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Sutherland v. Smith

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

June 22, 2017

ROY LUKE SUTHERLAND, JR. PETITIONER
v.
WARDEN AARON SMITH RESPONDENT

          MEMORANDUM OPINION

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner Roy Luke Sutherland, Jr., filed this pro se action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus (DN 1). The matter is currently before the Court for preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. On May 11, 2017, the Court directed Petitioner to show cause why his petition should not be denied and his action dismissed as untimely (DN 9), and Petitioner has now responded (DN 10). For the reasons set forth below, the Court will dismiss this action as time-barred.

         I.

         On November 30, 1979, [1] Petitioner pled guilty to murder and rape in the first degree and was sentenced to life imprisonment plus 40 years in Jefferson Circuit Court. Petitioner indicates that he appealed these convictions to both the Kentucky Court of Appeals and the Supreme Court of Kentucky, but he does not provide the dates these appeals were decided.[2] Petitioner also indicates that he filed a motion for relief from judgment pursuant to Rule 60.02 of the Kentucky Rules of Civil Procedure in 2016. This motion and his accompanying request to proceed in forma pauperis were denied by the Jefferson Circuit Court on June 3, 2016. The Kentucky Court of Appeals denied Petitioner's appeal of the Circuit Court's decision denying his motion to proceed in forma pauperis on September 8, 2016, and his motion to reconsider this decision on January 3, 2017.

         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).

         Generally, “[p]etitioners whose convictions became final prior to the effective date of AEDPA, April 24, 1996, have one year from the effective date in which to file their petitions.” Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001); see also Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000) (noting that prisoners convicted before AEDPA's effective date had until April 24, 1997, to file a federal habeas petition).

         Here, Petitioner does not dispute that he was convicted of rape and murder more than 30 years ago. He first argues that his petition is not untimely because “the statute of limitations applied in this case should not apply to the case from 1979 but should apply to the final action taken before the trial courts in 2016.” However, the filing of a Rule 60.02 post-conviction motion does not restart the one-year statute of limitations for filing a federal habeas petition. Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003). While a collateral challenge to a state conviction can toll the statute of limitations, “the tolling provision does not . . . ‘revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.” Id. at 602 (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y 1998)) (internal quotation marks omitted). Thus, when Petitioner sought ...


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