United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION TO DISMISS AND DIRECTING
RESPONDENT TO ANSWER THE PETITION
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE
Jay Earl Haynes, a prisoner of the State of Tennessee, has
filed a pro se Petition under 28 U.S.C. § 2254
seeking habeas corpus relief (the “Petition”)
(ECF No. 1). Currently before the Court is the Motion of
Respondent Randy Lee to Dismiss the Petition as untimely (ECF
No. 12). For the reasons that follow, Respondent's Motion
March 2012, a jury of Dyer County, Tennessee, convicted
Petitioner of two counts of rape. Technical Record No.
09-CR-288, at 7-8, Sept. 11, 2012, ECF No. 11-1. The circuit
court sentenced him to two consecutive twenty-year terms of
imprisonment. Id. at 3-4. The convictions and
sentences were affirmed on appeal, and the Tennessee Supreme
Court denied permission to appeal. See Tennessee v.
Haynes, No. W2012-01917-CCA-R3-CD, 2013 Tenn. Crim. App.
LEXIS 608, at *2 (Tenn. Crim. App. July 17, 2013), perm.
appeal denied, 2013 Tenn. LEXIS 953 (Tenn. Nov. 13,
filed a timely pro se petition for state
post-conviction relief. See Technical Record
09-CR-288, at 9, May 27, 2015, ECF No. 11-13 [hereinafter
“State Post-Conviction Record”]. Appointed
counsel subsequently filed an amended petition. See
Id. at 24. The post-conviction court held an evidentiary
hearing and denied relief. Id. at 31. Once more the
state appellate court affirmed that decision, and the
Tennessee Supreme Court again denied permission to appeal.
See Haynes v. Tennessee, No. W2015-00919-CCA-R3-PC,
2016 Tenn. Crim. App. LEXIS 147, at *1 (Tenn. Crim. App. Feb.
26, 2016), perm. appeal denied, 2016 Tenn. LEXIS 433
(Tenn. June 24, 2016).
signed and placed this federal habeas Petition in the prison
mail system on September 22, 2016. Pet'n Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody, at 17, Sept. 26, 2016, ECF No. 1. Petitioner asserts
an ineffective assistance of counsel claim, id. at
5, and a claim challenging the constitutionality of the state
statute under which he was convicted. Id. at 12. On
May 16, 2107, Respondent filed the instant Motion to Dismiss
the Petition as untimely (ECF No. 12). Petitioner has since
filed a Response (ECF No. 15).
argues that the Petition should be dismissed because it was
filed two days after the limitations period expired. Mot. to
Dismiss for Untimeliness Pursuant to Habeas Rule Eight, at 5,
May 16, 2017, ECF No. 12 [hereinafter “Def.'s
Mot.”]. Petitioner asserts, however, that Respondent
has miscalculated relevant dates. See Resp. to Mot.
to Dismiss, at 1, Aug. 14, 2017, ECF No. 15. Specifically,
Petitioner alleges (1) that Respondent did not
“calculate into the picture” “the 90 days
extension to file to the United States Supreme Court”;
(2) that he placed his Petition into the prison mailing
system on September 21, 2016, not September 22, 2016; (3)
that the Court should include in the period that is
statutorily tolled the three days “[i]t takes . . . for
the petitioner to receive mail from the court”; and (4)
that Respondent's calculation does not take into
consideration that he “is to get the benefit of days
that cannot be counted against him[, ] holidays, weekends .
. . etc.” Id. at 1-2. The Court does not reach
Petitioner's specific arguments because it finds
Respondent's calculation is incorrect for a different
§ 2254 petition is subject to a one-year statute of
limitations. 28 U.S.C. § 2244(d)(1). In most cases, the
limitations period begins to run from “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). The one-year
limitations period is statutorily tolled during the time
“a properly filed application for State post-conviction
or other collateral review . . . is pending.” 28 U.S.C.
here, had one year from the date on which his convictions
became final- February 11, 2014-to file his federal Petition.
Taking into account the statutory tolling under 28 U.S.C.
§ 2244(d)(2), the last day Haynes could timely file his
§ 2254 petition was September 23, 2016.
date is arrived at as follows. Petitioner first appealed his
convictions and sentences to the Tennessee Supreme Court but
did not appeal to the United States Supreme Court. His
convictions thus became final when the time for appealing to
the United States Supreme Court expired, which was ninety
days after the Tennessee Supreme Court denied permission to
appeal. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th
Cir. 2000) (citing Isham v. Randle, 226 F.3d 691,
694-95 (6th Cir. 2000)) (“[T]he one-year statute of
limitations does not begin to run until the time for filing a
petition for a writ of certiorari for direct review in the
United States Supreme Court has expired.”). Permission
to appeal was denied on November 13, 2013. Ninety days from
that date was Tuesday, February 11, 2014.
November 12, 2014, 274 days into the one-year AEDPA
limitations period, Petitioner filed a pro se
post-conviction petition in the state court. State
Post-Conviction Record, at 9. The limitations period was
tolled from that date until June 24, 2016, when the Tennessee
Supreme Court denied permission to appeal. See
Haynes, 2016 Tenn. LEXIS 433. At that point, Petitioner
had ninety-one days remaining to file his federal Petition
(365 minus 274). Ninety-one days from June 24, 2016, was
Friday September 23, 2016.
noted, Petitioner filed his Petition on September 22, 2016,
the day he placed it into the prison mailing system. See
Houston v. Lack, 487 U.S. 266, 270-71 (1988) (adopting
mailbox rule for federal pro se prisoner filings).
The Petition is therefore timely as having been filed one day
before the AEDPA limitations period expired.
calculation of a September 20, 2016 expiration date was the
result of his having counted the date of relevant events,
rather than having excluded those dates. Def.'s Mot., at
4-5 nn.2-3. That counting method is incorrect. For purposes
of determining the date a petitioner's conviction became
final, the ninety-day window for filing a petition for writ
of certiorari is to be calculated in compliance with Supreme
Court Rule 30. Bronaugh, 235 F.3d at 284. Under that
rule, “the day of the act, event, or default from which
the designated period begins to run is not included.”
Bronaugh, 235 F.3d at 284 (quoting Sup. Ct. R. 30).
Likewise, in calculating the remaining relevant dates for
purposes of the AEDPA limitations period, courts are to use
the counting protocol as provided in Federal Rule of Civil
Procedure 6(a). See id. (citing Gould v.
Jackson, No. 98-1743, 2000 U.S. App. LEXIS 4143, at *1
(6th Cir. Mar. 14, 2000)). Like Supreme Court Rule 30,
“Rule 6(a) states that . . . ‘the day of ...