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Bolze v. Coleman

United States District Court, E.D. Tennessee, Knoxville

December 16, 2019

DENNIS R. BOLZE, Petitioner,
v.
WARDEN, FCC COLEMAN, Respondent.

          POPLIN, JUDGE.

          MEMORANDUM OPINION

          REEVES CHIEF JUDGE.

         This is a pro se prisoner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 in which Petitioner alleges that his 2001 convictions in Sevier County, Tennessee for failure to file sales tax returns were unconstitutional because he was denied his constitutional rights to counsel and against self-incrimination [Doc. 1]. Now before the Court is Respondent's motion to dismiss the petition for lack of jurisdiction or, in the alternative, as time-barred [Doc. 8]. Petitioner has filed a response in opposition to this motion [Doc. 9], as well as a motion for extension of time to file a supplemental response in opposition [Doc. 10]. For the reasons set forth below, Petitioner's motion for extension of time to file a supplemental response to the motion to dismiss [Id.] will be DENIED and Respondent's motion to dismiss [Doc. 8] will be GRANTED to the extent that this action will be DISMISSED as untimely.

         I. MOTION FOR EXTENSION

         In his motion for extension of time to file a supplemental response to Respondent's motion to dismiss, Petitioner states that on December 6, 2019, he received “long sought after documents, facts, and records including State of Tennessee[] Supreme Court Rulings” that support his § 2254 petition [Doc. 10 p. 1-2]. Petitioner specifically asserts that these documents support his argument that the State of Tennessee lost subject matter jurisdiction over his underlying state criminal proceedings when it denied him, an indigent prisoner, assistance of counsel, and that the underlying state criminal judgments against him are therefore a nullity [Id.].

         However, as set forth more fully below, the § 2254 petition is time-barred. Moreover, Petitioner's argument that his lack of appointed counsel for his underlying 2001 criminal convictions and/or his 2017 post-conviction petition[1] makes the 2001 criminal judgments against him null or void does not affect this finding. Witherell v. Warren, No. 18-1409, 2018 WL 4897064, at *3 (6th Cir. June 21, 2018) (holding that “[e]ven where a state court conviction is void, the federal habeas statute of limitations still applies . . . .) (citing Frazier v. Moore, 252 F. App'x. 1, 5-6 (6th Cir. 2007)).

         Thus, allowing Petitioner to file a supplemental response to Respondent's motion to dismiss would be futile. Accordingly, Petitioner's motion to do so [Doc. 10] will be DENIED.

         II. MOTION TO DISMISS

         Accordingly, the Court will now consider the merits of Respondent's motion to dismiss the § 2254 petition for lack of jurisdiction or, in the alternative, as time-barred [Doc. 8]. The Court will address the arguments therein in turn.

         A. Jurisdiction

         First, as Petitioner alleges that he was improperly denied counsel for his underlying state court proceedings, Respondent's argument that the Court lacks jurisdiction over the § 2254 petition is without merit. Specifically, federal courts only have jurisdiction to entertain petitions for habeas corpus relief from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). The Supreme Court has clarified “that the habeas petitioner must be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S.234, 238 (1968)); Lackawanna County, 532 U.S. 394, 403 (2001) (holding that “once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because defendant did so unsuccessfully), ” the prisoner cannot collaterally attack that prior conviction in a federal petition for a writ of habeas corpus). However, one exception to this rule is that a federal court may review a state conviction arising out of a fully expired sentence where the petitioner did not have counsel for that conviction. Abdus-Samad v. Bell, 420 F.3d 614, 630 (6th Cir. 2005) (holding that a federal court may review a state conviction with a fully expired sentence where the petitioner did not have counsel for that conviction, among other things).

         As Petitioner alleges that he was improperly denied counsel for his underlying state court criminal proceedings, Petitioner's § 2254 petition falls under an exception to the “in custody” requirement and the Court therefore has jurisdiction over the § 2254 petition.

         B. TIME BAR

         As set forth above, Respondent also asserts in his motion to dismiss that the § 2254 petition is time-barred. In his petition, Petitioner asserts that his claims are not time-barred because his underlying 2001 state court criminal convictions are “void” and he did not discover his claim regarding the denial of his right against self-incrimination in time to file an appeal [Doc. 1 p. 7 and 13]. Also, in his response in opposition to Respondent's motion to dismiss the petition, Petitioner asserts that the Court should consider his petition timely because the state court did not appoint him counsel for his 2017 post-conviction ...


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