The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Vance E. Shelton, through his attorney, J. Russell Pryor, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement under a 1996 state court conviction. Pursuant to that conviction, the petitioner is serving a 25-year sentence of imprisonment. Before the Court are the respondent's motion to dismiss, along with copies of the relevant state court record; the petitioner's response in opposition, supported by two later-filed affidavits; and the respondent's reply thereto. (Doc. 4 and Addenda 1-3; Doc. 5). For the reasons which follow, the motion will be GRANTED and the petition will be DISMISSED.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996, contains a one-year statute of limitations governing the filing of an application for a 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 or other collateral relief. The first circumstance is the one which applies to this case.
Following his 1996 conviction for child rape by a jury in Greene County, Tennessee,*fn1 petitioner filed a direct appeal. The Tennessee Court of Criminal Appeals denied relief and, on April 9, 2001, the Tennessee Supreme Court declined further review. State v. Shelton, No. E2000-01632-CCA-R3-CD, 2000 WL1858996 (Tenn. Crim. App. Dec. 20, 2000), perm. app. denied (Tenn. Apr. 9, 2001). Ninety-one days later (i.e., Monday, July 9, 2001), the petitioner's opportunity to file a petition for a writ of certiorari in the United States Supreme Court expired.*fn2 At this point, the petitioner's conviction became final, for purposes of § 2244(d)(1)(A), see Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000), and the time period for filing his § 2254 petition would run expire July 9, 2002-one year afterward. This petition was filed almost four years later, on June 9, 2006. Thus, it is untimely under the AEDPA, unless something tolled the limitations period.
As noted previously, the limitations statute is tolled while a properly filed petition for state post-conviction or collateral relief is pending. See 28 U.S.C. § 2244(d)(2). The petitioner filed a state post-conviction petition on August 10, 2001, stopping the AEDPA's clock on day 32 of the 365-day clock. His state petition remained pending until December 1, 2003, State v. Shelton, No. E2002-01437-CCA-R3-PC, 2003 WL 21766243 (Tenn. Crim. App. Jul., 31, 2003), perm. app. denied (Tenn. Dec. 1, 2003), when the state's highest court declined further review. Lawrence v. Florida, 127 S.Ct. 1079, 1083 (2007) (the AEDPA clock is not tolled during the time a petition for certiorari review of state post-conviction decision is pending or could have been filed). The next day, December 2, 2003, the AEDPA clock resumed ticking. See Fed. R. Civ. P. 6(a).
On October 14, 2004, after the clock had ticked 317 days more, the petitioner filed a motion to re-open his post-conviction petition. The trial court denied the motion, and the state appellate court affirmed the lower court's decision. (Doc. 4, Attach. 3, Shelton v. State, No. E2004-02613-CCA-R28-PC (Tenn. Crim. App. Apr. 12, 2005) (Order). The record does not show that the petitioner sought to appeal this decision.
For purposes of deciding the motion to dismiss, the Court will assume, but not actually find, that the motion to re-open stopped the AEDPA statute from running on day 349 for a total of 349 days (317 days 32 days) of the 365-day clock.*fn3 The Court will further assume that the statute remained tolled for 62 days*fn4 after the state appellate court issued its April 12, 2005 order denying relief (Doc. 4, Attach. 3), the time during which the petitioner could have sought further review in the state supreme court, see Tenn. R. App. P.11(b), and that the statute resumed running on June 14, 2005, with sixteen days remaining in the period. Under this scenario, which is the most generous to the petitioner, the statute expired on June 30, 2005 (day 365 of the AEDPA's one-year clock). The petitioner filed his § 2254 application more than eleven months later, on June 9, 2006, and he, therefore, is not entitled to statutory tolling under § 2244(d)(2).
The one-year statute of limitations in AEDPA, however, is not jurisdictional and also is subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir.), cert. denied, 534 U.S. 1057 (2001). Whether the statute should be equitably tolled depends upon: (1) the petitioner's lack of notice of the filing requirements; (2) his lack of constructive knowledge of the filing requirement; (3) his diligence in pursuing his rights; (4) the 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 1008 (citing Andrews v. Orr, 851 F.2d 146 (6th Cir.1988)).
These factors are not necessarily comprehensive 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 v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003), and the decision as to whether the statute should be equitably tolled must be made on a case-by-case basis. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). The doctrine of equitable tolling is used sparingly and, typically, is applied "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) (citing Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 560-61 (6th Cir. 2000)). See also Lawrence, 127 S.Ct. at 1085 (equitable ...