Petition for Writ of Certiorari — Keith Lemont Farmer, Petitioner v. Jonathan Lebo, Warden

Case: 19-6358

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No. 19-6358

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KEITH LEMONT FARMER,

Petitioner-Appellant,

v.

JONATHAN LEBO, Warden,

Respondent-Appellee.

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Apr 02, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: THAPAR, Circuit Judge.

Keith Lemont Farmer, a Tennessee prisoner proceeding pro se, appeals a district court

judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Farmer has filed an application for a certificate of appealability and a motion to stay the district

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court proceedings.

In July 2012, Farmer was sentenced to 20 years of imprisonment after pleading guilty to

attempted first-degree murder. Farmer did not file a direct appeal. In August 2018, Farmer filed

a petition for a writ of habeas corpus in the Circuit Court for Lake County, Tennessee, which was

denied for failure to state a cognizable claim. The Tennessee Court of Criminal Appeals affirmed

the judgment of the circuit court, and the Tennessee Supreme Court denied permission to appeal.

Farmer v. Phillips, No. W2018-01687-CCA-R3-HC, 2019 WL 1272610 (Tenn. Crim. App. Mar.

19, 2019),perm. app. denied (Tenn. June 24, 2019). In June 2019, Farmer filed a § 2254 petition.

The district court determined that the § 2254 petition was untimely, that Farmer was not entitled

to equitable tolling, and that he did not make a viable claim of actual innocence. Accordingly, the

district court dismissed the § 2254 petition and declined to issue a certificate of appealability.

A certificate of appealability may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard

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f^pp-eod if

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-2when the district court has denied a § 2254 petition on procedural grounds, a petitioner must show

“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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of

limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). Generally, a habeas

petition must be filed within one year of “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). Farmer’s conviction became final in August 2012, when his time for seeking

direct review in the Tennessee Court of Criminal Appeals expired.

Tenn. R. App. P. 4(a).

Therefore, under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations began to run in August 2012

and expired in August 2013.

Farmer is not entitled to statutory tolling under 28 U.S.C.

§ 2244(d)(2) because he did not file a motion for collateral review until 2018, long after the statute

of limitations had run. See Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). Because the

§ 2254 petition was not filed prior to August 2013, reasonable jurists would not debate the district

court’s determination that the petition was time-barred under § 2244(d)(1)(A).

Section 2254’s statute of limitations may be equitably tolled when a petitioner shows “that

he has been pursuing his rights diligently” and “that some extraordinary circumstance stood in his

way and prevented timely filing.” Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th

Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). Farmer argues that he is

entitled to equitable tolling because of his “ignorance of the law.” However, “ignorance of the

law alone is not sufficient to warrant equitable tolling.” Allen v. Yukins, 366 F.3d 396, 403 (6th

Cir. 2004) (quoting Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)). Accordingly, reasonable

jurists would not debate the district court’s determination that Farmer was not entitled to equitable

tolling.

In extraordinary cases, a colorable claim of actual innocence may be used as a gateway to

review an otherwise barred constitutional claim. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

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-3 In order to show actual innocence based upon new evidence, a petitioner must establish that “in

light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond

a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Farmer argues that

he is actually innocent because the warrant issued for his arrest was invalid. However, ‘“actual

innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523

U.S. 614, 623-24 (1998). Because an invalid arrest warrant does not establish that Farmer is

factually innocent of attempted murder, reasonable jurists would not debate the district court’s

resolution of this issue.

Based upon the foregoing, the court DENIES the application for a certificate of

appealability and DENIES the motion to stay the district court proceedings as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

KEITH LEMONT FARMER,

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Petitioner,

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v.

SHAWN PHILLIPS, Warden,

NO. 3:19-cv-00590

JUDGE CAMPBELL

MAGISTRATE JUDGE FRENSLEY

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Respondent.

MEMORANDUM

Petitioner Keith Lemont Farmer, an inmate of the Northwest Correctional Complex in

Tiptonville, Tennessee, filed a pro se, in forma pauperis petition under 28 U.S.C. § 2254 for a writ

of habeas corpus challenging his conviction and sentence for attempt to commit first-degree

murder for which he currently is serving a term of twenty years’ imprisonment in the Tennessee

Department of Correction. (Doc. No. 1).

Respondent has filed a motion to dismiss the petition as time-barred (Doc. No. 17), and

Petitioner has responded to the motion (Doc. No. 30). Petitioner also filed a motion to dismiss the

indictment. (Doc. No. 27). The petition is ripe for review, and this Court has jurisdiction pursuant

to 28 U.S.C. § 2241(d).

I.

PROCEDURAL HISTORY

On July 23, 2012, Petitioner entered a plea of guilty to attempt to commit first-degree

murder in Davidson County Criminal Court. (Doc. No. 16, Attach. 1 at PageLD# 155). The trial

court sentenced Petitioner to twenty years of imprisonment. {Id.) Petitioner did not file a direct

appeal or seek post-conviction relief. Farmer v. Phillips, No. W2018-01687-CCA-R3-HC, 2019

WL 1272610, at *1 (Tenn. Crim. App. Mar. 19, 2019), perm. app. denied (Tenn. June 24, 2019).

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On August 9, 2018, Petitioner filed a state habeas corpus petition. (Doc. No. 16, Attach. 1

at PagelD# 101). The state habeas court summarily dismissed the petition for failure to state a

colorable claim. (Doc. No. 16, Attach. 1 at PagelD# 171). The Tennessee Court of Criminal

Appeals affirmed the judgment of the state habeas court. Farmer, 2019 WL 1272610, at **1-2.

The Tennessee Supreme Court denied discretionary review on June 24, 2019.

(Doc. No. 16,

Attach. 11 at PagelD# 249). Petitioner did not seek further review from the United States Supreme

Court. (Doc. No. 1 at PagelD# 2).

Petitioner placed the present pro petition for writ of habeas corpus into the prison mail

system between June 30,2019 and July 11,2019.1 (Doc. No. 1 at PagelD# 14). The Court received

the petition on July 12, 2019. (Id. at PagelD# 1).

On July 18, 2019, the Court directed Respondent to file an answer, plead or otherwise

respond to the petition in conformance with Habeas Rule 5. (Doc. No. 4). Respondent filed a

motion to dismiss on August 15, 2019, urging the Court to dismiss the petition as untimely filed.

(Doc. Nos. 17 and 18). Petitioner responded to the motion on September 5, 2019. (Doc. No. 30).

In the meantime, Petitioner also filed a motion to dismiss the indictment (Doc. No. 27), to which

Respondent responded (Doc. No. 32), as directed by the Court.

II.

STANDARD OF REVIEW

Rule 8(a) of the Rules Governing Section 2254 Cases permits the Court to examine the

petition, the answer, and the state court record to determine whether an evidentiary hearing is

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Under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266, 270 (1988), and the Sixth

Circuit’s subsequent extension of that mle in Richard v. Ray, 290 F.3d 810, 812 (6th Cir. 2002) and Scott

v. Evans, 116 F. App’x 699, 701 (6th Cir. 2004), a prisoner’s legal mail is considered "filed" when he

deposits his mail in the prison mail system to be forwarded to the Clerk of Court. Here, Petitioner signed

the petition on June 30, 2019, but does not indicate the date on which he placed the petition into the prison

mail system. (Doc. No. 1 at PagelD# 14).

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warranted. If no hearing is warranted, the Court may dismiss the petition on the merits without a

hearing. Habeas Rule 8(a).

Having fully considered the record, the Court finds that an evidentiary hearing is not

needed, and Petitioner is not entitled to relief. The petition therefore will be denied and this action

will be dismissed.

III.

ANALYSIS

Respondent contends that the instant petition is time-barred and must be dismissed. (Doc.

No. 17).

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (codified, inter alia, at 28 U.S.C. §§ 2244, etseq.), prisoners have one year within

which to file a petition for habeas corpus relief which runs from the latest of four (4) circumstances.

The relevant circumstance here is “the date on which the [state court] judgment became final by

the conclusion of direct review or the expiration of the time for seeking such review[.]” 28 U.S.C.

§§ 2244(d)(1)(A).

The AEDPA’s one-year limitations period is tolled by the amount of time that “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); see Ege v. Yukins, 485 F.3d 364, 371

(6th Cir. 2007). However, any lapse of time before a state application is properly filed is counted

against the one-year limitations period. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004).

When the state collateral proceeding that tolled the one-year limitations period concludes, the

limitations period begins to run again at the point where it was tolled rather than beginning anew.

See id. (citing McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003)). The Court has the

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authority to sua sponte raise the statute of limitations and dismiss untimely motions for federal

habeas corpus relief. See Day v. McDounough, 547 U.S. 198, 209 (2006).

Here, Petitioner’s judgment was entered on July 23, 2012. He did not seek a direct appeal

or file a petition for state post-conviction relief. “The general rule in Tennessee is that a judgment

becomes final thirty days after entry unless a timely notice of appeal or specified post-trial motion

is filed.” State v. Green, 106 S.W.3d 646, 648 (Tenn. 2003) (citing Tenn. R. App. P. 4(a) and (c);

State v. Peele, 58 S.W.3d 701, 704 (Tenn. 2001); State v. Pendergrass, 937 S.W.2d 834, 837

(Tenn. 1996)). Therefore, Petitioner’s judgment became final thirty days after July 23, 2012, or

on August 23, 2012. The AEDPA statute of limitations began running on the next day, August

24, 2012, and continued to run for 365 days until it expired on August 23, 2013.

The Court received Petitioner’s federal habeas petition on July 12, 2019, nearly six years

beyond the AEDPA’s one-year limitations period. Even if the Court assumed that Petitioner

placed his petition into the prison mail system on the date he signed the petition—June 30, 2019—

the petition still would be time-barred.

Petitioner sought state habeas corpus relief; however, his efforts had no tolling effect on

the AEDPA statute of limitations because Petitioner filed his state habeas petition on August 9,

2019, which was well after the AEDPA statute of limitations had expired. “Once the limitations

period is expired, collateral petitions can no longer serve to avoid a statute of limitations.” Vroman

v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003); Johnson v. Westbrooks, No. 3:13-cv-430, 2013 WL

1984395, at *1 (M.D. Tenn. May 13, 2013) (“Once the one-year limitation period in 28 U.S.C. §

2244(d)(1)(A) has expired, any motions or petitions for collateral post-conviction relief filed in

the state courts cannot serve to toll or avoid the statute of limitations.”). Accordingly, the Court

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finds that the instant petition should be dismissed as untimely because it was not filed within the

one-year statute of limitations for Petitioner’s claims.

The one-year statute of limitations in AEDPA is not jurisdictional and is subject to

equitable tolling. See Holland v. Florida, 560 U.S. 631, 645-49 (2010). Equitable tolling is applied

sparingly and evaluated on a case-by-case basis by federal courts when a petitioner’s “failure to

meet a legally-mandated deadline unavoidably arose from circumstances” beyond the petitioner’s

control. Keeling v. Warden, 673 F.3d 452, 462 (6th Cir. 2012) (citing Robinson v. Easterling, 424

F. App’x 439, 442 (6th Cir. 2011); Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011)). The petitioner

bears the burden of showing that he is entitled to equitable tolling. McClendon v. Sherman, 329

F.3d 490, 494 (6th Cir. 2003). See also Lawrence v. Florida, 549 U.S. 327, 336 (2007) (assuming

without deciding that equitable tolling is available under § 2244(d), and holding that such tolling

is warranted only where the petitioner shows “(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way” and prevented timely filing)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

A “credible showing of actual innocence” also may permit a prisoner to pursue his

constitutional claims on the merits notwithstanding the existence of a procedural bar to relief.

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). A petitioner must show ‘“it is more likely than

not that no reasonable juror would have convicted [the petitioner] in light of the new evidence.’”

Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). A “credible claim of actual

innocence is extremely rare,” Souter v. Jones, 395 F.3d 577, 600 (6th Cir. 2005), and it “should

‘remain rare’ and ‘only be applied in the extraordinary circumstance.’” Id. at 590 (quoting Schlup,

513 U.S. at 321).

Notably, “‘actual innocence’ means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citation omitted).

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Petitioner initially failed to acknowledge that his petition was filed after the conclusion the

one-year statute of limitations set forth by the AEDPA; indeed, Petitioner left Section 18 of the

petition entitled “TIMELINESS OF PETITION” blank. (Doc. No. 1 at PagelD# 13). In his

response to Respondent’s motion to dismiss, however, Petitioner appears to argue that he is entitled

to equitable tolling of the AEDPA statute of limitations because of his “ignorance of the law” and

because his indictment was void. (Doc. No. 30 at 1).

Petitioner has not carried his burden to show that he is entitled to equitable tolling based

on either reason. As to his first reason, ignorance of the law or a general inexperience with the

law has generally not been held to be a reasonable for equitable tolling. See Plummer v. Warren,

463 F. App’x 501, 506 (6th Cir. 2012) (“[T]he district court correctly concluded that the reasons

Plummer actually gave for the delay in filing her petition—namely her need to find help and

inexperience in the law—are not extraordinary circumstances warranting equitable tolling.”);

Moore v. United States, 438 F. App’x 445, 449 (6th Cir. 2011) (“Ignorance of the law, even by an

incarcerated pro se petitioner, is not grounds to toll the statute.”); Miller v. Cason, 49 F. App’x

495, 497 (6th Cir. 2002) (“Miller’s lack of knowledge of the law does not excuse his failure to

timely file a habeas corpus petition.”); Brown v. United States, 20 F. App’x 373, 375 (6th Cir.

2001) (“Ignorance of the limitations period does not toll the limitations period.”). Although

Petitioner may have felt that he was pursuing his rights diligently, his untimely-filed state habeas

petition did not toll the governing statute of limitations. Neither he has demonstrated that an

“extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at

649.

Petitioner also asserts that he is entitled to equitable tolling because his indictment is void.

(Doc. No. 27 at PagelD #363). Petitioner appears to be arguing that he entitled to equitable tolling

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under the “actual innocence” exception to the AEDPA limitations period because he has “new”

evidence in the form of an invalid arrest warrant. (Id.) To satisfy the actual innocence exception,

a petitioner must show “new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”

Schlup v. Delo, 513 U.S. 298, 324 (1995). The Court may then equitably toll the statute of

limitations only if, “[a]fter viewing all of the evidence, [...] ‘it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt

Connolly

v. Howes, 304 F. App’x 412, 417 (6th Cir. 2008) (quoting Schlup, 513 U.S. at 327).

Petitioner offers no new proof supporting a claim of actual innocence. Petitioner does not

suggest that he did not commit the crimes for which he was convicted. In his state habeas petition,

Petitioner makes the same arguments he makes now: his conviction was void based on an invalid

arrest warrant and prosecutorial misconduct and, as a result, the trial court lacked jurisdiction to

enter a judgment of conviction. Farmer, 2019 WL 1272610, at *1. The state habeas corpus

summarily denied relief, and the Tennessee Court of Criminal Appeals affirmed. Id. at *2.

Petitioner cannot claim refuge from the AEDPA limitations period based on actual innocence

equitable tolling. Bousley, 523 U.S. at 623. Thus, the Court finds that Petitioner has failed to

establish grounds that would entitle him to equitable tolling. The petition is untimely and must be

dismissed.

In summary, Petitioner has not presented any basis for concluding that equitable tolling

applies. Accordingly, the Court finds that the present petition is barred by the statute of limitations

established by 28 U.S.C. §§ 2244(d)(1)(D) and may not be considered on the merits by this Court.

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IV.

CONCLUSION

As set forth above, Respondent’s motion to dismiss (Doc. No. 17) is well taken and will be

granted. Petitioner filed his petition well beyond the AEDPA’s one-year limitations period and

has not established that he is entitled to equitable tolling. Accordingly, the petition will be denied.

Petitioner’s motion to dismiss the indictment (Doc. No. 27) will be denied, and this action will be

dismissed.

Federal Rule of Appellate Procedure 22 provides that an appeal of the denial of a habeas

petition may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §

2253. Rule 11 of the Rules Governing § 2254 Cases requires that a district court issue or deny a

COA when it enters a final order. A COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court's resolution

of his constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The

district court must either issue a COA indicating which issues satisfy the required showing or

provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P.

22(b).

Because jurists of reason would not disagree with the resolution of Petitioner’s claims, the

Court will deny a COA.

An appropriate Order will be entered.

WILLIAM L. CAMPBELL, J

UNITED STATES DISTRICT JUDGE

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