United States District Court, E.D. Tennessee, Greeneville Division
HARRY S. MATTICE, Jr., District Judge.
On September 16, 2005, upon his pleas of guilty, Donald Ray Jones, Jr., was convicted in the Hancock County Criminal Court of two counts of first-degree felony murder and, thereafter, was sentenced to two concurrent life terms of imprisonment, with the possibility of parole. He has filed 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, (Doc.1).
Respondent filed an answer to the petition, which, upon his motion, has been construed as a motion for summary judgment, (Docs. 10 and 13-14). Petitioner has responded in objection to respondent's motion, (Doc. 17), and this habeas corpus case is now ripe for disposition.
I. Standard of Review
Summary judgment will be granted with respect to respondent's motion, so long as whatever is before the Court by way of pleadings, answers, records, and other pertinent documents demonstrates that there is no genuine dispute as to any material fact and that respondent is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
II. Respondent's Motion
In his motion, respondent argues that the petition is time-barred. The motion is supported by copies of the relevant state court record, (Doc. 12, Notice of Filing of Documents, Addenda 1-2). After reviewing the pleadings, the state court record, and petitioner's response, the Court finds that the Warden's motion should be GRANTED and this petition DISMISSED as untimely.
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. Petitioner was convicted on September 16, 2005, and his conviction and judgment became final thirty days later (i.e., on October 16, 2005), 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.). Thus, for purposes of § 2244(d)(1)(A), the time period for filing his § 2254 petition would end one year afterward, i.e., on October 16, 2006.
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). Petitioner filed an application for state post-conviction relief in the Hancock County Criminal Court on August 31, 2006, (Addendum 1, vol. 1), after AEDPA's one-year clock had ticked for three-hundred and nineteen (319) days. The post-conviction petition was denied on August 21, 2009, and petitioner did not appeal within the thirty-day time period allotted for filing a notice of appeal. See Tenn. R. App. P. 4(a).
Instead, his appeal, which was filed on September 25, 2009, was dismissed as untimely by the Tennessee Criminal Court of Appeals ("TCCA") and the Tennessee Supreme Court denied him permission to appeal that decision on June 1, 2011. Jones v. State, No. E2009-02083-CCA-R3-PC, 2011 WL 398034, 1 (Tenn. Crim. App. Feb. 8, 2011), perm. to app. denied (Tenn. 2011). Under the prison mailbox rule, see Houston v. Lack, 478 U.S. 266, 276 (1988); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999), petitioner filed this instant application for habeas corpus relief on July 27, 2011.
Because petitioner's appeal of his post-conviction case was dismissed by the state court as untimely filed, it was not a "properly filed" post-conviction petition and, thus, cannot serve to stop AEDPA's clock from ticking. See Evans v. Chavis, 546 U.S. 189, 141, 126 S.Ct. 846, 849 (2006) ("The time that an application for state postconviction review is pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.") (citing Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)); Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) ("[W]e hold that time limits, no matter their form, are "filing" conditions. Because the state court rejected [the] petition as untimely, it was not "properly filed, " and he is not entitled to statutory ...