1

Petitioner’s habeas application is deemed filed as of the date he placed his petition in the prison mail system. See

Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).

HAB54\R&R\BUNCH-CW.SOL:3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CHRISTOPHER W. BUNCH, §

§

Petitioner, §

§

v. § 2:05-CV-0113

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DISMISS

PETITION FOR A WRIT OF HABEAS CORPUS AS TIME BARRED 

On March 22, 20051, petitioner CHRISTOPHER W. BUNCH, a state prisoner confined

in the Allred Unit, filed with this Court a Petition for a Writ of Habeas Corpus by a Person in

State Custody. By his application, petitioner challenges his April 5, 2001 conviction for the

felony offense of possession of a controlled substance out of the 181st Judicial District Court of

Randall County, Texas and the resultant 35-year sentence. See State v. Bunch, No. 13,131-B.

On August 12, 2005, respondent filed an answer to petitioner’s habeas application,

asserting therein that petitioner’s application is time barred. Petitioner was ordered to show

cause why his case should not be dismissed as time barred, and he filed such response on August

25, 2005. Respondent was then ordered to file a response to a briefing order and address

 

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HAB54\R&R\BUNCH-CW.SOL:3 2

petitioner’s response. Respondent filed such response on October 3, 2005. For the reasons set

forth in respondent’s response and for the reasons set forth herein, it is the opinion of the

undersigned United States Magistrate Judge that the petition for a writ of habeas corpus be

DISMISSED as time barred.

I.

PROCEDURAL HISTORY

Petitioner was found guilty of the felony offense of possession of a controlled substance

and on April 5, 2001, he was sentenced to confinement in the Texas Department of Criminal

Justice, Institutional Division, for a period of thirty-five (35) years. Petitioner directly appealed

his conviction and sentence to the Court of Appeals for the Seventh District of Texas who, on

June 3, 2002, affirmed said conviction and sentence in an unpublished opinion. Bunch v. State,

No. 07-01-0171-CR (Tex.App. - - Amarillo, 2002, pet. ref’d.). Petitioner did not timely file a

petition for discretionary review, however, on April 2, 2003, petitioner filed his first application

for a state writ of habeas corpus seeking, in part, to file an out-of-time petition for discretionary

review. Ex parte Bunch, App. No. 56,005-01 at 1. On June 18, 2003, the Texas Court of

Criminal Appeals granted petitioner’s request to file an out-of-time petition for discretionary

review and dismissed his other claims. Ex parte Bunch, No. 74,696 (Tex. Crim. App. June 18,

2003)(unpublished). Petitioner then filed his out-of-time petition for discretionary review but it

was refused on February 11, 2004. Bunch v. State, PDR No. 1254-03. On June 14, 2004,

petitioner filed a second state writ application and it was denied without written order on August

25, 2004. Ex parte Bunch, App. No. 56,005-02 at cover.

 

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2

Respondent has alleged petitioner’s third claim is procedurally barred from review as unexhausted. The Court will

not reach this issue since it has determined petitioner’s application to be time barred.

HAB54\R&R\BUNCH-CW.SOL:3 3

On March 22, 2005, petitioner executed the instant federal habeas application.2

II.

PETITIONER’S ALLEGATIONS

Petitioner alleges his conviction was in violation of the Constitution and/or laws of the 

United States for the following reasons:

1. He was subject to an unconstitutional search and seizure;

2. He was denied effective assistance of counsel because his attorney only objected

once; and

3. He was denied due process because the State introduced evidence of his prior

convictions during the guilt/innocence phase of trial.

III.

 AEDPA LIMITATIONS PERIOD

Before the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996

[hereinafter AEDPA], a prisoner faced no strict time constraints in filing a petition for a writ of

habeas corpus. The AEDPA, however, amended 28 U.S.C. § 2244 to establish a one-year

limitation period for filing a habeas petition in federal court. That section provides:

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;

 

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(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.

Title 28 U.S.C. § 2244(d)(2) further provides:

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 any period of limitation under this subsection.

Title 28 U.S.C. § 2244(d) also provides for tolling of the statute of limitations (1) if the claims

presented in the petition for writ of habeas corpus, for some reason, could not have been

presented earlier because of some impediment to filing created by state action, (2) if the

constitutional right asserted was initially recognized by the Supreme Court is on a date

subsequent to the date the conviction became final, or (3) if the date on which the petitioner

discovers the factual predicate of the claim or claims presented, or by the exercise of due

diligence should have discovered them, is subsequent to the date the conviction became final. In

instances such as these, the limitation period would begin on the applicable post-conviction date.

The new time limitations imposed by section 2244 apply to the instant habeas application

because it was filed after the effective date of the statute, April 24, 1996. See Lindh v. Murphy,

521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

As discussed supra, petitioner was sentenced on April 5, 2001, he directly appealed, and

his conviction and sentence were affirmed on June 3, 2002. Therefore, petitioner had until July

3, 2002 to file any petition for discretionary review. When he failed to file a petition for

discretionary review, his conviction became final on July 3, 2002 and he would have had one

year, or until July 3, 2003 to file the instant federal habeas application, absent any tolling

 

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3

As set forth above, petitioner’s first state habeas petition resulted in his being allowed to file an out-of-time petition

for discretionary review.

4

As argued by respondent, pursuant to Salinas v. Dretke, 354 F.3d 425, 431 (5th Cir. 2004), the effect of the revival of

petitioner’s right to file a petition for discretionary review was part of the collateral review process thus it had no effect on the

start of the statute of limitations period under 28 U.S.C. § 2244(d)(1)(A) and could only toll the limitations period under 28

U.S.C. § 2244(d)(2) until the Court of Criminal Appeals declined to grant further review.

HAB54\R&R\BUNCH-CW.SOL:3 5

 pursuant to the provisions of 28 U.S.C § 2244(d)(2). Petitioner’s first state habeas application

was filed April 2, 2003. The Texas Court of Criminal Appeals refused his out-of-time petition

for discretionary review on February 11, 2004.3

 Therefore his first state habeas writ and the outof-time petition for discretionary review constituted collateral review which tolled the limitations

period for 315 days. This extended the deadline for petitioner’s federal writ application until

May 13, 2004.4

 While petitioner filed a second state writ application, it was not filed until June

14, 2004, past the deadline for the federal writ application. Such filing had no tolling effect. 

Consequently, petitioner’s federal habeas application, which was not filed until March

22, 2005, is time barred. Accordingly, it is the opinion of the undersigned Magistrate Judge that

petitioner’s federal habeas application should be dismissed as time barred. 

IV.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the Petition for Writ of Habeas Corpus by a Person in State Custody

filed by petitioner CHRISTOPHER W. BUNCH be DISMISSED as time barred.

V.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and 

 

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Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 4th day of November 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT*

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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