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Bowling v. Lee

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

March 30, 2018

BOBBY BOWLING, a/k/a ROBERT E. BOLING, Petitioner,
v.
RANDY LEE, Warden, Respondent.

          MEMORANDUM OPINION

          Leon Jordan United States District Judge.

         State inmate Bobby Bowling (“Petitioner”) has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement under his 2007 Sullivan County, Tennessee Criminal Court judgment of conviction [Doc. 2]. Respondent Warden Randy Lee has moved to dismiss Petitioner's habeas corpus petition, asserting that it is untimely under 28 U.S.C. § 2244(d)(1)(A) [Doc. 10]. In support of his Motion to Dismiss, Respondent has submitted a brief and copies of the state court record [Docs. 11-12].[1] Petitioner has responded to the Motion to Dismiss, arguing that he showed due diligence in pursuit of his claims and invoking equitable tolling of § 2244(d)'s statute of limitations to save his § 2254 petition from the application of any time-bar [Doc. 13].

         For the reasons below, the Court will GRANT Respondent's Motion to Dismiss and will DISMISS this petition.

         I. BACKGROUND

         On January 10, 2007, a Sullivan County jury convicted Petitioner of one count of aggravated robbery [Doc. 2 p.1]. State v. Bowling, No. E2008-00351-CCA-R3-CD, 2009 WL 482763 (Tenn. Crim. App. Feb. 26, 2009). Petitioner was sentenced to thirty years as a career offender and, on October 12, 2007, the judgment was entered. Id., 2009 WL 482763, at *1. Petitioner filed a direct appeal in the Tennessee Court of Criminal Appeals (“TCCA”), but the TCCA rejected his claim of insufficient evidence and held that all other issues had been waived by the untimely filing of his motion for a new trial. Id., 2009 WL 482763, at *6.

         Petitioner returned to the trial court, filed a petition for post-conviction relief, and was granted permission to file a timely motion for a new trial. State v. Bowling, No. E2011-00429-CCA-R3-CD, 2013 WL 816176 (Tenn. Crim. App. Mar. 5, 2013). The trial court overruled Petitioner's motion for a new trial and Petitioner filed his second direct appeal in the TCCA. Id., 2013 WL 816176, at * 1. The TCCA rejected Petitioner's claims that the trial court erred by denying his motion for new counsel and by failing to suppress photographs and testimony that he characterized as “fruit of the poisonous tree” [Doc. 2 at 3]. Id., 2013 WL 816176, at *1.

         Petitioner again returned to the trial court and filed a motion to reopen his post-conviction proceedings. Boling v. State, No. E2014-02258-CCA-R3-PC, 2015 WL 5612899 (Tenn. Crim. App. Sept. 24, 2015), perm app. denied (Tenn. 2016).[2] The trial court granted the motion to reopen and, after an evidentiary hearing on Petitioner's claims of ineffective assistance of counsel, denied collateral relief. Id., 2015 WL 5612899, at *1. Petitioner filed an appeal and the TCCA affirmed the trial court's denial of the post-conviction petition. Id., 2015 WL 5612899, at *9. On February 18, 2016, the Tennessee Supreme Court (“TSC”) declined to permit Petitioner to file a further appeal.

         The instant § 2254 petition was filed on February 24, 2017, the date that Petitioner verified under penalty of perjury that he placed his petition in the prison mailing system [Doc. 2 at 14]. See Houston v. Lack, 487 U.S. 266, 276 (1988) (deeming an action to be filed on the date an inmate delivers it to the prison authorities for mailing); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999) (finding that a motion to vacate signed under penalty of perjury one day before the lapse of the relevant limitation statute indicated that the motion was delivered to prison mailroom personnel before the filing deadline).

         II. DISCUSSION

         The two issues before the Court are: (1) whether Petitioner filed his § 2254 application within the controlling statute of limitations, and (2) if he did not, whether the period for filing his application should be equitably tolled.

         A. Timely Filing of § 2254 Petition

         The 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(d)(1). The statute begins 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 filing 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. The statute also contains a time-tolling feature: The time “during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation . . . .” 28 U.S.C. § 2244(d)(2). The first circumstance is the relevant one here.

         To determine the timeliness of this petition, the Court first must determine the date Petitioner's conviction became final. On March 5, 2013, the TCCA denied Petitioner's second direct appeal. State v. Boling, 2013 WL 816174, at *1. Sixty days later (i.e., May 4, 2013), the time expired for Petitioner to seek review of the TCCA's decision in the TSC. Tenn. R. App. P. 11(b). Because May 4, 2013, was a Saturday, Petitioner had until Monday, May 6, 2013, to petition the TSC for permission to appeal.[3] Thus, Petitioner's conviction became final on May 6, 2013, and the next day, the AEDPA's one-year clock began to tick. Fed.R.Civ.P. 6(a)(1)(A); see also Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (where a state court reopens a direct appeal, a conviction is not final until the conclusion of the out-of-time appeal).

         Accordingly, for purposes of § 2244(d)(1)(A), the time for filing this § 2254 petition would expire on May 7, 2014, unless the time was tolled by Petitioner's proper filing of a collateral review petition. 28 U.S.C. § 2244(d)(2).

         Petitioner filed his motion to reopen his state petition for post-conviction relief on May 9, 2013 [Doc. 12-16 at 52-62], two days after the AEDPA one-year clock started ticking. On that date, the clock stopped.[4] It remained stopped throughout Petitioner's re-opened post-conviction proceedings, including his first appeal to the TCCA, and his application to the TSC seeking permission to appeal the TCCA's decision. Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (holding that claim is “pending” for the entire term of state court review, including intervals between one state court's judgment, the filing of a timely appeal with a higher state court, and “until the application has achieved final resolution through the State's ...


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