The opinion of the court was delivered by: R. Allan Edgar United States District Judge
This is a pro se petition for the writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by Gene S. Rucker ("Petitioner") [Court File # 1]. Rucker is a prisoner confined at Riverbend Maximum Security Institution ("RMSI") in Nashville, Tennessee.
Before the Court is Petitioner's motion for stay and abeyance [Court File # 5], and Respondent Ricky Bell's ("Respondent") motion to dismiss [Court File # 8] and motion to strike Addendum Six [Court File # 19]. Although Petitioner did not file a response to Respondent's motion to dismiss, he did file a reply to Respondent's equitable tolling response [Court File #18].
After considering the filings of Petitioner and Respondent, the record before the Court, and the applicable law, the Court will GRANT Respondent's motion to dismiss [Court File # 8]. Therefore the Court necessarily will DISMISS Petitioner's § 2254 petition [Court File # 1].
I. Non-Dispositive Motions
Petitioner's motion to hold his habeas petition in abeyance pending the outcome of his state post-conviction petition will be DENIED as his state post-conviction petition has been dismissed by the Court of Criminal Appeals as time-barred [Court File # 5]. Respondent's motion to strike Addendum Six will be GRANTED [Court File # 19].
Respondent argues that the petition should be dismissed as it is barred by the applicable one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and there is no valid reason under which Petitioner could prove his entitlement to equitable tolling of the statute of limitation. Petitioner contends the one-year habeas statute of limitation should be equitably tolled for two reasons. First, he claims he is entitled to equitable tolling because the law library at the institution where he was incarcerated was inadequate as it did not contain any Tennessee law books or the "Federal rules" [Court File No. 6, p. 1]. Rather, according to Petitioner, the institution only contained Wisconsin legal material and provided the more than 1500 prisoners the limited service of one licensed attorney who only visited the prison twice a month.
Petitioner was convicted by a jury of criminally negligent homicide and aggravated arson on November 1, 2001. His sentence and conviction were affirmed on December 9, 2004, and the Tennessee Supreme Court denied his application for permission to appeal on March 21, 2005. State v. Rucker, No. E2002-02101-CCA-R3-CD, 2004 WL 2827004 (Tenn. Crim. App. Dec. 9, 2004) (perm. app. denied March 21, 2005) [Addenda #s 1 and 3].*fn1
Petitioner filed a state post-conviction petition on December 6, 2006, which was dismissed as time-barred on January 22, 2007 [Addendum # 4], and affirmed on August 24, 2007 [Addendum # 4]. The instant habeas petition was filed on June 5, 2007, the date the prison mailroom received the envelope for mailing. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997), citing Houston v. Lack, 487 U.S. 266, 270-71 (1988) (A motion filed by a prisoner is deemed filed when given to the prison authorities for mailing.); See Rule 4(c) FED. R. APP. P.
The Court will view the facts, as it is required to do, in the light most favorable to the Petitioner, the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). During the summer of 2004 Petitioner suffered a "light stroke." Petitioner was initially told he pulled a muscle but a few days later a physician told him he suffered a stroke. Petitioner suffered a blood clot on the right side of his brain which resulted in memory loss, slurred speech, and paralysis of his whole left side.
Petitioner met with the prison-provided attorney in 2005 and discussed post-conviction relief but not federal habeas relief. His next meeting with the attorney was cancelled and Petitioner never rescheduled another meeting. Petitioner was aware of the statute of limitation for filing a state post-conviction petition as his state trial counsel notified him on April ...