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Cartwright v. Perry

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

October 2, 2019

GRADY PERRY, Warden, Respondent.



         Antwan 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.

         I. Background

         In 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 appeal.

         The 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 Court.

         The 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).

         II. Timeliness of the Petition

          There 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).

         Here, 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.[1] 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.

         On 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).)[2] 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.

         At that 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.

         III. Equitable Tolling

         The 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).

         Here, 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 ...

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