* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40244

Summary Calendar

 

LANNY GENE BEVERS, JR.,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. G-02-CV-549

--------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Lanny Gene Bevers, Jr., Texas inmate #456963, was granted a

certificate of appealability to appeal the denial of 28 U.S.C.

§ 2254 relief on his claim that he had not received an initial

parole hearing. Bevers is currently serving consecutive sentences

of twenty years’ imprisonment for aggravated rape, fifteen years’

imprisonment for retaliation, and life imprisonment for aggravated

sexual assault with a deadly weapon. 
No. 03-40244

-2-

Bevers’ motion to strike Respondent’s brief as untimely filed

is DENIED. See FED. R. APP. P. 25(a)(2)(B)(i). 

Bevers asserts that his rights under the Due Process and Ex

Post Facto Clauses have been violated. He argues that he is

eligible for an initial parole hearing and has not yet received a

hearing. 

The denial of federal habeas relief may be affirmed on any

ground supported by the record. Scott v. Johnson, 227 F.3d 260,

262 (5th Cir. 2000). The 28 U.S.C. § 2244(d) statute of

limitations may be raised sua sponte provided that the petitioner

has been afforded an opportunity to argue against the limitations

issue and Respondent has not intentionally waived the defense. Id.

at 262-63. 

In the instant case, Respondent was not served in the district

court and did not waive or forfeit the affirmative defense of

limitations. See id. at 263. Bevers was afforded an opportunity

to argue and did argue against the limitations issue. See id.

“[T]he limitation period runs from the date on which the

factual predicate of the claim or claims presented could have been

discovered with the exercise of due diligence.” 28 U.S.C.

§ 2244(d)(1)(D). Bevers does not dispute that the factual

predicate for his claim was revealed by the July 26, 2000, nunc pro

tunc order wherein he was issued credit against his sentence. 

The period ran from July 27, 2000, until December 26, 2000,

and from April 12, 2001, expiring before Bevers filed state habeas
No. 03-40244

-3-

application on December 13, 2001. Additional time elapsed between

the denial of Bevers’ second state habeas application and the

filing of a third state habeas application and prior to the

submission of Bevers’ 28 U.S.C. § 2254 petition. See Spotville v.

Cain, 149 F.3d 374, 376 (5th Cir. 1998). Bevers’ parole claim is

time-barred. 28 U.S.C. § 2244(d)(1)(D). Bevers has not shown that

his argument based on Ex Parte Franks, 71 S.W.3d 327 (Tex. Crim.

App. 2001), and his contention that he is experiencing a

“continuous and ongoing” violation excuse the untimely presentation

of his claim. Bevers has provided no grounds for the application

of equitable tolling. 

Accordingly, the judgment of the district court denying 28

U.S.C. § 2254 relief is AFFIRMED on alternative grounds. See

Scott, 227 F.3d at 262. 

AFFIRMED; MOTION DENIED.