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Hirsch v. Mays

United States District Court, E.D. Tennessee, Chattanooga

February 26, 2018

SAMUEL W. HIRSCH, Petitioner,
v.
TONY MAYS and HERBERT SLATERY, Respondents.

          MEMORANDUM AND ORDER

          TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE

         On July 17, 2017, Petitioner, Samuel W. Hirsch filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his confinement under a Hawkins County Criminal Court best-interest plea to first-degree felony murder where Petitioner was sentenced to life without the possibility of parole [Doc. 1 p. 1]. Respondents filed a motion to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1) [Doc. 8]. Petitioner replied to Respondents' motion and within his reply included requests for an extension of time and appointment of counsel [Doc. 10].

         Based on the following, the Court finds that Respondent's motion to dismiss [Doc. 8] will be GRANTED and this § 2254 petition will be DISMISSED as time-barred.

         I. PROCEDURAL HISTORY

         On June 6, 2014, Petitioner entered a best interest plea to first-degree felony murder and was sentenced to life without the possibility of parole. Hirsch v. State, E2015-02127-CCA-R3-PC, 2016 WL 3952032 (Tenn. Crim. App. July 19, 2016); perm. App. Denied Tenn. Nov. 16, 2016. He then filed a timely pro se petition for post-conviction relief on April 20, 2015 [Id.]. Following the appointment of counsel and a hearing on the petition, the post-conviction court denied relief and dismissed the petition [Id.]. Petitioner appealed and on July 19, 2016, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the post-conviction trial court's ruling [Id.]. Thereafter, the Tennessee Supreme Court (“TSC”) denied Petitioner permission to appeal.

         On or around July 17, 2017, Petitioner filed this pro se petition for writ of habeas corpus [Doc. 2]. In response, Respondents filed a motion to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1) [Doc. 8]. Petitioner replied to Respondent's motion on September 7, 2017 and within his reply included requests for extension of time and appointment of counsel [Doc. 10].

         II. STATUTE OF LIMITATIONS

         The 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 statute begins to run when one of four circumstances occurs: the conclusion of direct review; upon the removal of an impediment which prevented a petitioner from filing a habeas corpus petition; when a petition alleges a constitutional right, newly recognized by the Supreme Court and made retroactive on collateral review; or 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. § 2244(d)(2). Respondent contends that the petition, as submitted to the prison mailroom[1] on July 13, 2015, is time-barred by one hundred sixty-two days (162) days [Doc. 9 p. 4].

         The record reflects that Petitioner pled guilty, pursuant to a best-interest plea, on June 6, 2014, and did not seek a direct appeal. Thirty days later, on July 7, 2014, when the time expired for filing a direct appeal, see Rule 4(a), Tenn. R. App. P., Petitioner's conviction became final and, on the next day, July 8, 2014, AEDPA's one-year clock began to run.[2] See Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000) (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”) (citing to Fed.R.Civ.P. 6(a)). Petitioner, therefore, had until July 7, 2015, in which to seek federal habeas corpus relief.

         However, the statute of limitations tolled on April 20, 2015, 287 days after his conviction became final, when Petitioner filed his petition for post-conviction relief. The TCCA affirmed Petitioner's conviction on direct appeal and the TSC denied permission to appeal on November 16, 2016. Thus, the limitations period resumed the following day on November 17, 2016, with 78 days remaining in the limitations period. DiCenzi v. Rose, 452 F.3d 465, 468-469 (6th Cir. 2006) (When the state court proceedings that tolled the limitations period are no longer pending, the limitation period resumes at that point where it was tolled rather than starting anew.)

         Petitioner's time to seek federal habeas review expired 78 days later on February 2, 2017. However, Petitioner did not file the instant petition until July 13, 2017, well after his one-year limitations period expired. As such, the instant federal habeas corpus petition [Doc. 2] is untimely under 28 U.S.C. § 2244(d)(1) and must be dismissed with prejudice, unless Petitioner can establish that he is entitled to equitable tolling.

         III. EQUITABLE TOLLING

         Petitioner does not deny his habeas petition was untimely filed. Instead, he seeks to excuse his late filing on the grounds that he lacked knowledge of the Federal Habeas Corpus law and had limited access to a law library.

         The one-year statute of limitations in AEDPA is not jurisdictional and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010); Perkins v. McQuiggin, 670 F.3d 665, 670 (6th Cir. 2012) (observing that limitations statutes do not require courts to dismiss claims as soon as the “clock has run”) (citation omitted). Whether the statute should be equitably tolled depends upon whether the petitioner shows that he has been diligent in pursuing his rights and that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,209 F.3d 552, 560 (6th Cir. 2000) (“Absent compelling equitable considerations, a court should not extend limitations by even a single day”). A petitioner bears the burden of showing that he is entitled to equitable tolling. Id. The decision as to whether the statute should be equitably tolled must be made on a case-by-case basis. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Moreover, “[t]he doctrine of equitable tolling is applied sparingly by federal ...


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