United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING MOTION TO DISMISS, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.)
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.)
§ 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.
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 ...