United States District Court, E.D. Tennessee, Greeneville
GREER UNITED STATES DISTRICT JUDGE
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]. 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].
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,
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). Permission to appeal was denied on
September 25, 2000 [Doc. 47-15].
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.
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.
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.
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.
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.
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
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.
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.
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. 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
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).
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).
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
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.
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
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”).
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).
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.
Analysis of Exhaustion & Procedural ...