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Ross v. Rickard

United States District Court, E.D. Tennessee, Chattanooga

November 14, 2019

ANDRE D. ROSS, Petitioner,
v.
WARDEN RICKARD and HERBERT SLATERY, Respondents.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT COURT

         Petitioner has filed a pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 with this Court challenging his 2005 conviction for possession of cocaine in the Criminal Court of Hamilton County, Tennessee [Doc. 1].[1] Respondent Slatery has filed a motion to dismiss the § 2254 petition as untimely [Docs. 18 and 19] and the state court record [Doc. 17]. Petitioner, however, asserts that he is actually innocent of the cocaine possession charge underlying this conviction and that he is entitled to equitable tolling of the statute of limitations for his petition [Docs. 25 and 28]. In support of these assertions, Petitioner claims that the state court judge pronounced him not guilty of and dismissed the cocaine possession charge based on his finding that there was not a sufficient factual basis for a guilty plea to that charge at a hearing, but that the transcript of that hearing was later fraudulently altered in a manner that resulted in the trial court entering a criminal judgment against Petitioner for the cocaine possession charge without his knowledge [Doc. 25 at 1-8; Doc. 28[2] p. 1-7]. Respondent Slatery disagrees [Doc. 27].

         For the reasons set forth below, Respondent Slatery's motion to dismiss the § 2254 petition [Doc. 18] will be GRANTED and this action will be DISMISSED.

         I. PROCEDURAL HISTORY

         On January 26, 2005, the Criminal Court for Hamilton County, Tennessee entered criminal judgments against Petitioner for one count of possession of cocaine with an intent to sell or deliver and one count of introduction of contraband into a penal institution [Doc. 17-1 p. 8-9]. Both judgments state that Petitioner pled guilty to the charge set forth therein [Id.]. Other forms in the state court record also indicate that Petitioner entered a guilty plea for both charges [Id. at 6-7], as does the transcript of the hearing on Petitioner's proposed plea agreement for these charges [Doc. 17-3 p. 3-16]. On January 7, 2010, the trial court entered its last amended judgment against Petitioner for the cocaine possession conviction in which it removed Petitioner's probation and/or community corrections placements [Doc. 17-1 p. 19');">1 p. 19 (order referencing entry of amended judgments for both of Petitioner's convictions on January 7, 2010, as these amended judgments are not in the record)].

         Petitioner did not file a direct appeal of either conviction. Instead, he filed requests for relief from his cocaine possession conviction in which he asserted that he pled guilty only to the contraband charge at the hearing on January 26, 2005, that the judge pronounced him not guilty of the cocaine possession charge at this hearing, and that the transcript of this hearing was fraudulently altered [Doc. 17-1 p. 13');">1 p. 13-15, 17, 21, 23, 40-43; Doc. 17-1 p. 18');">11 p. 18]. The trial court denied Petitioner's attempts to obtain relief from this conviction on these grounds [Id. at 18-20, 32-37; Doc. 17-11 p. 21-23].[3]

         Petitioner filed two appeals of trial court orders denying his attempts to obtain relief from his cocaine possession conviction with the Tennessee Court of Criminal Appeals (“TCCA”) [Doc. 17-4 and 17-12]. In his first appeal, the TCCA affirmed the trial court's denial of relief and the Tennessee Supreme Court (“TSC”) declined discretionary review. State v. Ross, No. E2014-02563-CCA-R3-CD, 2015 WL 7567285 (Tenn. Crim. App. Nov. 14, 2015), perm. app. denied (Tenn. April 6, 2016). The TCCA dismissed Petitioner's second appeal based on its finding that Petitioner had no appeal as of right from the order he sought to appeal [Doc 17-15].

         On January 1, 2019, Petitioner filed his § 2254 petition in which he lists only his contraband conviction and sets forth the following allegations as claims: (1) questions that the judge asked the prosecutor about Petitioner's arrest during a hearing were wrongfully concealed from him because they are not in the transcript; (2) he has no clear and convincing evidence because of the concealment of material facts and altered transcript of his plea colloquy; and (3) his counsel was ineffective for failing to properly investigate and pursue evidence [Doc. 1 p. 1, 5-8, and 14].

         I. TIMELINESS OF THE PETITION

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in 28 U.S.C. § 2241, et seq., provides a one-year statute of limitations for the filing of an application for a federal writ of habeas corpus. The statute provides in relevant part as follows:

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 run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review . . . . or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The time “during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of ...


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