Petition for Writ of Certiorari — Cortez Bennett, Petitioner v. Johnny Fitz, Warden

Supreme Court briefMar 10, 2025

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FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dec 10, 2024

KELLY L. STEPHENS, Clerk

CORTEZ BENNETT,

Petitioner-Appellant,

JOHNNY FITZ, Warden,

Respondent-Appellee.

)

ORDER

Before: LARSEN, Circuit Judge.

Pro se Tennessee prisoner Cortez Bennett appeals the district court's judgment dismissing

as untimely his 28 U.S.C. § 2254 habeas corpus petition. The court construes Bennett’s notice of

appeal as an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b)(2).

The court denies Bennett’s COA application for the following reasons.

In 2001, a state jury convicted Bennett and co-defendant Andre Mays of first-degree

murder, attempted first-degree murder, and two counts of especially aggravated robbery. The trial

court sentenced Bennett to life plus 50 years of imprisonment. The Tennessee Court of Criminal

Appeals affirmed. State v. Mays, 2002 WL 31385939 (Tenn. Grim. App. Oct. 22, 2002), perm,

app. denied (Tenn. Feb. 24,2003).

hi 2004, Bennett petitioned the trial court for postconviction relief. The trial court denied

the petition, and the Tennessee Court of Criminal Appeals affirmed. Bennett v. State, 2005

WL 2546929 (Tenn. Crirn. App. Oct. 11, 2005).

hi 2013, Bennett moved the trial court to reopen his postconviction proceedings. The court

denied the motion, and the Tennessee Court of Criminal Appeals dismissed Bennett’s appeal.

Bennett v. State, No. M2013-01269-CCA-R3-PC (Tenn. Crim. App. Aug. 12, 2013).

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In 2019, Bennett moved the trial court to correct his sentence under Tennessee Rule of

Criminal Procedure 36.1. The trial court denied the motion, and the Tennessee Court of Criminal

Appeals affirmed. State v. Bennett, 2020 WL 2044740 (Tenn. Grim. App. Apr. 28,2020).

In 2021, Bennett filed a state habeas corpus petition in the trial court. The trial court denied

the petition, and the Tennessee Court of Criminal Appeals affirmed, Bennett v. Genovese, 2022

WL 2733404 (Tenn. Grim, App. July 14,2022).

hi November 2023, Bennett filed a § 2254 petition in the district court, raising seven claims

for relief from his convictions and sentence. Bennett conceded that six of liis seven claims were

untimely under 28 U.S.C. § 2244(d)(l)(A)’s one-year statute of limitations. But Bennett argued

that he was entitled to equitable tolling because (1) he has a lazy eye, which prevents him from

focusing on any object for more than one minute, along with an unspecified “mental [and] spiritual

defect,” (2) his postconviction counsel failed to inform him of the deadline for petitioning for

federal habeas relief, and (3) the severity of his sentence justified considering his claims.

The district court found that Bennett’s convictions became final in May 2003 and, after

crediting Bennett with statutory tolling under § 2244(d)(2), determined that the statute of

limitations expired in March 2006. Accordingly, the district court concluded that Bennett’s

petition was untimely by approximately 18 years.

The court then found that Bennett provided no evidentiary support for his claim that a

physical or mental disability prevented him from filing a timely petition. And even if Bennett did

have such a disability, the court found that Bennett failed to demonstrate a causal link between his

disability and his failure to comply with the statute of limitations. The court then concluded that

Bennett failed to show that his attorneys abandoned him, that his ignorance of the filing deadline

was not an excuse, and that he did not pursue his rights with diligence. Accordingly, the court

rejected Bennett’s equitable-tolling arguments and dismissed the petition as untimely. The court

declined to issue a COA.

A COA 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, the applicant must

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demonstrate 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). When a

district court denies a habeas petition on procedural grounds, this court may issue a COA only if

the applicant shows “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).

Under § 2244(d)(1)(A), a state prisoner must file his § 2254 petition no later than one year

after “the date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” Reasonable jurists would not debate the district

court’s conclusion that Bennett’s petition was untimely because he filed it many years after his

convictions became final.1

A prisoner is entitled to equitable tolling if he shows “‘(1) that lie has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood ill his way’ and prevented

timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544

U.S. 408,418 (2005)). Under this standard, reasonable jurists would not debate the district court’s

conclusion that Bennett is not entitled to equitable tolling.

First, Bennett did virtually nothing to protect his rights between 2005 and 2019. It is true

that in 2013 Bennett moved the trial court to reopen his postconviction proceedings to assert an

ineffective-assistance claim under Lajler v. Cooper, 566 U.S. 156 (2012). But the state courts

resolved the motion in a little under five months. That motion was bookended by eight- and

six-year periods in which Bennett sat on his rights. Under those circumstances, reasonable jurists

would not debate whether Bennett’s postconviction litigation history demonstrated reasonable

diligence. Cf Robinson v. Easterling, 424 F. App’x 439, 443 (6th Cir. 2011) (“[Tjhis Court has

1 Bennett asserted that his seventh claim, which attacked the sufficiency of the indictment

under state law and raised a double-jeopardy violation, was timely. But that claim was inarguably

untimely under § 2244(d)(1)(A). And the factual predicate of the claim was available to Bennett

on direct appeal of his convictions in state court. See 28 U.S.C. § 2244(d)(1)(D).

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never granted equitable tolling to a petitioner who sat on his rights for a year and a half, and we

decline to do so here,”).

Second, although a mental disability may justify equitable tolling, reasonable jurists would

not debate the district court’s determination that Bennett failed to provide evidentiary support for

either his claimed disabilities or a causal connection between the alleged disabilities and his failure

to comply with the statute of limitations, SeeAta v. Scutt, 662 F,3d 736, 741-42 (6th Cir. 2011).

Accordingly, reasonable jurists would not debate the district court’s conclusion that Bennett is not

entitled to equitable tolling because of a mental or physical disability. See id at 742-43.

Third, postconviction counsel’s failure to notify Bennett about his deadline for filing a

§ 2254 petition is not grounds for equitable tolling. See Allen v. Yukins, 366 F.3d 396, 403 (6th

Cir. 2004) (“[L]ack of actual or constructive knowledge [of the statute of limitations] does not

make equitable tolling appropriate.”). Consequently, reasonable jurists would not debate the

district court’s conclusion that Bennett failed to show that his failure to file a timely petition was

due to serious attorney misconduct. See Holland, 560 U.S. at 652.

For these reasons, we DENY Bennett’s COA application.

ENTERED BY ORDER OF THE COURT

KdlyLsyhens, Clerk

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CORTEZ BENNETT

#330900,

)

Petitioner,

No. 3:23-cv-01227

)

WARDEN JOHNNY FRITZ,

Respondent.

MEMORANDUM OPINION AND ORDER

Cortez Bennett, an inmate of the West Tennessee State Penitentiary in Henning, Tennessee,

filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). He

paid the full filing fee. (Doc. No. 5).

Petitioner is currently serving a sentence of life plus fifty years’ imprisonment for

convictions for one count of first-degree murder, one count of attempted first-degree murder, and

two counts of especially aggravated robbery. (Doc. No. 1 at 1).

I. PROCEDURAL HISTORY

On March 1, 2021, Petitioner and his co-defendant were convicted by a Davidson County

Criminal Court jury of first-degree premeditated murder for the killing of the victim, Ms. Tonya

Tyler, one count of first-degree felony murder for the killing of Ms. Tyler, one count of especially

aggravated robbery, one count of attempted first-degree murder for the attempted killing of Mr.

Wesley. Tyler, Sr., and one count of especially aggravated robbery of Mr. Tyler. State v. Mays.

No. M2001 -02151-CCA-R3-CD, 2002 WL 31385939, at *2 (Tenn. Crim. App. Oct. 22, 2002),

perm, app. denied (Tenn. 2003); (Doc. No. 10-1 atPageED 109, 122-25). On the same day, the trial

court imposed the mandatory life sentence on the conviction for first-degree premeditated murder

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and on the conviction for first-degree felony murder. (Id at PagelD 109). Following a sentencing

hearing, the trial court imposed a sentence of twenty-five years for especially aggravated robbery

and a twenty-five-year sentence for attempted first-degree murder. (Id. at PagelD 122-25). The

trial court ordered the two twenty-five-year sentences to run concurrently to each other but

consecutive to the two life imprisonment sentences, resulting in a total effective sentence of life

imprisonment plus fifty years. Mays. 2002 WL 31385939, at *2.

In a consolidated direct appeal, Petitioner sought review of (1) the trial court’s denial of

his motion to suppress the photographic line-up, (2) the sufficiency of evidence to support his

convictions for first-degree murder, attempted first-degree murder, and two counts of especially

aggravated robbery, and (3) his life sentence plus fifty years. Id. at *3-*6. On October 22, 2002,

the Tennessee Court of Criminal Appeals affirmed. Id at *9. Petitioner sought further

discretionary review in the Tennessee Supreme Court, which was subsequently denied on February

24, 2003. (Doc. No. 10-19). Petitioner did not file a petition for a writ of certiorari in the United

States Supreme Court.

Petitioner then filed a pro se petition for post-conviction relief in the Davidson County

Criminal Court, which was later amended by counsel. (Doc. No. 11-1 at PagelD 1360-76, 137985, 1388-89). Following an evidentiary hearing, the post-conviction court denied post-conviction

relief. (Id at PagelD 1393-1400). Petitioner appealed. Bennett v. State. No. M2004-02640-CCAR3-PC, 2005 WL 2546929 (Tenn. Crim. App. Oct. 11, 2005) (no perm. app. filed). On appeal,

Petitioner raised fifteen claims of ineffective assistance of counsel. Id. at *8-*9. The Tennessee

Court of Criminal Appeals affirmed. Id. at *16. Petitioner did not seek discretionary review with

the Tennessee Supreme Court.

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Approximately eight years later, Petitioner filed a motion to reopen his post-conviction

proceedings in the Davidson County Criminal Court, and the motion was summarily dismissed by

the postconviction court. (Doc. Nos. 11-7, 11-8). Petitioner filed an untimely appeal of the

summary dismissal to the Tennessee Court of Criminal Appeals. (Doc. No. 11-9). The Tennessee

Court of Criminal Appeals found that, because Petitioner had failed to follow the only recognized

avenue for pursuing an appeal of the trial court’s denial of his motion to reopen, the court lacked

jurisdiction to entertain the matter. (Id at PagelD 1613). The Tennessee Supreme Court denied

Petitioner’s request for discretionary review. (Doc. No. 11-12).

In March 2019, Petitioner filed a motion to correct an illegal sentence in Davidson County

Criminal Court pursuant to Tennessee Rules of Criminal Procedure Rule 36.1. (Doc. No. 11-13 at

PagelD 1665-84). The court summarily denied the motion, and Petitioner appealed to the

Tennessee Court of Criminal Appeals. State v. Bennett. No. M2019-01034-CCA-R3-CD, 2020

WL 2044740, at *1 (Term. Crim. App. Apr. 28, 2020) (no perm. app. filed). On April 28, 2020,

the Tennessee Court of Criminal Appeals affirmed, holding that Petitioner’s sentences are not

illegal under the terms of Term. R. Crim. P. 36.1. Id at *2. Petitioner did not seek discretionary

review with the Tennessee Supreme Court.

In November 2021, Petitioner filed a petition for writ of state habeas corpus in Lake County

Circuit Court, alleging that his sentence for first-degree murder directly contravened state law, that

the indictment for first-degree attempted murder was void, and that his dual conviction for

especially aggravated robbery of Mr. and Mrs. Tyler violated double jeopardy principles. Bennett

v. Genovese. No. W2021-01507- CCA-R3-HC, 2022 WL 2733404, at *1 (Tenn. Crim. App. July

12, 2022), perm, app. denied (Tenn. 2022). The petition was summarily denied. Id Petitioner

appealed the summary denial to the Tennessee Court of Criminal Appeals. Id On July 12, 2022,

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the Tennessee Court of Criminal Appeals affirmed the trial court’s summary denial, discerning no

error. Id Petitioner sought discretionary review in the Tennessee Supreme Court, which

subsequently denied review. (Doc. No. 11-28).

On November 14, 2023,1 Petitioner filed the instant a pro se petition for writ of habeas

corpus under 28 U.S.C § 2254. (Doc. No. 1 at PageDD 12).

II. STANDARD FOR PRELIMINARY REVIEW OF SECTION 2254 CASES

Under Rule 4, Rules - Section 2254 Cases, the court is required to examine Section 2254

petitions to ascertain as a preliminary matter whether “it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court.” If, on the face of

the petition, it appears that the petitioner is not entitled to habeas corpus relief, then the “the judge

must dismiss the petition....” Id

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, et seq.l. prisoners have one year within

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

one of which appears to be relevant here—“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

1 Under the “prison mailbox rule” of Houston v. Lack. 487 U.S. 266, 270 (1988), and the Sixth Circuit’s subsequent

extension of that rule 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. Pursuant to this authority, the Court finds that Petitioner filed his petition on

November 14, 2024, the date he signed the petition (Doc. No. 1 at at PagelD 28), even though the Clerk of Court

received and docketed the petition on November 20,2023.

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

against the one-year limitations period. See Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir. 1999),

aff d, 531 U.S. 4 (2000). 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 Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (citing McClendon

v. Sherman. 329 F.3d 490, 494 (6th Cir. 2003)).

m. RULE 4 PRELIMINARY REVIEW

The record before the Court shows that the date on which Petitioner’s judgment became

final by conclusion of direct review was February 24, 2003. (See Doc. No. 10-19). On February

25, 2003,2 the 90-day period within which Petitioner could have filed a writ of certiorari with the

United States Supreme Court began. During that ninety 90-day period, the AEDPA’s one-year

limitations period was tolled. See Clay v. United States. 537 U.S. 522, 532 (2003). The 90-day

period ended on May 27, 2003.3 The AEDPA one-year limitations period began running the next

day, on May 28, 2003. Therefore, Petitioner had one year from May 28, 2003, to timely file his

federal habeas petition.

On February 10, 2004 (applying the prison mailbox rule), Petitioner statutorily tolled the

limitations period by properly filing a pro se state petition for post-conviction relief. (See Doc. No.

11-1). At this time, Petitioner’s statute of limitations had been running for 259 days. The

limitations period remained tolled during the post-conviction proceedings (which concluded

following the expiration of the sixty days after October 11, 2005, when Petitioner could have, but

2 Where, as here, the time period is stated in days or a longer unit of time, the Court excludes the day of the event that

triggers the period. See Fed. R. Civ. P. 6(1)(1)(A).

3 Because the end of the one-year period fell on a holiday (Monday, May 26, 2003), Petitioner’s deadline for filing

was Tuesday, May 27, 2003. See Fed. R. Civ. P. 6(a)(1) (directing that, when the period is stated in days or a longer

unit of time, the Court includes the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday,

the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday).

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did not, seek discretionary review in Tennessee Supreme Court) on December 12, 2005.4 See 28

U.S.C. § 2244(d)(2); Tenn. R. App. P. 11(b). Therefore, the limitations period resumed the next

day, December 13, 2005.5 See Fed. R. Civ. P. 6(a)(1)(A). Since 259 days of the one-year

limitations period had run, Petitioner had 106 days, or until March 29, 2005,6 to timely file his

federal habeas petition.

Petitioner filed his federal habeas petition on November 14, 2023, some 18 years after the

AEDPA’s one-year limitations period had expired. The petition is untimely by nearly two decades.

Petitioner’s subsequent collateral attacks in state courts following the expiration of the

federal habeas corpus statute of limitations provided no statutory tolling. That is because, under

28 U.S.C. § 2244(d)(2), the statute of limitations cannot be renewed after it has fully run. 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.”).

Still, the “one-year limitations period is not a jurisdictional bar and is subject to equitable

tolling in certain instances.” Ata v. Scutt, 622 F.3d 736, 741 (6th Cir. 2011) (citing Holland v.

Florida. 560 U.S. 631, 645 (2010)). A petitioner seeking equitable tolling bears the burden of

establishing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

4 The 60 days expired on Saturday, December 10, 2005; therefore, the limitations period legally expired on the

following Monday, December 12, 2005. See Fed. R. Civ. P. 6(a)(1),

5 The one-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment is not tolled

during the pendency of petition for certiorari to the United States Supreme Court seeking review of denial of state

postconviction relief. See Lawrence v. Florida. 549 U.S. 327, 337 (2007). In any event, it does not appear that

Petitioner sought review by the United States Supreme Court.

6 Here, Respondent’s calculations differ from the Court’s (see Doc. No. 13 at PagelD 1965); nevertheless, the Court

and Respondent arrive at the same conclusion: the instant federal habeas petition was untimely filed.

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circumstance stood in his way” and prevented timely filing. Holland. 560 U.S. at 649 (quoting

Pace v. DiGuglielmo. 544 U.S. 408, 418 (2005)). Equitable tolling is applied “sparingly.” Hall v.

Warden. Lebanon Corr. Inst.. 662 F.3d 745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson.

624 F.3d 781, 783 (6th Cir. 2010)). Petitioner contends that he is entitled to equitable tolling

because he has a physical and mental disability and because his state counsel abandoned him.

Petitioner’s arguments are unavailing.

First, Petitioner argues that the “extraordinary circumstance” of his “mental and physical

incompetency” warrants equitable tolling. (Doc. No. 18 at PageED 1984). In his Reply to

Respondent’s Motion to Dismiss, Petitioner requests an evidentiary hearing on this argument,

stating that, “[a]s the evidence shows, Bennett cannot focus on one object more than minute, by

birth defect.” (Doc. No. 18 at PageED 1984). In Ata. the Sixth Circuit held that, when a district

court is applying the standard set forth in Schriro v. Landrigan. 550 U.S. 465 (2007) to determine

whether a prisoner is entitled to an evidentiary hearing on his request for equitable tolling, “the

court [is] to determine if the factual allegations are sufficient to support equitable tolling and to

review the state court record in order to establish whether petitioner’s assertions are refuted by the

record or otherwise without merit.” 662 F.3d at 742. Ata makes clear that “an evidentiary hearing

need not be provided as a matter of right.” Id. Rather, “an evidentiary hearing is required when

sufficiently specific allegations would entitle the petitioner to equitable tolling on the basis of

mental incompetence which caused the failure to timely file.” Id. “[A] causal link between the

mental condition and untimely filing is required.” Id

The “evidence” Petitioner points to is the photograph of him that law enforcement used to

create the photographic lineup during the investigation period. (Doc. No. 10-8 at PagelD 980).

Petitioner also states that he “needs somebody (some medical specialist) before deciding anything

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due to his mental and physical incompetence, which prevented him from, among many, timely

filing his Habeas Corpus Petition.” (Doc. No. 18 at PagelD 1984). Notwithstanding that Petitioner

makes inconsistent arguments,7 the state-court record lacks any documentation of Petitioner’s

alleged mental and physical disabilities. Instead, the state-court record shows that Petitioner

testified on his own behalf at the post-conviction evidentiary hearing during which time he never

mentioned that he had a mental or physical disability. (See Doc. No. 11-2 at PagelD 1408-22).

And while Petitioner now asserts that he must consult with “some medical specialist before

deciding anything,” Petitioner at no point required assistance to answer questions from his post

conviction counsel, the prosecutor, or the post-conviction court. (See Doc. No. 18 at PagelD 1984).

Petitioner filed multiple pro se collateral review actions in state court, filed the instant 28-page

federal habeas petition, and filed a response to Respondent’s Motion to Dismiss after seeking an

extension of time to do so. It does not appear that Petitioner’s alleged disabilities have hindered

his ability to litigate.

Moreover, Petitioner simply has not demonstrated a causal link between his asserted

disabilities and the untimely filing of his federal habeas petition. “Illness—mental or physical—

tolls a statute of limitations only if it actually prevents the sufferer from pursuing his legal rights

during the limitation period.” Price v. Lewis. 119 F. App’x 725,726 (6th Cir. 2005); see also Smith

v. Beightler, 49 F. App’x 579, 580-81 (6th Cir. 2002) (finding that the petitioner was not entitled

to equitable tolling simply because he was blind and had to rely on others to assist him in accessing

the courts). Petitioner has not identified what “mental deficiencies” he alleges. While mental

incompetence or incapacity may provide a basis for equitable tolling, “a blanket assertion of mental

7 Petitioner argues that he did not timely file his federal habeas petition because, for a substantial period of time, he

was unaware that he could seek relief in federal court. But Petitioner also argues that he did not seek relief because of

his physical and mental disabilities.

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incompetence is insufficient to toll the statute of limitations.” Ata, 662 F.3d at 741-42; McSwain

v. Davis. 287 F. App’x 450,456 (6th Cir. 2008).

The record here does not demonstrate that Petitioner’s alleged disability or disabilities

actually prevented him from pursuing his legal rights during the limitations period. See e.g..

Bilbrev v. Douglas, 124 F. App’x 971, 973 (6th Cir. 2005) (declining to apply equitable tolling on

the basis of mental incapacity where petitioner had pursued state court litigation even during the

periods when her mental condition was the most impaired). An evidentiary hearing is not required

because Petitioner’s factual allegations are not sufficient to support equitable tolling and the state

court record refutes Petitioner’s assertions.

Next, Petitioner argues that he was abandoned by appellate counsel and post-conviction

counsel because they “did not provide any notification regarding the one year statute of limitations

within which the Petitioner should file the 2254 Federal Habeas Corpus.” (See Doc. No. 1 at

PageED 28). In particular, Petitioner states that he did not pursue his rights “from 2005 to 2013,

approximately eight years, when he was misled by Post-Conviction counsel, Charles Walker.”

(Doc. No. 18 at PageED 1982).

A “garden variety claim of excusable neglect” does not generally give rise to equitable

tolling. Holland, 560 U.S. at 651-52 (citing Irwin. 498 U.S. at 96). However, a “serious instance[]

of attorney misconduct” may constitute extraordinary circumstances. Id. at 652. One such act of

misconduct can be attorney abandonment. Maples v. Thomas. 565 U.S. 266, 283 (2012). In

Maples, the Supreme Court considered it “abandonment” when a petitioner’s post-conviction

attorney ceased representing him in the midst of post-conviction proceedings without filing a

notice of his withdrawal or informing the defendant or the court of his departure without finding

another attorney to assume representation of the defendant. Id. at 270-76. Thus, a petitioner who

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is “left without any functioning attorney of record,” without a “reason to suspect that he lacked

counsel,” and without notice “that he had better fend for himself’ can establish that his attorney

has abandoned him. Id at 288-89. A petitioner in this situation cannot be held responsible for acts

or omissions of an attorney who has abandoned him and cannot be faulted for failing to act on his

own behalf when he lacks reason to believe that the attorney is not representing him. Id. at 281.

283.

Petitioner fails to demonstrate attorney abandonment here. His argument in support of his

allegation of attorney abandonment is focused on the fact that his previous attorneys “did not

provide any notification regarding the applicable one year statute of limitations”. But Petitioner

provides no legal authority supporting his assertion that state trial attorneys have a duty to inform

a criminal defendant of the ability to file this federal civil lawsuit. In fact, persuasive authority

from the Sixth Circuit negates Petitioner’s argument. See Martin v. Hurley. 150 Fed. App’x. 513

(6th Cir. 2005) (finding that attorney’s failure to advise petitioner of AEDPA deadline is not

extraordinary circumstance warranting equitable tolling).

Petitioner’s lack of knowledge surrounding what federal rights were available to him does

not excuse his lack of diligence. See Allen v. Yukins. 366 F.3d 396, 403 (6th Cir. 2004) (where

petitioner argued that he lacked notice of AEDPA’s limitations period, court found that the

“AEDPA statute plainly states that the one-year statute of limitations runs from the ‘conclusion of

direct review’ and that the statutory period is tolled during the time when a motion for state

postconviction review is pending” and, even if petitioner lacked actual knowledge of the relevant

provisions of the AEDPA, ‘ignorance of the law alone is not sufficient to warrant equitable

tolling.’”). See also Cobas v. Burgess. 306 F.3d 441, 444 (6th Cir. 2002) (“[A]n inmate’s lack of

legal training, his poor education, or even his illiteracy does not give a court reason to toll the

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statute of limitations.”); Griffin v. Rogers. 399 F.3d 626, 637 (6th Cir. 2005); Hall v. Warden.

Lebanon Corr. Inst.. 662 F.3d 745, 750-51 (6th Cir. 2011).

In summary, the Court finds that Petitioner cannot meet the high burden of showing that

he is entitled to equitable tolling. 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.

IV. CONCLUSION

After conducting a preliminary review of Petitioner’s Section 2254 petition under Rule 4,

Rules - Section 2254 Cases, the Court finds that the instant petition was untimely filed, and

Petitioner has not demonstrated that he is entitled to equitable tolling. Accordingly, Respondent’s

Motion to Dismiss (Doc. No. 12) is GRANTED, the petition is DENIED, and this action is

DISMISSED WITH PREJUDICE as time-barred under 28 U.S.C. § 2244(d)(1).

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).

Case 3:23-cv-01227

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Because jurists of reason would not disagree with the resolution of Petitioner’s petition and

Respondent’s Motion to Dismiss the petition as untimely and not subject to equitable tolling, the

Court DENIES a COA.

This Order constitutes final judgment in this action.

IT IS SO ORDERED.

5).

WAVERLY D. (QRENSHAW, JR. (/

UNITED STATES DISTRICT JUDGE

Case 3:23-cv-01227

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CORTEZ BENNETT

#330900,

)

Petitioner,

No. 3:23-cv-01227

)

WARDEN JOHNNY FRITZ,

Respondent.

MEMORANDUM OPINION AND ORDER

Cortez Bennett, an inmate of the West Tennessee State Penitentiary in Henning, Tennessee,

filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). He

paid the full filing fee. (Doc. No. 5).

Petitioner is currently serving a sentence of life plus fifty years’ imprisonment for

convictions for one count of first-degree murder, one count of attempted first-degree murder, and

two counts of especially aggravated robbery. (Doc. No. 1 at 1).

I. PROCEDURAL HISTORY

On March 1, 2021, Petitioner and his co-defendant were convicted by a Davidson County

Criminal Court jury of first-degree premeditated murder for the killing of the victim, Ms. Tonya

Tyler, one count of first-degree felony murder for the killing of Ms. Tyler, one count of especially

aggravated robbery, one count of attempted first-degree murder for the attempted killing of Mr.

Wesley Tyler, Sr., and one count of especially aggravated robbery of Mr. Tyler. State v. Mays.

No. M2001 -02151-CCA-R3-CD, 2002 WL 31385939, at *2 (Tenn. Crim. App. Oct. 22, 2002),

perm, app. denied (Tenn. 2003); (Doc. No. 10-1 at PagelD 109, 122-25). On the same day, the trial

court imposed the mandatory life sentence on the conviction for first-degree premeditated murder

Case 3:23-cv-01227

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and on the conviction for first-degree felony murder. (Id. at PagelD 109). Following a sentencing