Muhammad v. Donahue

Filing 19

MEMORANDUM: Respondent's motion to dismiss will be GRANTED (Court File No. 13) and Petitioner's petition for writ of habeas corpus will be DISMISSED as time-barred. An Order shall enter. Signed by District Judge Curtis L Collier on 8/6/2014. (BJL, )***Mailed Ira Ishmael Muhammad.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
IRA ISHMAEL MUHAMMAD,
Petitioner,
v.
WARDEN MICHAEL J. DONAHUE,
Respondent.

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No. 1:13-cv-111
Judge Curtis L. Collier

MEMORANDUM
Petitioner Ira Ishmael Muhammad (“Petitioner”) filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging the legality of his state convictions (Court File No.
2). Respondent Michael Donahue (“Respondent”) filed a motion to dismiss Petitioner’s § 2254
petition as time-barred (Court File No. 13). Petitioner responded in opposition to this motion,
acknowledging the untimeliness of his petition but arguing he is entitled to equitable tolling (Court
File No. 17). Respondent sought leave to reply well after the time period allowed by the Federal
Rules of Civil Procedure, clarifying an error in his initial motion and responding to Petitioner’s
arguments (Court File No. 18).
After reviewing the record and the applicable law, the Court concludes Petitioner’s § 2254
petition is time-barred. Therefore, Respondent’s motion to dismiss will be GRANTED (Court File
No. 13), and Petitioner’s habeas petition will be DISMISSED as time-barred (Court File No. 2).

I.

FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was convicted by a Hamilton County, Tennessee jury for attempted second degree

murder, two counts of aggravated assault, attempted voluntary manslaughter, and felony reckless
endangerment. He received an effective twenty-eight-year sentence. Muhammad v. State, No.

E2013–00937–CCA–R3–CO, 2013 WL 6474967, at *1 (Tenn. Crim. App. Dec. 9, 2013). On direct
appeal Petitioner’s conviction and sentence were affirmed and permission to appeal to the Tennessee
Supreme Court was denied. Id.
Petitioner filed a state post-conviction petition on January 3, 2005, alleging he was denied
effective assistance of counsel and there was newly discovered evidence in the case. See
Muhammad v. State, No. E2007–00748–CCA–R3–PC, 2009 WL 400633, *3 (Tenn. Crim. App. Feb.
18, 2009), perm. app. denied (Tenn. Aug. 17, 2009) (Court File No. 2-7). Petitioner’s state postconviction petition was subsequently amended twice by court-appointed post-conviction counsel.
Id. At a March 2006 hearing, proof was presented on all issues, including whether Petitioner had
been denied his right to petition for an appeal to the Tennessee Supreme Court. Id. The postconviction court determined that the petitioner had, in fact, been denied his right of appeal, and the
court granted a delayed appeal for that purpose. The post-conviction court stayed the remaining
post-conviction issues pending the outcome of the delayed appeal.
On March 12, 2007, the Tennessee Supreme Court denied Petitioner’s application for appeal,
and, on March 27, 2007, the post-conviction court denied the remaining issues in the post-conviction
petition. The Court of Criminal Appeals of Tennessee affirmed the denial of post-conviction relief
and the Tennessee Supreme Court denied Petitioner’s application for permission to appeal on August
17, 2009.
In March 2013, Petitioner filed a petition for writ of error coram nobis alleging that newly
discovered evidence in the form of a newspaper article from the time of the shooting and the time
of his trial entitled him to a new trial. Muhammad, 2013 WL 6474967. Petitioner then filed this
habeas petition on March 22, 2013, when he placed it in the prison mail system (Court File No. 2,

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at 14).

II.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides a one-year

statute of limitations for filing a § 2254 petition. The statute of limitations runs from the date the
judgment becomes final on direct review or the date time for seeking review expires. 28 U.S.C. §
2244(d)(1). However, “[t]he time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation.” Id. § 2244(d)(2).
Petitioner’s direct appeal concluded on March 12, 2007, when the Tennessee Supreme Court
denied his application for permission to appeal.

State v. Muhammed, No. E2003-01629-

CCA-R3-CD.2004 WL 1073889 (Tenn. Crim. App. May 10, 2004), perm. app. denied (Tenn. March
12, 2007). Because his state post-conviction petition was still pending, the one year statute of
limitations for filing a federal habeas petition did not commence until August 18, 2009, the day after
the Tennessee Supreme Court denied his application to appeal the denial of his post-conviction
petition. Therefore, the applicable one year statute of limitations for filing a federal habeas petition
began to run on August 18, 2009, and expired on August 18, 2010. Petitioner gave his § 2254
petition to prison authorities for mailing on March 22, 2013, more than two years too late.
However, Petitioner appears to argue that the one year statute of limitations should be
equitably tolled because his state post-conviction counsel failed to notify him that his case had
concluded (Court File Nos. 2, 17). Petitioner attaches five letters to his motion that he sent to his
attorney on October 19, 2009, April 5, 2010, September 28, 2010, March 25, 2011, and November

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13, 2012 (Court File No. 2-5).1 According to Petitioner, none of these letters was answered. Also
on November 13, 2012, Petitioner sought a status update from the Tennessee Supreme Court (id.).
The Appellate Clerk’s Office responded on November 20, 2012 with a copy of the judgment and
case history (Court File Nos. 2-2, 2-3, 2-4). As the Court understands the argument, Petitioner
claims his post-conviction counsel’s failure to provide timely notice of the Tennessee Supreme
Court’s ruling on his post-conviction appeal was an extraordinary circumstance beyond his control
that requires equitable tolling of the statute of limitations.
“[T]o demonstrate that he is entitled to equitable tolling, a habeas petitioner must establish:
(1) that he has diligently pursued his rights; and (2) ‘that some extraordinary circumstance stood in
his way and prevented timely filing.’” Keeling v. Warden, Lebanon Correctional Inst., 673 F.3d 452,
463 (6th Cir. 2012) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The equitable tolling
doctrine is used only in rare cases where circumstances beyond a petitioner’s control have prevented
him from timely raising a habeas corpus claim. The burden is on a petitioner to establish he is
entitled to equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004).
Although the Supreme Court emphasized equitable tolling does not require “maximum
feasible diligence,” it does require “reasonable diligence.” Holland, 560 U.S. at 653. However,
“petitioners who receive delayed notification of a state court judgment due to clerical or attorney
errors may not seek equitable tolling if they ‘passively await decision.’” Robinson v. Easterling, 424
F. App’x 439, 443 (6th Cir. 2011) (quoting Miller v. Collins, 305 F.3d 491, 496 (6th Cir. 2002)).
In Holland, for example, the Court held that the petitioner had demonstrated reasonable diligence

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Petitioner states in his response brief that one of the letters was sent on April 15, 2010, but
the letter attached to his initial motion is dated April 5, 2010.
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because he “not only wrote his attorney numerous letters seeking crucial information and providing
direction; he also repeatedly contacted the state courts, their clerks, and the Florida State Bar
Association in an effort to have Collins–the central impediment to the pursuit of his legal
remedy–removed from his case.” 560 U.S. at 653. Further, “the very day that Holland discovered
that his AEDPA clock had expired due to Collins’ failings, Holland prepared his own habeas petition
pro se and promptly filed it with the District Court.” Id. (emphasis in original).
Here, Petitioner never notified the Tennessee courts of counsel’s lack of communication or
moved to have counsel removed from his case.2 Instead, Petitioner waited more than three years
after receiving his last correspondence from counsel, and more than one year after he wrote counsel
the last time (correspondence dated March 25, 2011), before inquiring about his case directly with
the state supreme court.3 Because Petitioner was inactive for more than one year during this time,
he was not reasonably diligent in pursuing his rights. See Keeling, 673 F.3d at 463 (“While this
Court has recognized that attorney assurances and the realities of incarceration may justifiably delay
a petitioner’s request for a case status report, . . . this Court has never granted equitable tolling to
a petitioner who sat on his rights for a year and a half.”); see also Robinson, 424 F. App’x at 443
(concluding that a petitioner was not reasonably diligent because he waited eighteen months after
last contacting his attorney to inquire with the state court about the status of his case). Although he
received no response from counsel to his numerous letters, he “passively awaited” the decision for

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In fact, as early as 2008, Petitioner was in correspondence with the Board of Professional
Responsibility, apparently regarding post-conviction counsel’s failure to respond to him promptly
(Court File No. 2-5).
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He did, however, simultaneously send another letter to his attorney when he inquired with
the state supreme court.
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more than four years rather than contacting the state supreme court and inquiring about the status
of his case. See Robinson, 424 F. App’x at 443.
Moreover, unlike the petitioner in Holland, Petitioner here did not immediately file his
petition after receiving notice of the Tennessee Supreme Court’s decision. Although the exact date
he received the judgment from the Appellate Clerk is unclear, the letter he attaches to his petition
is dated November 20, 2012 (Court File No. 2-2). He did not file his petition with the Court until
April 2013 (Court File No. 1). And based upon his November 2012 letter to counsel, Petitioner was
already planning to file this petition (Court File No. 2-5).
Applying the Holland equitable tolling test, the Court concludes Petitioner did not diligently
pursue his federal habeas rights and is not entitled to equitable tolling. Accordingly, Petitioner’s
§ 2254 petition will be DISMISSED as time-barred.

III.

CONCLUSION
For the foregoing reasons, Respondent’s motion to dismiss will be GRANTED (Court File

No. 13) and Petitioner’s petition for writ of habeas corpus will be DISMISSED as time-barred.
An Order shall enter.
/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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