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Womac v. Gross

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

September 26, 2019

JENNIFER WOMAC, Petitioner,
v.
GLORIA GROSS, Respondent.

          MEMORANDUM OPINION

          REEVES UNITED STATES DISTRICT JUDGE.

         This is a pro se prisoner’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition as time-barred [Doc. 11] and a memorandum in support thereof [Doc. 12], as well as the state court record [Doc. 10]. Petitioner filed a response in opposition to the motion to dismiss [Doc. 14]. For the reasons set forth below, Respondent’s motion to dismiss the petition as time-barred [Doc. 11] will be GRANTED and this action will be DISMISSED.

         I. PROCEDURAL HISTORY

         On February 2, 2012, Petitioner pled guilty to one count of second-degree murder [Doc. 10-1 p. 36–45]. Petitioner did not appeal this conviction.

         On January 25, 2013, Petitioner placed a pro se petition for post-conviction relief in the state court in the hands of prison authorities for filing [Id. at 10] and the state court received it on January 28, 2013 [Id. at 4]. On March 9, 2017, the post-conviction court entered an order denying Petitioner relief and dismissing the petition [Id. at 77–90]. On July 2, 2018, the Tennessee Court of Criminal Appeals affirmed the post-conviction court’s denial of relief to Petitioner, and on November 15, 2018, the Tennessee Supreme Court denied Petitioner’s application for permission to appeal. Womac v. State of Tennessee, No. E2017-00660-CCA-R3-PC, 2018 WL 3217733 (Tenn. Crim. App. July 2, 2018), perm. app. denied (Tenn. Nov. 15, 2018).

         On February 21, 2019, Petitioner filed the instant § 2254 petition [Doc. 1 p. 16].

         II. ANALYSIS

         The 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). 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. . . ., ” however. 28 U.S.C. § 2244(d)(2).

         For AEDPA purposes, Petitioner’s conviction became final on March 5, 2012, [1] the day on which Petitioner’s time to file an appeal of the judgment against her expired. See, e.g., Feenin v. Myers, 110 F. App’x 669 (6th Cir. 2004) (citing Tenn. R. App. P. 4(a)) (providing that where the Tennessee habeas petitioner did not pursue a direct appeal, his state court conviction was deemed “final” when the thirty-day time-period in which he could have done so expired). Thus, the AEDPA statute of limitations clock began to run on March 6, 2012, and ran for three-hundred and twenty-five days until it paused on January 25, 2013, the day on which Petitioner placed her post-conviction petition in the hands of prison officials for filing.[2] The clock remained paused until November 16, 2018, the day after the Tennessee Supreme Court denied Petitioner’s application for discretionary appeal, at which point it began to run again. Robinson v. Easterling, 424 Fed. App’x 439, 442 (6th Cir. 2011) (providing that the AEDPA “clock began to run again” after the Tennessee Supreme Court declined jurisdiction over a habeas petitioner’s post-conviction appeal). The clock expired forty days later, on Wednesday, December 26, 2018.

         Accordingly, Petitioner’s § 2254 petition, which she filed on February 21, 2019, is untimely. The 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 where a petitioner shows that she has diligently pursued her rights, but an extraordinary circumstance prevented her from timely filing the petition. Holland, 560 U.S. at 649. A petitioner bears the burden of demonstrating that she 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”).

         In her response to the motion to dismiss, Petitioner states that she “calculated 249 days between the denial of her post-conviction [petition] until the filing of her T.R.A.P. Rule 11 Application to Appeal” and that she had no control over the progression of her state post-conviction proceeding [Doc. 14]. As set forth above, however, the Court has not counted any of the days during which Petitioner’s petition for post-conviction relief was ...


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