Kelly v. Phillips
Filing
12
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 5/3/2018. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TIMOTHY EUGENE KELLY
No. 356072,
Petitioner,
v.
SHAWN PHILLIPS, Warden,
Respondent.
)
)
)
)
)
)
)
)
)
)
No. 3:17-cv-01457
Judge Trauger
MEMO RANDUM
Timothy Eugene Kelly, an inmate of the Northeast Correctional Complex in Mountain City,
Tennessee, filed a pro se, in forma pauperis petition under 28 U.S.C. § 2254 for a writ of habeas
corpus challenging his 2011 conviction and sentencing for especially aggravated robbery, aggravated
robbery, and fraudulent use of a credit card for which he is serving a term of imprisonment of thirtyseven years in the Tennessee Department of Correction. (Docket No. 1 at 2).
I.
Introduction
On March 22, 2011, a Davidson County, Tennessee, jury convicted the petitioner of one count
of especially aggravated robbery and two counts of fraudulent use of a credit card. State v. Kelly, No.
M2011-01260-CCA-R3-CD, 2012 WL 5193401, at *1 (Tenn. Crim. App. Oct. 22, 2012), perm. app.
denied, (Tenn. Jan. 14, 2013). On May 9, 2011, the trial court sentenced the petitioner to an effective
thirty-seven years of imprisonment. Id. On appeal, the petitioner challenged the sufficiency of the
evidence supporting his convictions and the sentences imposed by the trial court. The Tennessee
Court of Criminal Appeals affirmed. Id. at *8. The Supreme Court of Tennessee denied the
petitioner’s application for discretionary review on January 8, 2013. Id. at *1.
1
The petitioner properly filed a pro se petition for post-conviction relief in the post-conviction
trial court on September 5, 2013. Kelly v. State, No. M2014-01666-CCA-R3-PC, 2015 WL 5882695,
at *4 (Tenn. Crim. App. Oct. 8, 2015), perm. app. denied, (Tenn. Feb. 18, 2016). The post-conviction
trial court appointed post-conviction counsel who filed an amended petition on June 3, 2014. Kelly,
2015 WL 5882695, at *4. The post-conviction trial court held an evidentiary hearing on the petitions
and denied relief in a written order. Id. at *6. The Court of Criminal Appeals affirmed, and the
Supreme Court of Tennessee denied the petitioner’s application for discretionary review on February
18, 2016. Id. at *1.
On September 20, 2017, the petitioner filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in this court. (Docket No. 1 at 1). That case was assigned to the
Honorable Waverly D. Crenshaw, Jr. See Case No. 3:17-cv-1302, Kelly v. Shawn Phillips, (M.D.
Tenn. 2017).
On November 13, 2017, the petitioner filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in this court. (Docket No. 1 at 10). That case was assigned to
the undersigned.
4/3/2018
By order entered on ____________, the Honorable Waverly D. Crenshaw, Jr. consolidated
Case No. 3:17-cv-1302, Kelly v. Shawn Phillips, (M.D. Tenn. 2017), with this action. (Docket No.
16
__).
On January 19, 2018, in this now-consolidated action, the respondent filed a motion to
dismiss the petition for a writ of habeas corpus for untimeliness. (Docket No. 10).
II.
Standard for Preliminary Review of Section 2254 Cases
Under Rule 4, Rules – Section 2254 Cases, the court is required to examine § 2254 petitions
2
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 direct review
or the expiration of the time for seeking such 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 (2nd 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.
Motion to Dismiss
The respondent has filed a motion to dismiss the petitions in this consolidated action as
untimely filed in violation of the one-year statute of limitations set forth by the AEDPA. (Docket No.
10-1 at 4-6). The petitioner has not yet responded to the motion.
The record before the court shows that the date on which the petitioner’s judgment became
3
final by conclusion of direct review was April 8, 2013.1 Thus, pursuant to Federal Rule of Civil
Procedure 6(a)(1)(A), the AEDPA limitations period began running on April 9, 2013, the day after
the Supreme Court limitation period expired. See Fed. R. Civ. P. 6(a)(1)(A)(“exclude the day of the
event that triggers the period[.]”). Therefore, the petitioner had one year, or until April 10, 2014, to
timely file his federal habeas petition.
However, on September 5, 2013, the petitioner statutorily tolled the limitations period by
properly filing a pro se state petition for post-conviction relief. The AEDPA’s one-year limitations
had run for 149 days prior to the petitioner’s post-conviction filing.
On February 18, 2016, the petitioner completed the state post-conviction process when the
Tennessee Supreme Court denied his application for discretionary review. Therefore, the limitations
period resumed the next day, February 19, 2016. See Fed. R. Civ. P. 6(a)(1)(A). The petitioner then
had 216 days, or until September 22, 2016, to timely file his federal habeas petition.
The petitioner placed his petition into the prison mail system on November 13, 2017.2 (Docket
No. 1at 10). From the record before the court, it appears that the petitioner filed his petition 417 days
after the AEDPA’s one-year limitations period. In other words, the petition is untimely. Even using
1
The petitioner does not state whether he petitioned for certiorari in the Supreme Court on
direct appeal. On January 8, 2013, 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 8, 2013, 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 8, 2013. 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).
2
The petitioner did not include a month and day on the signature line of his petition but the
envelope in which the petition was mailed to the court is postmarked November 13, 2017, so the
petitioner could not have signed and submitted his petition for mailing any later than November 13,
2017.
4
the earlier-filed petition in this consolidated action signed by the petitioner on September 25, 2017,
the petitioner filed his petition 368 days after the AEDPA deadline expired.
The petitioner offers no justification for his untimely filing. He has not responded to the
respondent’s pending motion to dismiss. Out of an abundance of caution, the court will grant the
petitioner twenty-eight (28) days to show cause why his petition should not be dismissed as timebarred.
IV.
Conclusion
After conducting a preliminary review of the petitioner’s § 2254 petition under Rule 4, Rules
– Section 2254 Cases, and considering the respondent’s motion to dismiss, it appears that the petition
should be dismissed as untimely. However, the petitioner will be given twenty-eight (28) days to
show cause why his petition should not be dismissed for untimeliness.
An appropriate order will be entered.
ENTER this 3rd day of May 2018.
Aleta A. Trauger
United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?