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Vasquez v. Phillips

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

January 15, 2020

ALEJANDRO NEAVE VASQUEZ, Petitioner,
v.
SHAWN PHILLIPS, Warden, Respondent.

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         I. Introduction

         Alejandro Neave Vasquez, an inmate of the Northwest Correctional Complex in Tiptonville, Tennessee, has filed a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and has paid the filing fee.

         According to the petition, the petitioner was convicted by a jury in Davidson County Criminal Court on July 21, 2010, of conspiracy to deliver 300 grams of cocaine and possession with intent to deliver 300 grams of cocaine in a drug-free school zone. (Doc. No. 1 at 1-2.) For these crimes, the petitioner received a 20-year prison sentence. (Id. at 1.) He now challenges the legality of his conviction and sentence, claiming that the evidence was insufficient to support his conviction and that he was denied the effective assistance of counsel at trial. (Id. at 5-8.)

         Upon initial review of the petition, the court directed the respondent to file the state court record and to respond to the petitioner's claims. (Doc. No. 8.) The respondent filed the state court record on March 26, 2019. (Doc. No. 9.) On March 27, 2019, the respondent filed a motion to dismiss the petition as untimely (Doc. No. 10) and a supporting memorandum of law (Doc. No. 11.) The petitioner has filed a response in opposition to the motion to dismiss. (Doc. No. 12.)

         Having carefully considered these pleadings and the record, it appears that an evidentiary hearing is not needed in this matter. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (an evidentiary hearing is not required when the record conclusively shows that the petitioner is entitled to no relief). Therefore, the court shall dispose of the petition as the law and justice require. Rule 8, Rules Gov'g § 2254 Cases.

         II. Procedural History

         Following the petitioner's 2010 conviction and sentencing, the Tennessee Court of Criminal Appeals (TCCA) affirmed the Davidson County Criminal Court in a decision dated November 28, 2012, and the Tennessee Supreme Court denied discretionary review on March 20, 2013. State v. Vasquez, No. M2010-02538-CCA-R3-CD, 2012 WL 5989875 (Tenn. Crim. App. Nov. 28, 2012), perm. app. denied (Tenn. Mar. 20, 2013). The petitioner did not seek review in the U.S. Supreme Court.

         On April 4, 2013, the petitioner filed a pro se petition for post-conviction relief in the trial court. (Doc. No. 9-14 at 9-25.) The trial court denied the petition after holding an evidentiary hearing. (Id. at 109-117; Doc. No. 9-15.) The TCCA affirmed the trial court's denial of post-conviction relief in a decision dated May 28, 2015, and the petitioner's application for permission to appeal to the Tennessee Supreme Court was denied on September 17, 2015. Vasquez v. State, No. M2014-01404-CCA-R3-PC, 2015 WL 3406803 (Tenn. Crim. App. May 28, 2015), perm. app. denied (Tenn. Sept. 17, 2015).

         After the petitioner submitted his pro se petition for writ of habeas corpus under Section 2254 to prison authorities for mailing on August 21, 2018 (Doc. No. 1 at 15), it was received and filed in this court on August 29, 2018. From the outset of this action, the petitioner has conceded its untimeliness but argued that he is entitled to equitable tolling of the statute of limitations. (Id. at 13; Doc. No. 2 at 3.)

         III. Analysis

         A. Timeliness of the Petition

         Petitions under Section 2254 are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1); Holland v. Florida, 560 U.S. 631, 635 (2010). In most cases, including the case at bar, the limitations period runs from “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). Following the Tennessee Supreme Court's denial of discretionary review on March 20, 2013, the petitioner had ninety days in which to take the final step in the direct appeal process by filing a petition for writ of certiorari in the U.S. Supreme Court. He did not file such a petition, and so his conviction became final at the conclusion of this ninety-day period, on June 18, 2013. Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012); Jimenez v. Quarterman, 555 U.S. 113, 120 (2009). The running of the statute of limitations is counted from the following day, June 19, 2013. See Fed. R. Civ. P. 6(a)(1)(A) (when computing a time period “stated in days or a longer unit of time . . . exclude the day of the event that triggers the period”); Bronaugh v. Ohio, 235 F.3d 280, 284 (6th Cir. 2000) (applying Rule 6(a)'s standards for computing periods of time to habeas filing).

         However, “[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward” the limitations period. 28 U.S.C. § 2244(d)(2). The petitioner filed his pro se state post-conviction petition on April 4, 2013, prior to the expiration of his time for seeking direct review before the U.S. Supreme Court. The period of statutory tolling thus began on April 4, 2013 and continued until September 17, 2015, when the Tennessee Supreme Court declined to review the post-conviction case. With the conclusion of state post-conviction proceedings, the ...


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