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Lambert v. Perry

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

June 13, 2018

JAMES LAMBERT, Petitioner,
v.
GRADY PERRY, 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

         Petitioner, James Lambert, has filed an amended pro se habeas corpus petition under 28 U.S.C. § 2254 (“Amended Petition”). (ECF No. 22.) Before the Court is the motion of Respondent, Grady Perry, to dismiss the Amended Petition. (ECF No. 23). For the following reasons, the motion is GRANTED.

         BACKGROUND

         In February 2012, a McNairy County, Tennessee, jury convicted Lambert of rape of a child, aggravated sexual battery, and incest. (ECF No. 14-1 at 15-17.) The trial court sentenced him to an effective sentence of twenty-five years' incarceration. (Id. at 15.) On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the convictions. State v. Lambert, No. W2012-01681-CCA-R3-CD, 2013 WL 3131004, at *3 (Tenn. Crim. App. June 14, 2013). Lambert did not seek discretionary review before the Tennessee Supreme Court.

         On June 12, 2014, Petitioner submitted a pro se state post-conviction petition to prison authorities for mailing. (ECF No. 14-8 at 3, 12.) The post-conviction trial court appointed counsel to represent Lambert and held an evidentiary hearing. (ECF No. 14-9.) The court denied relief and the TCCA affirmed. See Lambert v. State, No. W2015-00238-CCA-R3-PC, 2015 WL 6122144, at *11 (Tenn. Crim. App. Oct. 15, 2015). Petitioner did not seek discretionary review in the Tennessee Supreme Court.

         Lambert submitted his federal habeas petition (“Petition”) to prison authorities for mailing on September 28, 2016. (ECF No. 1 at 12.) He asserted the following ineffective-assistance-of-counsel claims:

1. Trial counsel “ignored direction of judge to subpoena witnesses material to the defense.”
2. Trial counsel “did not object to prosecutor trying case due to conflict of interest pointed out by judge.”
3. Trial counsel “did not investigate beyond the scope of the discovery provided by the State.”
4. Trial counsel “lied regarding availability and location of witnesses.”
5. Trial counsel “used poor judgment when determining if witnesses had knowledge of events.”
6. Trial counsel “did not admit forensic interview from victim showing her story was inconsistent.”

(ECF No. 1 at 5.)

         In December 2016, the Court denied Petitioner's motion for appointment of counsel and ordered Respondent to respond to the Petition. (ECF No. 7.) Respondent thereafter filed the state court record and a motion to dismiss the Petition as untimely. (ECF No. 14; ECF No. 15.) Petitioner opposed dismissal on the grounds that he is entitled to equitable tolling of the limitations period because he is functionally illiterate and was without his legal papers. (ECF No. 16 at 1-3.)

         By order dated September 27, 2017, the Court found that the Petition was filed more than 200 days beyond the expiration of the limitations period. (ECF No. 18 at 3.) However, Petitioner was granted leave to file an amended petition for the purpose of answering Question 18 on the Court's official habeas petition form. Question 18 requires a petitioner to explain why the petition should not be dismissed if it is filed beyond the expiration of the limitations period. The Court specifically directed Lambert to “provide factual details about when and why he was without access to his legal materials, how his limited literacy caused him to file his Petition late, and his efforts to overcome these limitations and file on time.” (ECF No. 18 at 4.)

         On December 22, 2017, Lambert filed his Amended Petition, in which he reasserts the same six claims set forth in the Petition, and two new claims of attorney ineffectiveness: Trial counsel failed to “introduce evidence that showed that the alleged victim[']s friend had a history of lying” and failed to seek the admission of “specific evidence” that the victim “lie[d]” about abuse in the past. (ECF No. 22 at 5.) With the help of a prison legal aide, Petitioner sets forth in Question 18 his explanation for his late filing, supported in part by documents attached as exhibits. (Id. at 11-15; ECF No. 22-1.)

         DISCUSSION

         Respondent has moved to dismiss the Amended Petition on the ground that the original Petition was filed late and that Petitioner has not alleged facts that would entitle him to equitable tolling. (ECF No. 23; ECF No. 23-1 at 1.) Although allowed to file a response to the motion to dismiss (ECF No. 18 at 5), Petitioner did not do so.

         1. Legal Standards

         A § 2254 petition is subject to a one-year statute of ...


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