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Carino v. Washburn

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

September 30, 2019

ALEXANDER R. CARINO #475438, Petitioner,
v.
WARDEN RUSTY WASHBURN, Respondent

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         The pro se Petitioner is a state inmate serving an effective prison sentence of forty-three years for two counts of second-degree murder. (Doc. No. 5 at 21.) He seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 5.)

         Respondent moves to dismiss the petition on the basis that it is untimely. (Doc. No. 20.) For the reasons explained below, the Court will grant Respondent’s motion and dismiss the petition.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A Cumberland County grand jury indicted Petitioner on March 2, 2009, on two counts of felony murder and one count of especially aggravated robbery. (Doc. No. 19-1 at 9.) Petitioner pleaded guilty on July 16, 2010, to two counts of second-degree murder and was sentenced to twenty-one years and six months in prison on each count, to run consecutively. (Id. at 12–13.) The judgments were stamped “ENTERED” by the court clerk on July 19, 2010. (Id.) Petitioner did not file a direct appeal.

         On November 12, 2010, the State moved to set aside Petitioner’s judgments due to his failure to abide by the terms of his plea agreement when he refused to testify at the trial of another defendant. (Doc. No. 19-11 at 5.) Petitioner wrote to his attorney on July 4, 2011, saying he needed the discovery in his case “because the state is going to take my plea cause I wouldn’t testify so I need to see my evidence before they try to send me to trial.” (Doc. No. 16 at 25.) The State later moved to withdraw its motion to set aside, and the trial court granted the motion to withdraw on October 25, 2011. (Doc. No. 19-11 at 6.) Thus, Petitioner’s convictions and sentences remained undisturbed.

         Over the next several years, Petitioner continued to send letters to counsel sporadically asking for his file, expressing dissatisfaction with his plea agreement, and indicating that he wanted to file “something” in his case. (Doc. No. 16 at 26–31.) The first five such letters are dated June 5, 2012, February 28, 2013, August 6, 2013, July 4, 2014, and June 13, 2016. (Id.) Petitioner received no response to those letters from counsel, whose office had moved. (Id. at 35.)

         In January 2017, Petitioner filed a pro se habeas petition in state court, asserting that his convictions were void because a defect in the indictment caused the trial court to lack jurisdiction to enter judgment. (Doc. No. 19-1 at 3–13.) The state court denied relief on January 30, 2017. (Id. at 14–15.) The Tennessee Court of Criminal Appeals affirmed on August 3, 2017, and the Tennessee Supreme Court denied discretionary review on November 17, 2017. (Doc. Nos. 19-5, 19-9.)

         On December 18, 2017, Petitioner sent a letter to the Tennessee Board of Professional Responsibility to complain about counsel’s failure to respond to his letters or turn over his file. (Doc. No. 16 at 32–33.) That complaint prompted a January 11, 2018 letter from counsel to Petitioner stating that counsel had no record of receiving Petitioner’s letters but would gather and send his file as soon as possible, and a follow-up letter on January 16, 2018, which mentioned that counsel’s office had moved “several years ago” and indicated that the letter was accompanied by Petitioner’s entire file. (Doc. No. 16 at 34–36.)

         Also on January 16, 2018, the trial court received Petitioner’s pro se petition to amend the judgment in his case. (Doc. No. 19-11 at 7.) Petitioner quoted the statement of the victim’s brother at his plea and sentencing hearing to the effect that the family forgave him, referenced his good behavior and self-improvement in prison, and asked that his sentences be ordered to run concurrently rather than consecutively. (Id. at 7–9.) The court summarily denied the motion on January 25, 2018. (Id. at 10.)

         On March 22, 2018, Petitioner filed a pro se post-conviction petition in the trial court asserting ineffective assistance of counsel. (Doc. No. 10-19 at 3–28.) Petitioner blamed the lateness of his petition on counsel’s failure to provide him with his file until January 2018 and his lack of adequate access to the law library in prison. (Id. at 25.) He also argued that the statute of limitations for his petition should not be deemed to have started until the state withdrew its motion to set aside his judgments on October 25, 2011. (Id.) The trial court dismissed the petition without hearing on April 2, 2018, on the basis that it was filed beyond the applicable one-year statute of limitations. (Id. at 29–30.) The Tennessee Court of Criminal Appeals affirmed that dismissal on November 2, 2018, and the Tennessee Supreme Court again denied discretionary review on February 20, 2019. (Doc. Nos. 19-15, 19-20.)

         Petitioner initiated this action on January 9, 2018, when he delivered his unsigned original pro se petition for a federal writ of habeas corpus to the prison mail room for mailing. (Doc. No. 1 at 26.) He simultaneously moved to hold the case in abeyance because he was “currently moving the Trial Court to allow him equitable tolling for an out of time post- conviction.” (Doc. No. 2.) The Court required Petitioner to sign his petition and stayed the case with Respondent’s agreement. (Doc. Nos. 4, 14.) The case was reopened on May 20, 2019, on Petitioner’s motion. (Doc. No. 17.) Respondent moved to dismiss the petition as untimely on May 31, 2019, and Petitioner has not responded to that motion, despite seeking and receiving an extension of time to do so. (Doc. Nos. 20, 22, 23.) Accordingly, pursuant to its previous warning to Petitioner, the Court considers Respondent’s motion to be ripe for review. (Doc. No. 23 at 3); see also Local Rule 7.01(a)(3) (providing that a motion to which no timely response is filed will be deemed unopposed).

         II. ISSUES PRESENTED FOR REVIEW

         Petitioner presents two claims for relief. First, he asserts that his felony murder indictments failed to state an offense because they specified an underlying felony-especially aggravated robbery-that is not included in the felony murder statute’s list of qualifying felonies. (Doc. No. 5 at 5–6, 19.) Second, Petitioner asserts that the trial court lacked subject matter jurisdiction to enter judgment against him, and that he did not knowingly and voluntarily waive the ...


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