Crosby v. State of Tennessee et al

Filing 3

MEMORANDUM. An appropriate order will be entered. Signed by District Judge Aleta A. Trauger on 11/28/12. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEREMY CROSBY,
Petitioner,
v.
STATE OF TENNESSEE and
HENRY STEWARD,
Respondents.

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No. 3:12-cv-01157
Judge Trauger

MEMORANDUM
The court has before it a petition for a writ of habeas corpus brought under 28 U.S.C. §
2254. (Docket No. 1). The petitioner, proceeding pro se and in forma pauperis, is an inmate at the
Northwest Correctional Complex in Tiptonville, Tennessee.
I.

Introduction
The petitioner was convicted of possession with the intent to sell .5 grams or more of

cocaine, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial
court sentenced the petitioner to an effective sentence of sixteen years incarceration as a Range II,
multiple offender. On direct appeal, the petitioner alleged that the trial court erred in denying his
motion to suppress the search of his motel room and that trial counsel committed ineffective
assistance of counsel. The Tennessee Court of Criminal Appeals affirmed the judgment of the trial
court on January 26, 2007.
On July 28, 2007, the petitioner filed a timely pro se petition for post-conviction relief. The
trial court found that all the allegations were either previously determined on direct appeal or had
been waived by the petitioner’s failure to present the claim in a prior proceeding; therefore, the trial
court summarily dismissed the petition without affording the petitioner the appointment of counsel

or an evidentiary hearing. On appeal to the Tennessee Court of Criminal Appeals, the appellate
court reversed the summary dismissal, in part, and remanded the case for the appointment of counsel
and an evidentiary hearing concerning the performance of appellate counsel.

Jeremy Crosby v.

State of Tenn., No. M2007-00611-CCA-R3-PC (Tenn. Crim. Ct. App. Apr. 25, 2008).
Following the appointment of counsel, the petitioner filed an amended post-conviction
petition. After an evidentiary hearing on February 27, 2009, the post-conviction court entered an
order on March 25, 2009, denying the petition in all respects. The petitioner timely appealed the
trial court’s order, and the Tennessee Court of Criminal Appeals affirmed the trial court’s decision
on November 18, 2010. Crosby v. State of Tenn., 2010 WL 5157332 (Tenn. Ct. Crim. App. Nov.
18, 2010). On February 17, 2011, the Tennessee Supreme Court dismissed the petitioner’s
application for permission to appeal.
The petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254 on November 18, 2012. (Docket No. 1).
II.

Standard for Preliminary Review of Section 2254 Cases
Under Rule 4, Rules – Section 2254 Cases, the court is required to examine § 2254 petitions

to ascertain as a preliminary matter whether “it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.” If, on the face of the petition,
it appears that the petitioner is not entitled to habeas corpus relief, then the “the judge must dismiss
the petition . . . .” Id.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (codified, inter alia, at 28 U.S.C. §§ 2244, et seq.), prisoners have one year within
which to file a petition for habeas corpus relief which runs from the latest of four (4) circumstances,
one of which is “the date on which the [state court] judgment became final by the conclusion of
2

direct review . . . .” 28 U.S.C. §§ 2244(d)(1)(A).
The AEDPA’s one-year limitations period is tolled by the amount of time that “a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2); see Ege v. Yukins, 485 F.3d 364, 371
(6th Cir. 2007). However, any lapse of time before a state application is properly filed is counted
against the one-year limitations period. See Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir. 1999),
aff’d, 531 U.S. 4 (2000). When the state collateral proceeding that tolled the one-year limitations
period concludes, the limitations period begins to run again at the point where it was tolled rather
than beginning anew. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004)(citing McClendon v.
Sherman, 329 F.3d 490, 494 (6th Cir. 2003)).
III.

Preliminary Review of Petition
In this case, the court’s preliminary review under Rule 4, Rules – Section 2254 Cases reveals

that the petitioner’s § 2254 petition appears to be untimely.
The record before the court shows that the date on which the petitioner’s judgment became
final by conclusion of direct review was April 26, 2007.1 Ninety-four (94) days later, on July 28,
2007, the petitioner sought state post-conviction relief. Thus, the AEDPA’s one-year limitations had
run for just over three months prior to the petitioner’s post-conviction filing.
Over two years later, on February 17, 2011, when the Tennessee Supreme Court dismissed
the petitioner’s application to appeal the denial of his petition for post-conviction relief, the

1

On January 27, 2007, the ninety (90) day period within which the prisoner could file a writ of certiorari with
the United States Supreme Court began. See Fed. R. Civ. P. 6(a)(1)(a) (when the governing time period is stated in days,
the court excludes the day of the event that triggers the period; thus, here, January 26, 2007, is excluded). During the
ninety (90) day period, the AEDPA’s one-year limitations period is tolled. See Clay, 537 U.S. 522, 532. The ninety (90)
day period ended on April 26, 2007. See Fed. R. Civ. P. 6(a)(1)(c)(when the governing time period is stated in days,
the court includes the last day of the period with exceptions that do not apply here).

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AEDPA’s one-year limitations period began running again.2

Thus, the petitioner had until

November 14, 2011, or 271 days later, to file his petition for habeas corpus relief.
The petition was signed and dated on November 5, 2012. (Docket No. 1 at p. 15). From
the record before the court, it appears that the petition for relief under § 2254 was filed nearly one
year beyond the AEDPA’s one-year limitations period. In other words, the petition is untimely.
The court has the authority to sua sponte raise the statute of limitations and dismiss untimely
motions for federal habeas corpus relief. See Day v. McDounough, 547 U.S. 198, 209 (2006).
Recognizing that the petitioner is proceeding pro se, the court will grant the petitioner thirty (30)
days to show cause why his petition should not be dismissed as time-barred.
V.

Conclusion
After conducting a preliminary review of the petitioner’s § 2254 petition under Rule 4, Rules

– Section 2254 Cases, it appears that the petition should be dismissed as untimely. However, the
petitioner will be given thirty (30) days to show cause why his petition should not be dismissed as
untimely.
An appropriate order will be entered.

Aleta A. Trauger
United States District Judge

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Since 94 of the 365 days of the AEDPA’s one year statute of limitations had passed in 2007, the petitioner only
had 271 days left within which to file.

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