United States District Court, Middle District of Tennessee, Nashville
TODD CAMPBELL UNITED STATES DISTRICT JUDGE
Petitioner Louis Gilbert Turner, a prisoner in state custody, has filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. (Docket Entry No. 1.) Pending before the Court is Respondent Debra Johnson’s Motion to Dismiss, (Docket Entry No. 14) to which Petitioner has responded. (Docket Entry No. 28) For the reasons set forth below, Respondent’s Motion to Dismiss (Docket Entry No. 14) will be GRANTED.
I. LIMITATIONS PERIOD AND RELEVANT FACTS
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year limitations period for habeas petitions brought by prisoners challenging state-court convictions. Under this provision, the limitations period runs from the latest of four enumerated events, only one of which is relevant here: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the time that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).
Following a jury trial, Petitioner was convicted on October 10, 2001, of first degree murder and sentenced to life in prison. (Docket Entry No. 1, at 1.) The state court of criminal appeals denied relief on direct appeal, Tennessee v. Turner, No. M2002-01000-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 201 (Tenn. Crim. App. March 7, 2003), and the state supreme court denied permission to appeal on July 7, 2003. State v. Turner, No. M2002-01000-SC-R11-CD, 2003 Tenn. LEXIS 640 (Tenn. July 7, 2003). The AEDPA limitations period began to run 90 days later, on October 6, 2003,  when Petitioner’s time to petition the United States Supreme Court for certiorari expired. See Supreme Court Rule 13.1 (90 day deadline); Payton v. Brigano, 256 F.3d 405, 409 (6th Cir. 2001). Petitioner filed a petition for post-conviction relief on April 1, 2004 (Docket Entry No. 1, at 3), and tolled his federal limitations period after 178 days had elapsed. The trial court denied post-conviction relief on January 13, 2006 (Docket Entry No. 1, at 3), and his limitations period began to run again on February 13, 2006, upon the expiration of his time to file a notice of appeal to the state appellate court. See Tenn. R. App. P. 4(a) (30 day appeal deadline).
Petitioner’s AEDPA limitations period expired on August 21, 2006, the Monday following the lapse of another 187 days. See Fed. R. Civ. P. 6(a)(1)(C). None of his state court filings after that date affect that expiration, because the AEDPA tolling provision does not “revive” the limitations period (i.e., restart the clock); it can only serve to pause a clock that has not yet fully run. Payton, 256 F.3d at 408. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations bar. Id.; McClendon v. Sherman, 329 F.3d 490, 493 (6th Cir. 2003). The current Petition is deemed filed on August 28, 2014, the date on which it was placed in the prison mail for delivery. (Docket Entry No. 1, at 14; Docket Entry No. 1-2.) It is thus more than eight years late.
The Petition itself does not expressly address the timeliness of his Petition under § 2244(d). (Docket Entry No. 1, at 13.) However, in his Addendum’s recitation of grounds raised in state court, Petitioner asserts that his post-conviction counsel withdrew without filing an appeal or even informing him of the trial court’s denial of post-conviction relief, and that Petitioner only became aware of the denial on July 25, 2012. (Id. at 3; Docket Entry No. 1-1, at 1, 2, 4.) Since that time, Petitioner has engaged in several unsuccessful attempts to appeal or re-open his state post-conviction action. Specifically, on or around September 7, 2012, he filed a motion asking the post-conviction trial court to re-enter judgment in his post-conviction action, which that court denied on October 25, 2012. (Docket Entry No. 1-1, at 2; Docket Entry No. 18, at 3.) On January 24, 2012, Petitioner filed a motion in the Tennessee Court of Criminal Appeals seeking permission to pursue an untimely appeal, which that court denied on February 5, 2013. (Docket Entry No. 16-15.) He filed a motion for rehearing on February 25, 2013, which the court denied on March 14, 2013 (Docket Entry No. 1-1, at 4; Docket Entry No. 16-13), and the Tennessee Supreme Court denied permission to appeal on September 11, 2013. (Docket Entry No. 16-16.) While Petitioner’s application to appeal that case to the state supreme court was pending, on March 21, 2013, he filed a motion to reopen his post-conviction action (Docket Entry No. 17-1, at 1–11), which the trial court denied by order filed April 22, 2013. (Id. at 27–36.) The Tennessee Court of Criminal Appeals affirmed that decision on July 3, 2013. (Docket Entry No. 16-14.) Petitioner asserts that his delay “is not his fault, but the fault of court appointed counsel after the post conviction hearing, and the trial court and clerk.” (Docket Entry No. 1-1, at 15.)
Petitioner elaborates on this theory in his response to the motion to dismiss, in which he seeks equitable tolling of the statute of limitations. Specifically, he explains that the post-conviction trial court took his case under advisement after a hearing on November 7, 2005, and that he wrote to his counsel repeatedly after the hearing making clear his desire to appeal in the event of an adverse decision. (Docket Entry No. 28, at 1–2.) He attaches copies of letters to his counsel dated December 7, 2005 and January 5, 2006, that do convey that desire and expressly ask counsel to send him a transcript of the hearing and “inform me of the Judges [sic] decision as soon as you know something.” (Docket Entry Nos. 28-1 and 28-2.) As the parties are all now aware, the state court ruled against Petitioner by order dated January 13, 2006. But in a letter from Petitioner to his post-conviction counsel notarized on April 26, 2006, Petitioner was still asking counsel whether the judge had ruled and seeking a transcript from his hearing. (Docket Entry No. 28-5.) Petitioner also submits copies of inmate trust account withdrawal slips reflecting phone calls from him to counsel in February, March and December of 2006, and he states that “Petitioner had called Post-Conviction Counsel by telephone several times (before and after the judgment) about the status of the case.” (Docket Entry No. 28, at 3 n.7; Docket Entry No. 28-4.) Petitioner does not claim that the calls were not answered or otherwise explain why he failed to discover during the calls that his petition had been denied in January 2006. Finally, he claims that although he began to write letters to the post-conviction trial court “in late 2006” and wrote approximately every six months thereafter, the clerk of that court did not respond with a copy of the January 2006 order until July 25, 2012. (Docket Entry No. 28, at 2–3.) He does not attach copies of the alleged correspondence with the post-conviction court.
II. EQUITABLE TOLLING ANALYSIS
AEDPA’s one-year statute of limitations may be subject to equitable tolling under appropriate circumstances, allowing courts to review otherwise time-barred habeas petitions where the failure to file in a timely fashion “unavoidably arose from circumstances beyond that litigant’s control.” Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 462 (6th Cir. 2012); accord Holland v. Florida, 460 U.S. 631, 645 (2010). To be entitled to equitable tolling, a petitioner must show: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (citation and internal quotation marks omitted). This is a fact-intensive inquiry to be evaluated on a case-by-case basis, and Petitioner carries “the ultimate burden of persuading the court that he or she is entitled to equitable tolling.” Keeling, 673 F.3d at 462.
Serious attorney misconduct such as abandonment may constitute extraordinary circumstances in this analysis, and “a client [cannot] be faulted for failing to act on his behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him.” Maples v. Thomas, 132 S.Ct. 912, 923–24 (2012). The Sixth Circuit has explained:
Both ineffective assistance of counsel and a substantial, involuntary delay in learning about the status of [petitioner’s] appeals may constitute extraordinary circumstances sufficient to warrant relief. Despite the presence of such circumstances, the statute of limitations will only be tolled if the circumstances were both beyond the control of the litigant and unavoidable with reasonable diligence.
Keeling, 673 F.3d at 462 (citation and internal quotation marks omitted).
The fact that Petitioner was still writing his post-conviction counsel in April 2006 asking about a ruling that – unbeknownst to him – had been issued more than three months earlier, establishes that Petitioner’s counsel did not notify him of that ruling in a timely fashion, and that Petitioner did suffer “a substantial, involuntary delay” in learning of that event. But Petitioner’s equitable tolling argument fails because he had ample reason to ...