United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING MOTION TO DISMISS, DENYING CERTIFICATE
OF APPEAL ABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
Johnson, a Tennessee state prisoner, has filed a petition
under 28 U.S.C. § 2254 seeking habeas corpus relief
(“petition”). (Pet., ECF No. 1.) Before the Court
is the motion of Respondent, Tammy Ford, to dismiss the
petition as untimely. (Mo. Dismiss, ECF No. 15.) For the
reasons that follow, the motion is GRANTED.
Shelby County Criminal Court jury convicted Johnson of three
counts of rape. State v. Johnson, No.
W2011-01079-CCA-R3-CD, 2012 WL 12303688, at *1 (Tenn. Crim.
App. May 29, 2012). The trial court merged the convictions
and imposed an effective sentence of twenty years.
Id. at *2. The Tennessee Court of Criminal Appeals
(“TCCA”) affirmed Petitioner's convictions on
May 29, 2012. Id. at *7. Johnson did not file an
application for permission to appeal to the Tennessee Supreme
signed his pro se petition for state post-conviction
relief on November 27, 2012, and it was stamped
“received” by the state court on January 2, 2013.
(P-C Pet., ECF No. 14-11 at 13-23.) The post-conviction court
denied the petition, and the TCCA affirmed. Johnson v.
State, No. W2014-01982-CCA-R3-PC, 2015 WL 5005765, at *1
(Tenn. Crim. App. August 21, 2015), app. den. (Tenn.
Dec. 10, 2015). On December 10, 2015, the Tennessee Supreme
Court denied discretionary review. Id.
filed his § 2254 petition on September 1, 2016. (Pet.,
ECF No. 1.) He alleges that the evidence was insufficient to
convict him and that his trial counsel rendered ineffective
assistance in several respects. (Id. at 5, 7.)
has moved to dismiss the petition on the ground that it was
filed fifty-seven days after the limitations period expired.
(Mo. Dismiss, ECF No. 15; Br. in Support of Mo. Dismiss, ECF
No. 15-1 at 2.) Petitioner opposes dismissal, arguing that
Respondent's limitations calculation is incorrect because
she failed to exclude the time his post-conviction petition
was pending. (Pet. Resp., ECF No. 16. at 1.) Johnson does not
assert that he is entitled to equitable tolling of the
limitations period. The Court finds that the petition is
§ 2254 petition is subject to a one-year statute of
limitations. 28 U.S.C. § 2244(d)(1). The limitations
period begins to run from the latest of four possible dates:
(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
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the