United States District Court, E.D. Tennessee
A. Varlan CHIEF UNITED STATES DISTRICT JUDGE.
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.
MOTION FOR EXTENSION OF TIME
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
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.
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].
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.].
before the Court is Petitioner's petition for writ of
habeas corpus [Doc. 1].
STATUTE OF LIMITATIONS
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. §
the first circumstance is the relevant one. Respondent
contends that the petition, as submitted to the prison
mailroom on October 17, 2015, is time-barred by
nine-hundred and fifty-eight (958) days [Doc. 11 p. 3].
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. 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).
Petitioner's one-year limitations period expired on March
5, 2013. Petitioner filed this § 2254 petition
on October 21, 2015, well ...