United States District Court, E.D. Tennessee, Chattanooga
MARK S. ARMSTRONG, Petitioner,
DOUG COOK, Warden, Respondent.
S. MATTICE, JR., UNITED STATES DISTRICT JUDGE
Armstrong (“Petitioner”), a pro se state
prisoner, filed this petition for a writ of habeas corpus, 28
U.S.C. § 2254, challenging his 2004 Rutherford County,
Tennessee conviction for aggravated rape-an offense for which
he was sentenced to 20-years'imprisonment [Doc. 2 pp.1,
18]. Before the Court are Respondent Warden Doug Cook's
Motion to Dismiss on the ground of timeliness and his
supporting brief, as well as the contemporaneously-filed
state court record [Docs. 9, 10, 11, and 11-1 through 11-21].
Petitioner has not responded to the Motion to Dismiss, and
the time for doing so has now passed. See E.D. Tenn.
L.R. 7.1(a). The lack of a response from Petitioner
functions, not only as a waiver of opposition, but also as an
independent basis for granting the motion. See Notredan,
LLC v. Old Republic Exch. Facilitator Co., 531 F.
App'x 567, 569 (6th Cir. 2013); see also E.D.
Tenn. L.R. 7.2 (“Failure to respond to a motion may be
deemed a waiver of any opposition to the relief
sought”). After reviewing the pleadings, the Motion to
Dismiss, and the state court record, the Court finds that the
Warden's Motion to Dismiss should be GRANTED and this
petition DISMISSED as untimely.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) contains a one-year statute of
limitations governing the filing of an application for a
federal writ of habeas corpus. See 28 U.S.C. §
2244. The statute begins to run on the date the judgment
became final, which occurred, as relevant here, at the
conclusion of direct review. Id. §
2244(d)(1)(A). The time is tolled, however, during the
pendency of a properly filed application for state
post-conviction relief. Id. § 2244(d)(2).
was convicted on July 9, 2004 [Doc. 2 at 1]. Petitioner
carried an appeal to the Tennessee Court of Criminal Appeals
and, when unsuccessful there, he sought permission for
further review from the Tennessee Supreme Court. State v.
Armstrong, No. M2004-02432-CCA-R3-CD, 2005 WL 1769043
(Tenn. Crim. App. July 22, 2005), perm. app. denied
(Tenn. 2005). Permission to appeal was denied on December 19,
2005, and ninety-one days later, on Monday, March 20, 2006,
when the time expired for filing a petition for certiorari in
the U.S. Supreme Court, Petitioner's conviction became
final and AEDPA's one-year clock started to tick. Thus,
for purposes of § 2244(d)(1)(A), the time for filing
this § 2254 petition would end one year afterward, i.e.,
on March 20, 2007.
noted, the limitations statute is tolled while a properly
filed state post-conviction is pending. See 28
U.S.C. § 2244(d)(2). Petitioner filed an application for
state post-conviction relief in the Rutherford County Circuit
Court on June 28, 2006 [Doc. 11-14 pp. 3-56], after
AEDPA's one-year clock had ticked for one-hundred (100)
days. The post-conviction petition was denied by the trial
court, and the Tennessee Court of Criminal Appeals affirmed
the trial court's decision on June 25, 2008.
Armstrong v. State, No. M2007-01614-CCA-R3-PC, 2008
WL 2521228 (Tenn. Crim. App. June 25, 2008), perm. app.
denied (Tenn. 2008). The Tennessee Supreme Court
declined Petitioner's request for further post-conviction
appeal on December 8, 2008. Id. On December 9, 2008,
the AEDPA's clock re-started, see Fed. R. Civ.
P. 6(a)(1)(A), with 265 days left to run, i.e., up to and
including August 31, 2009.
argues that the statute was tolled by a motion to reopen his
post-conviction petition that he filed in the Rutherford
County Circuit Court on May 7, 2014 [Doc. 2 at 4, 18], though
the state court record contains no such a filing. Even if
Petitioner moved to reopen his post-conviction proceedings on
May 7, 2014, the motion to reopen would not have stopped the
clock from ticking. This is so because, by the time
Petitioner filed the purported motion, the AEDPA's clock
had already ceased ticking on his conviction and there was no
time left to toll. See Vroman v. Brigano, 346 F.3d
598, 602 (6th Cir. 2003) (“The tolling provision does
not . . . ‘revive' the limitations period (i.e.,
restart the clock at zero); it can only serve to pause a
clock that has not yet fully run. Once the limitations period
is expired, collateral petitions can no longer serve to avoid
a statute of limitations.”); Hargrove v.
Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002).
Therefore, any May 7, 2014 motion to reopen filed by
Petitioner would have no effect on the tolling calculus.
the AEDPA's clock resumed ticking on December 9, 2008,
continued to tick for 265 days, and stopped on Monday August
31, 2009. Petitioner filed this instant application for
habeas corpus relief on August 25, 2015,  under the prison
mailbox rule, see Houston v. Lack, 478 U.S.
266, 276 (1988); Towns v. United States, 190 F.3d
468, 469 (6th Cir. 1999). The filing date of the § 2254
petition was just shy of six years after the lapse of the
AEDPA's statute of limitations.
refute that his petition is time-barred, Petitioner invokes
“the toll of the statute” [Doc. 1 at 19]. The
one-year statute of limitations in AEDPA, is not
jurisdictional and is subject to equitable tolling in an
appropriate case. See Holland v. Florida, 560 U.S.
631, 645 (2010). An appropriate case for equitable tolling in
one where a petitioner shows “(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” and
prevented timely filing.” Id. at 649 (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Petitioner offers a mishmash of “tolling”
theories, none of those theories has any relevance whatsoever
to a tolling analysis. For example, Petitioner cites to the
retroactivity rule in Teague v. Lane, 489 U.S. 288
(1989), that holds that new rules will not be applied in
cases on collateral review. Petitioner then cites Penry
v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on
other grounds by Atkins v. Virginia, 536 U.S. 304
(2002), which discussed an exception to the retroactivity
rule. Though Petitioner did not pinpoint the part of
Penry upon which he is relying, the Court interprets
his argument that the state court lacked the power to punish
him as an assertion that his conduct was “beyond the
State's power to punish at all.” The Tennessee
legislature has enacted a law establishing an offense of
aggravated rape, which is violated by “the unlawful
sexual penetration of a victim by the defendant or the
defendant by a victim [where] ... the defendant causes bodily
injury to the victim....” State v. Armstrong,
2005 WL 1769043, at *11 (quoting Tenn. Code Ann. §§
39-13-502(a)(2)). Petitioner stands convicted of violating
the aggravated rape statute by a jury that determined that
the prosecution had proven the violation of “the
essential elements of the charged offense beyond a reasonable
doubt.” Id. at *12.
beyond cavil that Tennessee has jurisdiction to punish
defendants for the violation of its own state criminal
offenses. See Mayor, Aldermen & Commonalty of City of
N.Y. v. Miln, 36 U.S. 102, 139-40 (1837) (“No one
will deny, that a state has a right to punish any individual
found within its jurisdiction, who shall have committed an
offence within its jurisdiction, against its criminal laws.
“); see also State v. Rankin, 44 Tenn. 145,
151 (1867) (explaining that Tennessee “may and has
provided for the punishment of offenses against its own
laws”). Petitioner's suggestion to the contrary is
wholly frivolous. Since Petitioner shoulders the burden of
showing that equitable tolling is warranted, Pace,
544 U.S. at 418, and because he has failed to carry his
burden, the Court concludes that equitable tolling is not
appropriate and that it cannot be invoked to save this
untimely petition. The Court now finds that the petition is
untimely and that Petitioner does not qualify for equitable
tolling of his § 2254 limitations statute.
the Court does not believe that jurists of reason would
question whether the petition is timely or whether equitable
tolling saves this otherwise untimely petition. Nor would
reasonable jurists conclude that the timeliness or
equitable-tolling issues “are adequate to deserve
encouragement proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Therefore, the Court
will DENY issuance of a COA. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b).
this petition is untimely, respondent's dispositive
motion will be GRANTED and this petition will be DISMISSED.
APPROPRIATE JUDGMENT ...