Armstrong v. Cook

Filing 16

MEMORANDUM AND OPINION. Therefore, the Court will DENY issuance of a COA. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). Because this petition is untimely, respondents dispositive motion will be GRANTED and this petition will be DISMISSED. Signed by District Judge Harry S Mattice, Jr on 7/5/2017. (BDG, ) Order mailed to Armstrong.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

MARK S. ARMSTRONG,
Petitioner,
v.
DOUG COOK, Warden,
Respondent.

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No.: 1:15-CV-225-HSM-SKL

MEMORANDUM OPINION

Mark S. Armstrong (“Petitioner”), a pro se state prisoner, filed this petition for a writ of
habeas corpus, 28 U.S.C. § 2254, challenging his 2004 Rutherford County, Tennessee conviction
for aggravated rape—an offense for which he was sentenced to 20-years’imprisonment [Doc. 2
pp.1, 18]. Before the Court are Respondent Warden Doug Cook’s Motion to Dismiss on the
ground of timeliness and his supporting brief, as well as the contemporaneously-filed state court
record [Docs. 9, 10, 11, and 11-1 through 11-21]. Petitioner has not responded to the Motion to
Dismiss, and the time for doing so has now passed. See E.D. Tenn. L.R. 7.1(a). The lack of a
response from Petitioner functions, not only as a waiver of opposition, but also as an independent
basis for granting the motion. See Notredan, LLC v. Old Republic Exch. Facilitator Co., 531 F.
App’x 567, 569 (6th Cir. 2013); see also E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion
may be deemed a waiver of any opposition to the relief sought”). After reviewing the pleadings,
the Motion to Dismiss, and the state court record, the Court finds that the Warden’s Motion to
Dismiss should be GRANTED and this petition DISMISSED as untimely.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) contains a one-year
statute of limitations governing the filing of an application for a federal writ of habeas corpus.
See 28 U.S.C. § 2244. The statute begins to run on the date the judgment became final, which
occurred, as relevant here, at the conclusion of direct review. Id. § 2244(d)(1)(A). The time is
tolled, however, during the pendency of a properly filed application for state post-conviction
relief. Id. § 2244(d)(2).
Petitioner was convicted on July 9, 2004 [Doc. 2 at 1]. Petitioner carried an appeal to
the Tennessee Court of Criminal Appeals and, when unsuccessful there, he sought permission for
further review from the Tennessee Supreme Court. State v. Armstrong, No. M2004-02432-CCAR3-CD, 2005 WL 1769043 (Tenn. Crim. App. July 22, 2005), perm. app. denied (Tenn. 2005).
Permission to appeal was denied on December 19, 2005, and ninety-one days later, on Monday,
March 20, 2006,1 when the time expired for filing a petition for certiorari in the U.S. Supreme
Court, Petitioner’s conviction became final and AEDPA’s one-year clock started to tick. Thus,
for purposes of § 2244(d)(1)(A), the time for filing this § 2254 petition would end one year
afterward, i.e., on March 20, 2007.
As noted, the limitations statute is tolled while a properly filed state post-conviction is
pending. See 28 U.S.C. § 2244(d)(2). Petitioner filed an application for state post-conviction
relief in the Rutherford County Circuit Court on June 28, 2006 [Doc. 11-14 pp. 3-56], after
AEDPA’s one-year clock had ticked for one-hundred (100) days. The post-conviction petition

1

Though a certiorari petition must be filed in the Supreme Court within ninety days from
the state supreme court’s opinion, Petitioner had 91 days to submit his petition because the
ninetieth day fell on Sunday, March 19, 2006. See Fed. R. Civ. P. 6(a)(1)(C) (stating that, if the
last day of the period is a Saturday, Sunday or a legal holiday, the period continues to run until
the end of the next day that is not a legal holiday).

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was denied by the trial court, and the Tennessee Court of Criminal Appeals affirmed the trial
court’s decision on June 25, 2008. Armstrong v. State, No. M2007-01614-CCA-R3-PC, 2008
WL 2521228 (Tenn. Crim. App. June 25, 2008), perm. app. denied (Tenn. 2008).

The

Tennessee Supreme Court declined Petitioner’s request for further post-conviction appeal on
December 8, 2008. Id. On December 9, 2008, the AEDPA’s clock re-started, see Fed. R. Civ. P.
6(a)(1)(A), with 265 days left to run, i.e., up to and including August 31, 2009.
Petitioner argues that the statute was tolled by a motion to reopen his post-conviction
petition that he filed in the Rutherford County Circuit Court on May 7, 2014 [Doc. 2 at 4, 18],
though the state court record contains no such a filing. Even if Petitioner moved to reopen his
post-conviction proceedings on May 7, 2014, the motion to reopen would not have stopped the
clock from ticking. This is so because, by the time Petitioner filed the purported motion, the
AEDPA’s clock had already ceased ticking on his conviction and there was no time left to toll.
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.”); Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir.
2002). Therefore, any May 7, 2014 motion to reopen filed by Petitioner would have no effect on
the tolling calculus.
Accordingly, the AEDPA’s clock resumed ticking on December 9, 2008, continued to
tick for 265 days, and stopped on Monday August 31, 2009.

Petitioner filed this instant

application for habeas corpus relief on August 25, 2015,2 under the prison mailbox rule, see

2

Petitioner certified, under penalty of perjury, that he was mailing his petition on August
26, 2014 [Doc. 2 at 28], but the postmark on the envelope containing the petition was August 25,
2015. In this instance, the Court deems the filing date to be the date of the postmark. Even if the
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Houston v. Lack, 478 U.S. 266, 276 (1988); Towns v. United States, 190 F.3d 468, 469 (6th Cir.
1999). The filing date of the § 2254 petition was just shy of six years after the lapse of the
AEDPA’s statute of limitations.
To refute that his petition is time-barred, Petitioner invokes “the toll of the statute” [Doc.
1 at 19]. The one-year statute of limitations in AEDPA, is not jurisdictional and is subject to
equitable tolling in an appropriate case. See Holland v. Florida, 560 U.S. 631, 645 (2010). An
appropriate case for equitable tolling in one where a 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.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
While Petitioner offers a mishmash of “tolling” theories, none of those theories has any
relevance whatsoever to a tolling analysis. For example, Petitioner cites to the retroactivity rule
in Teague v. Lane, 489 U.S. 288 (1989), that holds that new rules will not be applied in cases on
collateral review. Petitioner then cites Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated
on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002), which discussed an exception to the
retroactivity rule. Though Petitioner did not pinpoint the part of Penry upon which he is relying,
the Court interprets his argument that the state court lacked the power to punish him as an
assertion that his conduct was “beyond the State’s power to punish at all.”
The Tennessee legislature has enacted a law establishing an offense of aggravated rape,
which is violated by “the unlawful sexual penetration of a victim by the defendant or the
defendant by a victim [where] ... the defendant causes bodily injury to the victim....” State v.

Court used the 2014 date, as set forth in petition itself, in its calculation of the statutory period,
the petition still would have been filed almost five years too late.
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Armstrong, 2005 WL 1769043, at *11 (quoting Tenn. Code Ann. §§ 39-13-502(a)(2)). Petitioner
stands convicted of violating the aggravated rape statute by a jury that determined that the
prosecution had proven the violation of “the essential elements of the charged offense beyond a
reasonable doubt.” Id. at *12.
It is beyond cavil that Tennessee has jurisdiction to punish defendants for the violation of
its own state criminal offenses. See Mayor, Aldermen & Commonalty of City of N.Y. v. Miln, 36
U.S. 102, 139–40 (1837) (“No one will deny, that a state has a right to punish any individual
found within its jurisdiction, who shall have committed an offence within its jurisdiction, against
its criminal laws. “); see also State v. Rankin, 44 Tenn. 145, 151 (1867) (explaining that
Tennessee “may and has provided for the punishment of offenses against its own laws”).
Petitioner’s suggestion to the contrary is wholly frivolous. Since Petitioner shoulders the burden
of showing that equitable tolling is warranted, Pace, 544 U.S. at 418, and because he has failed
to carry his burden, the Court concludes that equitable tolling is not appropriate and that it cannot
be invoked to save this untimely petition. The Court now finds that the petition is untimely and
that Petitioner does not qualify for equitable tolling of his § 2254 limitations statute.
Finally, the Court does not believe that jurists of reason would question whether the
petition is timely or whether equitable tolling saves this otherwise untimely petition. Nor would
reasonable jurists conclude that the timeliness or equitable-tolling issues “are adequate to deserve
encouragement proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Therefore,
the Court will DENY issuance of a COA. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
Because this petition is untimely, respondent’s dispositive motion will be GRANTED
and this petition will be DISMISSED.

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AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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