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Polk v. Gross

United States District Court, M.D. Tennessee, Nashville Division

November 29, 2017

LAJEANRA POLK, Petitioner,
v.
GLORIA GROSS, Respondent.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         This is 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.

         Discussion

         I. Background

         In 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.)

         The 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 On October 21, 2011, the TCCA issued an unpublished opinion affirming the trial court's judgment.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.[1] (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.)

         On 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.)

         The petitioner filed a petition under 28 U.S.C. § 2254 in this court on or about May 15, 2017.[2]

         II. Statute of Limitations

         The 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 ...

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