Hood v. Washburn et al

Filing 12

MEMORANDUM OPINION to be set forth more fully in the following Judgment. Signed by District Judge R Leon Jordan on May 2, 2019. (copy mailed to Jonathon C Hood 366760, BLEDSOE COUNTY CORRECTIONAL COMPLEX, 1045 HORSEHEAD ROAD, PIKEVILLE, TN 37367) (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER

JONATHON C. HOOD,

)
)
Petitioner,
)
)
v.
)
)
RUSSELL WASHBURN, Warden (TTCC), )
and ROBERT BAGGETT, Franklin County )
Circuit Court Clerk,
)
)
Respondents.
)

No. 4:19-CV-29-RLJ-CHS

MEMORANDUM OPINION
Jonathon C. Hood (“Petitioner”), a state prisoner, filed this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle
District of Tennessee [Doc. 1]. After Petitioner paid the $5.00 habeas filing fee [Doc. 6], the
Middle District transferred his petition to this Court as the more appropriate venue to adjudicate a
challenge to a Franklin County, Tennessee judgment [Doc. 9]. For the reasons below, the Court
finds that it lacks jurisdiction over the case and will DISMISS the petition.
I.

BACKGROUND
On April 26, 2007, pursuant to his guilty pleas, Petitioner was convicted in the Franklin

County Circuit Court in Case No. 17294 of driving while intoxicated, 5th offense, was sentenced
to 2 years and 6 months’ incarceration, and was assessed a $3,000.00 fine [Doc. 1 at 1]. 1 Petitioner

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Petitioner also pled guilty in Case No. 17295 to a second charge of DUI, 5th offense, receiving a second
two-and-a-half-year sentence, set consecutive to his sentence in Case No. 17294, and a $3,000.00 fine [Doc.
1-16]. According to the first page of Petitioner’s § 2254 petition, he is attacking only the fine in his first
conviction for DUI, 5th offense [Doc. 1]. However, in the relief section of his habeas petition, he asks the
Court to vacate the judgments in Case Nos. 17294 and 17295, and additionally in Case No. 17CR283
(apparently referring to his “present TDOC sentence”) [Doc. 1 at 2, 15-16, Doc. 1-12, Tomis Offender

was set to serve one year in prison on the effective 5-year sentence imposed in both cases, with
the remainder of the sentence on probation. Hood v. State, No. M2013-01655-CCA-R3-HC, 2014
WL 1831034, at *1 (Tenn. Crim. App. May 6, 2014), perm. app. den. (Tenn. 2014). Petitioner
began to serve his sentence in April of 2007. Id. Petitioner did not pursue a direct appeal.
On February 19, 2009, Petitioner filed in the trial court a motion to discharge the fine in
Case No. 17295, on the basis that his sentence had expired. Hood v. State, No. M2009-00661CCA-R3-PC, 2010 WL 3244877, at *1 (Tenn. Crim. App. Aug. 18, 2010), perm. app. den. (Tenn.
2010). The trial court denied relief on March 5, 2009 [Doc. 1-15], and Petitioner appealed. Hood,
2010 WL 3244877, at *1. The appeal was dismissed because Petitioner had no appeal as of right
from a denial of a motion to discharge fines and because the record was incomplete and could not
support his assertion of error in the denial of his motion to discharge the fine. Id.
In April or May of 2013, Petitioner filed a petition for a writ of habeas corpus in the state
trial court in Case Nos. 17294 and 17295, in which he conceded that his prison sentence in Case
No. 17294 was lawful but argued that his ongoing fines were illegal given the expired judgments
and the concomitant lack of trial court jurisdiction [Doc. 1 at 5 and 21]. The petition was
summarily dismissed and Petitioner appealed [Doc. 1 at 5]. Hood, 2014 WL 1831034, at *1.
In his appeal, Petitioner maintained “that when his sentences expired, his judgments
became void and, thus, that his having to continue to pay fines is an impermissible restraint on his
liberty.” Id., 2014 WL 1831034, at *1. The state appellate court declined to grant relief, reasoning

Sentence Letter showing a conviction as a habitual traffic offender in Case No. 17CR283 that carried a
maximum 3-year sentence]. If this § 2254 petition is construed as also challenging the fine imposed in
Case No. 17295, the reasoning set forth in this opinion would apply similarly to it. Moreover, the Court
cannot entertain a challenge to Petitioner’s current confinement in this § 2254 petition. See Rule 2(e), Rules
Governing Section 2254 Cases (providing that a petitioner who seeks relief from judgments of more than
one state court must file a separate petition covering the judgment(s) of each state court).

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that Petitioner was not imprisoned on the cases underlying his petition and that “habeas corpus
relief is not available when a petitioner has been assessed a fine but is not incarcerated” because
“[t]he assessment of a fine upon a defendant does not constitute imprisonment or restraint within
the meaning of [the state habeas corpus statute].” Id., 2014 WL 1831034, at *1 (internal citations
omitted). The state supreme court denied Petitioner’s application for permission to appeal [Doc.
1 at 9]. Id., 2014 WL 1831034, at *1.
Petitioner returned to the state trial court on January 1, 2018, to file a second petition for a
writ of habeas corpus, in which he offered the same claims regarding his fines that he raised in his
first state habeas corpus petition [Doc. 1 at 5]. Without holding an evidentiary hearing, the trial
court denied his petition on the ground of res judicata, and the appellate court affirmed the trial
court’s ruling. Hood v. Baggett, No. M201800336CCAR3HC, 2018 WL 3752126, at *1 (Tenn.
Crim. App. Aug. 7, 2018). Petitioner did not file an application for permission to appeal to the
state supreme court [Doc. 1 at 6].
According to Attachment 1-13, Petitioner filed a third motion for a sentence reduction on
February 7, 2019, again seeking to set aside the fines assessed in April of 2007 in Case Nos. 17294
and 17295 [Doc. 1-13 at 2]. On March 5, 2019, the trial court entered an order denying Petitioner’s
motion, acknowledging that a sentence reduction was available under a state procedural rule if a
motion for such is filed within 120 days of the judgment but explaining that the judgment in
Petitioner’s cases were entered in 2007 [Doc. 1-15]. On April 9, 2019, Petitioner filed this instant
§ 2254 petition [Doc. 1].

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II.

DISCUSSION
A.

“In custody” Requirement

Federal courts are authorized to “entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). The Sixth Circuit has instructed that “federal courts have a duty to consider their subject
matter jurisdiction in regard to every case and may raise the issue sua sponte.” Answers in Genesis
of Kentucky, Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). The Court
does so here.
The “in custody” term in § 2254(a) has been interpreted as a requirement that the habeas
petitioner be ‘“in custody’ under the conviction or sentence under attack at the time his petition is
filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). Thus, where a conviction has
been fully served, a habeas petitioner is no longer “in custody” under that conviction, and a federal
court lacks jurisdiction to set aside the conviction on the ground that the conviction was obtained
in violation of the United States Constitution. Maleng, 490 U.S. at 492. After a conviction has
completely expired, the collateral consequences of such a conviction are not enough to render the
petitioner “in custody” under § 2254(a). Id.
Tellingly, Petitioner does not challenge his conviction for DUI, 5th offense; instead, he
challenges, as a “Sentencing Defect,” the fine levied in the judgment of conviction—a fine that he
claims is “being actively proscecuted [sic] for collection” [Doc. 1 at 14]. In effect, Petitioner is
arguing that, when his sentences expired, the fines assessed as part of those sentences also expired
[Id. at 7 (alleging that “[h]is term of imprisonment is satisfied and his sentence/punishment/fine is
supposed to be expired too”)]. Petitioner is further arguing, as the Court interprets it, that because

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those fines were part of his punishment and because there are ongoing attempts to collect on fines
that he views as uncollectable, he is still being punished in connection with sentences that have
expired [Doc. 1 at 8].
As noted, Petitioner was sentenced April 26, 2007, in Case No. 17294 to a two-and-a-halfyear term. Petitioner has attached to his petition a document that demonstrates that his sentence
in Case. No. 17294 expired on February 1, 2009 [Doc. 1-5]. Thus, the conviction at issue in this
§ 2254 petition expired many years before the petition was filed on April 9, 2019 [Doc. 1]. 2
Furthermore, when a petition challenges an expired sentence, “the duration of Petitioner’s
time in custody will not be decreased should his petition succeed.” Hughes v. Birkett, 173 F. App’x
448, 448 (6th Cir. 2006), accord Bowling v. White, No. 15-6318, 2017 WL 2471262, at *1 (6th
Cir. June 8, 2017) (explaining that the “core purpose” of federal habeas review is to “shorten [a]
term of incarceration” in the event a petitioner “proves unconstitutionality” (quoting Garlotte v.
Fordice, 515 U.S. 39, 47 (1995)).
Finally, to the extent that Petitioner’s assertion that the fines extend his punishment can be
seen as an argument that he remains “in custody” on his sentence in Case No. 17294 for DUI, 5th
offense, the Court rejects that premise. The Sixth Circuit has observed that “[a] monetary fine is
not a sufficient restraint on liberty to meet the ‘in custody’ requirement.” Thrower v. City of Akron,
43 F. App’x 767, 768 (6th Cir. 2002) (citing Lillios v. New Hampshire, 788 F.2d 60, 61 (1st Cir.

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Petitioner has acknowledged in his court filings that his sentences have expired. In Petitioner’s appeal of
his first state petition for a writ of habeas corpus, the state appellate court iterated that he had pled guilty to
two counts of driving under the influence, fifth offense, on April 26, 2007, and that he claimed that his
sentences had expired and, thus, had rendered his judgments void. Hood, 2014 WL 1831034, at *1. In this
instant petition, Petitioner similarly explains that his March 1, 2009, motion to discharge fines in Case Nos.
17294 and 17295 was based in part on his “expired sentence” [Doc. 1 at 4 ¶ 11].

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1986)); see also McNeil v. Howard, 338 F. App’x 745, 747 (10th Cir. 2009) (“An outstanding fine
does not satisfy § 2254’s ‘in custody’ requirement.”) (citation omitted).
Because Petitioner’s sentence in Case No. 17294 expired in 2009 and because success in
this petition would not shorten that sentence, the Court concludes that Petitioner was not “in
custody” on that conviction when he filed this petition on April 9, 2019. Therefore, Petitioner
cannot invoke this Court’s habeas corpus jurisdiction and the Court lacks the authority to entertain
his habeas corpus petition.
B.

Timeliness

Alternatively, if Petitioner was “in custody” pursuant to his conviction for DUI, 5th
offense, when he brought this § 2254 petition, he could not obtain habeas corpus relief from that
conviction because his petition is untimely.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in 28
U.S.C. § 2241, amended the federal habeas corpus statutes and added a one-year statute of
limitations to regulate the time for filing an application for a federal writ of habeas corpus. In the
typical case, the statute of limitations begins to run from the date a petitioner’s state judgment of
conviction becomes final by the conclusion of direct review or the expiration of the time for
seeking such review. See 28 U.S.C. § 2244(d)(1)(A).
As stated, Petitioner’s judgment was issued on April 26, 2007, and he did not appeal.
Hence, under § 2244(d)(1)(A), Petitioner’s conviction and judgment became final on Monday,
May 28, 2007 (the first day the courthouse was open after the lapse of the thirty-day period for
seeking an appeal in the TCCA). See State v. Green, 106 S.W.3d 646, 648-50 (Tenn. 2002)
(finding that a judgment based on a guilty plea becomes final thirty days after acceptance of the
plea agreement and imposition of the sentence) (citing Tenn. R. App. P. 4(a)). Accordingly, for

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purposes of § 2244(d)(1)(A), the AEDPA statute began to run in Petitioner’s case on May 28,
2007, and it was set to expire one year afterward, on May 28, 2008. Petitioner thus needed to file
his § 2254 petition on or before May 28, 2008. As noted, Petitioner filed his § 2254 petition for
habeas corpus relief on April 9, 2019, nearly eleven years too late under § 2244(d)(1)(A).
The statute however provides a tolling mechanism. The statute is tolled under § 2244(d)(2)
during the time “a properly filed application for State post-conviction or other collateral review”
is pending. 28 U.S.C. § 2244(d)(2). Petitioner filed many pleadings and motions in the state court
challenging his fines. However, by the time Petitioner initiated those state collateral proceedings,
the AEDPA’s clock had already stopped 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). Petitioner does not
qualify for statutory tolling.
The AEDPA statute of limitation is not jurisdictional and also is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010); Perkins v. McQuiggin, 670 F.3d 665, 670 (6th Cir.
2012) (commenting that limitations statutes do not require courts to dismiss claims as soon as the
“clock has run”) (citation omitted). To qualify for equitable tolling of AEDPA’s limitation statute,
a petitioner must show diligence in pursuit of his rights and that an extraordinary circumstance
prevented him from timely filing the petition. Id. at 649. Nothing alleged by Petitioner supplies
a basis for equitable tolling of the limitation period.

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III.

CERTIFICATE OF APPEALABILITY
The Court next considers 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. See 28
U.S.C. § 2253(c)(2). 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 it lacks jurisdiction to grant the petition and, alternatively, that the petition is
untimely; thus, he will be denied a certificate of appealability. Fed. R. App. P. 22(b); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
In addition, the Court has carefully reviewed this case pursuant to 28 U.S.C. § 1915(a)(3)
and will certify that any appeal from this action would not be taken in good faith. Therefore, the
Court will deny Petitioner leave to proceed in forma pauperis on appeal. Fed. R. App. P. 24.

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IV.

CONCLUSION
Based on the above discussion, the Court finds that it lacks jurisdiction to entertain this

habeas corpus petition, and alternatively, that the petition is time-barred under § 2244(d)(1)(A).
Therefore, the Court will DISMISS this case. Further, 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 ORDER WILL ENTER.

ENTER:

s/ Leon Jordan
United States District Judge

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