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Bryant v. Parker

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

January 6, 2020

TONY C. PARKER and KEVIN GENOVESE, Warden, Respondent.



         Through counsel, Jason Blake Bryant (Petitioner), a prisoner in the Turney Center Industrial Complex (TCIX) in Only, Tennessee, brings this authorized second or successive petition for a federal writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement under 1998 judgments of convictions issued by the Greene County, Tennessee Criminal Court [Doc. 1-2].[1] Petitioner claims that his life sentence without parole is unconstitutional in light of Miller v. Alabama, 567 U.S. 460 (2012) [Doc. 1-1]. More specifically, Petitioner asserts that, under Miller, which was made retroactive by Montgomery v. Louisiana, 136 S.Ct. 718 (2016), his sentences of life without the possibility of parole for offenses committed when he was a juvenile are illegal and presumptively violate the Eighth Amendment's proscription of cruel and unusual punishments [Doc. 1-2 at 5 and 23].[2]

         TCIX Warden Kevin Genovese has filed a response, arguing that habeas corpus relief is unwarranted because Petitioner's claim has been procedurally defaulted and is also meritless [Doc. 49]. In support of his arguments, Respondent Warden has submitted several notices of filing with attached copies of the state court record [Docs. 41-45, 47-48]. Petitioner has replied to that response [Doc. 52]. Having considered the parties' submissions, the arguments made therein, and the state court record, the Court finds that the petition is untimely and procedurally defaulted and, alternatively, without merit.


         In 1998, Petitioner was convicted, pursuant to his guilty pleas, of three counts of first-degree murder committed when he was 14 years old, receiving, for these crimes, three consecutive sentences of life without the possibility of parole. In 2000, Petitioner's convictions were affirmed on direct appeal. State v. Howell, 34 S.W.3d 484 (Tenn. Crim. App. 2000).[3] Permission to appeal was denied on September 25, 2000 [Doc. 47-15].

         Petitioner then challenged his convictions by filing a petition under the Tennessee Post-Conviction Procedure Act. Bryant v. State, No. E2002-00907-CCA-R3PC, 2004 WL 443414 (Tenn. Crim. App. Mar. 11, 2004). After holding an evidentiary hearing on the claims, the trial court denied the petition and the denial was affirmed on appeal. Id., 2004 WL 443414, at *2. Petitioner's request for permission to appeal also was denied. Id., 2004 WL 443414, at *1.

         Petitioner next filed an application for habeas corpus relief under 28 U.S.C. § 2254 in this Court which, ultimately, was dismissed as untimely. Bryant v. Carlton, No. 2:05-CV-151, 2007 WL 2263067 (E.D. Tenn. Aug. 3, 2007). More than a decade later, Petitioner filed this authorized, second § 2254 application.


         On April 6, 1997, Petitioner and five acquaintances were on their way from their homes in Pikeville, Kentucky, to New Orleans, Louisiana. Before leaving on their trip, they acquired two weapons, a 9mm pistol and a .25 caliber pistol. After departing, they realized that their car would not make the drive to New Orleans, and they discussed stealing a car from a parking lot or a dealership. At an interstate rest stop in Greene County, Tennessee, they encountered the Lillelid family of four, which included Vidar, his wife Delfina, six-year-old daughter Tabitha, and two-year-old son Peter. The Lillelids were Jehovah's Witnesses, and Mr. Lillelid approached two members of the group to discuss his religious views. At some point, one of the men in the group, Joseph Risner, pulled out a gun and forced the Lillelids into the family's van.

         Mr. Lillelid drove the van onto the interstate, with the still-armed Risner in the front passenger seat and the other Lillelids, Petitioner, and two co-defendants riding as passengers. The rest of the group followed in the car. Risner directed Mr. Lillelid to a secluded road at the next exit. The Lillelids were ordered out of the van, lined up in front of a ditch, and shot. The shooting ended in the deaths of the father, the mother, and the daughter. The son was critically injured as a result of two small caliber gunshot wounds fired into his head and back. The identity of the shooter is disputed by the participants, but the other facts of the shooting are not.

         The group then decided to drive to Mexico, where they were eventually apprehended in the Lillelid van. Some of the group had in their possession articles belonging to the Lillelids. After being returned to Tennessee, all participants were charged with the Lillelid murders, and the State provided notice that the death penalty would be sought for the four adult participants. All defendants, including Petitioner and Howell, entered into an all-or-none package plea deal, and pled guilty to three counts of felony first-degree murder and one count of attempted first-degree murder, and other crimes related to those murders and attempted murder. All defendants received sentences of life without the possibility of parole.


         Petitioner's authorized second § 2254 petition is predicated solely on the Miller claim. The Court agrees with Respondent Warden that Petitioner is not entitled to habeas corpus relief on his claim, though it first will address an issue not raised by the Warden-whether Petitioner's claim is timely.

         A. Timeliness

         A court can sua sponte raise the issue of timeliness of a state prisoner's habeas corpus petition. See Wood v. Milyard, 566 U.S. 463, 472 (2012); Day v. McDonough, 547 U.S. 198, 209 (2006). The Court chooses to do so here.

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified in 28 U.S.C. § 2241, amended the federal habeas corpus statutes and added a one-year statute of limitation to regulate the time for filing an application for a federal writ of habeas corpus. The AEDPA establishes “a tight time line, a one-year limitation period, ” Mayle v. Felix, 545 U.S. 644, 662 (2005), that begins to run from the latest of four dates: (1) the conclusion of direct review; (2) the removal of an impediment created by unconstitutional State action which prevented a petitioner from filing a habeas corpus petition; (3) when a petition assert a constitutional right, newly recognized by the Supreme Court and made retroactively applicable to collateral review cases; or, (4) the date on which the facts supporting the claim or claims presented could have been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). The statute also contains a time-tolling feature. The time 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 . . . .” 28 U.S.C. § 2244(d)(2). The third date is the relevant one here because the authorized petition asserts a newly-recognized right as the sole ground for habeas corpus relief.

         Petitioner filed this second habeas corpus petition on May 18, 2017, the day after he received authorization from the Sixth Circuit to file it [Docs. 1, 1-1]. Petitioner's claim is predicated on Miller v. Alabama, 567 U.S. 460 (2012), which held that imposing sentences of mandatory life without parole upon defendants who were under the age of 18 at the time of their crimes violates the Eighth Amendment's proscription of cruel and unusual punishments. 567 U.S. at 465. Miller was decided on June 25, 2012; thus, any § 2254 Miller claim would have had to have been filed in this Court by June 25, 2013, absent statutory tolling.[4] Petitioner filed his motion for an order authorizing him to file a second or successive § 2254 petition in the Sixth Circuit on January 23, 2017 [Doc. 1 at 1].

         Accordingly, Petitioner's motion seeking authorization to file a second or successive § 2254 petition was filed after the lapse of the one-year period to raise his Miller claim, and hence his second § 2254 petition is untimely. Although Petitioner maintains, in his reply, that he filed a motion to reopen his post-conviction petition on January 23, 2017-the same date he filed in the Sixth Circuit his motion to authorize the Court to consider his second § 2254 petition [Docs. 52 at 2, 52-1], that submission does not invoke statutory tolling because the motion to reopen was filed well after the AEDPA statute of limitation had lapsed. Put simply, by the time Petitioner filed his motion to reopen his state collateral proceedings in the Greene County Tennessee Criminal Court [Doc. 52-1], the AEDPA's clock on the Miller claim had already stopped and there was no time left to toll. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“The tolling provision does not . . . ‘revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute of limitations.”); Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002).

         Nonetheless, the AEDPA statute of limitation is not jurisdictional and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling “allows courts to toll a statute of limitations when ‘a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)). To demonstrate that equitable tolling is warranted, a petitioner must show “(1) that he has been pursuing [his] rights diligently, and (2) that some extraordinary circumstance stood in [his] way and prevented timely filing.” Id. at 649. “[T]he doctrine of equitable tolling is used sparingly by federal courts” and [t]he party seeking equitable tolling bears the burden of proving he is entitled to it.” Robertson, 624 F.3d at 784 (citations omitted).

         Review of the § 2254 application and supporting memorandum reveals no extraordinary circumstance to justify Petitioner's failure to present his Miller claim to this Court in a timely fashion. Petitioner's failure to allege any facts to suggest the existence of an extraordinary circumstance, such as serious attorney misconduct, see Holland, 560 U.S. at 652, including attorney abandonment, see Id. at 659 (Alito, J., concurring in part and concurring in the judgment), or mental incompetence, see Lawrence v. Florida, 549 U.S. 327, 338 (2007 (no extraordinary circumstance where petitioner “made no factual showing of mental incapacity”), leads the Court to conclude that no such a circumstance is present here.

         The Court therefore finds that equitable tolling is not appropriate in this case and that Petitioner's Miller claim is untimely. Even if the Miller claim, however, is not time-barred by the AEDPA limitation statute, it has been procedurally defaulted.

         B. Exhaustion/Procedural Default

         1. Governing Law

         A federal court cannot grant a state prisoner's petition for a writ of habeas corpus unless: the petitioner has exhausted his available state court remedies; there is an absence of available state corrective process, or circumstances exist that render such process ineffective. 28 U.S.C. § 2254(b)(1). The exhaustion rule requires total exhaustion of state remedies. Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (noting that “a rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error”), id. at 522 (stating that “a total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief”).

         Exhaustion requires a petitioner to have made a fair presentation of each claim for disposition to all levels of appropriate state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (observing that a petitioner is obliged to fairly present his claim in each appropriate state court, so as to provide the State with the necessary opportunity “to pass upon and correct alleged violations of . . . federal rights”); O'Sullivan v. Boerckel, 526 U.S. 838, 846 (1999) (explaining that exhaustion entails submission of a federal claim through “one complete round of the State's established appellate review process”).

         “An exception [to the exhaustion requirement] is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). A state can waive exhaustion if it does so expressly. 28 U.S.C. § 2254 (b)(3). It is a petitioner's burden to show exhaustion of available state court remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

         Procedural default is an extension of the exhaustion doctrine. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (observing that “[i]n habeas, the sanction for failing to exhaust properly (preclusion of review in federal court) is given the separate name of procedural default”); Castille v. Peoples, 489 U.S. 346, 351 (1989) (“The requisite exhaustion may nonetheless exist, of course, if it is clear that [a petitioner]'s claims are now procedurally barred under [state] law.”). A petitioner who is barred by a state procedural rule from returning with his claim to the state courts has committed a procedural default. Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a petitioner has met the technical requirements of exhaustion (i.e. there are no state remedies left to exhaust) and therefore is deemed to have exhausted his state remedies, but to have done so by way of a procedural default. Coleman, 501 U.S. at 732. Federal review of a procedurally defaulted claim is foreclosed, unless the habeas petitioner shows cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation, Gray, 518 U.S. at 162, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S at 750.

         2. Analysis of Exhaustion & Procedural ...

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