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Ross v. Freeman

United States District Court, E.D. Tennessee, Winchester Division

March 20, 2015

KIMBERLY ANN ROSS, Petitioner,
v.
VICKIE FREEMAN, Warden, Respondent.

MEMORANDUM OPINION

HARRY S. MATTICE, Jr., District Judge.

On November 7, 2007, upon her plea of guilty, Kimberly Ann Ross was convicted in the Criminal Court for Bedford County, Tennessee of first-degree murder, receiving for this offense a life term with the possibility of parole. She now brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the legality of her confinement under that judgment of conviction (Doc. 2).

Respondent has filed a motion to dismiss, based on a statute of limitation defense, and a supporting brief (Doc. 8, Attachment 8-1). Petitioner has responded in objection to respondent's motion (Doc. 10), and this habeas corpus case is now ripe for disposition.

I. Respondent's Motion

In her motion, respondent argues that the petition is time-barred. The motion is supported by copies of the relevant state court record (Doc. 9, Notice of Filing, Addenda 1-2). After reviewing the pleadings, the motion, the state court record, and petitioner's response, the Court concludes that the Warden's motion should be GRANTED and this petition DISMISSED.

II. Discussion

A. Timeliness

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(d)(1). 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. 28 U.S.C. § 2244(d)(2).

Here, the first circumstance is the relevant one. Petitioner was convicted on November 7, 2007, and her conviction and judgment became final thirty days later, on December 7, 2007, upon the lapse of the time for seeking an appeal. See State v. Green, 106 S.W.3d 646, 648-50 (Tenn. 2002) (finding that a judgment based on a guilty plea becomes final thirty days after acceptance of the plea agreement and imposition of the sentence) (citing Tenn. R. App. P. 4(a)). Thus, for purposes of § 2244(d)(1)(A), the time period for petitioner to file her § 2254 petition would end one year afterward, on December 7, 2008.

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 Bedford County Circuit Court on October 27, 2008, after AEDPA's one-year clock had ticked for three-hundred and twenty-five (325) days (Doc. 9, Addendum 1, Post-Conviction Pet. at 1). The post-conviction petition was denied, and petitioner's unsuccessful appeals to both levels of state appellate courts concluded on September 1, 2010, when the Tennessee Supreme Court denied her application for permission to appeal. Ross v. State, No. M2009-01139-CCA-R3-PC, 2010 WL 2301718 (Tenn. Crim. App. June 9, 2010), perm. to app. denied, (Tenn. 2010). Under the prison mailbox rule, petitioner filed this instant application for habeas corpus relief on February 25, 2014, the date she signed it (Doc. 2 at 18). See Houston v. Lack, 487 U.S. 266, 270-72 (1988); Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (noting that the signing date of the petition will be deemed to be the filing date, unless there is evidence to the contrary).

Accordingly, AEDPA's clock resumed ticking on September 2, 2010, which was the day after the Tennessee Supreme Court denied further review of her post-conviction petition. The ticking continued for forty-one (41) days and stopped on October 12, 2010.[1] As noted, petitioner filed her § 2254 application on February 25, 2014, more than three years and four months after the lapse of AEDPA's statute of limitations. It is therefore untimely.

Nor is this finding changed by Petitioner's statement, in her § 2254 application, that she filed two state habeas corpus petitions in Davidson County, Tennessee-one on April 12, 2012, and a second one sometime that same year. Petitioner has submitted what appears to be a copy of the first petition (Doc. 2, Pet. at 13-18), but she provides no information as to when or how either of those petitions was resolved. But, taking petitioner at her word (i.e., that she filed two state habeas corpus petitions in 2012), it is clear that, by the time those collateral proceedings were initiated, AEDPA's clock had already stopped on October 12, 2010, and that there was no time left to toll. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (finding that "[t]he 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 expired, collateral petitions can no longer serve to avoid a statute of limitations."). Thus, the filing of the state habeas corpus petitions does not affect the Court's conclusion that this § 2254 petition is time-barred.

B. Equitable Tolling

The one-year statute of limitations in AEDPA is not jurisdictional and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010); Perkins v. McQuiggin, 670 F.3d 665, 670 (6th Cir. 2012) (observing that limitations statutes do not require courts to dismiss claims as soon as the "clock has run") (citation omitted). Whether the statute should be equitably tolled depends upon whether a petitioner shows: (1) that she has been diligent in pursuing her rights, and (2) that some extraordinary circumstance stood in her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner bears the burden of showing that she is entitled to equitable ...


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