United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE
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.
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.)
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.
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.
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.
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).
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.)
Timeliness of the Petition
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
“[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 ...