United States District Court, M.D. Tennessee, Columbia Division
WILLIAM J. HAYNES, Jr., Senior District Judge.
Petitioner, Chris Allen Dykes, a state inmate, filed this pro se action under 28 U.S.C. § 2254, seeking the writ of habeas corpus to set aside his two state convictions for facilitation of first degree murder. In his petition, Petitioner asserts the following claims: (1) Petitioner's convictions are in violation of his constitutional rights because the offense of facilitation of attempted first degree felony murder does not exist under Tennessee state law; (2) Petitioner's constitutional rights to effective assistance of counsel and a fair trial were violated as Petitioner's counsel failed to explain adequately the offenses charged and possible sentence, Petitioner's counsel failed to preserve a record and Petitioner's counsel misled Petitioner into entering into a plea agreement; and (3) Petitioner was actually innocent. (Docket Entry No. 1). After a review of the petition, the Court appointed the Federal Public Defender to represent Petitioner. (Docket Entry No. 16). The Court granted appointed counsel the opportunity to obtain discovery. (Docket Entry No. 48).
In his amended petition (Docket Entry No. 49), Petitioner's claims, in essence, are: (1) that Petitioner's trial counsel failed to investigate adequately the circumstances of the shooting of Officer Norman Dalton and thereby neglected to identify and develop witnesses and evidence that could have supported Petitioner's account that he had no foreknowledge of Michael Murphy's access to a weapon or intent to shoot at Officers Dalton and Burrow and had not advised Murphy to shoot at the officers; (2) that prior to his guilty plea Petitioner's trial counsel failed to properly advise him regarding (a) the elements of the charged offenses as well as lesser included offenses, (b) how the State's evidence bore on those elements, (c) available defenses and how the evidence bore on such defenses, (d) the likelihood of conviction, (e) his sentencing exposure if convicted, and (f) whether to accept the State's plea offer; (3) that Petitioner's trial counsel failed to file a motion to withdraw the plea despite Petitioner's confusion about the terms of his plea and his request for such a motion; (4) that Petitioner received incomplete advice from trial counsel and the trial court regarding the precise offense(s) to which he was pleading guilty, his actual criminal history classification, and the felony class of the offense(s) of conviction; and (5) that Petitioner is factually innocent of criminal responsibility for, and criminal responsibility for facilitation of, attempted first-degree murder.
Before the Court is Respondent's motion to dismiss. (Docket Entry No. 52). Respondent contends, in sum: (1) that the petition is time-barred; (2) that the petition contains claims that are procedurally defaulted; and (3) that Petitioner has failed to show good cause for equitable tolling. In response (Docket Entry No. 54), Petitioner's appointed counsel states that he "has carefully reviewed the applicable law, the materials received in discovery, and the pleadings and record in [Petitioner's] case, and will not be filing a substantive response to the State's arguments for dismissal."
For the reasons set forth below, the Court concludes that based upon a review of the state record, Petitioner is not entitled to habeas relief as his petition is time-barred under 28 U.S.C. § 2244(d)(1).
A. Review of the State Record
On May 19, 1999, the Marshall County Grand Jury returned a ten-count indictment against Petitioner. Counts one and four charged the offense of criminal responsibility for attempted first degree murder, and counts two and five charged the offense of criminal responsibility for facilitation of attempted first degree murder. Dykes v. Sexton, No. E2011-00592-CCA-R3-HC, 2012 WL 601741, at *1 (Tenn. Crim. App. Feb. 24, 2012). On September 22, 1999, Petitioner pleaded guilty on counts one and four and was sentenced to twenty-six years on each count to run concurrently. The Tennessee Court of Criminal Appeals noted:
The petition to enter a plea of guilty read as follows: "1 4-Criminal responsibility for facilitation of attempted 1st degree murder, A felony. 26 yrs on each to run concurrent with each other." The judgment forms for counts one and four listed the charged and convicted offenses as "Criminal Responsibility Conduct Another." In the area provided to list the applicable Tennessee Code Annotated sections, the judgments referenced only "XX-XX-XXX, " the first degree murder statute. The offenses were classified as Class A felonies and the Petitioner was sentenced as a Range II, multiple offender to 26 years with the sentences to run concurrently.
On July 5, 2002, Petitioner filed a state post-conviction petition. On July 22, 2002, without an evidentiary hearing, the post-conviction court dismissed the petition as untimely. Id . Petitioner did not appeal, but on March 28, 2005, filed a motion to reopen his post-conviction petition alleging that he "was not informed that he had a right to appeal the original dismissal of his post-conviction petition since the petition was dismissed without a hearing on the merits." Dykes v. State, No. M2005-00948-CCA-R3-PC, 2006 WL 264613, at *1 (Tenn. Crim. App. May 30, 2006). On April 6, 2006, the post-conviction court denied Petitioner's motion to reopen, finding that both the motion and the petition were untimely. Id . On appeal the Tennessee Court of Criminal Appeals affirmed the order of dismissal. Dykes, 2012 WL 601741, at *1. On May 30, 2006, the Tennessee Supreme Court denied Petitioner's application for permission to appeal. Id.
On July 27, 2010, Petitioner filed a state habeas corpus action that the state trial court dismissed on the grounds that the Petitioner failed to attach "complete, legible judgments for the two convictions he [was] challenging'" and that his "claim was a challenge to the sufficiency of the evidence and not cognizable in a habeas corpus proceeding.'" Id. at *2. On appeal, Petitioner contended that the habeas corpus court erred by dismissing his petition on procedural grounds and that the judgments against him were void because they reflected a conviction of criminal responsibility for first degree murder when he was indicted for criminal responsibility for attempted first degree murder, essentially arguing "that his judgments reflected convictions for a more serious offense than he had been charged." Id. at *1, 4. On February 24, 2012, the Tennessee Criminal Court of Appeals held that the habeas court erred by summarily dismissing the petition on procedural grounds, but affirmed the dismissal on the grounds that Petitioner did not state a cognizable claim for habeas relief. Id. at *3-4. As to Petitioner's claims that the judgments incorrectly listed him as having been convicted of a crime that he was not indicted for and to one that he did not plead guilty, the Tennessee Criminal Court of Appeals concluded:
Based upon the record before us, we believe that there are two likely scenarios regarding the Petitioner's guilty plea. The first and most likely is that the Petitioner pled guilty to criminal responsibility for attempted first degree murder as charged in counts one and four of the indictment. In that case, the judgments failed to list the complete name of the offense and failed to list all of the applicable Tennessee Code Annotated sections. Such an omission would amount to a mere clerical error. See Joey Lee Smith v. Kevin Myers, No. M2005-01732-CCA-R3-HC, 2005 WL 3681656, at *2 (Tenn.Crim.App. Jan.18, 2006) (citing McChristian v. State, 159 S.W.3d 608, 610 (Tenn.Crim.App.2004)). Therefore, the omission "would not give rise to void judgments, " and the judgments should be corrected to reflect that the charged and convicting offenses were criminal responsibility for attempted first degree murder and to list all three applicable Tennessee Code Annotated sections, XX-XX-XXX, 12-101, and 13-202. Id .; see also Cantrell v. Easterling, 346 S.W.3d 445 (Tenn.2011).
On the other hand, there is evidence that the Petitioner may have pled guilty to criminal responsibility for facilitation of attempted first degree murder. Criminal responsibility for attempted first degree murder would be a Class A felony while criminal responsibility for facilitation of attempted first degree murder would be a Class B felony. See Tenn.Code Ann. §§ 39-11-403(b), 12-107(a). If the Petitioner had pled guilty to criminal responsibility for facilitation of attempted first degree murder, then his 26-year sentence would be outside the range for a Class B felony committed by a Range II offender. See Tenn.Code Ann. § 40-35-112 (1999). However, a "plea-bargained sentence may legally exceed the maximum available in the offender Range so long as the sentence does not exceed the maximum punishment authorized for the plea offense." Hoover v. State, 215 S.W.3d 776, 780 (Tenn.2007). Had the Petitioner pled guilty to criminal responsibility for facilitation of attempted first degree murder, his sentence would still be below the maximum 30-year punishment authorized for a Class B felony, and the sentence would be legal on the face of the judgment. See Tenn.Code Ann. § ...