United States District Court, E.D. Tennessee, Greeneville
BOBBY BOWLING, a/k/a ROBERT E. BOLING, Petitioner,
RANDY LEE, Warden, Respondent.
Jordan United States District Judge.
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]. 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].
reasons below, the Court will GRANT
Respondent's Motion to Dismiss and will
DISMISS this petition.
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.
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.
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). 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.
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).
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.
Timely Filing of § 2254 Petition
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.
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. 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
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).
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. 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