IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN LEO LAURY §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-0579-M 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Kevin Leo Laury, appearing pro se, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be

dismissed on limitations grounds.

I.

Petitioner was convicted of aggravated assault and sentenced to 20 years confinement. His

conviction and sentence were affirmed on direct appeal. Laury v. State, 2003 WL 321545 (Tex.

App.--El Paso, Feb. 13, 2003, no pet). Petitioner also filed three applications for state postconviction relief. The first application was dismissed because a direct appeal was pending. Ex parte

Laury, No. 56,320-01 (Tex. Crim. App. Jul. 16, 2003). The second application was denied without

written order. Ex parte Laury, No. 56,320-02 (Tex. Crim. App. May 26, 2004). The third

application was dismissed as successive. Ex parte Laury, No. 56,320-03 (Tex. Crim. App. Feb. 9,

2005). Petitioner then filed this action in federal court.

 

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 1

 The statute provides that the limitations 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 direct 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.

28 U.S.C. § 2244(d)(1). 

II.

Petitioner raises two broad issues in multiple grounds for relief. Succinctly stated, petitioner

contends that: (1) he received ineffective assistance of counsel; and (2) he was denied an

evidentiary hearing by the state habeas court.

In his answer, respondent argues that this case is barred by the AEDPA statute of limitations.

Petitioner addressed the limitations issue in a written reply filed on July 15, 2005. The court now

determines that this case should be dismissed on limitations grounds.

A.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a oneyear statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE

DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period

begins to run when the judgment becomes final after direct appeal or the time for seeking such

review has expired. See 28 U.S.C. § 2244(d)(1)(A).1 This period is tolled while a properly filed

motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The

one-year limitations period is also subject to equitable tolling in "rare and exceptional"

 

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 2

 The 30th day after petitioner's conviction was affirmed fell on Saturday, March 15, 2003. As a result,

petitioner had until Monday, March 17, 2003, to file a petition for discretionary review. See TEX. R. APP. P. 4.1(a).

 3 Petitioner's first state writ, which was dismissed because a direct appeal was pending, was not "properly

filed" within the meaning of 28 U.S.C. § 2244(d)(2). See Larry v. Dretke, 361 F.3d 890, 893-95 (5th Cir.), cert. denied,

125 S.Ct. 141 (2004).

circumstances. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474

(1999). 

 B.

Petitioner was sentenced to 20 years confinement for aggravated assault. The court of

appeals affirmed his conviction on February 13, 2003. Petitioner did not seek further review in the

Texas Court of Criminal Appeals. Therefore, his conviction became final 30 days thereafter, or on

March 17, 2003.2

 TEX. R. APP. P. 68.2 (PDR must be filed within 30 days after court of appeals

renders judgment or overrules motion for rehearing). Petitioner filed three applications for state

post-conviction relief. The first application was filed on April 2, 2003 and dismissed on July 16,

2003. The second application was filed on September 18, 2003 and denied on May 26, 2004. The

third application was filed on November 5, 2004 and dismissed on February 9, 2005. Petitioner filed

the instant case on March 17, 2005.

The limitations period started to run on March 17, 2003, when petitioner's conviction became

final. See 28 U.S.C. § 2254(d)(1)(A). The AEDPA statute of limitations was tolled from September

18, 2003 to May 26, 2004, a period of 251 days, and from November 5, 2004 to February 9, 2005,

a period of 96 days, while properly filed applications for state post-conviction relief were pending.3

Even allowing for this tolling period, petitioner still waited more than a year to file his federal writ.

In an attempt to excuse this delay, petitioner argues that his state conviction did not become

"final" until the court of appeals issued its mandate on June 13, 2003. However, a state conviction

becomes final for limitations purposes when the time for seeking further direct review expires,

 

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regardless of when the mandate issues. See Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir.

2003). Petitioner further argues that he was not represented by counsel in post-conviction

proceedings and had limited access to the prison law library. Neither reason constitutes a "rare and

exceptional" circumstance sufficient to toll the AEDPA statute of limitations. See Wright v. Dretke,

2005 WL 1214905 at *2 (N.D. Tex. May 23, 2005) (Kaplan, J.), rec. adopted, 2005 WL 1639321

(N.D. Tex. Jul. 11, 2005) (Lynn, J.) (citing cases).

RECOMMENDATION

Petitioner's application for writ of habeas corpus is barred by limitations and should be

dismissed with prejudice.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: July 22, 2005.

 

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