United States District Court, Middle District of Tennessee, Nashville Division
WILLIAM J. HAYNES SENIOR UNITED STATES DISTRICT JUDGE
Petitioner, Joseph Chi-Choi Wong, a state prisoner, filed this pro se action for the writ of habeas corpus under 28 U.S.C. § 2254. (Docket Entry No. 1.) At the Court's direction, Petitioner submitted an amended petition (Docket Entry No. 6), that incorporates by reference the original petition. Petitioner has paid the $5.00 filing fee.
After the filing of a habeas petition, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Cases. If so, the petition must be summarily dismissed. Id. After undertaking this review, the Court finds that the instant petition must be dismissed because it plainly appears from Petitioner's submissions that relief is barred by the statute of limitations.
Petitioner's petition is governed by 28 U.S.C. § 2244, that establishes a one-year statute of limitations for filing a federal habeas petition, running from the latest of four possible dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). This one-year limitations period is tolled for the "time during which a properly filed application for State post-conviction or other collateral review ... is pending." Id. § 2244(d)(2). However, the tolling provision does not "revive" the limitations period (i.e., restart the clock); it can only serve to pause a clock that has not yet fully run. Vroman v, Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (citation omitted). Once the limitations period has expired, collateral petitions can no longer serve to avoid a statute of limitations. Id.; Eberle v. Warden, MansfieldCorr. Inst, 532 F.App'x 605, 609 (6th Cir. 2013).
The statute of limitations is not jurisdictional and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010), but the equitable tolling doctrine is used "sparingly, " Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011) (citation omitted), and applies "only if [the petitioner] shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 560 U.S. 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the burden of showing that he is entitled to equitable tolling. Ata, 662 F.3d at 741 (citation omitted).
Here, Petitioner does not allege that he is in possession of newly discovered evidence or that he is entitled to the retroactive application of a newly recognized constitutional right.
Petitioner's petition may be reasonably construed as arguing that if § 2244(d)(1)(A) applies and the statute of limitations runs from the date his conviction became final on direct review, that he is entitled to equitable tolling based on the ineffective assistance of appellate counsel. Alternatively, Petitioner argues that a state-created impediment, namely ineffective assistance of counsel, prevented him from filing a timely federal habeas petition. For tolling, Petitioner also asserts that he is factually innocent of the crimes of conviction. None of these arguments has merit.
Petitioner was convicted and sentenced in 2002 on charges of promoting prostitution and money laundering. (Docket Entry No. 6, at 1.) The conviction was affirmed on direct appeal in 2004. State v. Wong, No. M2003-00504-CCA-R3-CD, 2004 WL 1434384 (Tenn. Ct. Crim. App. June 25, 2004), perm, appeal denied (Tenn. Dec. 6, 2004). Petitioner did not seek review from the United States Supreme Court, and the deadline for doing so was ninety days after the Tennessee Supreme Court denied review. Sup. Ct. R. 13. Consequently, Petitioner's conviction became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on Monday, March 7, 2005. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) ("[DJirect review cannot conclude for purposes of § 2244(d)(1)(A) until the availability of direct appeal to the state courts and to this has been exhausted." (internal citations and quotation marks omitted)). If the statute of limitations runs from the following day, it expired a year later, on March 7, 2006, unless the petitioner can establish some basis for tolling, equitable or otherwise.
Petitioner filed his state post-conviction petition, seven years after that one-year period had expired, on June 19, 2013. Wong v. State, No. M2013-01684-CCA-R3-PC, 2014 WL 1369756, at *1 (Tenn. Crim. App. April 7, 20l4), perm. appeal denied (Tenn. Aug. 29, 2014).Although the federal habeas limitations period is tolled during the pendency of "a properly filed application for State post-conviction" review, 28 U.S.C. § 2244(d)(2), the filing of a state postconviction petition cannot restart the running of the ...