United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A Trauger United States District Judge.
Court has before it a pro se prisoner petition
(Docket Entry No. 1) under 28 U.S.C. § 2254, for writ of
habeas corpus. Pursuant to Rule 4 of the Rules Governing
§ 2254 Cases, the Court is now obliged to examine the
year statute of limitation has been placed on the filing of a
§ 2254 habeas corpus petition. This means that a
prisoner in custody pursuant to the judgment of a state
court, as is the case here, has one year from the date his
convictions became final in which to file a petition for
federal habeas corpus relief. 28 U.S.C. §
to the petition, the petitioner pled guilty or no contest on
August 20, 2002 to the rape of a child (4 counts), aggravated
sexual battery (2 counts), rape (39 counts), aggravated rape
and incest (24 counts). Docket Entry No.1 at pg.1. For these
crimes, he received an effective sentence of ninety two (92)
years in prison. Id.
appeal, the Tennessee Court of Criminal Appeals affirmed
petitioner's sentence. Id. at pg. 2. On June 21,
2004, the Tennessee Supreme Court denied petitioner's
application for additional review. Id.
time for seeking direct review, however, has been held to
include the ninety (90) day period during which a criminal
defendant can petition the United States Supreme Court for a
writ of certiorari. Isham v. Randle, 226 F.3d 691,
695 (6th Cir. 2000). As a consequence, the
petitioner's convictions became final for timeliness
purposes ninety days later, on September 19, 2004.
Accordingly, the petitioner had one year from this date, or
until September 19, 2005, in which to initiate the instant
20, 2005, after two hundred seventy four (274) days had
elapsed, the petitioner filed a pro se petition for
state post-conviction relief. Docket Entry No. 1 at pg. 3.
This filing had the effect of tolling the limitation period.
28 U.S.C. § 2244(d)(2). The tolling of the limitation
period continued until October 10, 2014, the date that the
petitioner's post-conviction proceedings were concluded
in the state courts. Docket Entry No. 1 at pg. 5.
the limitation period began to run again on October 11, 2014,
the petitioner had ninety one days (365 - 274 = 91), or until
January 9, 2015, in which to initiate this action in federal
court. Scott v. Collins, 286 F.3d 923, 926
(6th Cir.2002)(when statutory tolling has ended,
the limitation period resumes from the point it was tolled
rather than starting anew).
petitioner avers that he placed his petition in the prison
postal system for mailing on April 13, 2017, more than two
years after the limitation period had expired. Docket Entry
No. 1 at pg. 15. It appears, therefore, that this action is
untimely. There is nothing in the petition to suggest that
the limitation period should be further tolled so as to allow
the late filing of the petition.
that timeliness might be a problem, the petitioner asserts
that the date the judgment became final is not the proper
starting point for the limitation period. He claims, instead,
that the appropriate starting point is 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)(D).
petitioner's four claims allege that his attorney and the
trial court erred by failing to advise him “of the
mandatory direct and punitive consequences of community
supervision for life as a part of his sentence prior to
accepting his pleas.” Docket Entry No. 1 at pgs. 4 and
7. The petitioner avers that he did not learn about the
factual predicate for these claims until April, 2016.
Id. at pg. 13.
predicate”, within the meaning of the statute, means
evidentiary facts or events and not court rulings or the
legal consequences of the facts. Holmes v. Spencer,
685 F.3d 51, 59 (1st Cir. 2012) (that counsel's advice
may have been flawed, and could potentially form the
foundation for an ineffective assistance claim, are the legal
consequences of those facts - matters of law that are beyond
the purview of 28 U.S.C. § 2244(d)(1)(D)); see also
Board v. Bradshaw, 2014 WL 700026 (N.D. Ohio; 2/21/14).
The imposition of community supervision for life, as a matter
of state law, is a legal consequence of the petitioner's
convictions and not a predicate fact. In any event, the
petitioner bears the burden of showing that he exercised the
due diligence required by the statute. DiCenzi v.
Rose, 452 F.3d 465, 471 (6th Cir. 2006). A
petition that merely alleges that the petitioner did not
actually know the facts underlying his claims does not meet
the due diligence standard. In re Boshears, 110 F.3d
1538, 1540 (11th Cir. 1997).
this action appears to be untimely. The petitioner is hereby
GRANTED twenty one (21) days from the date of entry of this
order on the docket in which to SHOW CAUSE why ...