United States District Court, W.D. Kentucky, at Louisville
JOHN G. HEYBURN, II, Senior District Judge.
Petitioner Daryl Shultz filed this pro se action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. The Court reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review, the Court directed Shultz to show cause why his petition should not be dismissed as barred by the applicable statute of limitations. Shultz did not file a response to the Show Cause Order. Upon review, for the reasons set forth below, the Court will dismiss the petition as untimely.
I. FACTUAL AND PROCEDURAL BACKGROUND
In his petition, Shultz stated that he was convicted of sodomy following a guilty plea and sentenced to twenty years in prison on February 13, 2006. Shultz did not file a direct appeal. Shultz filed a motion to vacate his sentence pursuant to Kentucky RCr. 11.42 on December 9, 2008. According to the petition, the Jefferson Circuit Court denied Shultz's motion on April 3, 2009, and the Kentucky Court of Appeals affirmed the Jefferson Circuit Court's decision on October 8, 2010. Shultz filed the instant petition for writ of habeas corpus in this Court on March 5, 2014.
Because Shultz's petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the provisions of the AEDPA apply. Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000). The AEDPA sets forth a statute of limitations for state prisoners seeking release from custody. The statute provides as follows:
(d)(1) - 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 or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1) and (2).
In the present case, Shultz did not file a direct appeal of his conviction. Therefore, the one-year limitations period began to run at "the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In this case, Shultz's conviction became final on March 15, 2006, when the period for filing a direct appeal of his conviction ended. See Kentucky Rule of Criminal Procedure 12.04. Thus, Shultz had until March 15, 2007, to file his petition for habeas corpus relief in this Court unless there was a time-tolling collateral attack pending in state court. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001) (holding that the one-year statute of limitations may be tolled "for that amount of time in which a properly filed application for State post-conviction or other collateral review with respect to the ...