Henderson v. Osborne

Filing 14

AMENDED MEMORANDUM as to 12 , in support of Judgment Order 13 Signed by District Judge Thomas A Varlan on 3/19/12. (c/m)(ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at KNOXVILLE
MICHAEL T. HENDERSON,
Petitioner,
v.
DAVID OSBORNE, Warden,
Respondent.

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No.:

3:11-cv-147
(VARLAN/SHIRLEY)

AMENDED MEMORANDUM
This is a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254
filed by petitioner Michael T. Henderson ("petitioner"). The matter is before the Court on
the motion to dismiss filed by the Attorney General for the State of Tennessee on behalf of
the respondent, and petitioner's response thereto. For the following reasons, the motion to
dismiss [Doc. 81] will be GRANTED and this action will be DISMISSED. All other
pending motions will be DENIED as MOOT.
In considering petitioner's state habeas corpus petition, the Tennessee Court of
Criminal Appeals summarized the history of petitioner's state convictions as follows:

On August 14, 1992, the Knox County Criminal Court entered a
judgment convicting the petitioner of grand larceny in case number 37243 and
of burglary in case number 35050. The court imposed a three-year sentence
in case number 35050 and a two-year sentence in case number 37243, to be
served consecutively for a total effective sentence of five years. In addition,

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This Memorandum is amended to correct the document number of the motion to dismiss.
The Memorandum remains the same as the original in all other respects.

the judgments for both indicated a probationary period of five years, and both
judgments stated that the probation period would expire on August 14, 1997.
Based upon recitations contained in Knox County Criminal Court
orders, copies of which were appended to the petition for habeas corpus relief
now under review, that court revoked the petitioner's probation in case
numbers 37243 and 35050 on February 19, 1993, and placed the petitioner on
"the Intensive Supervision Program ... to expire March 6, 1997."
On November 22, 1993, in case number 50650, the Knox County
Criminal Court entered a judgment convicting the petitioner of burglary and
sentencing him to four years "on Intensive Supervised Probation ... to expire
March 6, 2001." The judgment further provided that the four-year sentence
would run consecutively to case number 37243.
On May 17, 1996, the State obtained a violation of probation warrant
in several of the petitioner's cases, including the three identified above. At the
June 7, 1999 revocation hearing, the petitioner submitted to the violations, and
the record contains orders of the conviction court revoking the petitioner's
probation in case numbers 37243 and 35050. The orders did not mention case
number 50650 in which the four-year suspended sentence had been imposed.
On April 30, 2001, in case number 67871A, the Knox County Criminal
Court entered a judgment convicting the petitioner of attempt to commit first
degree murder and imposing a sentence of 15 years to be served in the
Department of Correction consecutively to the sentences imposed in case
numbers 37243 and 50650. The judgment made no mention of the three-year
sentence imposed in case number 35050 but does contain a notation that the
petitioner's sentence in that case "shall begin on February 22, 2001."
On April 21, 2004, the petitioner filed a petition for habeas corpus
relief claiming that (1) the judgment in case number 37243 was void because
it imposed consecutive sentencing but concurrent terms of probation with case
number 35050, (2) the judgment in case number 50650 was void because it
imposed consecutive sentencing but concurrent terms of probation with case
number 37243, and (3) his 1999 probation revocation in case number 35050
was void because the sentence in that case expired before the issuance of the
1996 violation warrant.

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Henderson v. State, No. E2009-01563-CCA-R3-HC, 2010 WL 5550658 at *1 (Tenn. Crim.
App. Dec. 30, 2010), perm. app. denied, id. (Tenn. March 9, 2011) [Memorandum in Support
of Motion to Dismiss, Attachment 1, Appendix].
The state habeas court granted partial relief:

The habeas corpus court held that the Knox County Criminal Court,
when revoking the petitioner's probation in case numbers 35050, 37243, and
50650, had "sentenced the [d]efendant to a total of five (5) years on the
violations of probation then pending." It held that the Tennessee Department
of Correction had erroneously determined that the petitioner was serving a
nine-year sentence and declared that the effective sentence is five years. The
court denied any further relief. The State then appealed.
Id. at *2. The Tennessee Court of Criminal Appeals reversed the grant of partial relief with
respect to Case Number 50650, finding as follows:

In this habeas corpus proceeding, the petitioner did not establish that
the Knox County Criminal Court lacked jurisdiction to enter its judgment in
case number 50650 on November 22, 1993. The judgment affirmatively
expressed the four-year sentence was to be served consecutively to the
two-year sentence in case number 37243 which, in turn, was consecutive to
the three-year sentence in 35050. The total effective sentence was nine years.
We discern no basis for holding that this judgment was void. Indeed, we
cannot even conclude that the habeas corpus court held it to be void. Thus, we
hold that the judgment in case number 50650 is not subject to habeas corpus
relief, and on this point the order of the habeas corpus court is reversed. The
judgment imposes a four-year sentence to run consecutively to the earlier
effective sentence of five years.
Id. at *3. The Court of Criminal Appeals affirmed the denial of relief on petitioner's other
claims. Id. at **3-4.
Petitioner filed the pending federal habeas corpus petition on March 30, 2011. He
alleges that his probation in Case Number 50650 was revoked on January 17, 1997, that the
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trial court erred in extending his probation by four years, instead of the statutory mandatory
two years, and that the judgment is thus void. The Attorney General moves to dismiss the
habeas corpus petition as untimely. In his response to the motion to dismiss, petitioner
reiterates his contention that the four-year extension of probation in Case Number 50650
violated state law; he does not address the claim that the petition is time-barred.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The
limitation period generally runs from the date on which the judgment of conviction became
final, with the provision that "[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 under this subsection." 28
U.S.C. § 2244(d)(2).
There is nothing in the record, and petitioner does not aver, that he appealed or sought
post-conviction relief on his conviction. Accordingly, his judgment of conviction in Case
Number 50650 became final in 1993. Because petitioner's sentence was imposed prior to the
AEDPA, the time for filing a § 2254 motion challenging the conviction expired April 24,
1997, which is one year from the effective date of the AEDPA. Carey v. Saffold, 536 U.S.
214, 217 (2002).
Petitioner did file a state habeas petition on April 21, 2004, which was concluded on
March 9, 2011, when the Tennessee Supreme Court denied permission to appeal the decision
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of the Tennessee Court of Criminal Appeals. At the time petitioner filed his state habeas
petition, however, the time for filing a federal habeas corpus petition had long expired.
Petitioner's habeas corpus petition was not timely filed and is barred by the statute of
limitation. Accordingly, the motion to dismiss will be GRANTED. The petition for habeas
corpus relief will be DENIED and this action DISMISSED. All other pending motions will
be DENIED as MOOT. A certificate of appealability SHALL NOT ISSUE. 28 U.S.C. §
2253(c); Rule 22(b) of the Federal Rules of Appellate Procedure. The court will CERTIFY
that any appeal from this action would not be taken in good faith and would be totally
frivolous. See Rule 24 of the Federal Rules of Appellate Procedure. The court will further
DENY petitioner leave to proceed in forma pauperis on appeal.

AN APPROPRIATE ORDER WILL ENTER.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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