United States District Court, E.D. Tennessee
L. COLLIER UNITED STATES DISTRICT JUDGE
November 21, 2014, Petitioner filed a pro se petition for
writ of habeas corpus challenging the legality of his
confinement under a judgment of the Hamilton County Criminal
Court [Doc. 1]. Respondent requested and received an
extension of time to file a response [Docs. 6, 7]. On June 8,
2016, Respondent requested that the Court dismiss
Petitioner's motion as untimely [Doc. 10]; that motion is
now before the Court. Also before the Court are
Petitioner's “motion in opposition to
Respondent's motion [for extension]” [Doc. 8], and
Respondent's requests to withdraw original counsel and
appoint substitute counsel [Doc. 16].
21, 1997, Petitioner pled guilty to two counts of child rape
in Hamilton County Criminal Court Cases 200424 and 200425. He
received a sentence of twenty-five years to be served at one
hundred percent on each count. The court ordered the
sentences to be served concurrently to each other. The court
also ordered the sentences to be served concurrently to
Georgia convictions involving similar offenses against the
same victim, to which Petitioner had previously pled guilty
on August 22, 1996, and received a sentence of twenty
years' incarceration followed by twenty years'
probation. Petitioner was transferred to Georgia to serve his
27, 2011, Petitioner learned that Tennessee authorities had
placed a detainer on him seeking his return to Tennessee
after the completion of the Georgia sentence. On September
21, 2011, Petitioner filed a “notice” in the
United States District Court for the Northern District of
Georgia challenging both his Georgia and Tennessee
convictions and the Tennessee detainer [E. D. Tenn. Case No.
1:11-cv-00316, Doc. 1]. The court transferred the aspects of
the case challenging the Tennessee convictions and detainer
to the United States District Court for the Eastern District
of Tennessee [E. D. Tenn. Case No. 1:11-cv-00316, Doc. 2].
Because Petitioner's pleading was unclear, the Court
provided Petitioner with forms for filing a petition for writ
of habeas corpus and a complaint under 42 U.S.C. § 1983,
and ordered him to file the appropriate forms [E. D. Tenn.
Case No. 1:11-cv-00316, Doc. 4]. He submitted a complaint
under 42 U.S.C. § 1983 [E. D. Tenn. Case No.
1:11-cv-00316, Doc. 8], but never filed the petition for writ
of habeas corpus. The Court dismissed the complaint for
failure to state a claim [E. D. Tenn. Case No. 1:11-cv-00316,
on October 18, 2011, Petitioner filed a “motion to
remove detainer” in the Hamilton County Criminal Court.
On October 31, 2011, Petitioner filed a motion requesting the
court void his sentence, allow Petitioner to file an untimely
motion to withdraw his guilty plea, and withdraw the
detainer. The trial court denied Petitioner's motion to
remove the detainer on November 14, 2011, and denied
Petitioner's motion to protest and contest transfer to
Tennessee on December 6, 2011. Petitioner appealed the denial
to the Tennessee Court of Criminal Appeals, which dismissed
the appeal on February 26, 2013. State v. Martin,
No. E2012- 00029-CCA-R3-CD, 2013 WL 709593, at *1 (Tenn.
Crim. App. Feb. 26, 2013). On July 18, 2012, while
Petitioner's appeal was pending, Georgia authorities
paroled Petitioner to the custody of Tennessee.
filed a petition for post-conviction relief in the Hamilton
County Criminal Court on July 25, 2013. The post-conviction
court determined that the petition was barred by the statute
of limitations and summarily dismissed it on August 28, 2013.
Petitioner appealed, and the Tennessee Court of Criminal
Appeals affirmed the dismissal on April 9, 2014. Martin
v. State, No. E2013-02343-CCA-R3-PC, 2014 WL 1396678, at
*3 (Tenn. Crim. App. Apr. 9, 2014), perm. app.
denied (Tenn. Sept. 19, 2014). The Tennessee Supreme
Court declined review. Id.
filed the instant federal petition for writ of habeas corpus
under 28 U.S.C. § 2254 on November 21, 2014 [Doc. 1]. He
bases his challenge on the fact that Tennessee authorities
have incarcerated him after parole on his Georgia sentence
[Id.]. This Court ordered Petitioner to show cause
why the petition should not be dismissed as untimely [Doc.
2]; he complied [Doc. 3]. Respondent filed a motion to
dismiss the application because it is time-barred under the
28 U.S.C. § 2244(d)'s statute of limitations [Doc.
10]. Petitioner responded in opposition [Doc. 17].
MOTION TO DISMISS
AEDPA contains a one-year statute of limitations governing
the filing of an application for a federal writ of habeas
corpus. 28 U.S.C. § 2244(d). The limitations period
starts to run when one of four circumstances occurs: (1) the
conclusion of direct review; (2) upon the removal of an
impediment which prevented a petitioner from filling a habeas
corpus petition; (3) when a petition alleges a constitutional
right, newly recognized by the Supreme Court and made
retroactive on collateral review; or (4) when a claim depends
upon factual predicates which could not have been discovered
earlier through the exercise of due diligence. Id.;
see also Isham v. Randle, 226 F.3d 691, 693 (6th
Cir. 2000) (same). Once triggered, the limitations period is
statutorily tolled during pendency of “a properly filed
application for state-based post-conviction relief or other
collateral review with respect to the pertinent judgment or
initial matter, the Court notes that neither subsection
(d)(2) nor subsection (d)(3) apply under the facts of the
instant case. Thus, timeliness of his petition depends on
whether it was submitted within the one year windows for
subsection (d)(1) or subsection (d)(4). For purposes of
subsection (d)(1), the challenged conviction became final on
June 20, 1997, at expiration of the time to file a direct
appeal with the Tennessee Court of Criminal Appeals. Absent
statutory or equitable tolling, the one-year statutory period
would have expired on June 20, 1998.
extent Petitioner attempts to rely on subsection (d)(4)-which
applies where a claim depends upon a factual predicate which
could not have been discovered earlier thought the exercise
of due diligence, the only possible triggering event would
have been when Petitioner discovered that Tennessee planned
to resume custody after Georgia released him on parole. The
latest possible date on which Petitioner could have
discovered that information would have been July 27, 2011-the
date that he learned about Tennessee's active detainer.
Absent statutory or equitable tolling, the one-year statutory
period would have expired on July 27, 2012.
cannot rely on the “notice” filed with the United
States District Court for the Norther District of Georgia and
subsequently transferred to this Court as a source of
statutory tolling because when given the opportunity to amend
the ambiguous filing by submitting a complaint under §
1983 or petition under § 2254, he chose to submit only
the former [E. D. Tenn. Case No. 1:11-cv-00316, Doc. 8]. Even
if he had submitted a federal request for habeas corpus, that
request would have ...