United States District Court, W.D. Kentucky, Paducah Division
LANNY KING, Magistrate Judge.
Giles has filed a § 2254 habeas petition. (Docket #1). Beckstrom, on behalf of Kentucky, has filed a motion to dismiss. (Docket #9). Giles responded. (Docket #15). This Court referred the matter to Magistrate Judge King for a report and recommendation. A report and recommendation has been issued. (Docket #16). Giles filed an objection. (Docket #19). Beckstrom has responded to that objection. (Docket #20). The matter is now ripe for decision.
Three issues were presented in Beckstrom's motion to dismiss and Giles's objection: (1) whether Giles filed his habeas petition outside the statute of limitations; (2) whether the statute of limitations should be equitably tolled; and (3) whether Giles should receive a certificate of appealability.
Giles was convicted of manslaughter stemming from a one-car drunk driving accident in which Shirley Maestas was thrown from the car and died. Giles appealed to the Kentucky Court of Appeals, which affirmed. Giles then appealed to the Kentucky Supreme Court, which affirmed on October 21, 2010. Giles had ninety days to file a petition for writ of certiorari with the United States Supreme Court. Thus, Giles' petition was due on January 19, 2011. Giles did not file a petition. Therefore, Giles one-year statute of limitations to file this habeas petition began to run on January 20, 2011.
Thirty-four days later, on February 23, 2011, Giles filed a motion to vacate judgment in the McCracken Circuit Court. The McCracken County Circuit Court denied this motion. The Kentucky Court of Appeals subsequently affirmed this denial. The Kentucky Supreme Court denied discretionary review on May 15, 2013. The parties agree that the statute of limitations was tolled during the course of these appeals. On May 16, 2013, thirty-four days of the one-year statute of limitations had elapsed and Giles had 331 days remaining to file this habeas petition. Therefore, the deadline to file Giles's petition was April 12, 2014.
Giles filed this petition on May 1, 2014, which is nineteen days after the statute of limitations elapsed. Giles's attorney calculated the due date of Giles' petition as May 2, 2014 by adding twenty-one days to the above formula. (Docket #15). These twenty-one days are the amount of time between when the Kentucky Supreme Court enters an order and when that order becomes final. Ky. CR 76.30(2)(a). Giles argues that it is not the date that judgment is entered, but rather the date that judgment becomes final, that triggers the statute of limitations. In the alternative, Giles argues the statute of limitations should be equitably tolled because the rule is unclear.
Magistrate Judge King recommended that Giles's habeas petition was filed past the statute of limitations, that the statute of limitations should not be equitably tolled, and that Giles should receive a certificate of appealability. For the following reasons, the Court adopts these recommendations.
I. Giles filed his habeas petition after the statute of limitations had expired.
It is undisputed that the statute of limitations for filing a federal habeas corpus petition is one year. 28 U.S.C. § 2244(d)(1). The parties dispute when this one year begins to run.
The statute of limitations begins to run from the "latest" of four events, only one of which is applicable in this case. 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run on "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).
Giles's final appeal was to the Kentucky Supreme Court. The time for appeal to the United States Supreme Court expired ninety days after "the date of entry of the judgment." Sup.Ct. R. 13(1). Therefore, ninety days after the Kentucky Supreme Court entered an order declining to hear Giles' appeal, the one-year statute of limitations began to run.
Giles argues an additional twenty-one days should be included in this equation. Giles points to Ky. CR 76.30(2)(a), which states that an "opinion of the [Kentucky] Supreme Court becomes final on the 21st day after the date of its rendition." According to Giles, the Kentucky Supreme Court entered an order on October 21, 2010, but this order did not become final until twenty-one days had elapsed. Only after the order becomes final would the time for seeking review before the Supreme Court begin to run. Giles argues that to hold otherwise would negate the plain language of Ky. CR 76.30(2)(a), which states a Kentucky Supreme Court decision "becomes final on the 21st day after the date of its rendition." (Docket #19). Magistrate Judge King was not persuaded by this argument, nor is this Court. Giles's interpretation would itself ignore the plain language of United States Supreme Court Rules 13(1), which states a petition must be filed "within 90 days after entry of judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice)." ...