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Levy v. Osborne

United States District Court, M.D. Tennessee, Columbia Division

December 22, 2016

CARLOS LEVY, Petitioner,
DAVID R. OSBORNE, Warden, Respondent.


          Kevin H. Sharp, United States District Court Chief Judge.

         Pending before the Court are the Report and Recommendation of the Magistrate Judge (R&R) (Docket No. 116) and Petitioner's objections to the R&R. (Docket No. 119.) Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, this Court is required to “determine de novo any part of the magistrate judge's disposition that has been properly objected to, ” and “may accept, reject, or modify the recommended disposition, receive further evidence, or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Having reviewed the R&R, Petitioner's objections and the file, including the transcript of the evidentiary hearing conducted by the Magistrate Judge and the parties' post-hearing briefs (Docket Nos. 110, 114, 115), the Court agrees with the Magistrate Judge that Petitioner is not entitled to equitable tolling of the statute of limitations and that his petition is therefore untimely.


         The context relevant to the issue before the Court are that Petitioner pleaded guilty without a plea agreement to several criminal offenses on April 19, 2006, and was sentenced to an effective 30 year prison sentence on June 7, 2006. (Docket No. 2, at 12.) Through counsel, Petitioner appealed the sentence, and the Tennessee Court of Criminal Appeals affirmed on April 4, 2007. (Docket No. 2, at 11.) After counsel moved to withdraw from further representation (Docket No. 2, at 14), Petitioner filed a pro se application for permission to appeal to the Tennessee Supreme Court on June 5, 2007 (, [1] which was denied on August 13, 2007. (Docket No. 2, at 18.) His conviction was thus final on Monday, November 12, 2007 (the first business day following his 90-day window to petition the United States Supreme Court for certiorari under Supreme Court Rule 13.1; see Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009) (holding that state convictions are final under § 2244(d)(1)(A) when Supreme Court certiorari is exhausted or when the time for filing a certiorari petition expires)).

         Petitioner's next action to challenge his convictions or sentences was the submission of his original pro se petition in this case, which is deemed filed on January 25, 2010, the date that he certified that he was mailing it to the district court.[2] (Docket No. 2, at 9.) That petition asserted 3 claims: (1) Petitioner's convictions and sentences were void because the trial court did not have jurisdiction over the charges arising from another county; (2) duplicative charges and consecutive sentences violated Petitioner's right to due process because the charges arose from a single course of conduct; and (3) trial counsel was ineffective for failing to arrange for an interpreter for the Spanish-speaking Petitioner in connection with his plea, and Petitioner was prejudiced because he would not have pleaded guilty if he had understood that he would receive consecutive sentences. With the Court's permission, Petitioner filed an amended pro se petition on March 15, 2016, which withdrew his admittedly unexhausted ineffective-assistance claim. (Docket Nos. 12, 13.) Respondent filed a motion to dismiss as untimely (Docket No. 15), to which Petitioner responded in opposition. (Docket No. 26.) In the interim, however, the Court appointed counsel to represent Petitioner and file an amended complaint, and denied Respondent's motion without prejudice. (Docket No. 21.) Through counsel, Petitioner filed a third petition on February 17, 2011. (Docket No. 39.) This petition reasserted the ineffective-assistance claim from the original pro se petition, and added an independent claim that Petitioner's plea was not knowing and voluntary because he did not understand what was said at the plea hearing. (Id.) Despite being styled as an “Amended Petition, ” the petition asserted that it did not “abrogate” any of the claims asserted in Petitioner's pro se filings, but merely “supplement[ed]” them.[3] (Id. at 3-4.) On July 18, 2011, Respondent filed an answer asserting the defenses of statute of limitations and the doctrine of procedural default, without addressing the merits of Petitioner's claims. (Docket No. 46.) In his reply filed November 7, 2011, Petitioner asserted that he is entitled to equitable tolling of the statute of limitations and has cause to overcome procedural default, because he is not able to communicate in English and had not had access in prison to legal materials in Spanish or bilingual legal assistance. (Docket No. 52.) The case was referred to the Magistrate Judge on July 28, 2011. (Docket No. 47.)

         On May 9, 2013, the Magistrate Judge entered an R&R finding no basis for tolling and recommending that the petition be dismissed as time-barred. (Docket No. 53.) Following Petitioner's objection, on July 26, 2013, the Court rejected the R&R and returned the case to the Magistrate Judge for further development of the evidence pertaining to Petitioner's equitable tolling issue. (Docket No. 55.) The Magistrate Judge held an evidentiary hearing on December 16, 2015. (Docket No. 110.)

         On May 3, 2016, the Magistrate Judge entered a second R&R, in which he found that Petitioner was not a credible witness and that his testimony was “significantly impeached” on cross-examination and credibly refuted by the testimony of his trial counsel. (Docket No. 116, at 21.) He concluded that Petitioner is not entitled to equitable tolling and, moreover, that his ineffective-assistance claim fails on the merits:

The Court does not credit Mr. Levy's testimony that he did not speak English well enough to understand what was happening at the plea hearing. The Court finds that Mr. Levy understood the situation at the plea hearing and his rights. He voluntarily and knowingly pled guilty to the charges pursuant to an open plea agreement. Ms. Hargrove's testimony that Petitioner never asked for an interpreter at the plea hearing is uncontradicted. He is not entitled to equitable tolling of the statute of limitations.
Furthermore, based upon the facts found by the undersigned, trial counsel could not possibly have been ineffective by failing to secure an interpreter either at the plea hearing or prior thereto.

(Id. at 21-22.) He therefore recommended that the petition be denied and this action be dismissed with prejudice. (Id. at 22.)

         After obtaining an extension of time, Petitioner filed his objections to the R&R on June 16, 2016. (Docket Nos. 118, 119.)


         Because timing is necessarily significant to the statute of limitations and equitable tolling issues in this case, the Court prefaces the rest of the evidence adduced at the hearing with the following timeline established by Petitioner's own testimony: Petitioner was transferred to Northwest Correctional Complex (“Northwest”) in July 2006 (while his direct appeal was still pending), and remained there until August 2009. (Docket No. 110, at 63.) From August 2009 until November 2011, he was housed in the Morgan County Correctional Complex (“Morgan County”). (Id. at 66.)

         Reynaldo Sanchez, a bilingual inmate who had contact with Petitioner in the Marshall County Jail and later in Northwest, testified that when they were in the Marshall County Jail together, he only communicated with Petitioner in Spanish, because Petitioner did not understand any English words except for curse words. (Docket No. 110, at 8.) Sanchez would help Petitioner in jail by translating for him with guards and helping him fill out request forms. (Id. at 9.) They never discussed how the criminal justice system worked, but when Petitioner came back from court appearances, he would tell Sanchez that he did not know what had happened. (Id. at 10.) Petitioner was moved out of the jail before Sanchez, but the two met again sometime later in Northwest, where they only spoke once or twice. (Id. at 11.) Petitioner told Sanchez “that he had got too much time, and he didn't understand what he signed for, ” and Sanchez told him “you've got to try to go back.” (Id. at 12.) Sanchez had no knowledge of legal procedures, and said that the prison did not have legal materials in Spanish or Spanish-speaking legal advisors or library staff. (Id. at 12-14.) Sanchez testified that he never heard Petitioner speak any English at all, but that Petitioner never asked him about getting an interpreter or, to his knowledge, asked staff for one. (Id. at 14, 15.) He testified that there were “a lot of Spanish speakers” at Northwest, but he did not know if Petitioner tried to communicate with any of them about legal assistance, because he and Petitioner were in different units. (Id. at 15.) There were also two correctional officers who worked the visiting area at Northwest who spoke Spanish. (Id. at 16, 18.) Sanchez testified that for some period of time at Northwest, Petitioner was “in the suicide tank” and had “no access to nothing, ” and that he thought Petitioner was otherwise on close custody, which limited him to submitting written requests for library materials rather than visiting the library. (Id. at 17-18.) The prison did not provide court addresses to inmates. (Id. at 19.)

         Petitioner's next witness was Angel Delgado, a bilingual former inmate who spent some amount of time housed with Petitioner in the same maximum security pod in Morgan County. (Docket No. 110, at 21-22.) He testified that inmates in maximum security were locked in their cells 23 hours a day, but managed to communicate with each other through doors and vents and by sending notes and letters. (Id. at 24.) Delgado and Petitioner always spoke to each other in Spanish, because he does not recall that Petitioner knew any English words. (Id. at 25.) Petitioner sometimes attempted to communicate with prison staff with hand signals, and sometimes asked Delgado to translate for him. (Id. at 26.) Delgado did not know anything about the law, and “as far as legal work, I just always told him, just try to put in an inmate request, ” because maximum security inmates are not allowed to go to the library but could request books or to talk to an inmate advisor. (Id. at 26-27.) He did not think that inmate advisors had any specialized legal training. (Id. at 28.) Delgado did not recall there being any Spanish speakers in the prison library, and did not know whether there were any Spanish legal materials there. (Id. at 28-29.) Delgado testified that “[e]verybody was trying to go to court, trying to get sentence reduced, whatever, ” but he and Petitioner did not talk about the details of Petitioner's case. (Id. at 26.) He did not recall Petitioner's ever asking him to help find someone to assist with his legal case. (Id. at 28.) There were no materials posted in their unit explaining how to go to court or to get advice about going to court, in either English or Spanish. (Id. at 29.) Delgado testified that there were only three Spanish-speaking inmates in the pod. (Id.) He did not know whether Petitioner had ever asked staff for an interpreter or asked any other inmates for legal assistance. (Id. at 32-33.) Delgado testified that when inmates arrived in maximum security they received a rule book, which he thought contained “the address of the courthouse, ” but he was not sure what courthouse. (Id. at 34.) They did not receive anything containing legal advice about how to go to federal court, but they could submit an inmate request to the library for legal advice “and they will come back and speak to you, ” and provide information about what legal resources were available. (Id. at 34-35.)

         Mike Settle, an inmate who does not speak any Spanish, testified that he was housed in Morgan County in the same unit as Petitioner from 2009 to 2010. (Docket No. 110, at 37.) Settle testified that it was hard to get library materials at that time, that it would take a week for requests to be answered and that nobody was coming to assist them - “Especially if you speak Spanish, there wasn't nobody.” (Id. at 38.) During the time Petitioner was there, there was no inmate legal advisor who would come give maximum security inmates legal advice, and there was nothing posted on the unit walls or otherwise provided to inmates to explain federal court procedures or habeas corpus law, in English or Spanish. (Id. at 39-40.) Settle testified that he personally has developed some knowledge of the law in prison, and that he has filed lawsuits himself and has assisted other inmates preparing and filing lawsuits. (Id. at 39.) A bilingual inmate informed Settle about Petitioner's desire to go back to court, but Settle and Petitioner were unable to communicate directly because Petitioner could not speak any English beyond words like “hi, yes or no.” (Id. at 40-41). Communicating through the other inmate, Settle agreed to assist Petitioner and had Petitioner pass his legal paperwork to him. (Id. at 42-43.) Settle reviewed the paperwork, conducted some research and drafted a petition for Petitioner as quickly as he could. (Id. at 43.) Settle wrote the petition, copied it, put it in an envelope with Petitioner's name on it, and had the bilingual inmate tell Petitioner to mail it to the clerk. (Id. at 43.) After the habeas petition was filed, Settle drafted a grievance for Petitioner about the lack of Spanish-speaking assistance, but he did not recall being told “how long these interpreter issues had been a problem” for Petitioner. (Id. at 44-45.) Settle also drafted a federal civil complaint for Petitioner about Morgan County's failure to provide Spanish interpreters. (Id. at 45-46.)

         On cross-examination, Settle testified that he has been filing habeas petitions since 2003 or 2006, and that form federal habeas petitions are available from the law library and from the federal court. (Id. at 48-49.) Settle first heard that Petitioner wanted to file a challenge to his conviction in 2009, and at that time Settle was the only inmate in the unit who was familiar with filing pro se pleadings in court. (Id. at 50.) To Settle's knowledge, before Petitioner met him, Petitioner had never attempted to file any kind of inquiry with the court or tried to get legal assistance or an interpreter. (Id. at 52.) Petitioner had concluded his state proceedings, “[b]ut when that stopped, he didn't know no further that he had - could bring it over here and file a 2254.” (Id. at 53.) On re-direct, Settle testified that in order to obtain a blank federal habeas form petition from the library, he would have to submit a written request specifying the form he wanted, and that to his knowledge there were no Spanish speakers working in the library. (Id. at 54.)

         Finally, Petitioner testified on his own behalf, through an interpreter. He grew up speaking Spanish in Puerto Rico, only completed the second or fifth grade in school, and came to the continental United States when he was 21. (Docket No. 110, at 56-57.) He testified to the effect that he had been provided with an interpreter during proceedings on a previous criminal charge, but did not have one during proceedings for the convictions he is currently challenging, and did not understand what was happening during the proceedings. (Id. at 59-61.) He did not receive any material in Spanish about his legal rights or filing federal court lawsuits in either the Marshall County Jail or in the Tennessee Department of Correction (TDOC) classification center. (Id. at 61-62.) After he was classified, Petitioner was moved to Northwest in July 2006. (Id. at 63.) As a close security inmate at Northwest, Petitioner did not have access to the library. (Id. at 63.) After saying that he did not have access to any Spanish-speaking staff at Northwest to help him with legal questions, the Petitioner testified:

Q. Did you try to find other inmates who could help you with your legal case?
A. I didn't know that I could appeal. I had no understanding that ...

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