Newton v. Phillips

Filing 7

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/24/18. (xc:Pro se party by regular mail.) (gb)

1UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSEPH NEWTON,
No. 00511886,

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Petitioner,
v.
SHAWN PHILLIPS, Warden,
Respondent.

No. 3:18-cv-00431
Judge Trauger

MEMO RANDUM
Joseph Newton, an inmate of the Northwest Correctional Complex in Tiptonville, Tennessee,
has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his
2012 conviction and sentence for two counts of rape for which the petitioner is serving eight years of
imprisonment in the Tennessee Department of Correction. (Docket No. 1 at 1).
I.

Introduction
According to the petition, on September 12, 2012, a Davidson County, Tennessee jury

convicted the petitioner of two counts of rape. (Id.) The trial court sentenced the petitioner to a term
of eight years’ imprisonment at 100%. (Id.) The petitioner appealed, and the Tennessee Court of
Criminal Appeals affirmed on April 2, 2015. (Id. at 2). The Supreme Court of Tennessee denied the
petitioner’s application for discretionary review on July 17, 2015. (Id.) The petitioner did not seek
a petition for writ of certiorari from the United States Supreme Court. (Id. at 3).

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The petitioner did not seek post-conviction relief. (Id.) The petitioner filed his federal habeas
corpus petition on May 1, 2018.1 (Docket No. 1 at 16).
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 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),

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Under the "priso n mailbox rule" of Houston v. Lack, 487 U.S. 266, 270 (1988), and the Sixth Circuit's
subsequent extension of that rule in Richard v. Ray, 290 F.3d 810, 812 (6th Cir. 2002) and Scott v. Evans, 116 Fed.
App'x 699, 701 (6th Cir. 2004), a prisoner's legal mail is considered "filed" when he deposits his mail in the prison
mail system to be forwarded to the Clerk of Court. Pursuant to this authority, the court finds that the petitioner filed
his petition on May 1, 2018, the date he signed the petition (Docket No. 1 at 16), even though the Clerk of Court
received and docketed the petition on May 7, 2017. Throughout this Memorandum, all dates as they pertain to the
federal filings of the petitioner will reflect the court's application of the prison mailbox rule.

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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.

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

a potential deficiency with the petitioner’s § 2254 petition: untimeliness.
The record before the court shows that the date on which the petitioner’s judgment became
final by conclusion of direct review was July 17, 2015. The petitioner apparently did not seek state
post-conviction relief; thus, the AEDPA’s one-year limitations period was not tolled by “a properly
filed application for State post-conviction or other collateral review.” Thus, the petitioner had until
July 18, 2016, to file his petition for habeas corpus relief.
The petitioner filed his federal habeas petition on May 1, 2018. (Docket No. 1 at 16). From
the record before the court, it appears that the petitioner filed his petition for relief under § 2254 652
days beyond the AEDPA’s one-year limitations period. In other words, the petition is untimely by
almost two years.
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).
Taking into consideration the petitioner’s pro se status, the court will grant the petitioner 28 days to
show cause why his petition should not be dismissed as time-barred.

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IV.

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 filed. However,
the petitioner will be given 28 days to show cause why his petition should not be dismissed as
untimely filed.
An appropriate order will be entered.
ENTER this 24th day of July 2018.

Aleta A. Trauger
United States District Judge

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