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Montgomery v. Bell

January 9, 2008

TYRONE ELLIOTT MONTGOMERY, PETITIONER,
v.
RICKY BELL, WARDEN RESPONDENT.



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM

Petitioner Tyrone Elliott Montgomery ("Petitioner"), by and through counsel, brings this petition for writ of habeas corpus under 28 U.S.C. § 2254 (Court File #1). Petitioner contends his failure to comply with the federal habeas one year statute of limitation should be excused as equitable tolling is applicable because he lacked funds to hire counsel to advise him as to the federal habeas corpus law and he lacked the knowledge regarding the habeas law.

After considering the filings of Petitioner and the applicable law, the Court will DISMISS Petitioner's § 2254 petition (Court File # 1).

I. Procedural History

The record reflects Petitioner was convicted by a jury of first degree murder on June 26, 1986, in the Hamilton County Criminal Court and received a life sentence. Petitioner pursued a direct appeal. The Tennessee Supreme Court denied his application for permission to appeal on June 8, 1987.

Petitioner had not pursued any further post-conviction relief until he filed the instant habeas petition on December 3, 2007. In his habeas petition, Petitioner claims he received ineffective assistance of counsel; his confession was involuntary; he was denied a fair trial due to jury tampering; improper evidence was admitted at his trial; the jury instructions were improper; and the cumulation of these errors render his conviction and sentence unconstitutional. In addition, Petitioner contends the statute of limitations in this case should be equitably tolled and he should be allowed to proceed with his claims as he lacked the funds necessary to retain counsel to advise him as to the Tennessee Post-Conviction law and the Federal Habeas Corpus law.

II. Analysis

Petitioner bases his argument for tolling the one-year habeas statute of limitation on the allegation that "until recently, the Petitioner did not have the funds necessary to retain counsel to advise him as to the Tennessee Post-Conviction law and the Federal Habeas Corpus law." (Court File No. 1, at 15). This contention fails to include any factual support explaining why Petitioner did not diligently pursue his rights prior to 2007. Petitioner has not submitted an affidavit reflecting how he was prevented from learning about the Federal Habeas Corpus law; how and when he first learned about the Federal Habeas Corpus law; and how and when he learned he needed to retain an attorney.

Nevertheless, as explained below, ignorance of the law and lack of funds are inadequate justification for equitable tolling. Thus, the habeas petition is time-barred.

A. Timeliness of the § 2254 Petition

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified in 28 U.S.C. § 2241, et seq., amended the federal habeas corpus statutes, and added a one-year statute of limitation to govern the filing of an application for a federal writ of habeas corpus. The statute of limitation begins to run from the date the petitioner's state judgment of conviction becomes final, or the occurrence of one of three other circumstances, none of which are relevant here. See 28 U.S.C. § 2244(d)(1).

Petitioner's conviction became final, under 28 U.S.C. § 2244(d)(1), ninety days after the Tennessee Supreme Court denied leave to appeal in June of 1987. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (under §2244(d)(1)(A), the one-year statute of limitations does not begin to run until the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired); Sup.Ct.R. 13. Because his conviction became final before the AEDPA was enacted on April 24, 1996, he had one year from then, or until April 24, 1997, to file his habeas petition. Ross v. Berghuis, 417 F.3d 552, 554 (6th Cir. 2005) (citing Griffin v. Rogers, 399 F.3d 626, 631-32 (6th Cir. 2005)). Petitioner filed his habeas petition more than ten years later, in December of 2007. Therefore, absent tolling, Petitioner's habeas petition is time-barred.

B. Equitable Tolling

Petitioner does not deny his habeas petition was untimely filed. Instead, he seeks to excuse his late filing on the grounds he lacked funds to hire counsel and lacked ...


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