Bevers v. Dretke , 82 F. App'x 140 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 5, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-02-CV-549
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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.
*
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that this opinion should not be published and is not precedent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.
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
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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.