United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. Presently before the court is the
respondent's motion to dismiss the petition on the
grounds that it is time-barred. (Doc. No. 11.) For the
reasons set forth herein, the court finds that the petition
is barred by the statute of limitations found at 28 U.S.C.
§ 2244(d)(1)(A). As a result, the court will grant the
respondent's motion to dismiss.
October 2010, after a bench trial in the Montgomery County
Circuit Court, the petitioner was convicted of one count of
second-degree murder and one count of felony murder. (ECF No.
10-1 at Page ID# 66-67; see also ECF No. 10-8,
State v. Polk, No. M2011-00226-CCA-R3CD, 2011 WL
5022816, at *1 (Tenn. Crim. App. Oct. 21, 2011) [Polk
I].) The trial court merged the two counts and sentenced
the petitioner to life in prison. (Id.)
petitioner appealed to the Tennessee Court of Criminal
Appeals (“TCCA”) challenging the sufficiency of
the evidence. (See ECF No. 10-8, Polk I,
2011 WL 5022816, at *1.) On October 21, 2011, the TCCA issued
an unpublished opinion affirming the trial court's
judgment. (Id.) The petitioner filed an application
for permission to appeal to the Tennessee Supreme Court
(“TSC”), which was denied on February 16,
2012. (Id.; see also ECF No.
10-11.) The petitioner did not file a petition for writ of
certiorari in the United States Supreme Court. (ECF No. 1 at
Page ID# 2.)
January 23, 2013, the petitioner timely filed a petition for
post-conviction relief in the trial court. (ECF No. 10-12 at
Page ID## 605-13; see also Polk v. State, No.
M2015-00431-CCA-R3-PC, 2016 WL 3267242, at *3 (Tenn. Crim.
App. June 7, 2016) [Polk II].) Counsel was appointed
on February 21, 2013, and on February 27, 2014, counsel filed
an amended petition for post-conviction relief. (ECF NO.
10-12 at Page ID## 627, 629-32.) The petition for
post-conviction relief was denied on August 28, 2014; however
the post-conviction court inadvertently failed to mail copies
of its opinion to counsel. (Id. at Page ID##
634-37.) As such, an amended opinion denying relief was
entered on February 6, 2015. (Id. at Page ID##
638-41.) The petitioner appealed to the TCCA, which denied
relief in an unpublished opinion issued on June 7, 2016.
(See ECF No. 10-16; see also Polk II, 2016
WL 3267242, at *1.) Thereafter, the petitioner sought
permission to appeal from the TSC, which was denied on
September 22, 2016. (ECF No. 10-19; see also Polk
II, 2016 WL 3267242, at *1.)
petitioner filed a petition under 28 U.S.C. § 2254 in
this court on or about May 15, 2017.
Statute of Limitations
petitioner's application is barred by the one-year
statute of limitations provided in 28 U.S.C. §
2244(d)(1). Section 2244(d)(1) provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made