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Penley v. State

January 26, 2007

KERMIT H. PENLEY
v.
STATE OF TENNESSEE; TONY PARKER, WARDEN*FN1



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION

I. Introduction

In 2002, upon his plea of guilty, Kermit H. Penley was convicted in the Greene County Criminal Court for first-degree murder and sentenced to serve a life term of imprisonment. He now brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement under that judgment of conviction.

There are several motions pending in this case, the first of which is the respondent's motion to dismiss.

II. Motion to Dismiss

In his motion [Doc. 8], the respondent argues that the petition is time-barred.

The petitioner opposes the motion, claiming that he understood that the Supreme Court's denial of certiorari review of his post-conviction case triggered the one-year statute of limitations for filing his habeas corpus, and that, under this theory, the filing deadline was February 28, 2006, and his petition is timely because he filed his first § 2254 petition in October, 2005 and this one on February 9, 2006. [Doc. 10].

A. Timeliness

The Antiterrorism and Effective Death Penalty Act ("AEDPA") contains a one- year statute of limitations governing the filing of an application for a federal writ of habeas corpus. See 28 U.S.C. § 2244. The statute begins to run when one of four circumstances occurs: the conclusion of direct review; upon the removal of an impediment which prevented a petitioner from filing a habeas corpus petition; when a petition alleges a constitutional right, newly recognized by the Supreme Court and made retroactive on collateral review; or when a claim depends upon factual predicates which could not have been discovered earlier through the exercise of due diligence. Id. The time is tolled, however, during the pendency of a properly filed application for state post-conviction relief. Id.

Here, the first circumstance is the relevant one. The petitioner was convicted on September 6, 2002, and his conviction and judgment became final thirty days later (i.e., October 6, 2002), upon the lapse of the time for seeking an appeal. See State v. Green, 106 S.W.3d 646, 650 (2002) (A judgment based on a guilty plea becomes final thirty days after acceptance of the plea agreement and imposition of the sentence.).*fn2 Thus, for purposes of § 2244(d)(1)(A), see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000), the time period for filing his § 2254 petition would end one year afterward on October 6, 2003.

As noted, however, the limitations statute is tolled while a properly filed state post-conviction is pending. See 28 U.S.C. § 2244(d)(2). The petitioner filed an application for state post-conviction relief in the Greene County Criminal Court on June 24, 2003, (Addendum # 2), after AEDPA's one-year clock had ticked for two hundred and sixty-one days. The post-conviction petition was denied and his state court appellate process ended on February 28, 2005. Ninety days later, on May 29, 2005, the time to carry his appeal to the Supreme Court terminated, and the statute resumed running. It expired one hundred and four days later, on September 12, 2005.*fn3 The petitioner filed his § 2254 application on February 9, 2006, nearly five months after the lapse of AEDPA's statute of limitations.*fn4

The one-year statute of limitations in AEDPA, however, is not jurisdictional and is subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir.), cert. denied, 534 U.S. 1057 (2001). While the petitioner has not asserted a claim for equitable tolling, given the circumstances surrounding the timeliness issue, the Court will discuss sua sponte whether this doctrine should apply in this case.

B. Equitable Tolling

Equitable tolling rarely applies, King v. Bell, 378 F.3d 550, 553 (6th Cir.2004), typically, "only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003). In determining whether to equitably toll AEDPA's statute of limitations, the Court employs a five-factor test, which includes: (1) the petitioner's lack of notice of the filing requirement; (2) his lack of constructive knowledge of the filing requirement; (3) his diligence in pursuing his rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim. Id. at 108. This list of factors is not necessarily all-encompassing, and not all factors are relevant in every case. Vroman v. Brigano, 346 F.3d 598, 605 (6th Cir.2003). The petitioner bears the burden of showing that he is entitled to equitable tolling, McClendon ...


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