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Fusco v. Lebo

United States District Court, M.D. Tennessee, Nashville Division

August 16, 2019

ROBERT FUSCO, Petitioner,
v.
JONATHAN LEBO, Warden, Respondent.

          MEMORANDUM AND ORDER

          Aleta A. Trauger United States District Judge

         I. Introduction

         The petitioner, Robert Fusco, is a state prisoner incarcerated at the Riverbend Maximum Security Institution in Nashville, Tennessee. He has filed a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and has paid the filing fee.

         According to the petition, the petitioner was convicted of especially aggravated kidnapping, conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary in Montgomery County Criminal Court on September 24, 2009, and received an effective 65-year sentence. (Doc. No. 1 at 1.) The petitioner now challenges the legality of his conviction and sentence, claiming among other things, that he was denied the effective assistance of counsel at trial. (Doc. No. 2 at 52-101.)

         Upon initial review of the petition, the court directed the respondent to file the state court record and to respond to the petitioner's claims. (Doc. No. 8.) On January 22, 2019, the respondent filed a Motion to Dismiss the petition as untimely (Doc. No. 12) and a supporting Memorandum of Law (Doc. No. 13.) In response to the motion to dismiss, the petitioner filed a “Memorandum of Law and Facts in Support of Equitable tolling of limitations” (Doc. No. 14), to which the respondent has replied (Doc. No. 16).

         Having carefully considered these pleadings and the record, it appears that an evidentiary hearing is not needed in this matter. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (an evidentiary hearing is not required when the record conclusively shows that the petitioner is entitled to no relief). Therefore, the court shall dispose of the petition as the law and justice require. Rule 8, Rules Gov'g § 2254 Cases.

         II. Procedural History

         After appealing his 2009 conviction to the Tennessee Court of Criminal Appeals (TCCA), which affirmed the trial court, the petitioner applied for permission to appeal to the Tennessee Supreme Court, which vacated the decision of the TCCA and remanded the matter for reconsideration. The TCCA on remand again affirmed the petitioner's conviction, State v. Fusco, 404 S.W.3d 504 (Tenn. Crim. App. 2012), and the Tennessee Supreme Court declined to further review the case on April 11, 2013. (Doc. No. 11-27.) The petitioner did not seek review in the U.S. Supreme Court.

         The petitioner filed a pro se petition for post-conviction relief in state court on April 3, 2014, having submitted it to prison authorities for mailing on March 31, 2014. (Doc. No. 11-28 at 2338, 2345.) The trial court denied the petition after holding an evidentiary hearing. The TCCA affirmed the trial court's denial of post-conviction relief in a decision dated December 11, 2017. Fusco v. State, No. M2016-00825-CCA-R3-PC, 2017 WL 6316621 (Tenn. Crim. App. Dec. 11, 2017). The petitioner did not timely seek permission to appeal to the Tennessee Supreme Court. In February 2018, he attempted to late-file an application for permission to appeal to the Tennessee Supreme Court, but his application was returned to him because the Court's mandate had already issued. (Doc. No. 14-5.)

         The pro se petition for writ of habeas corpus under § 2254 was received and filed in this court on July 2, 2018, after the petitioner purportedly submitted it to prison authorities for mailing on June 20, 2018. (Doc. No. 1 at 15.)[1]

         III. Analysis

         A. Timeliness of the Petition

         Petitions under § 2254 are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1); Holland v. Florida, 560 U.S. 631, 635 (2010). In most cases, including the case at bar, the limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). Following the Tennessee Supreme Court's denial of discretionary review on April 11, 2013, the petitioner had ninety days in which to take the final step in the direct appeal process by filing a petition for writ of certiorari in the U.S. Supreme Court. He did not file such a petition, and so his conviction became final at the conclusion of this ninety-day period, on July 10, 2013. Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012); Jimenez v. Quarterman, 555 U.S. 113, 120 (2009). The running of the statute of limitations is counted from the following day, July 11, 2013. See Fed. R. Civ. P. 6(a)(1)(A) (when computing a time period “stated in days or a longer unit of time . . . exclude the day of the event that triggers the period”); Bronaugh v. Ohio, 235 F.3d 280, 284 (6th Cir. 2000) (applying Rule 6(a)'s standards for computing periods of time to habeas filing).

         The one-year statute of limitations thus began to run nearly five years prior to the filing of this action. However, “[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). The petitioner filed his pro se state post-conviction petition on March 31, 2014, when he submitted it to prison authorities for mailing. See Tenn. Sup. Ct. R. 28, § 2(G) (codifying prison mailbox rule in Tennessee post-conviction cases). The period of statutory tolling began on that date (263 days after the limitations clock started on July 11, 2013) and continued until February 9, 2018, which was sixty days after the TCCA issued its opinion affirming the denial of post-conviction relief and the final day that the petitioner could have sought review in the Tennessee Supreme Court. See Tenn. R. App. P. 11(b) (establishing that an application for permission to appeal to the Tennessee Supreme Court must be filed “within 60 days after the entry of the judgment of the . . . Court of Criminal Appeals”); see ...


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