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Gourley v. Washburn

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

June 14, 2018

KENNETH GOURLEY, Petitioner,
v.
RUSTY WASHBURN, Respondent.

          ORDER GRANTING MOTION TO DISMISS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE

         Petitioner, Kenneth Gourley, has filed an amended pro se habeas corpus petition under 28 U.S.C. § 2254 (“Amended Petition”). (Docket Entry (“D.E.”) 7.) Before the Court is the motion of Respondent, Rusty Washburn, to dismiss the Amended Petition. (D.E. 17.) For the following reasons, the motion is GRANTED.

         I. BACKGROUND

         A. State Court Proceedings

         In 2011, Petitioner pled guilty in the Dyer County, Tennessee, Criminal Court to possession of methamphetamine with intent to sell. (D.E. 19-1 at PageID 63; D.E. 7 at PageID 14.) On March 8, 2011, the court sentenced him to ten years' imprisonment and entered judgment. (D.E. 7 at PageID 14.) The inmate did not appeal his conviction or seek post-conviction relief in the state courts. (Id. at PageID 15-16.)

         Prior to the expiration of his sentence, Petitioner was released on parole, but was later charged with failure to appear. (D.E. 17-2.) On August 8, 2017, upon a plea of guilty, he was sentenced to one year in prison. (Id.) His appeal on that conviction is currently pending before the Tennessee Court of Criminal Appeals. (D.E. 7 at PageID 23); see State v. Gourley, No. W2017-00919-CCA-R3-CD (Tenn. Crim. App. appeal docketed Apr. 25, 2017).

         B. Federal Habeas Claims

         On May 3, 2017, Petitioner filed a pro se habeas corpus petition (“Petition”) with this Court. (D.E. 1.) He subsequently filed an amended petition (“Amended Petition”) on the Court's official § 2254 form, in which he raises the following claims:

1. Petitioner's guilty plea was involuntary because his co-defendant, “Mr. Jimmy Allen Warden[, ] intimidated [him] by threat of murder if [he] did not plead guilty.” (D.E. 7 at PageID 18.)
2. Petitioner was “not in possession” of methamphetamine because he was a mere “passenger in Mr. Warden'[s] vehicle.” (Id. at PageID 19.)
3. Petitioner was subject to “official misconduct and oppression [and] malicious harassment” by “being charged for another['s] possessions, while the arresting officer was aware of who was in the true possession.” (Id. at PageID 21.)

         II. DISCUSSION

         Respondent has moved to dismiss the Amended Petition on the grounds that the Petition was filed late and that equitable tolling is not warranted. (D.E. 17-1 at PageID 50-52; D.E. 17.) The inmate did not initially file a response to the motion, although allowed to do so. (See D.E. 13 at PageID 41.) On November 9, 2017, the Court ordered him to show cause why the Amended Petition should not be dismissed. (D.E. 18.)

         In response to the Court's order, Petitioner filed a brief in opposition to the motion to dismiss and a sworn declaration. (D.E. 19-1; D.E. 19.) In his declaration, he alleges that he was unable to timely file his Petition ...


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