asserts that the petition is time-barred or, in the alternative, wholly unexhausted. (Resp't's Answer 1.)

         II. STATUTE OF LIMITATIONS

         Title 28, United States Code, § 2244(d) imposes a one-year statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d).

         Specifically, the provision provides:

         (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 exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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