United States District Court, Eastern District of Tennessee, Chattanooga
CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE.
This is a pro se prisoner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which Petitioner challenges his 2001 McMinn County, Tennessee conviction by a jury for attempted first degree murder (Court File No. 1). (The trial court merged Petitioner’s conviction for assault with a deadly weapon into the attempted murder conviction.) For this offense, Petitioner received a total prison sentence of twenty-three years.
Respondent has filed an unopposed motion to dismiss the petition, in which he argues the petition is time-barred under 28 U.S.C. § 2244(d)(1) (Court File No. 6). In support of his motion, Respondent has submitted a brief and parts of the state court record, i.e., copies of decisions of the state court. For reasons which appear below, Respondent’s motion will be GRANTED.
I. PROCEDURAL HISTORY
On November 7, 2002, Petitioner’s convictions were affirmed on direct appeal by the Tennessee Court of Criminal Appeals (“TCCA”). State v. Spurling, No. E2001-006014-CCA-R3-CD, 2002 WL 31487515 (Tenn. Crim. App. Nov. 7, 2002). On March 17, 2003, the Tennessee Supreme Court (“TSC”) denied his application for permission to appeal. Id. Petitioner did not file a petition for a writ of certiorari in the Supreme Court.
Petitioner’s next challenge to his conviction was mounted under the Tennessee Post-Conviction Procedure Act by means of his filing, on August 9, 2004, a petition for post-conviction relief. Spurling v. State, No. E2005-0004-CCA-R3-PC, 2005 WL 3199282, at *1 (Tenn. Crim. App. Nov. 30, 2005). Without holding a hearing, the state trial court denied the petition as time-barred, but the TCCA remanded the case for a hearing as to whether Petitioner qualified for equitable tolling. Following a hearing and a finding that equitable tolling was not warranted, the petition was again dismissed as time-barred (Court File No. 6, Attachment No. 4). Petitioner did not seek review of the trial court’s decision in the TCCA.
II. STATUTE OF LIMITATION
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified in 28 U.S.C. § 2241, et seq., which amended the federal habeas corpus statutes, imposed a statute of limitation to govern the filing of an application for a federal writ of habeas corpus. (There was no time-restriction for filing a § 2254 petition prior to the amendments.) The limitation statute provides, in relevant part:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of---
(A) the date on which the judgment became final by the conclusion of direct review . . . .
28 U.S.C. § 2244(d)(1). The time, however, “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 . . . .” 28 U.S.C. § 2244(d)(2).
Petitioner pursued a direct appeal, including filing an application for permission to appeal to the TSC. As noted, the TSC denied the application on March 17, 2003. Ninety days later (i.e., June 16, 2003), when the time expired for Petitioner to seek review of the state court’s decision in the Supreme Court, Petitioner’s conviction became final and the AEDPA’s one-year clock began. See Lawrence v. Florida, 549 U.S. 327 (2007) (acknowledging direct review under § 2244(d)(1)(A) includes review of a state conviction by the Supreme Court); Clay v. United States, 537 U.S. 522, 524 (2003) (finding, if no petition for certiorari is filed, the judgment becomes final upon expiration of the 90-day period for seeking certiorari review in the Supreme Court).
The AEDPA clock, triggered on June 16, 2003, began ticking and expired on June 16, 2004, one year later. This petition is deemed to have been filed on December 13, 2013, the date Petitioner signed it (Court File No. 1, Pet. at 14). See Houston v. Lack, 487 U.S. 266, 270-72 (1988); Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (finding the signing date will be deemed to be the filing date, unless there is evidence to the contrary). Thus, at nine years and six months too late, the petition is untimely under § 2244(d), unless something tolled the limitations period.
Petitioner’s state post-conviction petition, filed in the trial court on August 9, 2004 cannot serve to toll § 2244(d)(1)’s limitation period because, by the time the collateral proceedings were initiated, AEDPA’s clock had already stopped and there was no time left to toll. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) ("The tolling provision does not ... ‘revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is ...