United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING MOTION TO DISMISS, DENYING CERTIFICATE
OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
L. Parker United States District Judge.
Marcus Thomas petitions for a writ of habeas corpus
under 28 U.S.C. § 2254. Respondent Grady Perry filed a
motion to dismiss Thomas's untimely habeas corpus
petition. (ECF No. 25.) For the following reasons, this Court
GRANTS Respondent's motion to dismiss
and DISMISSES WITH PREJUDICE Thomas's
§ 2254 Petition, DENIES a certificate
of appealability, CERTIFIES that any appeal
of this matter would not be taken in good faith, and
DENIES Thomas leave to proceed in forma
pauperis on appeal.
AND PROCEDURAL HISTORY
pled guilty and was subsequently convicted on two counts of
aggravated robbery in the Shelby County Criminal Court. (ECF
No. 1 at PageID 1.) The Court entered a judgment on December
10, 2013. (Id.; ECF No. 24-1 at PageID 188-91.)
Thomas did not appeal.
petitioned for post-conviction relief in Shelby County
Criminal Court. (Id. at PageID 192-97.) Thomas
signed the petition on November 18, 2014, and purportedly
gave it to prison officials for mailing on November 19, 2014.
(Id. at PageID 196.) The post-conviction trial court
later denied relief. (Id. at PageID 212.)
filed an appeal. (Id. at PageID 213.) The Tennessee
Court of Criminal Appeals (“TCCA”) affirmed the
judgment of the post-conviction trial court and entered a
judgment. (See ECF Nos. 24-6 & 24-7.) Thomas
then filed an application for permission to appeal to the
Tennessee Supreme Court (“TSC”), which the TSC
denied on February 28, 2017. (ECF No. 24-8 &
24-11.) See Thomas v. State, No.
W2015-02499-CCA-R3-PC, 2016 WL 6596105 (Tenn. Crim. App. Nov.
7, 2016), perm. app. denied (Tenn. Feb. 28, 2017).
Thomas filed a motion to correct an illegal sentence pursuant
to Tenn. R. Crim. P. 36.1. (ECF No. 24-12 at PageID 458-61.)
The court denied Thomas's motion. (Id. at PageID
501.) The TCCA affirmed on November 22, 2017. (ECF No. 24-15
at PageID 528-29.) See State v. Thomas, No.
W2017-00692-CCA-R3-CD, 2017 WL 5634250 (Tenn. Crim. App. Nov.
August of 2018, Thomas filed a petition for writ of habeas
corpus in the Circuit Court of Wayne County. (ECF No. 24-17
at PageID 531-49.) The certificate of service was not dated,
but an accompanying affidavit was signed on August 1, 2018.
(Id. at PageID 549-50.) In October of 2018, the
court dismissed the state habeas petition. (ECF No. 24-19.)
Thomas filed a second motion to correct an illegal sentence,
which the court dismissed in October of 2018. (ECF Nos. 24-20
on December 27, 2018, Thomas filed the instant federal habeas
petition. (ECF No. 1.) Thomas did not state when the petition
was placed in the prison mailing system. (See Id. at
PageID 19.) The mailing envelope was post-marked on December
20, 2018. (ECF No. 1-13.) This Court granted Thomas's
first motion to amend the § 2254 Petition on March 8,
2019 and directed the Respondent to file a response. (ECF No.
11.) Thereafter, Thomas filed a second motion to amend his
petition. (ECF No. 14.) Respondent then filed the state court
record and a motion to dismiss the habeas corpus petition as
untimely. (ECF Nos. 24 & 25.)
argues that Thomas's § 2254 Petition is untimely and
that Thomas is not entitled to equitable tolling. (ECF No. 25
at PageID 604; ECF No. 25-1 at PageID 606, 609-11.) Thomas
has not addressed the timeliness of his petition, nor has he
responded to the motion.
courts have authority to issue habeas corpus relief for
persons in state custody under 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). But the authority of this
Court is limited. 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).
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