Parker v. McAllister

Filing 20

MEMORANDUM OPINION: The Court will GRANT Respondent's Motion to Dismiss and will DISMISS this petition as untimely. The Court finds that the petition is untimely and that Petitioner does not qualify for equitable tolling of his § 2254 limitations statute. Because this petition is untimely, Respondent's dispositive motion [Doc. 14] will be GRANTED and the petition will be DISMISSED. Therefore, the Court will DENY issuance of a COA. See Memorandum and Opinion for details. Signed by District Judge J Ronnie Greer on 08/01/2017. (Copy of Memorandum Opinion sent to James Parker). (CAT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
JAMES LEON PARKER,
Petitioner,
v.
GERALD MCALLISTER, Warden,
Respondent.

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No. 2:14-CV-211-JRG-MCLC

MEMORANDUM OPINION
On March 4, 2008, a jury in the Sullivan County, Tennessee Criminal Court convicted
James Leon Parker (“Petitioner”) of seven cocaine-related offenses [Doc. 13-4 pp. 6-7]. Those
convictions include: (1) sale of less than 0.5 grams of cocaine (count 1); (2) delivery of less
than 0.5 grams of cocaine (count 2); (3) possession of 0.5 grams or more of cocaine with intent
to sell or deliver (count 3); (4) sale of 0.5 grams or more of cocaine (count 4), (5) delivery of 0.5
grams or more of cocaine, (count 5); (6) sale of 0.5 grams or more of cocaine within 1,000 feet
of a school (count 6); and (7) delivery of 0.5 grams or more of cocaine within 1,000 feet of a
school (count 7) [Id.]. State v. Parker, No. E200902353CCAR3CD, 2010 WL 4812746, at *1
(Tenn. Crim. App. Nov. 23, 2010). Petitioner, who is serving an effective sentence of 33 years’
imprisonment, id., 2010 WL 4812746, at *1, now brings this pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254, attacking the legality of his confinement pursuant to those
convictions [Doc. 1].
Respondent Warden Gerald McAllister has filed a Motion to Dismiss and a supporting
brief, arguing that the petition is time-barred [Docs. 14-15]. Respondent has also submitted
Petitioner’s state court record [Doc. 13, Attachments 1-26].

Petitioner has not responded to the Motion to Dismiss, though he was granted additional
time in which to respond [Doc. 19], 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”). For the reasons below, the Court will GRANT Respondent’s Motion to Dismiss and
will DISMISS this petition as untimely.
I.

Background
Petitioner’s judgments were entered by the trial court on September 19, 2008 [Doc. 13-20

at 11]. Petitioner appealed to the Tennessee Court of Criminal Appeals (“TCCA”), and his case
was remanded, but only for entry of a corrected judgment to reflect that the offense in count 7
was a Class A felony, rather than a Class B felony. Parker, 2010 WL 4812746, at *10. The
TCCA’s judgment was entered on November 23, 2010 [Doc. 13-10 p.1]. Petitioner did not seek
permission to appeal that judgment from the Tennessee Supreme Court (“TSC”). See Tenn. R.
App. P. 11(b) (providing that an application for permission to appeal to the TSC must be filed
within 60 days after the entry of the TCCA’s judgment).
On March 24, 2011, Petitioner filed a state petition for habeas corpus relief [Doc. 13-11
at 4-9]. The habeas petition was dismissed on June 8, 2011 [Id. at 40-14], and on January 6,
2012, the dismissal was affirmed on appeal. Parker v. Sexton, No. E2011-01472-CCA-R3-HC,
2012 WL 32116 (Tenn. Crim. App. Jan. 6, 2012). Petitioner did not seek review of the TCCA’s
decision.

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Instead, on July 28, 2011, Petitioner submitted a second state petition for a writ of habeas
corpus [Doc. 13-17 at 4-22]. By order filed on November 21, 2011, the trial court dismissed that
second petition [Id. at 30-32]. Petitioner appealed [Id. at 45], but the appeal was dismissed on
August 10, 2012, for his failure to file his appellate brief [Doc. 13-19 at 1, Parker v. Sexton, No.
E2011-02647-CCA-R3-HC (Tenn. Crim. App. Aug. 10, 2012) (unpublished order)].
Meanwhile, Petitioner filed a petition for post-conviction relief on October 4, 2011, under
the state’s version of the prison mailbox rule, see Tenn. R. S. Ct. 28 § 2 (providing that a
prisoner’s “filing shall be timely if the papers were delivered to the appropriate individual at the
correctional facility within the time fixed for filing”) [Doc. 13-20 at 3-10]. The post-conviction
court denied the petition summarily for failure to state a claim [Id. at 4]. Petitioner pursued an
appeal [Id. at 13]. On March 13, 2012, the TCCA granted Petitioner’s motion to dismiss
voluntarily his appeal from the lower court’s order dismissing the original post-conviction
petition, and the TCCA dismissed his appeal [Doc. 13-25 at 25-26].
Petitioner did not seek permission to appeal to the TSC, though case law suggests that he
could have filed an appeal.

See Williams v. State, 831 S.W.2d 281, 282 (Tenn. 1992)

(entertaining an appeal from a dismissal with prejudice of a post-conviction petition voluntarily
withdrawn); Cazes v. State, No. 02C01-9501-CR-00004, 1995 WL 467657, at *2 (Tenn. Crim.
App. Aug. 9, 1995) (same); see also Bowling v. State, No. E2011-02570-CCA-R3PC, 2012 WL
3686634, at *1 (Tenn. Crim. App. Aug. 28, 2012) (waiving a timely notice of appeal from an
order granting voluntary dismissal of a post-conviction petition); but see Davis v. State, No.
02C01-9804-CC-00104, 1998 WL 726533, at *1 (Tenn. Crim. App. Oct. 16, 1998) (noting that
well-established law prohibits an appeal from a voluntary dismissal of a petition for a writ of
error coram nobis).

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On October 22, 2013, Petitioner filed in the post-conviction court a “Motion to Reinstate
the Order Dismissing Petition for Post-Conviction Relief to Allow Petitioner to Amend his
Petition” [Doc. 13-20 at 26-35]. On October 24, 2012, the motion was denied [Doc. 13-23 at 5758.]. On November 5, 2012, Petitioner filed a notice of appeal [Doc. 13-23 at 59]. However, on
September 11, 2013, the TCCA determined that it lacked jurisdiction to review the postconviction court’s denial of Petitioner’s Motion and dismissed the appeal [Doc. 13-26 at 1-3,
Parker v. State, E2012-02389-CCA-R3-PC (Tenn. Crim. App. Sept. 11, 2013) (unpublished
order)]. Petitioner sought no further state court review.
On May 21, 2014, under the prison mailbox rule announced in Houston v. Lack, 478 U.S.
266, 276 (1988) (deeming a prisoner’s action to be filed on the date that it is properly delivered
to the prison officials for mailing), Petitioner filed this instant petition [Doc. 1].
II.

Law and Analysis
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(d)(1). The statute begins to run when one of four circumstances occurs:
the conclusion of direct review; upon the removal of an impediment which prevented a petitioner
from filing a habeas corpus petition; when a petition alleges a constitutional right, newly
recognized by the Supreme Court and made retroactive on collateral review; or when a claim
depends upon factual predicates which could not have been discovered earlier through the
exercise of due diligence. Id. The time is tolled, however, during the pendency of a properly
filed application for state post-conviction or other collateral review. 28 U.S.C. § 2244(d)(2). The
first circumstance is the relevant one here.

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To determine the timeliness of this petition, the Court first must determine the date
Petitioner’s conviction became final. On November 23, 2010, the TCCA entered judgment on
Petitioner’s direct review [Doc. 13-10 at 1]. Petitioner had sixty-two days from that date, i.e.,
until January 24, 2011, to apply to the TSC for permission to appeal the TCCA’s decision. See
Tenn. R. App. P. 11 (b).1 Therefore, Petitioner’s conviction became final on January 24, 2011,
and the next day, the AEDPA’s one-year clock started to tick. Accordingly, for purposes of §
2244(d)(1)(A), the time for filing this § 2254 petition would end on January 24, 2012.
As noted, the limitations statute is tolled while a properly filed state petition for postconviction or for other collateral relief is pending. 28 U.S.C. § 2244(d)(2). Petitioner submitted
a state petition for a writ of habeas corpus on March 24, 2011 [Doc. 13-11 at 4-9], fifty-nine (59)
days from January 25, 2011, the date the AEDPA’s one-year clock started ticking. The clock
remained stopped throughout the proceedings involving Petitioner’s first and second state
petitions for a writ of habeas corpus and his original post-conviction petition.
On March 13, 2012, the TCCA dismissed Petitioner’s appeal from the post-conviction
court’s order dismissing his original post-conviction petition. Petitioner had sixty days from that
date to apply to the TSC for permission to appeal the TCCA’s order of dismissal. Because the
sixtieth day fell on Saturday, May 12, 2012, and the sixty-first day fell on Sunday May 13, 2012,
Petitioner had until Monday, May 14, 2012, within which to seek further review of the TCCA’s

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Though an application for permission to appeal to the TSC must be filed within sixty
days of a TCCA order, Petitioner had sixty-two days to file his application for permission to
appeal because the sixtieth day fell on Saturday, January 22, 2010. See Tenn. R. Civ. P. 6.01
(stating that when 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 which is not one of the aforementioned days).
Since the sixty-first day was Sunday, January 23, 2010, Petitioner had until Monday, January 24,
2010 to file his application.
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order. Thus, the next day, i.e., Tuesday, May 15, 2012, the AEDPA clock resumed ticking. See
Fed. R. Civ. P. 6(a)(1)(A).
The clock ran for one hundred sixty one (161) days more, but was stopped on October 22,
2012, by Petitioner’s filing of a “Motion to Reinstate the Order Dismissing Petition for PostConviction Relief to Allow Petitioner to Amend his Petition” [Doc. 13-22 at 3-5]. On October
24, 2012, the post-conviction court dismissed what effectively was Petitioner’s motion to reopen
[Doc. 13-23 at 57-58].2
Petitioner filed an appeal on November 2, 2012 [Id. at 59]. On September 11, 2013, the
TCCA dismissed the appeal for lack of jurisdiction, reasoning that Rule 3 of the Tennessee Rules
of Appellate Procedure, the rule upon which Petitioner had based his appeal, was not the proper
statutory procedure for appealing a motion to reopen [Doc. 13-26 at 1-3, Parker v. State, E201202389-CCA-R3-PC (Tenn. Crim. App. Sept. 11, 2013) (unpublished order)]. Instead, as the
TCCA explained, Petitioner was required to file an application for permission to appeal, pursuant
to Tenn. Supreme Court Rule 28 § 10(B), as he had no right of appeal from the denial of a
motion to reopen [Id.].
Because the appeal was dismissed for lack of jurisdiction, it did not toll the AEDPA
clock for the entire period because it was not “a properly filed application for State postconviction or other collateral review.” See 28 U.S.C. § 2244(d)(2); see also Artuz v. Bennett,
531 U.S. 4, 9 (2000) (“If, for example, an application is erroneously accepted by the clerk of a
court lacking jurisdiction, or is erroneously accepted without the requisite filing fee, it will be
pending, but not properly filed.”); Evans v. Chavis, 546 U.S. 189, 141 (2006) (“The time that an
2

As Respondent points out in his brief, the “Motion to Reinstate the Order Dismissing
Petition for Post-Conviction Relief to Allow Petitioner to Amend his Petition” could only be
characterized as a motion to reopen the post-conviction petition, which is a proper submission
under Tennessee’s post-conviction law, see Tenn. Code Ann. § 40-30-117 [Doc. 15 at 6 n.7].
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application for state postconviction review is “pending” includes the period between (1) a lower
court’s adverse determination, and (2) the prisoner’s filing of a notice of appeal, provided that
the filing of the notice of appeal is timely under state law.” (citing Carey v. Saffold, 536 U.S. 214
(2002))).
Pursuant to Tennessee Code. Annotated § 40-30-117(c) and Tennessee Rule of Appellate
Procedure 21(a), Petitioner had thirty-two days to file a proper appeal from the order dismissing
his motion to reopen his post-conviction petition, because the thirtieth day was Saturday,
November 24, 2012, and the thirty-first day was Sunday, November 25, 2012.

Thus, the

AEDPA clock was tolled by the motion to reopen until the thirty-second day, or Monday,
November 26, 2012. On November 27, 2012, the AEDPA’s clock re-started, see Fed. R. Civ. P.
6(a)(1)(A), with 145 days left to run. Because 145 days from November 27, 2012, is Sunday,
April 21, 2013, the statute ran for 146 days more, up to and including Monday, April 22, 2013.
Petitioner filed his § 2254 petition on May 14, 2014, three hundred, ninety-five (395) days too
late.
However, 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)).
Petitioner could argue that the statute should be equitably tolled because he steadfastly
sought relief in the state court and because, despite his steadfastness, he chose the wrong
procedural mechanism for his appeal of the denial of his motion to reopen. Such an argument,

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had it been made, would be unavailing because Petitioner could not have obtained relief from his
conviction using Rule 3 as the procedural tool. See McMullan v. Roper, 599 F.3d 849, 852–53
(8th Cir. 2010) (finding that a motion to reopen was not a “properly filed” application for
collateral relief because that procedural vehicle was not a proper means to secure relief from a
conviction).

Moreover, “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)). Furthermore, Tennessee expects pro se prisoners to comply with
the same procedural rules as represented parties. Willis v. State, No. E201500235CCAR3ECN,
2016 WL 3753738, at *13 (Tenn. Crim. App. July 7, 2016); Carter v. Bell, 279 S.W.3d 560, 568
(Tenn. 2009) (same).
Petitioner shoulders the burden of showing that equitable tolling is warranted, Pace, 544
U.S. at 418, but he has not alleged and his pleadings do not suggest any basis to invoke equitable
tolling. Put simply, Petitioner has not borne his burden. The Court therefore concludes that
equitable tolling is not appropriate and that it cannot be invoked to save this untimely petition.
III.

Conclusion
The Court finds that the petition is untimely and that Petitioner does not qualify for

equitable tolling of his § 2254 limitations statute.

Because this petition is untimely,

Respondent’s dispositive motion [Doc. 14] will be GRANTED and the petition will be
DISMISSED. 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).

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AN APPROPRIATE ORDER WILL ENTER.

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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