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Anderson v. Cook

United States District Court, M.D. Tennessee, Nashville Division

May 8, 2015

DANNY RAY ANDERSON, Petitioner,
v.
DOUG COOK, Warden, Respondent.

MEMORANDUM OPINION

ALETA A. TRAUGER, District Judge.

Petitioner Danny Ray Anderson, a state prisoner incarcerated at the Bledsoe County Correctional Complex in Pikeville, Tennessee, has filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas corpus (ECF No. 1) seeking review of his 2008 convictions in the Criminal Court for Davidson County, Tennessee on two counts of felony murder. Before the court is the respondent's motion to dismiss the petition on the grounds that it is barred by the statute of limitations. (ECF No. 16.) For the reasons set forth herein, the court finds that the petition is barred by the statute of limitations found at 28 U.S.C. § 2244(d)(1)(A). The court will grant the motion to dismiss on the basis that the petition is untimely.

I. Procedural Background

Mr. Anderson pleaded guilty on January 31, 2008 to two charges of felony murder and was sentenced to two concurrent sentences of life without the possibility of parole. Other charges for first-degree murder and attempted especially aggravated kidnapping were dismissed. ( See Petition to Enter Plea of Guilty, ECF No. 18-1, at 12-13; Judgments, ECF No. 18-1, at 17-18.) Mr. Anderson filed motions to withdraw the guilty plea and to substitute counsel five days later, on February 5, 2008. (Motions, ECF No. 18-1, at 19-23.) The court granted the motion for new counsel and, after a hearing conducted on May 9, 2008, entered a lengthy order denying the motion to withdraw the plea on June 26, 2008. (Order, ECF No. 18-1, at 28-54.)

The petitioner pursued a timely appeal, but the Tennessee Court of Criminal Appeals affirmed the denial of the motion to withdraw the guilty pleas. State v. Anderson, No. M2008-01740-CCA-R3-CD, 2009 WL 2433016 (Tenn. Ct. Crim. App. Aug. 10, 2009), perm. to appeal denied (Tenn. Feb. 1, 2010). According to the petitioner, he filed a pro se petition for post-conviction relief in the Davidson County Criminal Court on April 15, 2010. Counsel was appointed and a hearing was held on January 19, 2011. The court denied the petition on February 2, 2011. ( See ECF No. 1, at 2.)[1]

According to Mr. Anderson, his post-conviction attorney represented to him that he would file a notice of appeal, but he did not do so, nor did he inform Mr. Anderson that he would not be filing a notice of appeal. When Mr. Anderson discovered that no appeal had been filed, he filed a second pro se petition for post-conviction relief in the state trial court on June 29, 2012. (ECF No. 22-1.) The trial court entered an order addressing the second petition on August 22, 2012, noting that

[t]he petitioner has previously filed a petition for post-conviction relief, through counsel, which was heard and denied by this Court in a written order on February 2, 2011. The petitioner asserts [in his new motion] that he is entitled to due process relief because his retained counsel did not file an appeal of the denial of post-conviction relief. He asserts he did not have contact with his attorney for a lengthy period of time and that he should be entitled to a delayed appeal of the post-conviction denial.

(Order, ECF No. 18-10, at 3.) The court denied the motion, finding specifically that

the petitioner is not entitled to a delayed appeal through post-conviction relief based upon his counsel's failure to appeal the denial of his post-conviction petition. A petitioner has no right to the effective assistance of counsel in post-conviction proceedings, and the failure of post-conviction counsel to appeal the denial of post-conviction relief is not a due process violation that tolls the statute of limitations. In this case, the petitioner was afforded a full hearing as to his post-conviction relief petition. The Court finds due process does not require the tolling of the limitations period or the granting of a delayed appeal for purposes of post-conviction.

(Id. (internal quotation marks and citations omitted).) It does not appear that the petitioner appealed the denial of his request for permission to file a delayed appeal.

Instead, Mr. Anderson filed his petition for the writ of habeas corpus in this court nearly a year later, on August 13, 2013, [2] again arguing that his sentence is illegal under state law and that his plea was not knowing and voluntary because of the ineffectiveness of his attorney.

The court entered an initial order directing the respondent to file an answer, motion, or other response. The respondent has now filed his motion to dismiss the petition on the basis that it is time-barred.

II. The One-Year Statute of Limitations

The Antiterrorism and Effective Death Penalty Act (AEDPA) established a one-year limitations period for habeas petitions brought by prisoners challenging state-court convictions. 28 U.S.C. § 2244(d)(1); McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007). The ...


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