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Griffin v. Lindamood

United States District Court, E.D. Tennessee

September 6, 2017

KENNETH RAY GRIFFIN, Petitioner,
v.
CHERRY LINDAMOOD, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          RONNIE GREER UNITED STATES DISTRICT JUDGE

         State prisoner Kenneth Ray Griffin (“Petitioner”) has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement under his 1997 state criminal convictions [Doc. 1]. Petitioner also filed what he has entitled as a “Motion for Case to be Placed on Retired Docket” [Doc. 20], which in substance is a Motion to Stay because he is requesting that his § 2254 petition be stayed until his release from the DeBerry Special Needs Facility (“DSNF”). Petitioner has informed the Court that he has been transferred from the DSNF to the South Central Correctional Facility (“SCCF”) [Doc. 24, Notice of Change of Address].

         Given Petitioner's transfer to the SCCF, his Motion to Stay [Doc. 20] has become moot and is DENIED.

         Respondent Cherry Lindamood, the SCCF Warden, has moved to dismiss Petitioner's habeas corpus petition, asserting that it is untimely under 28 U.S.C. § 2244(d)(1)(A) [Doc. 22]. In support of her Motion to Dismiss, Respondent has submitted copies of the state court record and a brief [Docs. 21, 23].[1] Petitioner has responded to the Motion to Dismiss, arguing that he showed due diligence in pursuit of his claims and implicitly invoking equitable tolling of § 2244(d)'s statute of limitation to save his § 2254 petition from the application of any time-bar [Doc. 25].

         For the reasons below, the Court will GRANT Respondent's Motion to Dismiss and will DISMISS this petition.

         I. BACKGROUND

         A jury in the Washington County Criminal Court convicted Petitioner on October 1, 1997, of one count of first degree murder and one count of especially aggravated kidnapping [Doc. 1 at 1]. On October 3, 1997, the trial court sentenced Petitioner to respective sentences of life without parole and twenty-three years [Id.]. Petitioner filed a direct appeal in the Tennessee Court of Criminal Appeals (“TCCA”), but the TCCA denied his appeal and the Tennessee Supreme Court (“TSC”) thereafter declined his application for permission to appeal. State v. Griffin, No. E1998-00037-CCA-R3-CD, 2000 WL 944010 (Tenn. Crim. App. July 6, 2000), perm. app. denied (Tenn. 2001).

         On June 4, 2001, Petitioner filed a petition for post-conviction relief in state court. Griffin v. State, No. E2001-01932-CCA-R3PC, 2002 WL 236697, at *1 (Tenn. Crim. App. Feb. 19, 2002). The post-conviction court summarily dismissed the petition based on Petitioner's failure to verify under oath the facts supporting relief. Id. The TCCA reversed the lower court's decision and remanded the case to the post-conviction court to allow Petitioner to amend his pleading. Id. at *3. Thereafter, the post-conviction court denied Petitioner's amended petition, and the TCCA affirmed the denial. Griffin v. State, No. E2013-00617-CCA-R3-PC, 2014 WL 885998, at *1 (Tenn. Crim. App. Mar. 5, 2014), perm. app. denied (Tenn. 2014). The TSC declined to grant Petitioner permission to appeal on August 29, 2014. Id.

         On October 24, 2014, Petitioner filed a motion to reopen his post-conviction petition, but the post-conviction court dismissed the motion on November 5, 2014, finding that he had failed to state grounds for reopening the petition. Griffin v. State, No. E2015-00239-CCA-R3-PC, 2015 WL 5064068, at *1 (Tenn. Crim. App. Aug. 27, 2015), perm app. denied (Tenn. 2016). Petitioner did not appeal.

         Instead, on December 18, 2014, Petitioner filed a second motion to reopen his post-conviction petition, and on January 16, 2015, the post-conviction court dismissed this motion too. Griffin, 2015 WL 5064068, at *1. Petitioner appealed, but the TCCA dismissed the appeal for lack of jurisdiction based on his failure to follow state procedural requirements for obtaining discretionary review of the denial of a motion to reopen. Griffin, 2015 WL 5064068, at *2. The TSC denied Petitioner permission to appeal on January 26, 2016. Griffin, 2015 WL 5064068 at *1. The instant § 2254 petition was filed on March 25, 2016.[2]

         II. DISCUSSION

         The two issues before the Court are: (1) whether Petitioner filed his § 2254 application within the controlling statute of limitation, and (2) if he did not, whether the period for filing his application can be statutorily or equitably tolled by his post-conviction petition and two motions to reopen his post-conviction petition.[3]

         A. Rules Governing the Filing of a § 2254 Petition

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) contains a one-year statute of limitation governing the filing of an application for a federal writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). The statute begins to run when one of 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 statute also contains a time-tolling feature: The 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 shall not be counted toward any period of limitation . . . .” 28 U.S.C. § 2244(d)(2). The first circumstance is the relevant one here.

         Hence, to determine the timeliness of this petition, the Court first must determine the date Petitioner's conviction became final. On February 20, 2001, the TSC denied Petitioner's application for permission to appeal on direct review. State v. Griffin, 2000 WL 944010, at *1. Ninety days later (i.e., May 21, 2001), the time expired for Petitioner to seek review of the state court's decision in the Supreme Court and, on that date, his conviction became final. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (holding that a § 2254 petitioner's direct review concludes for the purposes of AEDPA's one-year limitations period when the “availability of direct appeal” to the state courts and the Supreme Court has been exhausted); see also U.S. Sup. Ct. R. 13.1 (providing 90 days for petitioning for a writ of certiorari, running from the date of the decision of the state court of last resort).

         The next day, May 22, 2001, the AEDPA's one-year statute of limitation started to run. See Bronaugh v. Ohio, 235 F.3d 280, 284 (6th Cir. 2000) (applying Fed.R.Civ.P. 6(a)'s time-computation standards which provide that “the day of the act, event, or default from which the designated period of time begins to run shall not be included”) (citations omitted). Accordingly, for purposes of § 2244(d)(1)(A), the time for filing this § 2254 petition would have lapsed one year later, i.e., on May 22, 2002, unless the time was tolled by Petitioner's proper filing of a collateral review petition. 28 U.S.C. § 2244(d)(2).

         1. ...


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