United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
GREER UNITED STATES DISTRICT JUDGE
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].
Petitioner's transfer to the SCCF, his Motion to Stay
[Doc. 20] has become moot and is DENIED.
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,
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].
reasons below, the Court will GRANT
Respondent's Motion to Dismiss and will
DISMISS this petition.
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).
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.
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.
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,
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
Rules Governing the Filing of a § 2254 Petition
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.
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).
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).