James v. Cromwell

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

REGGIE C. JAMES,

Petitioner,

v. Case No. 1:17-cv-01069-JDB-jay

GEORGIA CROWELL,

Respondent.

ORDER DISMISSING § 2254 AMENDED PETITION,

DENYING CERTIFICATE OF APPEALABILITY,

AND

DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

In April 2017, Petitioner, Reggie C. James, filed a pro se habeas corpus petition (the

“Petition”), pursuant to 28 U.S.C. § 2254. (Docket Entry (“D.E.”) 1.) In compliance with the

Court’s order of September 20, 2017, (D.E. 12), he refiled his claims on the Court’s official form

(the “Amended Petition”), (D.E. 13). Respondent, Georgia Crowell, has moved to dismiss the

Amended Petition as untimely. (D.E. 22.) For the reasons that follow the motion to dismiss is

GRANTED.

BACKGROUND

In January 2007, a Madison County, Tennessee, jury convicted James of first degree

murder and tampering with evidence. (D.E. 21-1 at PageID 190–91.) The trial court imposed an

effective sentence of life imprisonment plus ten years. (Id.) On direct appeal, the Tennessee Court

of Criminal Appeals affirmed the judgments, and the Tennessee Supreme Court declined

discretionary review. See State v. James, No.W2007-00775-CCA-R3-CD, 2009 WL 636726, at

*1 (Tenn. Crim. App. Mar. 10, 2009), perm. appeal denied (Tenn. Aug. 17, 2009).

On April 21, 2010, Petitioner submitted a pro se post-conviction petition to prison

authorities for mailing. (D.E. No. 21-15 at PageID 993, 1027.) The state trial court held an

evidentiary hearing and denied relief on January 31, 2012. (Id. at PageID 1057–58.) Several years

later, Petitioner filed a notice of appeal, and the Tennessee Court of Criminal Appeals dismissed

the appeal as untimely. James v. State, No. W2015-01640-CCA-R3-PC, 2016 WL 1055365, at *1

(Tenn. Crim. App. Mar. 16, 2016), perm. appeal denied (Tenn. June 24, 2016). The Tennessee

Supreme Court declined discretionary review on June 24, 2016. (D.E. 21-22.)

On April 11, 2017, Petitioner submitted his Petition to prison authorities for mailing to this

Court. (D.E. 1 at PageID 32.) On preliminary review, the Court ordered him to show cause why

the Amended Petition should not be dismissed as untimely. (D.E. 14.) The inmate filed a response

to the show-cause order, asserting that he is entitled to equitable tolling of the limitations period.

(D.E. 15.) The Court ordered Respondent to respond to Amended Petition, (D.E. 16), which she

did by submitting a motion to dismiss, (D.E. 22). She argues that the Petition was filed well

beyond the expiration of the applicable limitations period and that the inmate has not established

entitlement to equitable tolling. Petitioner did not file a reply, although allowed to do so. (See

D.E. 16 at PageID 112.)

DISCUSSION

A § 2254 petition is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1).

The limitations period begins to run from the latest of four possible dates:

(A) the date on which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in

violation of the Constitution or laws of the United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the

Supreme Court, if the right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence.

Id.

In this case, § 2244(d)(1)(A) applies, which means that James had one year from the date

on which his judgment of conviction became final to file a federal habeas petition. Taking into

account statutory tolling under 28 U.S.C. § 2244(d)(2), the last day he could timely file a petition

was September 28, 2012.

The date is arrived at as follows. James appealed his convictions to the Tennessee Supreme

Court, but did not appeal to the United States Supreme Court. His judgments of conviction thus

became final when the time for appealing to the United States Supreme Court expired, which was

ninety days after the Tennessee Supreme Court denied permission to appeal. See Bronaugh v.

Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (“[T]he one-year statute of limitations does not begin to

run until the time for filing a petition for a writ of certiorari for direct review in the United States

Supreme Court has expired,” which is “ninety days following the entry of judgment by the ‘state

court of last resort.’”) (citing Sup. Ct. R. 13)). Permission to appeal was denied on August 17,

2009, and ninety days from that date was Sunday November 15, 2009. Under Supreme Court Rule

30, if a deadline for filing with the Supreme Court falls on “Saturday, Sunday, [or] federal legal

holiday,” the “period shall extend until the end of the next day that is not a Saturday, Sunday, [or]

federal legal holiday,” which in this case was Monday November 16, 2009. The limitations period

for the inmate’s federal habeas claim commenced the next day, on November 17, 2009. See

Bronaugh, 235 F.3d at 285 (the one-year statute of limitations for filing a federal habeas petition

begins to run on the day after the conviction of judgment becomes final).

The limitations period ran for 155 days, and was then tolled from April 21, 2010, the date

James mailed his state post-conviction petition, until March 1, 2012, which was the end of the

thirty-day period in which he could have, but did not, file a notice of appeal from the trial court’s

denial of relief. See 28 U.S.C. § 2244(d)(2) (the AEDPA one-year limitations period is tolled

during the time “a properly filed application for State post-conviction or other collateral review . .

. is pending . . . .”); Tenn. R. App. P. 4(a) (setting thirty-day deadline for filing notice of appeal).

When the limitations “clock” resumed ticking the next day, 210 days remained in the

limitations period. Two-hundred and ten days from March 2, 2012, was Friday September 28,

2012. The Petition, which was mailed on April 11, 2017, was therefore filed more than four and

one-half years beyond the expiration of the limitations period.

As Respondent notes, Petitioner’s late filing of a notice of appeal to the Tennessee Court

of Criminal Appeals on August 27, 2015, did not reset the AEDPA limitations clock. See Vroman

v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“The [statutory] 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.”). James does not dispute that proposition, but instead insists that the time

between the trial court’s denial of post-conviction relief and the date of filing of the late notice of

appeal should be equitably tolled due to his attorney’s conduct.

According to Petitioner, his post-conviction attorney erroneously led him to believe that an

appeal of the denial of post-conviction relief had been timely filed on his behalf, and that he learned

that no appeal had been filed after the federal habeas limitations period had expired. Petitioner

has submitted a copy of state disciplinary documents showing that his attorney was censured for

his failure to file a notice of appeal on his behalf. (D.E. 15-1 at PageID 105–07.)

The one-year statute of limitations in 28 U.S.C. § 2244(d) is not a jurisdictional bar and is

subject to equitable tolling under extraordinary circumstances. McClendon v. Sherman, 329 F.3d

490, 492 (6th Cir. 2003). “Traditional” equitable tolling requires the petitioner to show that (1)

“he has been pursuing his rights diligently;” and (2) “some extraordinary circumstance stood in

his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 646, 649 (2010) (internal

quotation marks omitted). A petitioner need not show “maximum feasible diligence,” but only

“reasonable diligence.” Id. at 653 (internal quotation marks omitted).

Assuming, here, that counsel’s conduct constituted an extraordinary circumstance,

Petitioner has not shown reasonable diligence in pursuing his rights. A habeas corpus petitioner

is expected to diligently monitor the status of his state court appeal, and not “passively await

decision.” Winkfield v. Bagley, 66 F. App’x 578, 583–84 (6th Cir. 2003). In Winkfield, the Sixth

Circuit “declined to allow equitable tolling where a petitioner's attorney misled him into believing

that his appeal was still pending before the state court because the petitioner failed

to diligently monitor the progress of his appeal.” Keeling v. Warden, 673 F.3d 452, 463 (6th Cir.

2012) (describing Winkfield, 66 F. App’x at 583–84). Similarly, the court in Keeling held that the

petitioner was not entitled to equitable tolling because he waited nearly three years before

“attempt[ing] to obtain a copy of the [state appellate court’s] decision.” Id. at 463.

James’s allegation that he relied on his attorney’s assurance that a notice of appeal had

been filed is supported by the Board of Professional Responsibility’s notice of public censure.

(See D.E. 15-1 at PageID 105 (“[W]hen his client inquired about the status of the matter, [counsel]

misinformed him that the appellate court had not yet issued its opinion.”).) Petitioner’s

submissions do not show, however, when, exactly, the attorney misled him. In any event, the

inmate has not alleged that he independently sought to ascertain the status of his appeal at any time

during the three-and-one-half-year interval between the post-conviction trial court’s decision and

counsel’s late filing of the notice of appeal. In fact, the notice of public censure shows that it was

only when counsel realized that an appeal had not been filed that Petitioner became aware of that

fact. (See id. (“In 2015, [counsel] advised his client that he had neglected to file the notice of

appeal and sought permission to late-file.”).)

Even if the Court were to toll the entire period of the state post-conviction proceedings,

including the three-and-one-half-year delay in the filing of the notice of appeal, the Petition would

still be untimely. As noted, the limitations “clock” ran for 155 days between the date the judgments

of conviction became final and the date Petitioner mailed his state post-conviction petition for

filing. That left him 210 days to file for federal habeas relief after the Tennessee Supreme Court

denied permission to appeal on Friday June 24, 2016.1 Two-hundred and ten days from Monday

June 27, 2016, was Monday January 23, 2017. The Petition was mailed for filing, however, on

April 11, 2017. The Petition would thus be untimely by seventy-nine days even if the inmate were

entitled to equitable tolling.

For these reasons, the Amended Petition is DISMISSED.

APPEAL ISSUES

A § 2254 petitioner may not proceed on appeal unless a district or circuit judge issues a

certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. APP. P. 22(b)(1). A COA

may issue only if the petitioner has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2)–(3). A substantial showing is made when the petitioner

demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the

1 The time in which to appeal to the United States Supreme Court from denial of post-

conviction relief is not tolled. Lawrence v. Florida, 549 U.S. 327, 332 (2007).

petition should have been resolved in a different manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied on procedural

grounds, the petitioner must show, ‘at least, that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.’” Dufresne

v. Palmer, 876 F.3d 248, 252–53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).

In this case, reasonable jurists would not debate the correctness of the Court’s decision to

dismiss the Amended Petition as untimely. Because any appeal by Petitioner does not deserve

attention, the Court DENIES a certificate of appealability.

Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on

appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App.

P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal would

not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis in the

appellate court. Id.

In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to Rule

24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma

pauperis is therefore DENIED.2

IT IS SO ORDERED this 9th day of May, 2019.

s/ J. DANIEL BREEN

UNITED STATES DISTRICT JUDGE

2 If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee

or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court

of Appeals within thirty days.