                                                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 I am 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 a rubber stamp. I have
very relevant issues in my habeas. Idid not recieve a fair hearing during my
state habeas and now the federal have also ignored-my constitional claims.

   I am 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                                                                00.33°
                                                                                     DEC 16 2013
            ^^CL&fWT&i.iAEL
STYLE: CONTEH,                                                     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.



                           £ld*i £i*ot                                             AbeiAcosia.. CSerk



                                      KELLEH MICHAEL CONTEH
                    a]                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 of time 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 a Memorandum and Recommendation (Dkt. 4),
      recommending that Conteh's petition be dismissed without 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
 is subject 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 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
               ofthe 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).

       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 a properly 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

a certificate ofappealability not issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       Theparties have 14 days from service of this 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                                                Southern District of Texas




  Kelleh Michael Conteh

           Petitioner,

 versus
                                                                        Civil Action 4:14-^-00284

 WILLIAM STEPHENS, Director of the Texas
 Department of Criminal Justice - Correctional
 Institutions Division,

           Respondent.                               §

                                           Order ofAdoption

          On February 23, 2015, Magistrate Judge Stephen Wm. Smith issued a Memorandum 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 District Judge
United States District Court                                               Southern District of Texas




Kelleh Michael Conteh


          Petitioner,

versus




William Stephens, Director of the Texas                               Civil Action 4:14-^-00284
Department of Criminal Justice - Correctional
Institutions Division,,

          Respondent.

                                              Final Judgment

         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 District Judge
