Levy v. Mills

Filing 53

REPORT AND RECOMMENDATION re 2 Petition for Writ of Habeas Corpus filed by Carlos Levy. Upon careful consideration, the undersigned finds that the instant action is time-barred. Accordingly, it is respectfully RECOMMENDED that the petitioner's amended habeas corpus petition be DENIED and that the instant action should be DISMISSED. Signed by Magistrate Judge E. Clifton Knowles on 5/9/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

CARLOS LEVY
Petitioner,

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]
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v.
DAVID OSBORNE, WARDEN
Respondent.
To:

No. 1:10-0005
Sharp/Knowles

Honorable Kevin H. Sharp, United States District Judge
R E P O R T

A N D

R E C O M M E N D A T I O N

By an order (Docket Entry No.47) entered July 28, 2011, the
Court referred this action to the Magistrate Judge “for further
proceedings under Rule 8(b), Habeas Corpus Rules, 28 U.S.C. §
636(b)(1)(B), and Rule 72.03, Local Rules of Court.”
Presently before the Court are petitioner’s amended § 2254
habeas corpus petition (Docket Entry No.39), respondent’s Answer
(Docket Entry No.46) to the habeas corpus petition as amended, and
petitioner’s Reply (Docket Entry No.52) to the respondent’s Answer.
The undersigned has carefully reviewed these pleadings as well
as the expanded record in this case and finds, for the reasons
stated below, that the petitioner’s habeas corpus petition is
untimely. Accordingly, the petition should be denied and the
instant action should be dismissed.

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I. BACKGROUND
The petitioner, proceeding through counsel, is an inmate at
the Morgan County Correctional Complex in Wartburg, Tennessee. He
brings this action pursuant to 28 U.S.C. § 2254 against David
Osborne, Warden of the facility, seeking a writ of habeas corpus.
On April 19, 2006, the petitioner pled guilty in the Circuit
Court of Marshall County to aggravated assault, two counts of
especially aggravated kidnapping, aggravated robbery, attempted
aggravated robbery, and the unlawful possession of a firearm.
Docket Entry No.27-2 at pgs.20-45. For these crimes, he received an
aggregate sentence of thirty (30) years in prison. Id. at pg.77.
On direct appeal, the Tennessee Court of Criminal Appeals
affirmed the petitioner’s sentence. Docket Entry No.17-3. The
Tennessee Supreme Court later denied the petitioner’s application
for further review. Docket Entry No.2 at pg.18.
II. PROCEDURAL HISTORY
On January 26, 2010, the petitioner initiated the instant
action with the pro se filing of a § 2254 habeas corpus petition
(Docket Entry No.2) in the District Court for the Eastern District
of Tennessee. By an order (Docket Entry No.4) entered two days
later, the petition was transferred to this judicial district for
disposition.
Upon its receipt here, the respondent was directed to file an
answer, plead or otherwise respond to the petition. Docket Entry
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No.6. Meanwhile, the petitioner filed an amended habeas corpus
petition. Docket Entry No.13. The respondent followed with a Motion
to Dismiss (Docket Entry No.15) the amended petition as untimely.
The Court entered an order (Docket Entry No.21) denying the Motion
to Dismiss without prejudice to renew it at a later date. The
Federal Public Defender was appointed to represent the petitioner.
Counsel for the petitioner has filed an amended habeas corpus
petition. Docket Entry No.39. The petition sets forth four claims
for relief. These claims include :
1)

the imposition of consecutive sentences
was improper;

2)

the petitioner was “improperly subjected
to multiple punishment for a single course
of conduct” in violation of the Double
Jeopardy Clause of the Constitution;

3)

the petitioner’s guilty plea was neither
voluntarily nor knowingly given; and

4)

counsel was ineffective for failing to
secure the services of an interpreter for
the petitioner at the plea and sentencing
hearings.1

The respondent has filed an Answer (Docket Entry No.46) to the
amended habeas corpus petition, asserting that this action is timebarred and that the petitioner has failed to properly exhaust his
state court remedies. The petitioner has responded with a Reply
(Docket Entry No.52) to the Answer.

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The petitioner was represented by Andrew Dearing, an
Assistant Public Defender in Bedford County.
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This action has been referred to the undersigned for further
proceedings. Docket Entry No.47. Having carefully considered these
pleadings and the expanded record, it appears that an evidentiary
hearing is not needed in this matter. See Smith v. United States,
348 F.3d 545,550 (6th Cir. 2003)(an evidentiary hearing is not
required when the record conclusively shows that the petitioner is
entitled to no relief).
III. TIMELINESS OF THE PETITION
A.) Statute of Limitation
There is a one year period of limitation placed on the filing
of § 2254 petitions. This limitation period runs from the latest of
(A)

the date on which the judgment became final
by the conclusion of direct review or the
expiration of the time for seeking such review;

(B)

the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant
was prevented from filing by such State action;

(C)

the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or

(D)

the date on which the factual predicate of
the claim or claims presented could have
been discovered through the exercise of due
diligence.

28 U.S.C. § 2244(d)(1).
The appropriate starting point for calculating the timeliness
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of this action is the date on which petitioner’s convictions became
final. 28 U.S.C. § 2244(d)(1)(A).
The petitioner pled guilty on April 19, 2006. The direct
appeal of his convictions in the state courts was concluded on
August 13, 2007, the date that the Tennessee Supreme Court denied
petitioner’s application for further review. See Docket Entry No.2
at pg.18. The time for seeking direct review has been held to
include

the

ninety

(90)

day

period

during

which

a

criminal

defendant can petition the United States Supreme Court for a writ
of certiorari. Isham v. Randle, 226 F.3d 691, 695 (6th Cir. 2000).
Adding ninety (90) days to this date, the petitioner’s convictions
became final, for the purpose of timeliness, on November 11, 2007.2
As a consequence, the petitioner had one year from this date,
or until November 11, 2008, in which to initiate the instant
action. His habeas corpus petition, however, was not filed until
January 26, 2010, more than fourteen months after the limitation
period had expired. Therefore, this action was not filed in a
timely manner.
B.) Equitable Tolling of the Limitation Period
The period of limitation does not act as a jurisdictional bar.
Accordingly, the one year limitation period is subject to equitable
tolling in appropriate circumstances. Holland v. Florida, 130 S.Ct.

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Calculation of the ninety days is as follows : 18 days
(8/14 -8/31/07) + 30 days (9/1 - 9/30/07) + 31 days (10/1 10/31/07) + 11 days (11/1 - 11/11/07) = 90 days.
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2549 (2010). Equitable tolling of a limitation period, however,
should be applied sparingly. Dunlap v. United States, 250 F.3d
1001, 1008 (6th Cir. 2001).
The petitioner bears the burden of showing that he is entitled
to an equitable tolling of the limitation period. Keenan v. Bagley,
400 F.3d 417, 420 (6th Cir. 2005). To make the appropriate showing,
the petitioner must demonstrate (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented the timely filing of his petition.
Lawrence v. Florida, 127 S.Ct. 1079,1085 (2007); Hall v. Warden,
Lebanon Correctional Institution, 662 F.3d 745,749 (6th Cir.2011).
In the Reply (Docket Entry No.52) to the respondent’s Answer,
counsel

for

the

petitioner

argues

that

equitable

tolling

is

appropriate in this instance because the petitioner speaks very
little English.
Where a petitioner’s alleged lack of proficiency in English
has not prevented him from accessing the courts, that lack of
proficiency is insufficient to justify an equitable tolling of the
limitation period. An inability to speak, write and/or understand
English, in and of itself, does not automatically give a petitioner
reasonable cause for failing to know about the legal requirements
for filing his claims. Cobas v. Burgess, 306 F.3d 441,444 (6th
Cir.2002).
Neither the trial judge nor counsel for the petitioner felt

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the need to obtain the services of an interpreter for him at the
plea and sentencing hearings. The trial judge was able to converse
with the petitioner during these hearings, though admittedly it was
difficult at times. The petitioner acknowledges that, shortly after
his entry into the prison system, he “met a fellow inmate who was
bilingual

in

Spanish

and

English

and

had

some

knowledge

of

appellate procedure.” Docket Entry No.52 at pg.2. The petitioner
had been in this country at least three years before the limitation
period expired. From these circumstances, it does not appear that
the petitioner was unable to exercise his right of access to the
courts with a little effort on his part.
Therefore, the undersigned finds that the petitioner has
failed to making a showing that he pursued his rights in a diligent
manner.

Nor

has

the

petitioner

shown

that

extraordinary

circumstances prevented him from filing a timely petition. As a
consequence, an equitable tolling of the limitation period would
not be appropriate in this instance.

R E C O M M E N D A T I O N
Upon careful consideration, the undersigned finds that the
instant action is time-barred. Accordingly, it is respectfully
RECOMMENDED that the petitioner’s amended habeas corpus petition be
DENIED and that the instant action should be DISMISSED.
Any objections to this Report and Recommendation must be filed

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with the Clerk of Court within fourteen (14) days of service of
this notice and must state with particularity the specific portions
of the Report and Recommendation to which objection is made.
Failure to file written objections within the specified time can be
deemed a waiver of the right to appeal the District Court’s Order
regarding the Report and Recommendation. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir.1981).

Respectfully submitted,

______________________________
E. Clifton Knowles
United States Magistrate Judge

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