United States District Court, W.D. Kentucky, Paducah
THOMAS B. RUSSELL, Senior District Judge.
Petitioner Shawn Michael Bell filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Memorandum and Order entered January 13, 2015, which the Court incorporates by reference, the Court conducted an initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (DN 4). Upon review, the Court concluded that the petition was time-barred under the applicable one-year statute of limitations, 28 U.S.C. § 2244(d), and that Bell did not present circumstances appropriate for equitable tolling. Id. The Court, therefore, provided Bell with 30 days within which to show cause why this action should not be dismissed as untimely.
Bell has responded to the Court's Order directing him to show cause (DN 6). In his response, Bell argues that his § 2254 motion is timely because it was filed within 30 days of an order filed in the Ballard Circuit Court. Specifically, Bell states that "[t]he lower Kentucky Court issued an Order concerning the detainer and sentence in question on November 24, 2014. The limitation therefore began Running December 24, 2014, and Petitioner filed his petition on December 7, 2014." Bell attached a copy of the November 24, 2014, order to his response (DN 6-1). A review of this order reveals that Bell sent a letter to the Ballard Circuit Court asking for that court's detainer to be released. The Ballard Circuit Court found the following: (1) that Bell was placed on probation on November 25, 2009; (2) that, based on allegations that Bell violated his probation, the court issued a bench warrant for Bell's arrest on July 18, 2014, during his probation period; and (3) that Bell had not yet been brought back to Kentucky for adjudication of the alleged probation violations. The Ballard Circuit Court therefore ordered that Bell's probation warrant would stand and the detainer would not be removed.
In his § 2254 motion, Bell argues that he was sentenced twice for the same offense, once in Kentucky and once in Indiana, in violation of the Fifth Amendment. The relief he seeks is for this Court to stay his sentence and to "[r]elease any holds & detainers." Based on the constitutional argument Bell raises, the relief he seeks, and his response to the Court's show cause Order, it appears that Bell is challenging both his original Ballard Circuit Court conviction and the Ballard Circuit Court detainer.
Since Bell is challenging both his original conviction and the detainer regarding revocation of his probation, the Court must look at each statute of limitations separately. See Williams v. Smith, No. 3:11CV578-HEH, 2012 WL 3985609, at *2 (E.D. Va. Sept. 11, 2012) ("Where a petitioner challenges both his original conviction and a probation revocation related to that conviction in the same 28 U.S.C. § 2254 petition, it is appropriate for the Court to separate the claims relating to the original conviction from the claims relating to the probation revocation."); Williams v. Vasbinder, No. 05-73471-DT, 2006 WL 2123908, at *2 (E.D. Mich. July 27, 2006) ("Because petitioner is challenging two separate judgments by challenging both his underlying conviction and his subsequent probation revocation in a single habeas petition, the one year limitations period would begin to run for each of these separate judgments at different times.").
I. Ballard Circuit Court Conviction
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the provisions of that Act 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:
(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 post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...