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Baston v. Steel

January 19, 2007

VENESSA FERN BASTON, PETITIONER,
v.
JEWEL STEEL, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/SHIRLEY)

MEMORANDUM

This is a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is before the court on the motion to dismiss filed by the Attorney General for the State of Tennessee on behalf of the respondent. For the following reasons, the motion to dismiss [Court File No. 5] will be GRANTED and this action will be DISMISSED.

Petitioner Venessa Fern Baston ("Baston") challenges her 2002 Morgan County conviction for felony murder. The Attorney General moves to dismiss the habeas corpus petition as untimely. In support of the motion to dismiss, the Attorney General has provided the court with copies of the relevant documents in Baston's post-conviction proceedings. [Court File No. 6, Notice of Filing, Addenda 1-4].

There is a "1-year period of limitation [that] shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The limitation period generally runs from the date on which the judgment of conviction became final, with the provision that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).

On February 20, 2002, Baston pleaded guilty to felony murder and, by judgment entered that date, was sentenced to life imprisonment with the possibility of parole. Baston did not appeal her conviction or sentence, and thus her conviction became final on March 22, 2002, which was 30 days after imposition of sentence. See State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003).

Baston filed a petition for post-conviction relief, which tolled the running of the statute of limitation, but only while it was pending. The post-conviction petition was filed on May 9, 2002, at which time 48 days of the one-year statute of limitation had elapsed, leaving 317 days for filing a federal habeas corpus petition. See Payton v. Brigano, 256 F.3d 405, 406 (6th Cir. 2001) (a pending post-conviction petition "merely tolled, rather than reset," the one-year statute of limitation).

The trial court denied the petition after an evidentiary hearing and the Tennessee Court of Criminal Appeals affirmed. Baston v. State, No. E2003-02471-CCA-R3-PC, 2004 WL 1269097 (Tenn. Crim. App. June 9, 2004), perm. app. denied, id. (Tenn. November 8, 2004). Thus, the statute of limitation resumed running on February 6, 2005, which was 90 days after the Tennessee Supreme Court denied Baston's application for permission to appeal. See Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc) (statute of limitation is tolled during the 90 days within which petitioner could have filed a petition for writ of certiorari with the U.S. Supreme Court after the denial of post-conviction relief).*fn1

As noted, Baston had 317 days remaining, or until December 20, 2005, to seek habeas corpus relief. Baston's petition for the writ of habeas corpus was not filed until January 11, 2005.*fn2 Accordingly, the habeas corpus petition was not timely filed and is barred by the statute of limitation. See Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003) (quoting Graham-Humphreys, 209 F.3d 552, 561 (6th Cir. 2000)) ("'Absent compelling equitable considerations, a court should not extend limitations by even a single day.'").

The respondent's motion to dismiss will be GRANTED. The petition for habeas corpus relief will be DENIED and this action DISMISSED. Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts. A certificate of appealability SHALL NOT ISSUE in this action. 28 U.S.C. § 2253(c); Rule 22(b) of the Federal Rules of Appellate Procedure. The court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure.

AN APPROPRIATE ORDER ...


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