March 31, 2015

URGENT MATTER !!

TO: ABEL ACOSTA, THE CLERK FOR THE COURT OF CRIMINAL APPEALS OF TEXAS

RE: PETITION FOR DISCRENTIONARY REVIEW EXTENSIONS OF TIME FILING DATE.

Mr. Acosta Iam writing you concerning a signed affidavit you supplied to

the United States District Court for The Southern District of Texas, Houston

Division. In the affidavit you state that the Court gave me a time exextension

until January 7, 2013. However you are mistaken, as you can see from the card

which Istill have but have copied in order to proved proof to you the actual

extension date i recieved was in fact January 28, 2013.

Due to your affidavit and the states 'respondent's )misrepresentation of

the date being January 7, 2013. The federal court has ruled my habeas writ is

time barred..while it is clear that the Magistrate judge did not review my

actual objection, nor did the presiding Judge if they had they would have seen

the same copy I have provided you with.

The ruling surprised me but it only goes to prove the system that Texas has

in place is- somewhat corrupt and is nothing mor than arubber stamp. Ihave

very relevant issues in my habeas. Idid not recieve afair hearing during my

state habeas and now the federal have also ignored-my constitional claims.

Iam asking you to re-check your files and to contact the proper officials

as to your finding. Iwould ask you to re-track your affidavit stating that

the extension i recieved was until January 7, 2013 and supply an affidavit

stating that the date was in fact January 28, 2013 as I the petitioner had so

stated in my objections and habeas writ.

I thank you for your help with this matter. Kelleh Conteh,TDC # 01737652,

Estelle Unit, 264 FM 3478, Huntsville TX 77320.

RECEIVED \H

COURT OF CRIMINAL APPEALS

APR 06 2015
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

OFFICIAL BUSINESS;

Tuesday, NovenSJASE^TEXAS ~~ Re: Case No. FPEfWrfLTTrPOte'urt Q3se CQA#: H-n-0q&2l|^gTp yec

STYLE: CONTEH, ^^CL&fWT&i.iAEL

00.33°

DEC 16 2013

MAILED FROM ZIP CODE 78 701

On this day, this Court has granted the App- ant's Pru 3e motion for an extension of time in

which to file the Petition for Discretionary Pe,'iew "The t,me tc fie the petition has been extended to

Monday, January 23. 2013,

NO FURTHER EXTENSIONS WILL BE ENTERTAINED.

NOTE: Petition For Discretionary Review must $<* filsd with Tns Court of Criminal Appeals.

a]

£ld*i £i*ot AbeiAcosia.. CSerk

KELLEH MICHAEL CONTEH

ESTELLEUNIT TDC#01737652

264 FM 3478

HUNTSVILLETX-77320

..Hi.>{i|ii.ni|.|.|i|i|»>i>tiiHI|i!IHii|i>i')|iri|ii!"'fMI
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

KELLEH MICHAEL CONTEH §

Petitioner, §

§ CIVIL ACTION NO: H-14-0284

WILLIAM STEPHENS, §

Director of the Texas Department §

of Criminal Justice - Correctional §

Institutions Division, §

Respondent. §

MEMORANDUM AND RECOMMENDATION

This petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 has been

referred to this magistrate judge for report and recommendation (Dkt. 3).

Background

On August 17,2011, Conteh was convicted of aggravated sexual assault of a child and

sentenced to fifty-five years in prison. The Fourteenth Court of Appeals affirmed his

conviction on October 9, 2012. Conteh was given an extension oftime until January 7, 2013

to file a petition for discretionary review (PDR). He did not file a PDR. On January 14,2014,

Conteh filed a state court application for writ of habeas corpus, and the Texas Court of

Criminal Appeals dismissed the application as noncompliant on April 16,2014.' Conteh filed

this federal petition for writ of habeas corpus on January 14, 2014.

1 Dkt. 7-22 at 1. This court previously issued aMemorandum and Recommendation (Dkt. 4),

recommending that Conteh's petition be dismissedwithout prejudice as unexhausted because

his state court writ application was still pending at that time. The prior Memorandum and

Recommendation (Dkt 4), which has not been adopted by the district court, is vacated.
Analysis

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Under the AEDPA, apetition for habeas relief filed by aperson in state custody

issubject to a one-year period of limitations which runs from the latest of:

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration ofthe 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

ofthe United States is removed, ifthe 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.

28 U.S.C. § 2244(d)(1).

Conteh's conviction became final when his time for filing apetition for discretionary

review expired on January 7, 2013.2 His one-year statute of limitations under AEDPA

expired on January 7, 2014 absent statutory or equitable tolling. 28 U.S.C. §2244(d)(2).

Conteh's state application does not toll the limitations period because it was filed after

Conteh contends that his time for filing aPDR was January 28, 2013. Dkt 10 at 1 There is

no evidence to support this assertion. The Government has presented the affidavit of a

Deputy Clerk of the Court of Criminal Appeals confirming that an extension was granted until January 7, 2013. Dkt. 9-2 at 2. This is consistent with the on-line docket sheet for his

appeal available at:

http://www.search.txcourts.gov/Case.aspx?cn=14-ll-00721-CR&coa=coal4&D=inast viewed Feb. 13, 2015). V y
that period had already expired, Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000), and

because it was not aproperly filed application, Villegas v. Johnson, 184 F.3d 467, 470 (5th

Cir. 1999).

Equitable tolling is available to extend aprisoner's statute oflimitation only where a

prisoner can show that he pursued habeas relief with "reasonable diligence" and some

"extraordinary circumstances" prevented timely filing his petition. Palacios v. Stephens, 723

F.3d 600, 604 (5th Cir. 2013). Nothing in the record supports equitable tolling ofConteh's

statute of limitations.

Conclusion and Recommendation

For the reasons stated above, the court recommends that Conteh's petition for writ of

habeas corpus be denied with prejudice as time barred.

Additionally, the court finds that Conteh has not made a substantial showing that

jurists ofreason would find it debatable whether he has been denied aconstitutional right or

whether the court is correct in its procedural ruling. Therefore, the court recommends that

acertificate ofappealability not issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Theparties have 14 days from service ofthis Memorandum and Recommendation to

file written objections. Failure to file timely objections will preclude appellate review of

factual findings or legal conclusions, except for plain error. See Rule 8(b) of the Rules

Governing Section 2254 Cases; 28 U.S.C. § 636(b)(1)(C); FED. R. ClV. P. 72.

Signed at Houston, Texas on February 23, 2015.

Stephen Wni Sintih

United States Magistrate Judgs
United States District Court

Kelleh Michael Conteh

Petitioner,

versus

WILLIAM STEPHENS, Director of the Texas

Department ofCriminalJustice - Correctional

Institutions Division,

Respondent.

Southern District of Texas

Civil Action 4:14-^-00284

§

Order ofAdoption

On February 23, 2015, Magistrate Judge Stephen Wm. Smith issued aMemorandum and

Recommendation (11) to which Petitioner filed objections (12). After considering the record and the law, the

court adopts the Memorandum and Recommendation as its Memorandum and Order, denying Petitioner's

claims with prejudice. The court will issue aseparate final judgment.

Signed JJ\Qyd\ Up) _, 2015, at Houston, Texas.

Lynn N. Hughes

United States DistrictJudge
United States District Court

Kelleh Michael Conteh

Petitioner,

versus

William Stephens, Director of the Texas

Department ofCriminalJustice - Correctional

Institutions Division,,

Respondent.

FinalJudgment

Southern District of Texas

Civil Action 4:14-^-00284

Kelleh Michael Conteh's petition for writ of habeas corpus is dismissed with prejudice.

Signed \JApXtk\ VU .2015, at Houston, Texas.

Lynn N. Hugnes

United States DistrictJudge