United States District Court, W.D. Tennessee, Western Division
ORDER DIRECTING CLERK TO MODIFY THE DOCKET, GRANTING
MOTION TO DISMISS, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
L. PARKER, UNITED STATES DISTRICT JUDGE.
Petitioner, Hosie Perry,  petitions under 28 U.S.C. § 2254
for writ of habeas corpus (§ 2254 Petition”). (ECF
No. 1.) Respondent moves to dismiss the § 2254 Petition
as untimely. (ECF No. 14.) The Court DIRECTS the Clerk to
modify the docket to record Respondent's name as Mike
Parris (not “Parrish”), MCCX
Warden. For the reasons below, the Court GRANTS
Respondent's Motion to Dismiss.
State of Tennessee charged and convicted Petitioner of two
counts of first-degree murder and the trial court sentenced
him to two consecutive life sentences. State v.
Perry, No. W2007-00822-CCA-R3-CD, 2008 WL 2774451, at *1
(Tenn. Crim. App. July 15, 2008), perm. app. denied
(Tenn. Jan. 20, 2009). After the court entered the judgment,
Petitioner noticed his appeal. (Id. at PageID
64-66.) The Tennessee Court of Criminal Appeals later
affirmed the trial court. (ECF No. 11-10.) The Tennessee
Supreme Court then denied permission to appeal. (ECF No.
11-13 at PageID 560.) Typically, the next step for one in
Petitioner's position is to petition for post-conviction
relief. The deadline for that filing is one year.
some reason Petitioner waited almost two years after the
Tennessee Supreme Court denied his appeal to petition for
post-conviction relief. (ECF No. 11-14 at PageID 561--75.)
The post-conviction court dismissed his petition almost
immediately as untimely. (ECF No. 11-15 at PageID 580.)
Petitioner did not appeal this decision.
Petitioner reignited his interest in contesting his
conviction almost six years later when he filed a Petition to
Re-Open Post-Conviction Relief. (ECF No. 11-17 at PageID
599-601; see also ECF No. 14-1 at PageID 720.) The
post-conviction court again acted swiftly and dismissed the
Petition to Re-Open Post-Conviction Relief with prejudice.
(ECF No. 11-18 at PageID 607-12.)
over eight years after the Tennessee Supreme Court denied his
permission to appeal, Perry moved for permission to file a
late notice of appeal with the Tennessee Court of Criminal
Appeals. (ECF No. 11-19.) That court denied his request and
dismissed the appeal. (ECF No. 11-21 at PageID 625; see
also ECF No. 11-22.) Petitioner then moved for
reconsideration and the Tennessee Court of Criminal Appeals
denied his motion. (See ECF No. 11-23.) Petitioner
then applied for permission to appeal, which the Tennessee
Supreme Court dismissed. (See ECF No. 11-24 at
PageID 629; see also ECF No. 11-25 at PageID 630.)
now seeks relief in this Court under 28 U.S.C. § 2254.
is federal statutory authority for federal courts to issue
habeas corpus relief for persons in state custody.
See 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). A federal court may grant habeas
relief to a state prisoner “only on the ground that he
is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
the time to file for that relief, 28 U.S.C. § 2244(d)
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall begin to run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was