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Johnson v. Ford

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

June 30, 2017

MAURICE JOHNSON, Petitioner,
v.
TAMMY FORD, Respondent.

          ORDER GRANTING MOTION TO DISMISS, DENYING CERTIFICATE OF APPEAL ABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.

         Maurice 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.

         BACKGROUND

         A 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 Court.

         Petitioner 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.

         Johnson 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.)

         DISCUSSION

         Respondent 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 untimely.

         A § 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 ...

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