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Johnson v. Settles

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

April 13, 2018

LAMONT JOHNSON, Petitioner,
v.
DARREN SETTLES, Respondent.

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

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.

         On October 12, 2017, Petitioner, Lamont Johnson, filed a pro se habeas corpus petition under 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) Before the Court is the motion of Respondent, Darren Settles, to dismiss the Petition as untimely. (ECF No. 13.) For the reasons that follow, the motion is GRANTED.

         BACKGROUND

         In January 2012, Johnson received a sentence of life imprisonment following a jury's determination that he was guilty of first degree murder in perpetration of aggravated child abuse. (ECF No. 12-1 at 66, 71.) On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the judgment of conviction. State v. Johnson, No. W2012-01271-CCA-R3-CD, 2013 WL 2404057, at *1 (Tenn. Crim. App. May 30, 2013). The Tennessee Supreme Court denied discretionary review on October 16, 2013. (ECF No. 12-12).

         On June 2, 2014, Petitioner submitted a pro se petition for state post-conviction relief to the prison authorities for mailing, which was subsequently supplemented by appointed counsel. (ECF No. 12-13 at 13, 40.) The trial court denied the petition after an evidentiary hearing. (Id. at 64-74.) The TCCA affirmed, see Johnson v. State, No. W2016-00090-CCA-R3-PC, 2016 WL 6996409 (Tenn. Crim. App. Nov. 30, 2016), and Johnson did not seek discretionary review in the Tennessee Supreme Court.

         On October 12, 2017, Johnson filed his federal habeas Petition, which sets forth the following claims:

Claim 1: Petitioner was denied the right to present a defense when the court excluded certain witnesses. (ECF No. 1 at 5.)
Claim 2: Trial counsel rendered ineffective assistance by “fail[ing] to obtain a[n] independent medical expert to rebut [the] State's claim.” (Id. at 6.)
Claim 3: Trial counsel rendered ineffective assistance by “fail[ing] to correct false testimony at trial.” (Id. at 8.)
Claim 4: Trial counsel rendered ineffective assistance “by not filing [a] motion to dismiss the charges based on rights to a speedy trial.” (Id. at 10.)

         The Court thereafter ordered Respondent to respond to the Petition, and granted Petitioner leave to file a reply. (ECF No. 7.) On January 17, 2018, Respondent filed the state court record and a motion to dismiss the Petition as untimely. (ECF Nos 12 and 13.)

         DISCUSSION

         A § 2254 petition is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). In most cases, the limitations period begins to run from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year limitations period is statutorily 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 one-year statute of limitations in 28 U.S.C. § 2244(d)(1) is not a jurisdictional bar and is subject to equitable tolling under extraordinary circumstances. McClendon v. Sherman, 329 F.3d 490, 492 (6th Cir. 2003). Traditional equitable tolling requires the petitioner to show that (1) “he has been pursuing his rights diligently;” and (2) “some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal ...


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