The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge
Petitioner Grover Lee Dunigan ("Petitioner") brings this petition for the writ of habeas corpus under 28 U.S.C. § 2254 [Court File #1]. Before the Court is Tony Parker's ("Respondent") motion for permission to file his motion to dismiss one day late [Court File # 7] and his motion to dismiss [Court File # 8]. Respondent's motion to late-file his motion to dismiss is GRANTED [Court File # 7].
After considering the filings of Respondent and Petitioner, the record before the Court, and the applicable law, the Court will GRANT Respondent's motion to dismiss [Court File # 8], and will DISMISS Petitioner's § 2254 petition [Court File # 1].
In the motion to dismiss, Respondent, without addressing the tolling issue, argues that the petition is barred by the applicable one-year statute of limitation set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA"). Petitioner counters that he is entitled to equitable tolling due to trial counsel's failure to notify him that his direct appeal was completed in January of 2003. Petitioner argues that trial counsel's tardy notification, in late 2004 or early 2005, that the Tennessee Supreme Court had denied his application for permission to appeal on January 27, 2003, prevented him from filing a timely state post-conviction petition or federal habeas petition.
Petitioner was convicted of first degree murder in the Criminal Court of Hamilton County, Tennessee on March 7, 2001, and received a twenty-five year sentence as a standard, Range I offender. Petitioner pursued a direct appeal. The Tennessee Supreme Court denied his application for permission to appeal on January 27, 2003.
Petitioner filed his state post-conviction petition on January 26, 2005 (Addendum #10, p. 2-14). The state trial court dismissed it as untimely, and the Tennessee Court of Criminal Appeals affirmed the dismissal on February 23, 2006 (Addendum # 10, p17-20; Addendum 13). On June 26, 2006, the Supreme Court of Tennessee denied Petitioner's application for permission to appeal (Addendum # 16). Petitioner filed the instant habeas petition on October 23, 2006.
Petitioner bases his argument for tolling of the one-year habeas statute of limitations on the allegation that his trial counsel failed to notify him that his direct appeal was completed. The record contains conflicting evidence as to the date Petitioner received notice that his direct appeal was complete. Petitioner admits counsel mailed him notice that his direct appeal was denied in 2003. The notice was sent in care of his sister, however, who he claims did not relay the information. However, the record does not contain an affidavit from his sister, verifying that she failed to relay the information to him. Indeed, the letter he attached from his trial attorney reflects trial counsel was in constant contact with his sister, who consistently inquired about the status of Petitioner's case.
The brief Petitioner submitted in state court states that it was not until late 2004, in response to his inquiry, that trial counsel informed him that the Tennessee Supreme Court had denied his application for permission to appeal. Dunigan v. State, 2006 WL 433699, *2 (Tenn. Crim. App. Feb. 23, 2006); see also Addendum 11. In his state petition, however, and in the instant habeas petition, he contends that he did not discover the Tennessee Supreme Court had denied his Rule 11 application until January 17, 2005. In any event, the record reflects that Petitioner received notification after the expiration of the one-year statute of limitations for filing a state post-conviction or federal habeas petition had expired.
Petitioner filed a state post-conviction petition in January of 2005, approximately two years after the Tennessee Supreme Court denied his Rule 11 application. The Tennessee courts concluded Petitioner was not entitled to relief based on his claim of negligence ...