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Reed v. Smith

United States District Court, W.D. Kentucky, Paducah

June 20, 2017

KENNETH O'KEITH REED PETITIONER
v.
AARON SMITH RESPONDENT

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge.

         Petitioner Kenneth O'Keith Reed filed this pro se action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus (DN 1). This matter is now before the Court on preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. On May 1, 2017, the Court directed Petitioner to show cause why his petition should not be denied and his action dismissed as untimely (DN 5), and Petitioner has now responded (DN 6). For the reasons set forth below, the Court will dismiss this action as time-barred.

         I.

         Because the petition now before the Court 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 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 under this subsection.

28 U.S.C. § 2244(d)(1) and (2).

         Petitioner indicates that he was convicted of rape on October 11, 1992, Case No. 92-CR-00370, but he makes no attempt to explain why the petition now before the Court, filed more than 24 years after he was convicted, is not barred by the one-year statute of limitations. Moreover, Petitioner does not provide the date his appeal concluded or address this issue in his response to the Court's Show Cause Order. Because Petitioner's conviction became final prior to the passage of the AEDPA on April 24, 1996, “he had a one-year grace period, lasting until April 24, 1997, in which to file his habeas petition.” Jurado v. Burt, 337 F.3d 638, 640 (6th Cir. 2003) (citing Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002)). Because Petitioner filed the petition now before the Court more than 20 years after AEDPA became effective, the Court concludes his petition is time-barred.

         However, § 2254's one-year statute of limitation is not jurisdictional and is subject to equitable tolling. Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (citing Holland v. Florida, 560 U.S.631 (2010)). Equitable tolling allows courts to review time- barred habeas petitions “provided that ‘a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'” Robinson v. Easterling, 424 F.App'x 439, 442 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). “[C]ourts grant equitable tolling ‘sparingly.'” Hall, 662 F.3d at 749 (citing Robertson, 624 F.3d at 784). There are two forms of equitable tolling: (1) traditional equitable tolling; and (2) actual innocence equitable tolling.

         A habeas petitioner is entitled to traditional equitable tolling only if he establishes “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotations omitted). Petitioner does ...


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