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Perry v. Parrish

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

August 21, 2019

HOSIE PERRY, Petitioner,
v.
MIKE PARRISH, MCCX Warden, Respondent.

          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

          THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE.

         Pro se Petitioner, Hosie Perry, [1] 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.[2] For the reasons below, the Court GRANTS Respondent's Motion to Dismiss.

         BACKGROUND

         The 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.

         For 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.

         Inexplicably, 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.)

         Undeterred, 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.)

         Petitioner now seeks relief in this Court under 28 U.S.C. § 2254.

         LEGAL STANDARD

         There 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. § 2254(a).

         As for the time to file for that relief, 28 U.S.C. § 2244(d) provides:

(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 ...

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