United States District Court, M.D. Tennessee, Nashville Division
JAMES M. GRANT, Petitioner,
GRADY PERRY, Warden, Respondent.
A. Trauger United States District Judge
M. Grant, an inmate of the Hardeman County Correctional
Facility in Whiteville, Tennessee, filed a pro se
petition under 28 U.S.C. § 2254 for a writ of habeas
corpus challenging his 1998 conviction and sentencing by
way of a plea agreement for one count of facilitation to
commit first-degree murder and two counts of attempted
first-degree murder for which he is serving a term of
imprisonment of sixty-five years in the Tennessee Department
of Correction. (Docket No. 1 at 1).
January 8, 1998, the petitioner pled guilty to one count of
facilitation to commit first-degree murder and to two counts
of attempted first-degree murder pursuant to a plea
agreement. (Docket No. 13, Attach. 1, Page ID# 65-67). The
trial court sentenced the petitioner to an effective
sixty-five years of imprisonment. (Id., Attach. 1,
Page ID# 63, 65). As a condition of his plea agreement, the
petitioner did not appeal his convictions or sentence.
(Id., Attach. 1, Page ID #62).
5, 2006, the petitioner filed a pro se petition for
a writ of habeas corpus in the Davidson County
Criminal Court alleging that his judgments were facially void
because the trial court failed to credit the petitioner with
pretrial jail credit. (Id., Attach. 1, Page ID#
68-77). The criminal court summarily dismissed the petition
because the petitioner filed his petition in the wrong court
under Tennessee Code Annotated § 29-21-105.
(Id., Attach. 1, Page ID# 97-98). The Court of
Criminal Appeals affirmed. (Id., Attach. 1, Page ID#
years later, on April 19, 2016, the petitioner filed a
pro se motion to correct an illegal and void
sentence in the Davidson County Criminal Court.
(Id., Attach. 8, Page ID# 179). In his motion, the
petitioner alleged that his sentence is illegal because he
was sentenced out of range on the conviction for facilitation
to commit felony murder. The criminal court denied the motion
on the basis that out of range plea agreements are permitted
where a defendant knowingly and voluntarily agrees to be
sentenced outside the range and that the petitioner
specifically waived any challenge regarding the range of
punishment as part of his guilty plea. (Id., Attach.
8, Page ID# 187). The Court of Criminal Appeals affirmed on
August 10, 2016. (Id., Attach. 12, Page ID# 222).
9, 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 13). On September 5,
2017, the court ordered the respondent to file an answer,
plead, or otherwise respond to the petition in conformance
with Rule 5, Rules Gov'g § 2254 Cases. (Docket No.
8). In response, the respondent filed a motion to dismiss the
petition for a writ of habeas corpus for
untimeliness (Docket No. 14), to which the petitioner has not
responded in opposition.
Standard for Preliminary Review of Section 2254
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.
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. §§
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)).
Motion to Dismiss
respondent has filed a motion to dismiss the petition as
untimely in violation of the one-year statute of limitations
set forth by the AEDPA. (Docket No. 14). The record before
the court shows that the date on which the petitioner's
judgment became final by conclusion of direct review was May
10, 1998. Thus, pursuant to Federal Rule of Civil
Procedure 6(a)(1)(A), the AEDPA limitations period began
running on May 11, 1998, the day after the Supreme Court
limitation period expired. See Fed. R. Civ. P.
6(a)(1)(A)(“exclude the day of the event that triggers
the period[.]”). The petitioner then had one year, or
until May 11, 1999, to timely file his federal
5, 2006, the petitioner first challenged his convictions and
sentence when he filed his pro se petition for a
writ of habeas corpus in the Davidson County
Criminal Court. (Docket No. 13, Attach. 1, Page ID# 68).
However, this filing did not statutorily toll the limitations
period because the AEDPA's ...