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Lowdermilk v. Lamanna

February 7, 2007

TERRANCE LOWDERMILK, PETITIONER,
v.
JOHN J. LAMANNA, WARDEN, ROBERT E. COOPER, JR., ATTORNEY GENERAL & REPORTER,*FN1 RESPONDENT.



The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge

Mattice/Lee

MEMORANDUM

Terrance Lowdermilk ("Lowdermilk") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Court File No. 3]. Lowdermilk seeks review of his 2000 state conviction on one count of aggravated assault.Presently before the Court is respondent's motion to dismiss Lowdermilk' § 2254 petition as time-barred [Court File No. 11]. After reviewing the record and the applicable law, the Court concludes that Lowdermilk's § 2254 petition is time-barred.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became effective on April 24, 1996, there is a one-year statute of limitation for filing a § 2254 petition. 28 U.S.C. § 2244(d)(1) and (2) provide, in pertinent part:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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;

(2) The 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.

The record reflects Lowdermilk pleaded guilty to one count of aggravated assault on December 20, 2000, was sentenced to the department of corrections for six years, and was granted probation [Addenda No. 1, at 26-27]. Lowdermilk neither pursued his right to appeal nor filed a state post-conviction petition. Since Lowdermilk did not pursue a direct appeal, his state court conviction became final on January 19, 2001, upon expiration of the 30-day time period during which he could have filed a direct appeal to the Tennessee Court of Criminal Appeals. See TENN. R. APP. P. 4(a); 28 U.S.C. § 2244(d)(1). Lowdermilk's had one-year from the date his conviction became final in which to file his habeas petition. 28 U.S.C. § 2244(d)(1)(A).

However, "[t]he one-year period of limitations is tolled by the amount of time that 'a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending' in state court." Jurado v. Burt, 337 F.3d 638, 640 (2003) (quoting 28 U.S.C. § 2244(d)(2). However, a state habeas petition filed after the one-year ADEPA statute of limitations expires cannot toll the statute of limitations because there is then no time left to toll. See Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851, 853-55 (8th Cir. 2003) ("Because the deadline for filing Curtiss's federal petition passed on April 13, 2000, his later filing for post-conviction relief in state court cannot act to toll the federal statute of limitations"), cert. denied, 540 U.S. 1060 (2003); Webster v. Moore, 199 F.3d 1256 (11th Cir. )("A state-court petition ...that is filed following the expiration of the limitations period cannot toll [the one-year] period because there is no period remaining to be tolled"), cert. denied, 531 U.S. 991 (2000). Lowdermilk did not file a state post-conviction petition or other application for collateral review until November 3, 2003,*fn2 after the expiration of the one-year period of limitations for filing a § 2254 petition.*fn3

Consequently, the instant § 2254 petition, which was filed on July 23, 2005, approximately three and a half years after the expiration of the one-year statute of limitations for filing a § 2254 petitioner expired, is time-barred.

To the extent Lowdermilk is challenging the revocation of probation on November 19, 2002, his petition is still time-barred. Lowdermilk's sentence was revoked on November 19, 2002, and his sentence was ordered into execution. There is nothing in the record indicating Lowdermilk appealed the revocation. A judgment in Tennessee becomes final thirty days after entry unless a timely post-trial motion is filed as designated in Rule 4(c) of the Tennessee Rules of Appellate Procedure. State v. Lock, 839 S.W.2d 436 (Tenn.Crim.App.1992). The record does not reflect that Lowdermilk filed any post-trial motions or pursued a direct appeal. Therefore, Lowdermilk's judgment became final on December 19, 2002, thirty days after the state trial court revoked his challenged sentence.

Thus, the revocation judgment also became final on December 19, 2002, upon the expiration of thirty days in which he could have filed an appeal. Lowdermilk subsequently filed a state post-conviction petition on November 3, 2003.*fn4 Although the petition was deemed untimely and did not toll the statute of limitations, for the sake of discussion, assuming it was properly and timely filed, Lowdermilk's § 2254 petition is still time barred.

Lowdermilk's revocation became final on November 19, 2002, at which time the one-year statute of limitations for filing a § 2254 petition began to run. Assuming the November 3, 2003, state post-conviction petition was timely filed, three hundred and nineteen days had run on the one-year § 2254 statue of limitations, leaving forty-six days remaining on the one-year statute of limitations. The Tennessee Supreme Court denied Lowdermilk's application for permission to appeal on December 6, 2004, at which time the § 2254 one-year statute of limitations resumed. Thus, Lowdermilk had forty-six days, until January 21, 2005, in which to file a § 2254 petition. Consequently, Lowdermilk's § 2254 petition, which was filed on July 23, 2005, is time-barred as it was filed approximately six months after the expiration of the one-year statute of limitations.

Therefore, regardless of whether Lowdermilk is attacking his original conviction or the revocation of his probation, the time for filing a § 2254 petition in Lowdermilk's case expired on either January 19, 2002, or January 21, 2005. Since Lowdermilk's § 2254 petition was ...


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