Brimmer v. Lee

Filing 9

MEMORANDUM OPINION in support of the following Order dismissing case. Signed by District Judge Pamela L Reeves on 7/23/18. (c/m David Allen Brimmer 146805 NECX 5249 Highway 67 West P.O. Box 5000Mountain City, TN 37683-5000 ) (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
DAVID ALLEN BRIMMER,

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Petitioner,
v.
RANDY LEE,
Respondent.

No.: 3:17-cv-00550
REEVES/GUYTON

MEMORANDUM OPINION
Acting pro se, David Allen Brimmer (“Petitioner”), brings this petition for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging his 1999 Tennessee state court convictions for first degree
murder and aggravated kidnapping [Doc. 1]. Respondent has filed a Motion to Dismiss the Petition
as barred by the one-year statute of limitations [Doc. 6]. For the reasons set forth herein, the Court
will GRANT Respondent’s Motion [Doc. 6] and DISMISS this action as time-barred.
I.

PROCEDURAL BACKGROUND
In 1991, a jury convicted Petitioner of first-degree premeditated murder and sentenced him to

death [See Doc. 1-2 at 1; Doc. 7 at 1]. Petitioner’s conviction and sentence were affirmed on direct
appeal [See Doc. 1-2 at 1]. In 1995, Petitioner filed a petition for post-conviction relief in state court;
the petition was initially denied, but on appeal, the Court of Criminal Appeals of Tennessee reversed
the judgment of the post-conviction court and granted Petitioner a new sentencing hearing due to
ineffective assistance of counsel at the sentencing stage [see id.; Doc. 8-1 at 3-20].
On May 7, 1999, after remand, Petitioner entered into a plea agreement with the prosecution;
pursuant to that agreement, Petitioner pled guilty and was sentenced serve “60 years at 100%” for the
charge of aggravated kidnapping and a life sentence for the charge of murder, to be served
consecutively [Doc. 1 at 1-2; Doc. 1-2 at 2; Doc. 8-4 at 7-9; see Doc. 8-5]. He did not seek a direct

appeal [Doc. 1 at 2, 5 (“Petitioner did not have a right to direct appellate review based upon guilty
plea.”)].
On May 1, 2000, Petitioner filed a pro se petition for post-conviction relief in state court [Doc.
8-1 at 3-20]. Counsel was appointed, and an amended petition was filed; nonetheless, the petition
was denied on September 2, 2005, the denial of that petition was affirmed on appeal, and the
Tennessee Supreme Court denied Petitioner permission to appeal on April 23, 2007 [Id. at 23-25, 3436; see Doc. 1-2 at 2].
Petitioner took no further action with respect to his convictions and sentences for more than
six years. On May 8, 2013, Petitioner filed a Petition for writ of habeas corpus in state court, which
was summarily dismissed on July 24, 2013, and affirmed by the Tennessee Court of Appeals on April
30, 2014 [Doc. 8-2 at 4-5, 65; see Doc. 1-2 at 2]. On June 23, 2014, Petitioner filed a Motion to
correct illegal sentence pursuant to state law, which was subsequently denied; the denial was affirmed
by the appellate court, and the Supreme Court of Tennessee denied Petitioner permission to appeal on
April 10, 2015 [Doc. 8-3 at 4-9, 17-21; see Doc. 1-2 at 2].
Almost two year passed before Petitioner filed another Motion for correction of illegal
sentence in state court in March 2017 [Doc. 8-4 at 12-13]. The Motion was shortly thereafter denied,
and the Tennessee Court of Criminal Appeals affirmed the denial on October 23, 2017 [Doc. 1-2 at
2-8].
Shortly thereafter, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 [Doc. 1; Doc. 1-1].1 Petitioner did not address the timeliness of his petition in his filing
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The envelope containing the Petition was stamped as received in the NECX mailroom on
December 13, 2017, and the Court received the Petition on December 27, 2017 [Doc. 1-1]. As
discussed infra, it is clear that even if the Court gave Petitioner the benefit of deeming his petitioner
filed on December 13, 2017, the petition would nonetheless be grossly untimely.
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[Doc. 1 at 10-11]. In response, Respondent filed a Motion to dismiss Petitioner’s § 2254 petition as
untimely pursuant to the applicable one-year statute of limitations [Docs. 6-7]. Petitioner did not file
a response to the Motion, and the Motion is now ripe for the Court’s review.
II.

ANALYSIS
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a one-

year statute of limitations applies to all applications seeking a writ of habeas corpus under 28 U.S.C.
§ 2254. See 28 U.S.C. § 2244(d)(1). The statute generally begins to run “[t]he date on which the
judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review.” 28 U.S.C. § 2244(d)(1)(A); King v. Morgan, 807 F.3d 154, 159-60 (6th Cir. 2015) (a
“new judgment after a resentencing” constitutes an event that resets the statute of limitations for a
petitioner to challenge his conviction and sentence pursuant to 28 U.S.C. § 2244(d)(1)(A)). Where a
Tennessee petitioner did not pursue a direct appeal, his state court conviction is deemed “final” upon
the expiration of the thirty-day time period during which he could have commenced a direct appeal.
See, e.g., Feenin v. Myers, 110 F. App’x 669 (6th Cir. 2004) (citing Tenn. R. App. P. 4(a)).
In this case, it is undisputed that Petitioner received a “new judgment” on May 7, 1999, when
he was sentenced pursuant to a plea agreement following the partial reversal of his original convictions
and sentences. Thus, his conviction and sentence may be deemed “final” on June 7, 1999, upon the
expiration of the thirty-day time period during which he could have commenced a direct appeal.
His one-year statute of limitation commenced the next day and ran until May 1, 2000, when
Petitioner timely submitted his petition for post-conviction relief in state court. Thus, 329 days of
Petitioner’s one-year statute of limitations had run by the time he commenced his first post-conviction
proceeding in state court. Pursuant to 28 U.S.C. § 2244(d)(2), his limitations period was then tolled
from May 1, 2000, through April 23, 2007, while his petition for post-conviction relief was pending
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before the state court. Then his limitations period began to run again on April 24, 2007.
At this time, Petitioner had thirty-six days of his one-year limitations period remaining. Thus,
absent any additional statutory tolling, Petitioner’s one-year statute of limitations for filing the instant
petition expired on May 30, 2007. However, it is undisputed that Petitioner did not seek further postconviction relief in state court until 2013 and did not file the instant petition until 2017. Thus, there
is no dispute that Petitioner’s instant § 2254 Petition, filed in December 2017, was filed long after the
expiration of the one-year statute of limitations applicable to such a petition.
Nonetheless, the one-year AEDPA statute of limitations is not jurisdictional and remains
subject to the doctrine of equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner
is “entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance . . . prevented timely filing.’” Id. at 649 (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden of demonstrating his
entitlement to equitable tolling. McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003). The
doctrine of “equitable tolling is applied sparingly by federal courts” and is typically used “only when
a litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond
that litigant’s control.” Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (citations and internal
quotation marks).
In this case, the Court thus finds that Petitioner has failed to meet his burden of demonstrating
that he is entitled to equitable tolling of the limitations period. The record does not demonstrate that
Petitioner pursued his rights diligently, given that Petitioner took no action with respect to his
convictions and sentence from 2007 through 2013, and then again from 2015 through 2017.
Additionally, Petitioner has not identified any extraordinary circumstance that prevented his timely
filing, and the Court’s review of the record reveals no such circumstances. Having made no arguments
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in support of the applicability of the doctrine, the Court concludes that Petitioner is not entitled to
equitable tolling of the limitations period.
Without the application of equitable tolling, Petitioner’s § 2254 petition is barred by the
AEDPA’s one-year statute of limitations; accordingly, the Court must GRANT Respondent’s Motion
to Dismiss [Doc. 6], and DISMISS this § 2254 action.
III.

CERTIFICATE OF APPEALABILITY
Finally, the Court 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. When a district court
denies a habeas petition on a procedural basis without reaching the underlying claim, a COA should
only issue if “jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also
Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
dismiss the Petition as time-barred. Accordingly, the Court will DENY issuance of a COA, and
CERTIFY that any appeal from this action would not be taken in good faith and would be totally
frivolous. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b), 24(a)(1), 24(a)(4).

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IV.

CONCLUSION
Because the Court has determined the instant §2254 Petition is time-barred under § 2244(d)

and that equitable tolling of the statute of limitations is unwarranted:
Respondent’s Motion to Dismiss [Doc. 6] is GRANTED;
This action is hereby DISMISSED;
The Court DENIES issue of a certificate of appealability;
The Court CERTIFIES that any appeal from this action would not be taken in good
faith and DENIES Petitioner leave to proceed on appeal in forma pauperis.
IT IS SO ORDERED.
ENTER:

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UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT JUDGE

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