United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN UNITED STATES DISTRICT JUDGE.
a prisoner in the Tennessee Department of Correction, has
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 seeking relief from his 2012
convictions for domestic assault, aggravated assault,
especially aggravated kidnapping, and aggravated rape in
Scott County, Tennessee [Doc. 2]. Respondent has filed a
motion to dismiss the petition as time-barred [Doc. 17], a
memorandum in support thereof [Doc. 18], and the state court
record [Doc. 16]. Petitioner filed a response in opposition
to the motion to dismiss [Doc. 23] and a memorandum in
support thereof [Doc. 24].
reasons set forth below, Respondent's motion to dismiss
the petition as time-barred [Doc. 17] will be
DENIED, Petitioner is entitled to equitable
tolling of the statute of limitations during the time in
which he was unaware that the Tennessee Supreme Court
(“TSC”) had denied his Rule 11 application for
discretionary appeal of the Tennessee Criminal Court of
Appeals' (“TCCA”) affirmance of the denial of
his petition for post-conviction relief, Petitioner's
§ 2254 petition [Doc. 2] is therefore timely,
Petitioner's motion requesting a Court order requiring
Respondent to provide him with mail log documents to
establish whether he received any legal mail from the TSC or
his former counsel between November 16, 2017, and February 1,
2019 [Doc. 4] will be DENIED as moot, and
Respondent will be ORDERED to answer or
otherwise respond to the petition within sixty (60) days from
the date of entry of this order.
26, 2012, a jury in Scott County, Tennessee, found Petitioner
guilty of one count of domestic assault, one count of
aggravated assault, one count of especially aggravated
kidnapping, and one count of aggravated rape [Doc. 16-1 p.
114-17]. Petitioner appealed his convictions to TCCA, which
affirmed them, and the TSC denied discretionary review.
State v. Robbins, No. E2013-00527-CCA-R3-CD, 2014 WL
545481 (Tenn. Crim. App. Feb. 10, 2014), perm. app.
denied (Tenn. June 23, 2014).
April 27, 2015, Petitioner filed a pro se petition for a writ
of habeas corpus with the state court [Doc. 16-14 p. 4-12].
Appointed counsel subsequently filed two amended petitions
[Id. at 25-30, 50-62], which the state court
dismissed after a hearing [Id. at 70- 71].
Petitioner appealed this dismissal to the TCCA, which
affirmed, and the TSC denied discretionary review.
Robbins v. State, No. E2016-01531-CCA-R3-PC, 2017 WL
2791186 (Tenn. Crim. App. June 27, 2017), perm. app.
denied (Tenn. Nov. 16, 2017).
STATUTE OF LIMITATIONS
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 filing an application for a federal writ of habeas
corpus. The statute provides in relevant part as follows:
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. §
does not appear that Petitioner filed a petition for a writ
of certiorari with the United States Supreme Court regarding
the TSC's decision not to review the TCCA's
affirmance of his convictions, his convictions became final
ninety days after the TSC entered this decision, specifically
on September 22, 2014. Clay v. United States, 537
U.S. 522, 524 (2003) (holding that, if no petition for
certiorari is filed, the judgment becomes final upon
expiration of the ninety-day period for seeking certiorari
review in the Supreme Court). The AEDPA clock therefore began
to run the next day, on September 23, 2014, and ran for
two-hundred and sixteen days until Petitioner filed his
petition for post-conviction relief on April 27, 2015, at
which point it paused. The AEDPA clock remained paused until
November 16, 2017, the day on which the TSC declined
discretionary review of the TCCA's affirmance of the
dismissal of Petitioner's petition for post-conviction
relief. Robinson v. Easterling, 424 Fed. App'x
439, 442 (6th Cir. 2011) (providing that the AEDPA
“clock began to run again” after the TSC declined
to review a habeas petitioner's post-conviction appeal).
Thus, the AEDPA clock began to run again on November 17,
2017, and expired one-hundred and fifty days later on Monday,
April 16, 2018. As such, Petitioner's § 2254
petition, which he filed on February 27, 2019, is untimely,
unless the Court finds that Petitioner is entitled to
equitable tolling of the statute of limitations.
AEDPA statute of limitations is not jurisdictional and is
subject to equitable tolling. Holland v. Florida,
560 U.S. 631, 645 (2010). Equitable tolling is warranted
where a petitioner shows that he has diligently pursued his
rights, but an extraordinary circumstance prevented him from
timely filing his petition. Holland, 560 U.S. at
649. The 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.