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Nelson v. Davis

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

December 18, 2019

WALTER DANIEL NELSON, 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, Walter Daniel Nelson, 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 1994 petitioner was convicted on two counts of aggravated robbery with a deadly weapon in Tarrant County, Texas, Case Nos. 0515354A and 0515408A, and was sentenced to 25 years' confinement in each case. (OlSHR 6, 21-2; O2SHR 6, 21-5.[1]) He was released on parole on December 4, 2014, and was arrested on various pre-revocation warrants and re-released in the intervening years, culminating in the revocation of his parole on August 21, 2017. (Resp't's Resp., Ex. A, 3-4, doc. 29.)

         He was returned to TDCJ custody on September 26, 2017. (Id. at 4.) The revocation resulted in the forfeiture of 2 years, 5 months, and 11 days of street time credit, which were "added back to the end of [petitioner's] sentence." (Id. at 4-5.) Petitioner sought administrative and state court remedies, to no avail. He filed this federal habeas petition on December 28, 2018, seeking credit for his street time and immediate release.[2] (Pet. 6-7, 10, doc. 1.) Respondent asserts that the petition is time-barred or, in the alternative, without merit, (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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