United States District Court, M.D. Tennessee, Nashville Division
JACKIE D. SEYMORE #411539, Petitioner,
MICHAEL W. PARRIS, Respondent.
MEMORANDUM AND ORDER
A. TRAUGER United States District Judge
matter is before the court on the respondent's motion to
dismiss the habeas petition as untimely, filed along with a
memorandum in support. (ECF Nos. 20, 21.) The petitioner has
submitted a letter (ECF No. 22) regarding the timeliness of
his petition, which the court deems to be his response to the
Antiterrorism and Effective Death Penalty Act (AEDPA) imposes
a one-year limitations period for habeas petitions brought by
prisoners challenging state-court convictions. 28 U.S.C.
§ 2244(d). Under this provision, the limitations period
runs from the latest of four enumerated events:
(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). The running of the period is
tolled during “[t]he time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2).
to the respondent, the trial court entered amended judgments
of conviction against the petitioner on June 27, 2011, but
the petitioner did not seek direct appeal until May 10, 2012,
when he also filed his state petition for post-conviction
relief. (ECF No. 21, at 2; ECF No. 19-1, at 24.) At that
point, the trial court granted permission to take a delayed
direct appeal, finding that the failure to file a timely
appeal was due to attorney oversight. (ECF No. 21, at 2; ECF
No. 19-1, at 23.) The petitioner then proceeded to exhaust
his direct appeal on the merits. See State v.
Seymore, No. M2012-01109-CCA-R3-CD, 2013 WL 772917, at
*3 (Tenn. Ct. Crim. App. Jan. 16, 2013), perm. app.
denied (Tenn. May 7, 2013). At the conclusion of his
direct appeal proceedings, the petitioner expeditiously
proceeded with his already-pending post-conviction action,
which had simply been held in abeyance for the direct appeal.
(ECF No. 19-12, at 8.) The trial court denied post-conviction
relief, and the Tennessee Court of Criminal Appeals (TCCA)
affirmed on June 2, 2015. See Seymore v. State, No.
M2014-00895-CCA-R3-PC, 2015 WL 3466544 (Tenn. Ct. Crim. App.
June 2, 2015).
respondent argues that because the petitioner did not
originally appeal the trial court's judgment within the
30 days provided by state rule, his convictions became final
on July 27, 2011, for the purpose of triggering the 1-year
limitations period under 28 U.S.C. § 2244(d)(1)(A). (ECF
No. 21, at 2, 4.) Therefore, according to the respondent, 288
days of the limitations period elapsed before the petitioner
filed his post-conviction petition with delayed appeal on May
10, 2012, leaving only 77 days after the conclusion of those
proceedings within which to file his federal habeas petition.
(ECF No. 21, at 4.) The respondent states that the
limitations period began to run again on August 1, 2015, 60
days after the TCCA affirmed denial of post-conviction
relief,  and calculates that the petitioner's
limitations period expired on October 17, 2015. (ECF No. 21,
at 4.) The petitioner filed his habeas petition by placing it
in the prison mailing system on July 13, 2016. (ECF No. 1, at
respondent's primary premise - that the petitioner's
conviction was “final” for AEDPA's purposes
30 days after entry of judgment - appears to be contrary to
Supreme Court precedent. In 2009, the court reversed the
dismissal of a federal habeas petition as untimely where the
district court refused to consider the state courts'
delayed reopening of direct appeal proceedings in determining
when the petitioner's judgment was final:
We hold that, where a state court grants a criminal defendant
the right to file an out-of-time direct appeal during state
collateral review, but before the defendant has first sought
federal habeas relief, his judgment is not yet
“final” for purposes of § 2244(d)(1)(A). In
such a case, “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review” must reflect the
conclusion of the out-of-time direct appeal, or the
expiration of the time for seeking review of that appeal.
Jimenez v. Quarterman, 555 U.S. 113, 121 (2009)
(quoting § 2244(d)). The state courts in the present
case permitted the petitioner to pursue a direct appeal while
his post-conviction petition was pending. According to
Jimenez, therefore, his conviction was not final for
the purpose of assessing the timeliness of his habeas
petition until the conclusion of that direct review.
Specifically, the petitioner's conviction was final on
Monday, August 5, 2013, upon the expiration of the 90 days in
which he could have petitioned the United States Supreme
Court for a writ of certiorari following the Tennessee
Supreme Court's May 7, 2013 denial of review on direct
appeal. See Jimenez, 555 U.S. at 119-120 (holding
that state convictions are final under § 2244(d)(1)(A)
when Supreme Court certiorari is exhausted or when the time
for filing a certiorari petition expires).
the petitioner's post-conviction action was already
pending on the date his convictions became final, his habeas
limitations period was immediately tolled for the rest of the
time that post-conviction action remained “pending,
” pursuant to 28 U.S.C. § 2244(d)(2). The TCCA
affirmed denial of post-conviction relief on June 2, 2015,
and the respondent acknowledges that the tolling period was
lifted and the limitations period began to run 60 days later,
on August 1, 2015. (ECF No. 21, at 4.) Pursuant to