United States District Court, E.D. Tennessee
JOSE A. RIVAS, Petitioner,
GEORGIA CROWELL, Respondent.
R. MCDONOUGH UNITED STATES DISTRICT JUDGE.
the Court is a pro se prisoner's petition for
habeas corpus relief pursuant to 28 U.S.C. § 2254.
Respondent has filed the state record (Doc. 5), as well as a
motion to dismiss the petition as time-barred (Doc. 6).
Petitioner filed a response in opposition (Doc. 8) and
Respondent filed a reply (Doc. 9). For the following reasons,
Respondent's motion to dismiss the § 2254 petition
(Doc. 6) will be GRANTED and this action
will be DISMISSED.
September 16, 2005, Petitioner pleaded guilty to two counts
of first-degree murder. (Doc. 5-1, at 10-11.) Petitioner did
not appeal these convictions, but on May 2015, Petitioner
filed a state-court petition for a writ of habeas corpus
(id. at 3-9), which the state-court denied
(id. at 68). The Tennessee Court of Criminal Appeals
(“TCCA”) affirmed this denial. Rivas v.
McAllister, No. E2015-01506-CCA-R3-HC, 2016 WL 863317
(Tenn. Crim. App. March 4, 2016), perm. app. denied
(Tenn. June 23, 2016). In May 2017, Petitioner filed a second
state court petition for a writ of habeas corpus (Doc. 5-10,
at 3-10), which the state court dismissed upon the motion of
the respondent (id. at 79). The TCCA affirmed this
dismissal. Rivas v. Lee, No. E2017-01597-CCA-R3-HC,
2018 WL 842429 (Tenn. Crim. App. Feb. 13, 2018), perm.
app. denied (Tenn. May 17, 2018). On February 15, 2019,
Petitioner filed the instant § 2254 petition. (Doc. 1,
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified in 28 U.S.C. § 2241,
et seq., provides a one-year statute of limitations
for the filing of an application for a federal writ of habeas
corpus. The statute provides, in relevant part:
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 . . . .
28 U.S.C. § 2244(d)(1). However, the time “during
which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation. . . .” 28 U.S.C. §
AEDPA purposes, Petitioner's convictions became final on
October 17, 2005, the day on which Petitioner's time to
file an appeal of the judgment against him expired.
See, e.g., Feenin v. Myers, 110
Fed.Appx. 669 (6th Cir. 2004) (citing Tenn. R. App. P. 4(a))
(providing that where the Tennessee petitioner did not pursue
a direct appeal, his state court conviction was deemed
“final” upon the expiration of the thirty-day
time-period in which he could have done so). Thus,
Petitioner's § 2254 petition, filed February 15,
2019, more than thirteen years after his convictions became
final, is untimely. While, as set forth above, Petitioner
filed state court habeas petitions in 2015 and 2017, neither
of these filings revived the AEDPA clock. See
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)
(holding that “(t)he tolling provision does not . . .
‘revive' the limitations period (i.e., restart the
clock at zero); it can only serve to pause a clock that has
not yet fully run”).
AEDPA statute of limitations is not jurisdictional, however,
and is subject to equitable tolling. Holland v.
Florida, 560 U.S. 631, 645 (2010). Equitable tolling is
warranted when a petitioner shows that he has diligently
pursued his rights, but an extraordinary circumstance
prevented him from timely filing the petition. Id.
at 649. A petitioner bears the burden of demonstrating that
he is entitled to equitable tolling, Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005), and federal
courts should grant equitable tolling sparingly. Souter
v. Jones, 395 F.3d 577, 588 (6th Cir. 2005); see
also Graham-Humphreys v. Memphis Brooks Museum of Art.
Inc., 209 F.3d 552, 561 (6th Cir. 2000) (providing that
“(a)bsent compelling equitable considerations, a court
should not extend limitations by even a single day”).
argues he is entitled to equitable tolling because Tennessee
does not have a time bar for habeas corpus claims (Doc. 1, at
9), which Petitioner asserts is an “extraordinary
circumstance” that excuses his failure to timely file
his § 2254 petition because applying the AEDPA's
one-year statute of limitations would exclude state court
rulings on habeas petitions based on newly-discovered
evidence from federal review. (Doc. 8, at 3.)
argument is not persuasive. As set forth above, state court
filings, even if properly filed, cannot “revive”
an AEDPA statute of limitations that has already run.
Vroman, 346 F.3d at 602. Moreover, while newly
discovered evidence may affect the date on which the AEDPA
statute of limitations begins to run for claims based on such
evidence, see 28 U.S.C. § 2244(d)(1)(D),
Petitioner does not assert a claim for habeas relief based on
newly discovered evidence. Rather, Petitioner seeks habeas
relief based on the same venue argument that he presented in
his 2015 and 2017 state habeas proceedings which were
apparent from the face of his 2004 indictments and 2005 plea
agreement and waiver of rights and plea of guilty. (Doc. 1,
at 12; Doc. 5-1, at 13-18, 20, 21). Accordingly, Petitioner
has failed to establish that he is entitled to equitable
tolling of the statute of limitations, his § 2254
petition is time-barred, and this action will be