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Rose v. Lester

United States District Court, W.D. Tennessee, Western Division

September 26, 2014

Terrance ROSE, Petitioner,
v.
JERRY LESTER, Respondent.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (ECF No. 5) ORDER OF DISMISSAL ORDER DENYING CERTIFICATE OF APPEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

S. THOMAS ANDERSON, District Judge.

On November 13, 2013, Petitioner Terrance Rose, [1] Tennessee Department of Correction ("TDOC") prisoner number 442807, an inmate at the Northeast Correctional Complex ("NECX") in Mountain City, Tennessee, placed a pro se petition pursuant to 28 U.S.C. § 2254 in the prison mail system. (Petition ("Pet."), ECF No. 1 at PageID 6.) The petition was received and filed by the Clerk of Court on November 26, 2013. (Pet, ECF No. 1 at PageID 1.) On January 2, 2014, the Court entered an order directing Respondent to respond to the habeas petition. (Order, ECF No. 4.) On January 27, 2014, Respondent filed a motion to dismiss the petition. (Motion ("Mot.") to Dismiss, ECF No. 5.) Petitioner has not filed a reply or responded to the motion to dismiss. The time for responding has expired.

I. STATE COURT PROCEDURAL HISTORY

Petitioner Rose was convicted by a Shelby County Criminal Court jury of reckless homicide and especially aggravated robbery. Petitioner was sentenced to three years in prison for the reckless homicide conviction and twenty years in prison for the especially aggravated robbery conviction. The Tennessee Court of Criminal Appeals affirmed the trial court's judgments. State v. Rose, No. W2008-02214-CCA-R3-CD, 2010 WL 2219596 (Tenn. Crim. App. May 20, 2010), perm app. denied (Tenn. Nov. 12, 2010).

On November 14, 2011, counsel for Petitioner filed a petition for post-conviction relief. The post-conviction court conducted an evidentiary hearing and, on March 21, 2012, entered an order denying the petition. The Tennessee Court of Criminal Appeals affirmed. Rose v. State, No. W2012-00610-CCA-R3-PC, 2013 WL 123761 (Tenn. Crim. App. Jan. 10, 2013), perm. app. denied (Tenn. June 19, 2013).

II. PETITIONER'S FEDERAL HABEAS CLAIMS

In this § 2254 petition, Rose contends that the trial court erred in allowing the state to amend the indictment, that he was subjected to an unreasonable search, that his statement was taken in violation of his Sixth Amendment right to counsel, and that trial counsel provided ineffective assistance. (Pet., ECF No. 1 at PageID 2-3.) Respondent contends that the petition is time barred. (Mot. to Dismiss, ECF No. 5 at PageID 43.)

III. ANALYSIS

The statutory authority for federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Twenty-eight U.S.C. § 2244(d) provides:

(1) 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 begin to 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the 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 ...

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