United States District Court, W.D. Kentucky, Owensboro
H. MCKINLEY, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT
Leonel Martinez 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 September
22, 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.
January 10, 2008, Petitioner was sentenced to 24 years of
imprisonment in Daviess (County) Circuit Court for one count
of complicity to murder and two counts of complicity to
first-degree robbery. The Kentucky Supreme Court affirmed his
sentence on direct appeal on August 27, 2009. On June 22,
2010, Petitioner filed a motion for modification of his
sentence pursuant to Rule 60.02 of the Kentucky Rules of
Civil Procedure, which the Daviess Circuit Court denied on
August 11, 2010. Petitioner did not appeal that order. On
November 30, 2010, Petitioner filed a RCr 11.42 motion
alleging ineffective assistance of counsel. That motion was
denied by the Daviess Circuit Court on January 7, 2011. The
Court of Appeals affirmed the denial of the RCr 11.42 motion
on February 12, 2012, and the Kentucky Supreme Court denied
discretionary review on December 12, 2012. Petitioner
indicates that he filed a second Fed.R.Civ.P. 60.02 motion in
the Daviess Circuit Court in “May 2017.” That
motion was denied on May 24, 2017. Petitioner filed the
instant § 2254 petition on June 8, 2017.
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
(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
28 U.S.C. § 2244(d)(1) and (2).
direct appeal concluded on April 27, 2009, the date the
Kentucky Supreme Court affirmed his sentence. In Bronaugh
v. Ohio, 235 F.3d 280, 283-84 (6th Cir. 2000), the Sixth
Circuit explained that the one-year statute of limitations of
§ 2244(d) does not begin to run until the day after the
petition for a writ of certiorari is due for filing in the
Supreme Court. By operation of United States Supreme Court
Rule 13.1, a state prisoner has 90 days after the entry of
the final judgment on direct appeal in which to file his
petition for a writ of certiorari. Thus, Petitioner's
conviction became final on July 27, 2009.
to be timely, Petitioner's § 2254 petition would
have to have been filed by July 27, 2010, unless there was a
time-tolling collateral attack pending in state court.
See 28 U.S.C. § 2244(d)(2); Payton v.
Brigano, 256 F.3d 405, 408 (6th Cir. 2001). The running
of the statute of limitations is tolled when “a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2). An
application for post-conviction relief is “properly
filed” when “its delivery and acceptance are in
compliance with the applicable laws and rules governing
filings.” Artuz v. Bennett, 531 U.S. 4, 8
(2000). Moreover, the application is considered
“pending” under § 2244(d)(2) from its filing
date until a decision is issued by the state supreme court.
Lawrence v. Florida, 549 U.S. at 332-335. In other
words, a post-conviction motion tolls the limitations period
until the state appeals process is ...