Graves v. Director, TDCJ-CID

Filing 22

ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations. ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice as time-barred. A certificate of appealability is DENIED. All motions not previously ruled on are DENIED. Signed by District Judge Amos L. Mazzant, III on 12/20/2018. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MARVIN WAYNE GRAVES, #1709000

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:17cv585

ORDER OF DISMISSAL
Petitioner Marvin Wayne Graves, a prisoner confined in the Texas prison system, filed the
above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is
challenging his Grayson County conviction for the offense of Murder. The case was referred to United
States Magistrate Judge Christine A. Nowak, who issued a Report and Recommendation concluding
that the petition should be denied. Petitioner has filed objections.
Magistrate Judge Nowak concluded that the petition is time-barred by the one year statute of
limitations. 28 U.S.C. § 2244(d)(1). Petitioner was convicted after a jury trial on March 10, 2011.
His conviction was affirmed. Graves v. State, No. 05-11-00365-CR, 2012 WL 2106532 (Tex. App. Dallas June 12, 2012, pet. ref’d). The Texas Court of Criminal Appeals refused his petition for
discretionary review on October 24, 2012. Petitioner did not seek review in the United States Supreme
Court; thus, his conviction became final ninety days later on January 22, 2013. The present petition
was due one year later on January 22, 2014, in the absence of tolling provisions. It was not filed until
August 17, 2017. Petitioner did not file an application for a writ of habeas corpus in state court until
July 1, 2016. By then, the limitations period had long expired. The pendency of the state application
did not effectively toll the deadline of January 22, 2014. Petitioner has not shown that any other tolling
provision applies; thus, the petition is time-barred.
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Petitioner’s objections do not address the findings and conclusions of the Magistrate Judge.
He has not shown that his petition is not time-barred. Instead, he discusses the merits of his case and
inconsistencies in the evidence. His objections are non-responsive. He also asserts that he should
receive a hearing. When a habeas petitioner requests an evidentiary hearing, district courts have
discretion over whether to grant one. Schriro v. Landrigan, 550 U.S. 465, 468 (2007). The Supreme
Court found that no abuse of discretion occurs when, assuming “the truth of all the facts” the petitioner
seeks “to prove at the evidentiary hearing,” we are confident that “he still could not be granted federal
habeas relief.” Id. at 481. Assuming the truth of Petitioner’s factual allegations, he still has not shown
that his petition is not time-barred.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections raised by Petitioner to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct and Petitioner’s objections are
without merit. Therefore, the Court hereby adopts the findings and conclusions of the Magistrate
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Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice as time-barred. A certificate of appealability is DENIED. All motions
not previously ruled on are DENIED.
SIGNED this 20th day of December, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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