Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lambert v. Perry

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

September 27, 2017

JAMES LAMBERT, Petitioner,
v.
GRADY PERRY, Respondent.

          ORDER DENYING MOTION FOR COUNSEL, GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS, GRANTING LEAVE TO FILE AMENDED PETITION, AND DIRECTING CLERK TO SEND FORM

          S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE

         On September 29, 2016, Petitioner, James Lambert, filed a pro se habeas corpus petition under 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) Before the Court is Petitioner's second motion for appointment of counsel (ECF No. 10), as well as the motion of Respondent, Grady Perry, to dismiss the Petition with prejudice (ECF No. 15). For the following reasons, the motion for appointment of counsel is DENIED and the motion to dismiss is GRANTED in part and DENIED in part.

         DISCUSSION

         I. Motion to Dismiss

         On February 17, 2017, Respondent filed a motion to dismiss the Petition as untimely. (ECF No. 15.) Petitioner opposes dismissal, arguing that equitable tolling of the limitations period is warranted. (ECF No. 16.)

         A defendant may raise a statute of limitations affirmative defense “‘on a motion to dismiss under Rule 12(b)(6) when it is apparent from the face of the complaint that the time limit for bringing the claim has passed.'” Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir. 1992) (quoting 5 Wright and Miller, Federal Practice and Procedure, § 1308, p. 695 (West 1990)). In ruling on a 12(b)(6) motion, a court may consider “exhibits attached to the complaint, public records, items appearing in the record of the case, and exhibits attached to defendant's motion to dismiss, so long as they are referred to in the complaint and are central to the claims contained therein, without converting the motion to one for summary judgment.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016).

         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 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 exercise of due diligence.

Id.

         The one-year limitations period is tolled during the time “a properly filed application for State post-conviction or other collateral review . . . is pending . . . .” 28 U.S.C. § 2244(d)(2). The § 2254 limitations period is also subject to “equitable tolling.” Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner seeking equitable tolling has the burden of demonstrating that he has been “pursuing his rights diligently” and that “some extraordinary circumstance stood in his way and prevented [a] timely filing.” Id. at 649 (internal quotation marks omitted).

         In this case, § 2244(d)(1)(A) applies. The statute of limitations for Lambert's federal habeas claims thus began to run from the date on which his judgment of conviction became final, and was tolled during the pendency of his state post-conviction proceedings. Dates set forth in the Petition and appearing in the state-court record demonstrate that Petitioner's one-year limitations period for seeking federal habeas relief expired more ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.