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Martinez v. White

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

October 26, 2017

LEONEL MARTINEZ PETITIONER
v.
RANDY WHITE RESPONDENT

          MEMORANDUM OPINION

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

         Petitioner 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.

         I.

         On 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.[1] 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.

         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's 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.[2] Thus, Petitioner's conviction became final on July 27, 2009.

         Therefore, 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 ...


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