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Cook v. Ebbert

United States District Court, E.D. Tennessee, Chattanooga

August 29, 2017

ANTWON M. COOK, Petitioner,
DAVID J. EBBERT, Warden, and HERBERT H. SLATTERY, III, Attorney General of the State of Tennessee, Respondents.




         Antwon M. Cook, (“Petitioner”), a federal prisoner, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his 2006 Bradley County, Tennessee convictions for cocaine-related offenses. (Doc. 1, at 1.)[1]Respondent Warden David J. Ebbert has moved to dismiss the petition, arguing that it is untimely under 28 U.S.C. § 2244(d)(1)(A). (Doc. 7.) In support of the motion to dismiss, Respondent has submitted a brief and copies of the state court record. (Docs. 8, 9.) Petitioner has responded, arguing that equitable tolling of § 2244(d)'s statute of limitations applies to save his otherwise untimely petition. (Doc. 15.) For the reasons below, the Court will GRANT Respondent's motion to dismiss (Doc. 7) and will DISMISS the petition.

         I. BACKGROUND

         On January 9, 2006, pursuant to his guilty plea, Petitioner was convicted in the Bradley County Criminal Court on one count of the sale of more than one-half gram of cocaine and one count of possession with the intent to sell more than one-half gram of cocaine. (Doc. 9-1, at 20- 21.) As a result, Petitioner received two concurrent eight-year sentences, set to be served concurrently with a prior federal sentence. (Id.) Petitioner did not pursue a direct appeal.

         On December 2, 2013, Petitioner filed a petition for a writ of error coram nobis in the state trial court. (Id. at 3-15.) Among other claims for collateral relief, Petitioner asserted in his petition he received ineffective assistance of counsel, which resulted in the imposition of an illegal sentence. (Id. at 7.) More specifically, Petitioner maintained that counsel induced him to plead guilty by promising him that he could serve his state sentences concurrently with his federal sentence. (Id.) However, in 2010, when Petitioner was released to federal custody, he applied for but was denied sentencing credits for the state sentence. Petitioner understood, from this experience, that he was precluded from serving his federal sentence concurrent with his state sentences due to errors in his state sentencing judgment. (Doc. 9-2 at 3.) Petitioner claimed that those alleged errors adversely affected his current federal confinement because a state court's judgment directing that state sentences run concurrently with a federal sentence does not bind the BOP in the execution of the federal sentence. (Doc. 9-1 at 12.)

         The trial court ruled that Petitioner had shown no grounds for coram nobis relief and that the petition was untimely, even if the pleading was construed as a post-conviction petition, and it then dismissed the petition. (Id. at 43.) On appeal, the Tennessee Court of Criminal Appeals (“TCCA”) agreed that the petition was untimely and affirmed the lower court's decision. (Doc. 9-2, at 3.)

         On August 28, 2014, Petitioner filed a post-conviction petition in the trial court, asking that equitable tolling be applied to the limitations statute. (Doc. 9-3, at 4-9.) The trial court concluded that due process did not toll the post-conviction statute of limitations and dismissed the petition as untimely. (Id. at 53-59.) On appeal, the TCCA determined that equitable tolling did not apply and, on June 2, 2015, affirmed the lower court's decision. (Doc. 9-4, at 1-4.) The Tennessee Supreme Court denied Petitioner permission to appeal on September 17, 2015 (Doc. 9-5, at 1), and Petitioner subsequently filed the instant § 2254 petition (Doc. 1).


         A. The “In Custody” Requirement

         Federal courts are authorized to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). While the parties have not raised the issue of the Court's jurisdiction over the petition, “federal courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise the issue sua sponte.” Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). The Court does so here.

         The “in custody” term in § 2254(a) has been interpreted as a requirement that the habeas petitioner be ‘“in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). Thus, where a conviction has been fully served, a habeas petitioner is no longer “in custody” under that conviction, and a federal court lacks jurisdiction to set aside the conviction on the ground that the conviction was obtained in violation of the United States Constitution. Maleng, 490 U.S. at 492. After a conviction has completely expired, the collateral consequences of such a conviction are not enough to render the petitioner “in custody” under § 2254(a). Id. There is one caveat, however. A petitioner who challenges the imposition of consecutive sentences may attack a conviction underlying that sentence, even if that conviction has expired. Garlotte v. Fordice, 515 U.S. 39, 41 (1995). That caveat is inoperative here because Petitioner's challenge is to a state court judgment imposing concurrent state sentences, not consecutive sentences.

         The record in this case reflects that, on January 9, 2006, Petitioner was sentenced to concurrent eight-year terms of confinement, receiving pretrial jail credits for a period that spanned two years, one month and twenty-eight days. (Doc. 9-3, at 13-14.) Petitioner completed his state sentences on June 1, 2010, four years, four months and twenty-three days later. (Id. at 16.)

         On September 16, 2016, Petitioner filed the instant habeas corpus petition. (Doc. 1.) Petitioner does not enjoy the benefit of the prison mailbox rule announced in Houston v. Lack, 478 U.S. 266, 276 (1988) (deeming a prisoner's action to be filed on the date that it is properly delivered to the prison officials for mailing), because Petitioner's pleading was mailed to the Court by a third party (Doc. 1-1, at 1; Doc. 1-2, at 1). See Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) ...

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