United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
filed this pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his confinement under a 2007 Knox County
Criminal Court judgment convicting him of two counts of child
rape and imposing a total sentence of twenty years’
incarceration [Doc. 1 p. 1]. Respondent filed a motion to
dismiss the petition, arguing that it is time-barred under 28
U.S.C. § 2244(d) [Doc. 11]. In support of his motion,
Respondent submitted copies of the state court record and a
brief [Docs. 10, 12]. Petitioner did not respond to
Respondent’s motion, and the time for doing so has
lapsed. See E.D. Tenn. L.R. 7.1(a). For the reasons
below, the Court will GRANT Respondent’s motion and
will DISMISS the petition.
September 14, 2007, Petitioner was convicted by a jury in the
Knox County Criminal Court of two counts of child rape [Doc.
10, Attach. 1 pp. 41–42]. He received sentences of twenty
years for each offense, with the second sentence to run
concurrently with the first [Id.]. On appeal, the
Tennessee Court of Criminal Appeals (“TCCA”)
affirmed the convictions, but reversed the sentences and
remanded the case for a new sentencing hearing. State v.
Dale, No. E2008-01139-CCA-R3CD, 2010 WL 1241601, at *9
(Tenn. Crim. App. Mar. 31, 2010), perm app. denied
remand, the trial court resentenced Petitioner to twenty-five
years for each offense, and it, again, set concurrent
sentences. State v. Dale, No. E2010-01824-CCA-R3CD,
2012 WL 335460, at *4 (Tenn. Crim. App. Feb. 1, 2012),
perm app. denied (Tenn. 2012). This time, the TCCA
affirmed the sentences. Id. The Tennessee Supreme
Court (“TSC”) denied Petitioner permission to
appeal on May 16, 2012. Id.
then sought collateral relief by filing a pro se
post-conviction petition in the trial court on May 6, 2013
[Doc. 11, Attach. 18 pp. 702–95]. The trial court
appointed counsel, and counsel filed an amended petition on
Petitioner’s behalf [Id. at 797–802].
The trial court denied relief and the TCCA affirmed the lower
state court’s decision. Dale v. State, No.
E2014-00552-CCA-R3PC, 2014 WL 7402155, at *3 (Tenn. Crim.
App. Dec. 29, 2014). The TSC declined further review on March
16, 2015 [Doc. 11, Attach. 24 p. 934].
Petitioner filed the instant § 2254 petition.
the mailbox rule in Houston v. Lack, 487 U.S. 266,
270–72 (1988) (deeming an action to be filed on the
date an inmate delivers it to the prison authorities for
mailing), Petitioner filed this instant § 2254 habeas
corpus petition on March 2, 2016 [Doc. 1 p. 8]. The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified in 28 U.S.C. § 2241,
amended the federal habeas corpus statutes and added a
one-year statute of limitation to regulate the time for
filing a petition for a writ of habeas corpus. In the typical
case, the statute of limitations begins to run from the date
a petitioner’s state judgment of conviction becomes
final. See 28 U.S.C. § 2244(d)(1)(A).
the TSC declined further review of Petitioner’s child
rape convictions and sentences on May 16, 2012.
Petitioner’s conviction became final ninety days
afterwards, or on August 14, 2012, upon the lapse of the
period of time during which he could have sought a writ of
certiorari in the United States Supreme Court. See
Lawrence v. Florida, 549 U.S. 327, 330– 37 (2007)
(holding that direct review under § 2244(d)(1)(A)
includes review of a state conviction by the Supreme Court);
see also Sup. Ct. R. 13.1 (providing a ninety-day
time frame for petitioning for a writ of certiorari, running
from the date of the decision of the state court of last
resort). Thus, the AEDPA limitation statute began to run in
Petitioner’s case on August 14, 2012, and it was set to
expire on August 14, 2013.
the statute also provides a tolling mechanism. The statute is
tolled under § 2244(d)(2) during the time “a
properly filed application for State post-conviction or other
collateral review” is pending. 28 U.S.C. §
noted, Petitioner filed his state post-conviction petition on
May 6, 2013, which was 265 days after the AEDPA’s
one-year clock started ticking. The collateral review
petition immediately stopped the running of AEDPA’s
clock, and the clock remained stopped until the petition was
no longer pending. The post-conviction proceedings concluded
on March 16, 2015, when the TSC refused Petitioner permission
to appeal. On that date, the ADPA clock resumed ticking and
it ticked for 100 more days, stopping on June 24, 2015.
Petitioner filed this instant habeas corpus petition on March
2, 2016, 252 days too late.
AEDPA statute of limitation is not jurisdictional and is
subject to equitable tolling. Holland v. Florida,
560 U.S. 631, 645 (2010). Equitable tolling of AEDPA’s
limitation statute is warranted where a petitioner shows: (1)
that he diligently has pursued his rights, and (2) that he
was prevented from timely filing the petition because an
extraordinary circumstance stood in his way. Id. at
649. A petitioner bears the burden of demonstrating that he
is entitled to equitable tolling. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). A court must
decide whether to toll the statute on a case-by-case basis.
Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).
Federal courts should apply equitable tolling sparingly.
Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003);
Cook, 295 F.3d at 521.
alleged by Petitioner and nothing apparent in the record
suggests a basis for equitable tolling of the limitation
period. Since Petitioner shoulders the burden of showing that
equitable tolling is warranted and because he has failed to
carry his burden, the Court finds that equitable tolling ...