The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is before the court on the motion to dismiss filed by the Attorney General for the State of Tennessee on behalf of the respondent, and petitioner's response thereto. There is also pending petitioner's motion to substitute Warden David Mills for Warden Jim Worthington as the respondent in this case. The motion to substitute [Court File No. 6] will be GRANTED. For the following reasons, the motion to dismiss [Court File No. 5] will be GRANTED and this action will be DISMISSED.
Petitioner Calvin Sneed ("Sneed") challenges his 1995 Rhea County conviction for first degree murder and the resulting life sentence. The Attorney General moves to dismiss the habeas corpus petition as untimely. In support of the motion to dismiss, the Attorney General has provided the court with copies of the opinions of the Tennessee Court of Criminal Appeals on direct appeal and in post-conviction proceedings. [Attachments 1-3 to to motion to dismiss].
Sneed was convicted by a jury of the first degree murder of his wife and was sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. State v. Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137 (Tenn. Crim. App. June 12, 1998), perm. app. denied, id. (Tenn. February 16, 1999).
Sneed next filed a petition for post-conviction relief, which was denied after an evidentiary hearing and the Tennessee Court of Criminal Appeals affirmed. Sneed v. State, No. E2004-00051-CCA-R3-PC, 2004 WL 2607774 (Tenn. Crim. App. November 17, 2004), perm. app. denied, id. (Tenn. May 2, 2005). Sneed filed the pending habeas corpus petition on March 17, 2006.*fn1 The respondent moves to dismiss the petition based upon the statute of limitation.
There is a "1-year period of limitation [that] shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The limitation period generally runs from the date on which the judgment of conviction became final, with the provision that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
Sneed's conviction became final on May 17, 1999, which was 90 days after the Tennessee Supreme Court denied his application for permission to appeal on direct appeal. Bronaugh v. State of Ohio, 235 F.3d 280 (6th Cir. 2000)(statute of limitation is tolled during the 90 days within which petitioner could have filed a petition for writ of certiorari with the U.S. Supreme Court on direct appeal).
Sneed's state post-conviction petition tolled the running of the statute of limitation, but only while it was pending. The post-conviction petition was filed on February 7, 2000,*fn2 at which time 266 days of the one-year statute of limitation had elapsed, leaving only 99 days for filing a federal habeas corpus petition. See Payton v. Brigano, 256 F.3d 405, 406 (6th Cir. 2001) (a pending post-conviction petition "merely tolled, rather than reset," the one-year statute of limitation).
The Tennessee Supreme Court denied permission to appeal the denial of post-conviction relief on May 2, 2005. Thus, the statute of limitation resumed running on August 1, 2005. See Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc) (statute of limitation is tolled during the 90 days within which petitioner could have filed a petition for writ of certiorari with the U.S. Supreme Court after the denial of post-conviction relief). As noted, Sneed had 99 days, or until November 8, 2005, to seek habeas corpus relief. Sneed's habeas corpus petition was not filed until March 17, 2006. Accordingly, the habeas corpus petition was not timely filed and is barred by the statute of limitation. See Jurado v. Burt, 337 F.3d 638, 643 (6th Cir. 2003) (quoting Graham-Humphreys, 209 F.3d 552, 561 (6th Cir. 2000)) ("'Absent compelling equitable considerations, a court should not extend limitations by even a single day.'").
In his response to the motion to dismiss, Sneed acknowledges his petition may be untimely but contends that failure to consider his claims would result in a fundamental miscarriage of justice. According to Sneed, he is innocent of first degree premeditated murder and thus is entitled to equitable tolling of the statute of limitation.
The Sixth Circuit has found that the AEDPA's one year limitation period is subject to equitable tolling because it is a statute of limitation, not a jurisdictional bar. Dunlap v. United States, 250 F.3d 1001, 1004-07 (6th Cir. 2001). When determining whether equitable tolling is appropriate, the court must consider the following:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive notice of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness ...