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Thomas v. Perry

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

December 19, 2019

MARCUS THOMAS, Petitioner,
v.
GRADY PERRY, Respondent.

          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 APPEAL

          Thomas L. Parker United States District Judge.

         Petitioner Marcus Thomas[1] 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.

         BACKGROUND AND PROCEDURAL HISTORY

         Thomas 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.

         Thomas 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.)

         Thomas 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.)[2] 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).

         Next, 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. 22, 2017).

         In 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 & 24-22.)

         Finally, 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.)

         ANALYSIS

         Respondent 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.

         Federal 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).

         Twenty-eight 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 ...

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