United States District Court, E.D. Tennessee, Chattanooga
SAMUEL W. HIRSCH, Petitioner,
TONY MAYS and HERBERT SLATERY, Respondents.
MEMORANDUM AND ORDER
R. MCDONOUGH UNITED STATES DISTRICT JUDGE
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].
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.
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.
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].
STATUTE OF LIMITATIONS
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 on July 13, 2015, is time-barred by one
hundred sixty-two days (162) days [Doc. 9 p. 4].
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. 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.
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
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
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.
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 ...