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Grant v. Perry

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

May 24, 2018

JAMES M. GRANT, Petitioner,
v.
GRADY PERRY, Warden, Respondent.

          MEMORANDUM

          Aleta A. Trauger United States District Judge

         James 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.[1] (Docket No. 1 at 1).

         I. Introduction

         On 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.[2] (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).

         On May 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# 154).

         Ten 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).

         On May 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.

         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).

         However, 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. Motion to Dismiss

         The 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.[3] 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 habeas petition.

         On May 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 ...


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