United States District Court, E.D. Tennessee, Chattanooga
ANTWON M. COOK, Petitioner,
DAVID J. EBBERT, Warden, and HERBERT H. SLATTERY, III, Attorney General of the State of Tennessee, Respondents.
K. LEE MAGISTRATE JUDGE.
R. MCDONOUGH UNITED STATES DISTRICT JUDGE.
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.)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
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.
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.)
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.)
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).
The “In Custody” Requirement
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.
“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
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.)
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) ...