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Kelly v. Phillips

United States District Court, M.D. Tennessee, Nashville Division

May 3, 2018

TIMOTHY EUGENE KELLY No. 356072, Petitioner,
v.
SHAWN PHILLIPS, Warden, Respondent.

          MEMORANDUM

          Aleta A. Trauger United States District Judge

         Timothy Eugene Kelly, an inmate of the Northeast Correctional Complex in Mountain City, Tennessee, filed a pro se, in forma pauperis petition under 28 U.S.C. § 2254 for a writ of habeas corpus challenging his 2011 conviction and sentencing for especially aggravated robbery, aggravated robbery, and fraudulent use of a credit card for which he is serving a term of imprisonment of thirty-seven years in the Tennessee Department of Correction. (Docket No. 1 at 2).

         I. Introduction

         On March 22, 2011, a Davidson County, Tennessee, jury convicted the petitioner of one count of especially aggravated robbery and two counts of fraudulent use of a credit card. State v. Kelly, No. M2011-01260-CCA-R3-CD, 2012 WL 5193401, at *1 (Tenn. Crim. App. Oct. 22, 2012), perm. app. denied, (Tenn. Jan. 14, 2013). On May 9, 2011, the trial court sentenced the petitioner to an effective thirty-seven years of imprisonment. Id. On appeal, the petitioner challenged the sufficiency of the evidence supporting his convictions and the sentences imposed by the trial court. The Tennessee Court of Criminal Appeals affirmed. Id. at *8. The Supreme Court of Tennessee denied the petitioner's application for discretionary review on January 8, 2013. Id. at *1.

         The petitioner properly filed a pro se petition for post-conviction relief in the post-conviction trial court on September 5, 2013. Kelly v. State, No. M2014-01666-CCA-R3-PC, 2015 WL 5882695, at *4 (Tenn. Crim. App. Oct. 8, 2015), perm. app. denied, (Tenn. Feb. 18, 2016). The post-conviction trial court appointed post-conviction counsel who filed an amended petition on June 3, 2014. Kelly, 2015 WL 5882695, at *4. The post-conviction trial court held an evidentiary hearing on the petitions and denied relief in a written order. Id. at *6. The Court of Criminal Appeals affirmed, and the Supreme Court of Tennessee denied the petitioner's application for discretionary review on February 18, 2016. Id. at *1.

         On September 20, 2017, the petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. (Docket No. 1 at 1). That case was assigned to the Honorable Waverly D. Crenshaw, Jr. See Case No. 3:17-cv-1302, Kelly v. Shawn Phillips, (M.D. Tenn. 2017).

         On November 13, 2017, the petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. (Docket No. 1 at 10). That case was assigned to the undersigned.

         By order entered on 4/3/2018, the Honorable Waverly D. Crenshaw, Jr. consolidated Case No. 3:17-cv-1302, Kelly v. Shawn Phillips, (M.D. Tenn. 2017), with this action. (Docket No.16)

         On January 19, 2018, in this now-consolidated action, the respondent filed a motion to dismiss the petition for a writ of habeas corpus for untimeliness. (Docket No. 10).

         II. Standard for Preliminary Review of Section 2254 Cases

         Under Rule 4, Rules - Section 2254 Cases, the court is required to examine § 2254 petitions to ascertain as a preliminary matter whether “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” If, on the face of the petition, it appears that the petitioner is not entitled to habeas corpus relief, then the “the judge must dismiss the petition . . . .” Id.

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified, inter alia, at 28 U.S.C. §§ 2244, et seq.), prisoners have one year within which to file a petition for habeas corpus relief which runs from the latest of four (4) circumstances, one of which is “the date on which the [state court] 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 AEDPA's one-year limitations period is tolled by the amount of time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2); see Ege v. Yukins, 485 F.3d 364, 371 (6th Cir. 2007). However, any lapse of time before a state application is properly filed is counted against the one-year limitations period. See Bennett v. Artuz, 199 F.3d 116, 122 (2nd Cir. 1999), aff'd, 531 U.S. 4 (2000). When the state collateral proceeding that tolled the one-year limitations period concludes, the limitations period begins to run again at the point where it was tolled rather than beginning anew. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004)(citing McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003)).

         III. ...


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