United States District Court, M.D. Tennessee, Nashville Division
ANTWAN M. CARTWRIGHT, Petitioner,
GRADY PERRY, Warden, Respondent.
A. TRAUGER UNITED STATES DISTRICT JUDGE
Cartwright, a state prisoner, filed a pro se
petition for the writ of habeas corpus under 28 U.S.C. §
2254 (“Petition”). (Doc. No. 1.) The respondent
filed a Motion to Dismiss the Petition as untimely (Doc. No.
10), and the petitioner filed a Response (Doc. No. 13). For
the following reasons, the respondent's motion will be
granted and this action will be dismissed.
January 2012, a Davidson County grand jury indicted the
petitioner for first degree murder, especially aggravated
robbery, and attempted aggravated robbery. (Doc. No. 9-1 at
3-7.) As part of a plea agreement, the parties agreed that
the petitioner would plead guilty to second degree murder and
that the two robbery counts would be dismissed. (Id.
at 9-11.) The parties also agreed that the petitioner would
be sentenced to 25 years' imprisonment at 100% service,
to be served consecutively to sentence in a prior case.
(Id. at 10.) On April 3, 2014, the court accepted
the agreement and sentenced the petitioner accordingly.
(Id. at 8, 12.) The petitioner did not file a direct
petitioner did, however, pursue collateral review in the
Tennessee state courts. He certified that he gave his pro
se petition for post-conviction relief to prison
officials for mailing on January 12, 2015 (id. at
32), and the Davidson County Criminal Court stamped it filed
on January 16 (id. at 13). The court appointed
counsel (id. at 33), and the petitioner filed an
amended and supplemental petition (id. at 34-39).
The court held an evidentiary hearing (Doc. No. 9-2), and
then denied relief in October 2015 (Doc. No. 9-1 at 41-49.)
The petitioner appealed, and the Tennessee Court of Criminal
Appeals (“TCCA”) affirmed the post-conviction
court's judgment on September 19, 2016. Cartwright v.
State, No. M2015-02138-CCA-R3-PC, 2016 WL 5210769, at
*1, 6 (Tenn. Crim. App. Sept. 19, 2016). The petitioner did
not request permission to appeal to the Tennessee Supreme
petitioner signed his federal habeas petition on October 22,
2018 (Doc. No. 1 at 17), the prison mailing room stamped it
received on October 26 (id. at 25), and this court
received the Petition on October 29 (id. at 1, 25).
Timeliness of the Petition
is a one-year statute of limitations for the filing of habeas
corpus petitions. 28 U.S.C. § 2244(d)(1). This one-year
period begins to run “from the latest of” four
dates, one of which is relevant here-“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). The running of the
limitations period, however, is tolled while “a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” Id. § 2244(d)(2).
the trial court entered judgment on April 3, 2014. The
petitioner then had thirty days to file a direct appeal,
Tenn. R. App. P. 4(a), but he did not do so. Thus, the
petitioner's judgment became final upon expiration of the
thirty-day period, or May 5, 2014. See Feenin v.
Myers, 110 Fed.Appx. 669, 671 (6th Cir. 2004). The
one-year statute of limitations began running the next day,
Fed.R.Civ.P. 4(a)(1)(A), so the petitioner had one year from
May 6, 2014, to file a habeas corpus petition.
January 12, 2015-251 days after the petitioner's judgment
became final-the petitioner certified that he gave his
pro se state post-conviction petition to prison
officials for mailing. The respondent concedes that the
limitations period began tolling on this date, rather than
the date the Davidson County Criminal Court received the
post-conviction petition. (Doc. No. 11 at 3 (citing Tenn.
Sup. Ct. R. 28, Section 2(G).) The TCCA affirmed the
post-conviction court's denial of relief on September 19,
2016. The petitioner then had sixty days to file an
application for permission to appeal to the Tennessee Supreme
Court. Tenn. R. App. P. 11(b). He did not do so. The
petitioner's state post-conviction proceeding, therefore,
was no longer pending upon expiration of this sixty-day
period, or November 18, 2016, and the limitations period
resumed on November 19, 2016.
time, the petitioner had 114 days remaining of the one-year
statute of limitations. Thus, the last day that the
petitioner could file a timely federal habeas corpus petition
was March 13, 2017. The court deems the Petition to be filed
on October 22, 2018, the date that the petitioner signed it.
See Brand v. Motley, 526 F.3d 921, 925 (6th Cir.
2008) (citations omitted) (explaining that, “absent
contrary evidence, ” courts in the Sixth Circuit assume
that a prisoner delivers a filing to prison officials for
mailing “on the date he or she signed” it). The
Petition is therefore untimely by over nineteen months.
petitioner concedes that the Petition is untimely but argues
that he is entitled to equitable tolling. (Doc. No. 14 at
4-5.) The “one-year limitations period is not a
jurisdictional bar and is subject to equitable tolling in
certain instances.” Ata v. Scutt, 622 F.3d
736, 741 (6th Cir. 2011) (citing Holland v. Florida,
560 U.S. 631, 645 (2010)). A petitioner seeking equitable
tolling bears the burden of establishing “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” and
prevented timely filing. Holland, 560 U.S. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); Ata, 662 F.3d at 741 (citing Griffin v.
Rogers, 308 F.3d 647, 653 (6th Cir. 2002)) (“[T]he
petitioner bears the ultimate burden of persuading the court
that he or she is entitled to equitable tolling.”). The
Sixth Circuit repeatedly has cautioned that equitable tolling
should be applied “sparingly” by federal courts.
See, e.g., Hall v. Warden, Lebanon Corr. Inst., 662
F.3d 745, 749 (6th Cir. 2011).
the petitioner states that he was unaware of both the legal
basis for the Petition and the applicable statute of
limitations, and that he did not have the financial resources
necessary to hire legal assistance. (Id. at 5-7.) It
was not until his father retained counsel to review his case
in October 2018, the petitioner argues, that he learned he
“could collaterally attack his guilty plea via a writ
of habeas corpus in the federal courts.” (Id.
at 7.) According to the petitioner, he exercised diligence by
filing the Petition later that month. (Id.)
Additionally, in the underlying Petition, the petitioner
states that he has a “long ...