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Click v. Lindamood

United States District Court, E.D. Tennessee

June 20, 2017

STEVE CLICK, Petitioner,
v.
CHERRY LINDAMOOD, Respondent.

          MEMORANDUM OPINION

          Thomas A. Varlan CHIEF UNITED STATES DISTRICT JUDGE.

         Petitioner Steve Click brings this pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his confinement under a state court judgment of conviction for aggravated rape and evading arrest [Doc. 1]. Respondent filed a motion for extension of time to response to the §2254 petition [Doc. 9] and a motion to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1) [Doc. 10]. Petitioner has not responded in opposition to Respondent's motions and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2Based on the following, the Court will GRANT Respondent's motion for extension of time [Doc. 9] and motion to dismiss [Doc. 10] and will DISMISS this § 2254 petition as time-barred.

         I. MOTION FOR EXTENSION OF TIME

         Respondent moves the Court for an extension of ten (10) days to file his response to Petitioner's application for a writ of habeas corpus [Doc. 9]. As grounds for support, Respondent submits that as of September 22, 2016, he was still receiving portions of the state court record and requests the additional time to review the records in order to respond [Id. at 1]. This is Respondent's first request for an extension of time in which to file a response in this matter.

         For good cause shown and in light of the lack of opposition to the request, Respondent's motion [Doc. 9] will be GRANTED nunc pro tunc.

         II. PROCEDURAL HISTORY

         A Blount County jury convicted Petitioner of three counts of aggravated rape and one count of evading arrest. State v. Click, No. E2004-02655-CCA-R3-CD, 2006 WL 709203, at *1 (Tenn. Crim. App. Mar. 21, 2006). The trial court imposed consecutive sentences of forty years for each aggravated rape and a concurrent sentence of eleven months and twenty-nine days for evading arrest resulting in an effective sentence of 120 years. Id. Petitioner filed a motion for a new trial, but, after a hearing on November 3, 2004, the motion was denied [Doc. 12-10 p. 41]. Following the denial of the motion for a new trial, Petitioner filed a notice of appeal on November 4, 2004 [Id. at 42]. On March 21, 2006, the Tennessee Court of Criminal Appeals affirmed the judgment of the trial court [Id.]. The mandate was entered and filed in the trial court on September 5, 2006 [Id.]. On August 21, 2006, the Tennessee Supreme Court denied Petitioner's application for permission to appeal [Doc. 12-13 p. 7].

         Thereafter, on August 15, 2007, Petitioner filed a petition for post-conviction relief [Id.]. On August 3, 2011, Petitioner's petition for post-conviction relief was heard, and later dismissed on August 8, 2011 [Doc. 12-10]. Petitioner appealed, and the Tennessee Court of Criminal Appeals affirmed the denial of the petition. Click v. State, No. E2011-01965-CCA-R3-PC, 2012 WL 3158781, at *1 (Tenn. Crim. App. Aug. 6, 2012). Petitioner filed an application for permission to appeal, which the Tennessee Supreme Court denied on November 27, 2012 [Doc. 11 p. 2]. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court [Id.].

         Now before the Court is Petitioner's petition for writ of habeas corpus [Doc. 1].

         III. STATUTE OF LIMITATIONS

         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 limitations period begins to run when one of the four circumstances occurs: (1) the conclusion of direct review; (2) upon the removal of an impediment which prevented a petitioner from filing a habeas corpus petition; (3) when a petition alleges a constitutional right, newly recognized by the Supreme Court and made retroactive on collateral review; or (4) when a claim depends upon factual predicates which could not have been discovered earlier through the exercise of due diligence. Id. The one-year period 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. Respondent contends that the petition, as submitted to the prison mailroom[1] on October 17, 2015, is time-barred by nine-hundred and fifty-eight (958) days [Doc. 11 p. 3].

         The Tennessee Court of Criminal Appeals affirmed Petitioner's convictions on direct appeal, and the Tennessee Supreme Court (“TSC”) denied permission to appeal on August 21, 2006. Ninety-one days later, on Monday, November 20, 2006, when the time expired for filing a petition for certiorari in the United States Supreme Court, see U.S. Sup. Ct. R. 13.1, Petitioner's conviction became final and on the next day, November 21, 2006, the AEDPA's one-year clock began to run.[2] See Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000) (citing Fed.R.Civ.P. 6(a)) (finding that, for purpose of computing periods of time tied to § 2254's limitation statute, “the day of the act, event, or default from which the designated period of time begins to run shall not be included”). However, the statute of limitations tolled on August 15, 2007, when Petitioner filed his petition for post-conviction relief. The limitations period resumed on November 27, 2012, when the Tennessee Supreme Court denied Petitioner's application for permission to appeal. Click v. State, No. E2011-01965-CCA-R3-PC, 2012 WL 3158781 (Tenn. Crim. App. Aug. 6, 2012), perm. app. denied, (Tenn. Nov. 27, 2012).

         Thus, Petitioner's one-year limitations period expired on March 5, 2013.[3] Petitioner filed this ยง 2254 petition on October 21, 2015, well ...


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