Bowling v. Lee

Filing 15

MEMORANDUM OPINION. Signed by District Judge R Leon Jordan on 3/30/18. (copy mailed to Bobby Bowling) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
BOBBY BOWLING,
a/k/a ROBERT E. BOLING,
Petitioner,
v.
RANDY LEE, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

No. 2:17-CV-35-RLJ-MCLC

MEMORANDUM OPINION
State inmate Bobby Bowling (“Petitioner”) has filed this pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement under his 2007
Sullivan County, Tennessee Criminal Court judgment of conviction [Doc. 2]. Respondent Warden
Randy Lee has moved to dismiss Petitioner’s habeas corpus petition, asserting that it is untimely
under 28 U.S.C. § 2244(d)(1)(A) [Doc. 10]. In support of his Motion to Dismiss, Respondent has
submitted a brief and copies of the state court record [Docs. 11-12]. 1 Petitioner has responded to
the Motion to Dismiss, arguing that he showed due diligence in pursuit of his claims and invoking
equitable tolling of § 2244(d)’s statute of limitations to save his § 2254 petition from the
application of any time-bar [Doc. 13].
For the reasons below, the Court will GRANT Respondent’s Motion to Dismiss and will
DISMISS this petition.
I.

BACKGROUND

1

The state court record consists of twenty-seven attachments [Docs. 12-1 through 12-27].

On January 10, 2007, a Sullivan County jury convicted Petitioner of one count of
aggravated robbery [Doc. 2 p.1]. State v. Bowling, No. E2008-00351-CCA-R3-CD, 2009 WL
482763 (Tenn. Crim. App. Feb. 26, 2009). Petitioner was sentenced to thirty years as a career
offender and, on October 12, 2007, the judgment was entered. Id., 2009 WL 482763, at *1.
Petitioner filed a direct appeal in the Tennessee Court of Criminal Appeals (“TCCA”), but the
TCCA rejected his claim of insufficient evidence and held that all other issues had been waived
by the untimely filing of his motion for a new trial. Id., 2009 WL 482763, at *6.
Petitioner returned to the trial court, filed a petition for post-conviction relief, and was
granted permission to file a timely motion for a new trial. State v. Bowling, No. E2011-00429CCA-R3-CD, 2013 WL 816176 (Tenn. Crim. App. Mar. 5, 2013). The trial court overruled
Petitioner’s motion for a new trial and Petitioner filed his second direct appeal in the TCCA. Id.,
2013 WL 816176, at * 1.

The TCCA rejected Petitioner’s claims that the trial court erred by

denying his motion for new counsel and by failing to suppress photographs and testimony that he
characterized as “fruit of the poisonous tree” [Doc. 2 at 3]. Id., 2013 WL 816176, at *1.
Petitioner again returned to the trial court and filed a motion to reopen his post-conviction
proceedings. Boling v. State, No. E2014–02258-CCA-R3-PC, 2015 WL 5612899 (Tenn. Crim.
App. Sept. 24, 2015), perm app. denied (Tenn. 2016). 2 The trial court granted the motion to reopen
and, after an evidentiary hearing on Petitioner’s claims of ineffective assistance of counsel, denied
collateral relief. Id., 2015 WL 5612899, at *1. Petitioner filed an appeal and the TCCA affirmed
the trial court’s denial of the post-conviction petition. Id., 2015 WL 5612899, at *9. On February

Petitioner’s name was spelled in state court opinions as both “Boling” and “Bowling.”
See Bowling, 2013 WL 816176, at *1 n.1.
2

2

18, 2016, the Tennessee Supreme Court (“TSC”) declined to permit Petitioner to file a further
appeal.
The instant § 2254 petition was filed on February 24, 2017, the date that Petitioner verified
under penalty of perjury that he placed his petition in the prison mailing system [Doc. 2 at 14].
See Houston v. Lack, 487 U.S. 266, 276 (1988) (deeming an action to be filed on the date an inmate
delivers it to the prison authorities for mailing); Towns v. United States, 190 F.3d 468, 469 (6th
Cir. 1999) (finding that a motion to vacate signed under penalty of perjury one day before the lapse
of the relevant limitation statute indicated that the motion was delivered to prison mailroom
personnel before the filing deadline).
II.

DISCUSSION
The two issues before the Court are: (1) whether Petitioner filed his § 2254 application

within the controlling statute of limitations, and (2) if he did not, whether the period for filing his
application should be equitably tolled.
A.

Timely Filing of § 2254 Petition

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: (1) the
conclusion of direct review; (2) upon the removal of an impediment which prevented a petitioner
from filing a habeas corpus petition; (3) when a petition alleges a constitutional right, newly
recognized by the Supreme Court and made retroactive on collateral review; or (4) when a claim
depends upon factual predicates which could not have been discovered earlier through the exercise
of due diligence. Id. The statute also contains a time-tolling feature: The time “during which a
properly filed application for State post-conviction or other collateral review with respect to the

3

pertinent judgment or claim is pending shall not be counted toward any period of limitation . . . .”
28 U.S.C. § 2244(d)(2). The first circumstance is the relevant one here.
To determine the timeliness of this petition, the Court first must determine the date
Petitioner’s conviction became final. On March 5, 2013, the TCCA denied Petitioner’s second
direct appeal. State v. Boling, 2013 WL 816174, at *1. Sixty days later (i.e., May 4, 2013), the
time expired for Petitioner to seek review of the TCCA’s decision in the TSC. Tenn. R. App. P.
11(b). Because May 4, 2013, was a Saturday, Petitioner had until Monday, May 6, 2013, to petition
the TSC for permission to appeal. 3 Thus, Petitioner’s conviction became final on May 6, 2013,
and the next day, the AEDPA’s one-year clock began to tick. Fed. R. Civ. P. 6(a)(1)(A); see also
Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (where a state court reopens a direct appeal, a
conviction is not final until the conclusion of the out-of-time appeal).
Accordingly, for purposes of § 2244(d)(1)(A), the time for filing this § 2254 petition would
expire on May 7, 2014, unless the time was tolled by Petitioner’s proper filing of a collateral review
petition. 28 U.S.C. § 2244(d)(2).
Petitioner filed his motion to reopen his state petition for post-conviction relief on May 9,
2013 [Doc. 12-16 at 52-62], two days after the AEDPA one-year clock started ticking. On that
date, the clock stopped. 4 It remained stopped throughout Petitioner’s re-opened post-conviction

A Tennessee civil procedural rule provides that “the date of the act, event, or default after
which the designated period of time begins to run is not to be included” and that, if the last day of
the computed period is a Saturday or a Sunday, then the period runs until the end of the next day
that is not a Saturday or Sunday. Tenn. R. Civ. P. 6.01. A federal procedural rule likewise excludes
Saturdays and Sundays from the period, runs the period to the end of the next day that is not one
of those days, and “exclude[s] the day of the event that triggers the period.” Fed. R. Civ. P. 6(a)(1).
3

4

A motion to reopen is part of the ordinary course of Tennessee’s post-conviction review
process. See Patterson v. Brandon, No. 3:07-0029, 2008 WL 821986, at *6 (M.D. Tenn. Mar. 24,
2008) (citing, inter alia, Fritts v. Mills, 2005 WL 2416997 (E.D. Tenn. Sept. 30, 2005)); see also
Wall v. Kholi, 562 U.S. 545, 547 (2011) (holding “that the phrase ‘collateral review’ in §
4

proceedings, including his first appeal to the TCCA, and his application to the TSC seeking
permission to appeal the TCCA’s decision. Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (holding
that claim is “pending” for the entire term of state court review, including intervals between one
state court’s judgment, the filing of a timely appeal with a higher state court, and “until the
application has achieved final resolution through the State’s post-conviction procedures”); Payton
v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001) (tolling the statute from the time a post-conviction
petition is filed until the state supreme court denied an appeal).
Petitioner’s post-conviction proceedings terminated on February 18, 2016, when the TSC
denied his application for permission to appeal. See Lawrence v. Florida, 549 U.S. 327, 332 (2007)
(ruling that the statute of limitations in § 2244(d)(2) is not tolled by the filing in the Supreme Court
of a petition for certiorari for review of a post-conviction petition); see also Ross v. McKee, 465
F. App’x 469, 472 (6th Cir. 2012) (recognizing that “[a] petition for discretionary review in state
court counts as ‘state post-conviction or other collateral review,’ and thus tolls AEDPA’s statute
of limitations . . .”) (internal citations omitted).

The next day, February 19, 2016, the clock

resumed ticking. It ticked for 363 more days and stopped on February 16, 2017.
As noted, the instant § 2254 application was filed on February 24, 2017—eight days too
late. Petitioner acknowledges that he filed his habeas corpus petition outside the limitations period
[Doc. 2 at 13]. The Court agrees and, therefore, concludes that the application is untimely.
B.

Equitable Tolling

In Petitioner’s petition, as well as in his response to Respondent’s Motion to Dismiss, he
requests equitable tolling of the statute of limitations [Doc. 2 at 13, Doc. 23 at 1-2].

2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review”).
As such, a motion to reopen post-conviction proceedings is a time-tolling motion under the
AEDPA’s tolling provision.
5

The AEDPA statute of limitations is not jurisdictional and is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling of AEDPA’s limitation statute is
warranted where a petitioner shows that he: (1) diligently has pursued his rights and (2) was
prevented from timely filing the petition because an extraordinary circumstance stood in his way.
Holland, 560 U.S. at 649. A petitioner bears the burden of demonstrating that he is entitled to
equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A court must decide whether to
toll the statute on a case-by-case basis. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Federal
courts should grant equitable tolling sparingly. Souter v. Jones, 395 F.3d 577, 588 (6th Cir. 2005);
Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Cook, 295 F.3d at 521. “Absent compelling
equitable considerations, a court should not extend limitations by even a single day.” GrahamHumphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000).
Petitioner’s request for equitable tolling rests on his contentions that, “due to severe space
restrictions, [he] was forced to give his legal work to TDOC for storage. He requested his legal
papers back to prepare this petition, and was told TDOC could not find his legal work. After
several months, the prison located his papers, and petitioner filed immediately” [Doc. 2 at 13].
Along these lines, Petitioner has attached to his petition a handwritten log of events that purports
to show that he requested his legal work from intake on November 15, 2016, that thirteen days
later, intake responded that it “can’t find legal work;” that two other requests were made
respectively on December 2, 2017, and January 18, 2017; that he sent the Warden a letter about
the legal work on February 2, 2017, and that he received the requested legal work on February 7,
2017 [Doc. 2-1 at 8].
In his Response to Respondent’s Motion to Dismiss, Petitioner adds that he needed his
transcripts, prior motions, briefs filed on his behalf, and other related documents to assert

6

exhaustion and to litigate his habeas corpus claims [Doc. 13 at 1]. Petitioner also asks the Court
to apply the rule of lenity and to appoint counsel to assist him both in obtaining proof as to the
length of time and the reasons for the prison to withhold his legal materials and in an evidentiary
hearing where he can make out his case for equitable tolling [Id. at 1-2].
1.

Diligence

The diligence required to establish the first prong of equitable tolling is not the “maximum
feasible diligence,” but only “reasonable diligence.” Holland, 560 U.S. at 653 (citations omitted).
Whether diligence has been exercised is a “fact-intensive inquiry,” Id. at 564, “that depends on the
totality of circumstances in a particular case.” Martin v. Fayram, 849 F.3d 691, 698 (8th Cir. 2017)
(citing Holland, 560 at 649-50).
When Petitioner’s formal requests to obtain his legal materials did not produce the return
of his misplaced legal materials, his own log shows that he waited from November until
February—the month the AEDPA limitations statute for filing the instant § 2254 petition was due
to expire—before writing to the Warden requesting his legal materials. Five days after Petitioner
sent the letter to the Warden, explaining the situation involving the missing legal materials, those
legal materials were returned to Petitioner. It seems obvious that Petitioner’s letter to the Warden
prompted the return of the legal materials, which suggests that an earlier letter to the Warden
apprizing him of the necessity for a speedy return of Petitioner’s legal materials would have
triggered the same result.
In Holland, a petitioner was found diligent where he filed his pro se habeas corpus petition
the day he leaned that his 365-day AEDPA clock had expired. However, the immediate filing of
the § 2254 petition was only one circumstance among several that the Supreme Court found
persuasive in Holland. The Holland petitioner also wrote numerous letters to his counsel seeking

7

information and providing direction, repeatedly contacted the courts, their clerks, and the bar
association in an effort to have counsel removed from his case, and prepared and promptly filed
his habeas corpus petition the day he learned that the one-year period had expired. Id., 560 U.S. at
653.
Here, Petitioner was in possession of his legal materials on February 6, 2017, but he waited
until February 24, 2017, to file his petition. Petitioner has not explained why he did not take the
opportunity to file the instant petition in the short period that remained on AEDPA’s one-year
clock after his legal materials were returned to him. See Schlueter v. Varner, 384 F.3d 69, 76 (2d
Cir. 2004) (reasoning that a petitioner could have learned of an attorney error earlier and used a
“small window of time” to file his pro se petition).
Nor has Petitioner explained why he did not seek to inform the Court, in the interim, as to
the supposed impediment blocking his filing of a timely habeas corpus application.

See

Dickershaid v. Martel, 648 F. App’x 618, 620 (9th Cir. 2016) (finding that petitioner exercised
reasonable diligence where his legal materials were seized in contravention of prison policy and
where he repeatedly filed grievances, requested prison officials to find and return his legal
materials, went to the storage area where such materials are kept, wrote to the court, and filed his
federal habeas petition on the same day it was returned to him). Petitioner knew about the
expiration of the AEDPA clock and he knew that he was filing his petition outside the statutory
period because he stated as much in his petition [Doc. 2 at 18].
Diligence is measured during the entire one-year period. See Andrews v. United States,
No. 17-1693, 2017 WL 6376401, at*2 (6th Cir. Dec. 12, 2017) (observing that Petitioner failed to
explain his diligence during the eight months before the extraordinary circumstance arose). The
Court finds that, unlike the petitioner in Holland, Petitioner was not reasonably diligent in pursuing

8

his federal habeas claims while the AEDPA clock was still running. In short, Petitioner has
demonstrated that he made modest efforts to obtain his legal materials but he has not “ma[de] a
strong showing of his own diligence.” Patterson v. Lafler, 455 F. App’x 606, 610 (6th Cir. 2012).
2.

Extraordinary Circumstance

Courts have held that a lack of access to personal legal materials standing alone does not
constitute an extraordinary circumstance. Bell v. Indiana, No. 5:14CV-P224-TBR, 2015 WL
852305, at *3 (W.D. Ky. Feb. 26, 2015) (collecting cases); cf. Jones v. United States, 689 F.3d
621, 727-28 (6th Cir. 2012) (finding that, when viewed together, a combination of factors,
including inmate’s separation from his legal materials caused by several prison transfers, partial
illiteracy, and physical health issues, constituted extraordinary circumstances). As the Sixth
Circuit has observed, the Rules Governing Section 2254 Cases “seem to envision that petitioners
may at times have to file their petitions without having had access to the state-court record.” Hall
v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 751 (6th Cir. 2011).
Furthermore, a TDOC rule concerning cell space restrictions applies equally to all TDOC
inmates and, by its terms, requires compliance by all TDOC inmates. 5 The word “extraordinary”
is defined as “going beyond what is usual, regular, or customary” and as “exceptional to a very
marked extent.” Merriam–Webster Dictionary, Extraordinary, http://www.merriamwebster.com
/dictionary /extraordinary (last visited Mar. 27, 2018).

The Court does not consider the

The TDOC policy governing inmate personal property, Policy # 504.01, provides, in
relevant part, that “[t]he total amount of legal materials that an inmate may have in his/her
possession will not exceed a space delineated by 1.5’ x 1’ x 1’. Legal materials that exceed this
space allocation may be stored in another area of the facility approved by the Warden.” See
Tennessee Department of Correction Administrative Policies and Procedures, Inmate Personal
Property (Dec. 1, 2013), online at https://www.tn.gov/content/dam/tn/correction/documents/50401.pdf (last visited Mar. 27, 2018).
5

9

enforcement of a prison rule that applies equally to all TDOC inmates nor the inaccessibility of
the legal materials seized pursuant to the rule to be an extraordinary circumstance. To the contrary,
the unavailability of Petitioner’s legal materials, even if an unforeseen consequence of a prison
rule enforcement, does not exceed a garden-variety type of circumstance and does not rise to the
level of an extraordinary circumstance.

See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96

(1990) (declining to extend “the principles of equitable tolling” to “garden variety” error).
Finally, Petitioner did not explain satisfactorily how the lack of his legal materials
prevented him from timely filing his habeas corpus petition. Valverde v. Stinson, 224 F.3d 129,
134 (2d Cir. 2000) (observing that a petitioner cannot demonstrate a causal relationship between
the extraordinary circumstance and the lateness of his filing if he, “acting with reasonable diligence
could have filed on time notwithstanding the extraordinary circumstances”). Petitioner generally
contends that he needed his legal materials “to assert exhaustion, and to litigate the current issues”
[Doc. 13 at 1]. However, a habeas petition need only “specify all the grounds for relief” and “state
the facts supporting each ground.” Rules Governing Section 2254 Cases 2(c). The § 2254 petition
is not required to allege exhaustion. Granted, Rule 2(d) of the Rules Governing Section 2254
Cases directs that a petition must “substantially follow” a standard form, on which there are
questions involving exhaustion of state remedies; yet, this rule “imposes no affirmative pleading
requirements.” Kilgore v. Attorney Gen. of Colo., 519 F.3d 1084, 1088 (10th Cir. 2008).
Petitioner, who shoulders the burden of justifying the application of equitable tolling, has
failed to carry his burden. See Andrews, 2017 WL 6376401, at*2 (noting that a petitioner did not
demonstrate that he was diligent or that the deprivation of his legal materials was an extraordinary
circumstance that prevented his timely filing). Therefore, equitable tolling is not appropriate in
this case, and it cannot be invoked to save this untimely petition. See Hall, 662 F.3d at 747

10

(affirming denial of equitable tolling to Petitioner whose § 2254 application was five days late
purportedly due to the lack of access to a trial transcript).
3.

Rule of Lenity

Petitioner requests that the Court apply the rule of lenity to excuse his untimely filing. The
rule of lenity is a canon of statutory construction used when interpreting statutes. United States v.
Boucha, 236 F.3d 768, 774 (6th Cir. 2001) (“If the statute remains ambiguous after consideration
of its plain meaning, structure and legislative history, the rule of lenity is applied in favor of
criminal defendants.”) (citing United States v. Hill, 55 F.3d 1197, 1206 (6th Cir. 1995)). The rule
of lenity has no application in this case because this matter presents no statutory interpretation
question.
III.

CERTIFICATE OF APPEALABILITY
The Court next must consider whether to issue a certificate of appealability (“COA”)

should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may
appeal a final order in a habeas proceeding only if he is issued a COA, and a COA may only be
issued where a Petitioner has made a substantial showing of the denial of a constitutional right.
Where a court dismisses a § 2254 petition on procedural grounds, a COA will issue upon a showing
that reasonable jurists would debate whether a valid claim has been stated and whether the court’s
procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court finds that Petitioner has failed to make a substantial showing of the denial of a
constitutional right because reasonable jurists would not disagree about whether the Court
correctly ruled that the petition is untimely; thus, he will be denied a certificate of appealability.
Fed. R. App. P. 22(b); Slack, 529 U.S. at 484.
IV.

CONCLUSION

11

Based on the above discussion, the Court has determined the petition is time-barred under
§ 2244(d)(2) and that equitable tolling of the statute of limitations is unwarranted. Therefore, the
Court will GRANT Respondent’s motion to dismiss the petition [Doc. 10] and will DISMISS this
case.
In addition to the above, the Court will DENY Petitioner a certificate of appealability; will
CERTIFY that any appeal from this action would not be taken in good faith; and will DENY
Petitioner leave to proceed in forma pauperis on appeal.
A SEPARATE JUDGMENT WILL ENTER.
ENTER:

s/ Leon Jordan
United States District Judge

12