United States District Court, Middle District of Tennessee, Nashville Division
Aleta A. Trauger, United States District Judge
The petitioner, proceeding pro se, is an inmate at the Riverbend Maximum Security Institution in Nashville. He brings this action pursuant to 28 U.S.C. § 2254 against Warden James Holloway, his former custodian at the Charles Bass Correctional Complex, seeking a writ of habeas corpus.
On July 29, 2004, the petitioner pled guilty in Sumner County to aggravated child abuse. Docket Entry No. 21-3 at pgs. 46-47. For this crime, he received a sentence of eighteen (18) years in prison. Id. at pgs. 48-57. Having pled guilty, there was no direct appeal of the conviction taken by the petitioner.
In March, 2005, however, the petitioner filed a pro se petition for post-conviction relief in the Criminal Court of Sumner County. Docket Entry No. 21-1 at pgs. 3-6. Following the appointment of counsel and an evidentiary hearing, the trial court denied the petition. Id. at pgs. 15-17. On appeal, the Tennessee Court of Criminal Appeals affirmed the denial of post-conviction relief. Docket Entry No. 21-7. The Tennessee Supreme Court later denied petitioner’s application for further review. Id.
II. Procedural History
On April 22, 2014, the petitioner initiated the instant action with the filing of a petition (Docket Entry No. 1) for federal habeas corpus relief. The petition contains two claims for relief. These claims include (1) the ineffectiveness of counsel, and (2) an unknowing and involuntary guilty plea.
By an order (Docket Entry No. 8) entered September 8, 2014, the Court granted the petitioner’s motion to hold this action in abeyance while he exhausted his state court remedies. The file was administratively closed subject to a motion to reopen from either party.
On petitioner’s motion, the case file was reopened on January 23, 2015. Docket Entry No. 12. Upon preliminary review of the petition, it appeared that the petitioner had stated a colorable claim for relief. Accordingly, the respondent was directed to file an answer, plead or otherwise respond to the petition. Rule 4, Rules - - § 2254 Cases.
Presently before the Court is the respondent’s Motion to Dismiss (Docket Entry No. 22), to which the petitioner has offered no response. Upon consideration of the petition, respondent’s Motion to Dismiss and the expanded record, it appears that an evidentiary hearing is not needed in this matter. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003)(an evidentiary hearing is not required when the record conclusively shows that the petitioner is entitled to no relief). Therefore, the Court shall dispose of the petition as the law and justice require. Rule 8, Rules - - § 2254 Cases.
III. Timeliness of the Petition
In his Motion to Dismiss, the respondent argues that this action is time-barred. A state prisoner has one year from the “date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” in which to file his petition for federal habeas corpus relief. 28 U.S.C. § 2244(d)(1)(A).
The petitioner pled guilty and was sentenced on July 29, 2004. No direct appeal of the conviction was taken. The time for filing a direct appeal expired thirty (30) days after the petitioner was sentenced, Rule 4(a), Tenn. R. App. P., making his conviction final on August 28, 2004. Consequently, the petitioner had one year from this date, or until August 28, 2005, in which to initiate the instant action.
After two hundred twelve (212) days had elapsed, the petitioner filed a pro se petition for state post-conviction relief. The filing of that petition had the effect of tolling the one year limitation period for as long as petitioner’s post-conviction ...