216 F.3d 521 (5th Cir. 2000), 99-20524, Smith v Johnson

Docket Nº:99-20524
Citation:216 F.3d 521
Party Name:GRAYLING LAMAR SMITH, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.
Case Date:July 12, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 521

216 F.3d 521 (5th Cir. 2000)

GRAYLING LAMAR SMITH, Petitioner-Appellant,

v.

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

No. 99-20524

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

July 12, 2000

Page 522

Appeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:

Grayling Lamar Smith appeals the district court's dismissal of his petition for habeas relief. For the following reasons, we AFFIRM.

I

A jury found Grayling Lamar Smith guilty of possession with intent to deliver a controlled substance, and he was sentenced to 99 years' imprisonment. The Texas Court of Appeals affirmed the conviction and sentence.

Smith filed a state habeas petition in which he alleged that his appellate counsel was ineffective for failing to advise him that his direct appeal had been affirmed, which prevented him from filing a timely petition for discretionary review (PDR). The Texas Court of Criminal Appeals granted the petition on that claim and granted Smith leave to file an out-of-time PDR, but then refused review.

Smith filed a second state habeas petition, in which he argued that his trial attorney was ineffective for failing to inform him of the State's plea offer of twenty-five years' imprisonment. The state trial court rejected Smith's petition on the merits, but the Texas Court of Criminal Appeals dismissed the petition as successive pursuant to article 11.07 § 4 of the Texas Criminal Procedure Code. Smith then filed a third state habeas petition, which was similarly dismissed.

Smith then filed the instant federal habeas petition in which he alleged that (1) the evidence was insufficient; (2) his counsel was ineffective for failing to advise him of a plea offer from the State, for failing

Page 523

"to advance material witnesses" who were not present for trial, and for failing to object to the improperly pleaded enhancement paragraph; and (3) the state trial court had erred when it failed to suppress evidence seized by the arresting officer. Smith also argued that his petition was timely filed because the limitations period was tolled while the second and third state habeas petitions were pending.

Respondent...

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