Mauldin v. State of Tennessee

Filing 8

MEMORANDUM signed by Chief Judge Kevin H. Sharp on 10/11/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
ALFRED LEE MAULDIN #14877-075,
Petitioner,
v.
STATE OF TENNESSEE,
Respondent.

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No. 1:16-cv-00074
Chief Judge Sharp

MEMORANDUM
On August 29, 2016, Petitioner Alfred Lee Mauldin filed a pro se habeas corpus petition
under 28 U.S.C. § 2254 challenging the validity of his 1992 convictions in Maury County Circuit
Court in case numbers 7306, 7307 and 7308. (ECF No. 1.) In an order submitted with the
petition, the Tennessee Supreme Court summarized the procedural history of state-court
litigation regarding those convictions:
These cases originated with the appellant, Alfred Lee Mauldin’s, 1992
convictions for three counts of selling cocaine. Although at one point he
unsuccessfully sought “expungement” of the convictions, the appellant did not
otherwise appeal the convictions or pursue post-conviction relief until February
26, 2015, when he filed a petition seeking habeas corpus, error coram nobis or
audita querela relief.
Alfred Lee Mauldin v. State of Tennessee, No. M2015-01319-SC-R11-PC (Tenn. July 15, 2016)
(ECF No. 1-3, at 1). The February 2015 state court petition, filed “well over twenty-two years
after the entry of final judgment in this case,” was itself untimely under state law requiring such
petitions to be filed within one year of the date of final judgment. Alfred Lee Mauldin v. State of
Tennessee, No. M2015-01319-CCA-R3-PC, slip op. at 2 (Tenn. Ct. Crim. App. Jan. 21, 2016).
Even the referenced petition to expunge Petitioner’s record was not filed until May 18, 1999,
Mauldin v. State, No. M1999-00532-CCA-R3CD, 2000 WL 284179, at *1 (Tenn. Ct. Crim. App.
Mar. 17, 2000).

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year
limitations period for habeas petitions brought by prisoners challenging state-court convictions.
28 U.S.C. § 2244(d). Under this provision, the limitations period runs from the latest of four
enumerated events:
(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). Although the running of the period is tolled while any “properly filed”
collateral review petition is pending in state court, id., § 2244(d)(2), the AEDPA tolling provision
does not “revive” an already expired limitations period (i.e., restart the clock); it can only serve to
pause a clock that has not yet fully run. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001).
Once the limitations period is expired, collateral petitions can no longer serve to avoid a statute
of limitations bar. Id.; McClendon v. Sherman, 329 F.3d 490, 493 (6th Cir. 2003).
Petitioner argues in his petition that AEDPA’s statute of limitations does not apply to his
case because he “was not sentence under [AEDPA], in fact I was sentence before it went into
effect.” (ECF No. 1, at 14.) Petitioner is incorrect, as the Supreme Court has made clear that for
prisoners like Petitioner, whose judgments were final before AEDPA was enacted, the
§ 2244(d)(1)(A) limitations period ran from AEDPA’s effective date of April 24, 1996, and
therefore expired on April 24, 1997. Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012). Even
Petitioner’s first challenge of any kind to his 1992 convictions – the May 1999 petition to
expunge his record – was therefore more than two years too late to toll the running of his
already expired AEDPA limitations period.
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The petition alleges that Petitioner has been “denied the right to challenge” his state
convictions (ECF No. 1, at 8), but does not point to any governmental impediment explaining his
decades-long delay in bringing this action. He therefore has not established that he is entitled
to a new limitations period pursuant to § 2244(d)(1)(B).

The petition also claims “newly

discovered evidence,” but does not make entirely clear what the evidence is or when it was
discovered, and alleges that Maury County Circuit Court lost his “original WRIT records which
cause the delay in [his] whole WRIT process,” but does not establish what type of writ he sought
in that court, when he did so, or how diligently he pursued his rights in that process. (ECF No. 1,
at 14.)
As required by the Sixth Circuit’s direction in Shelton v. United States, 800 F.3d 292, 293
(6th Cir. 2015) (citing Day v. McDonough, 547 U.S. 198 (2006)), the Court therefore gave
Petitioner notice of the apparent untimeliness of his petition and an opportunity to respond.
(ECF No. 3, at 1–2.) Petitioner’s response, like his petition, is rambling and inarticulate. He
alleges that “its a fact that the state withhelded critical evidence from the defense,” and refers to
“the 104-Pages submitted with the filed petition” as constituting that evidence. (ECF No. 6, at 2,
4.) The material submitted with the petition includes: state and federal court judgments, orders
and appellate decisions; photocopies of the Tennessee Constitution and various statutes;
Tennessee Department of Correction records pertaining to Petitioner’s sentence; a “Common
Law Copyright Notice” drafted by Petitioner; and a letter from the Columbia chief of police dated
December 17, 2015, indicating that the Columbia police department does not have the records
pertaining to Petitioner’s 1991 offenses and that the officers listed on certain subpoenas never
worked for that department. (ECF No. 1-3, esp. at 2.) Aside from the letter, nothing in this batch
of documents, or those attached to Petitioner’s response (ECF No. 6, at 10–39) could even
arguably constitute evidence pertinent to his convictions.
It appears that Petitioner takes the letter to be evidence that the officers who arrested
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him were imposters or “unknown accusers,” and that his arrest was therefore an “illegal sting
operation” and his indictments “fictitious.” (ECF No. 1, at 1, 2; ECF No. 6, at 4.) But Petitioner’s
own assertion that the officers who arrested him purported to be “DEA Drug Task Force Agents”
(ECF No. 1, at 2) explains why they were not members of the local police department.
Moreover, even if Petitioner’s arrest by someone other than a Columbia police officer had any
impact on the validity of his conviction, Petitioner’s lack of diligence in waiting 23 years to
inquire about the officers’ employment status prevents him from successfully relying on
§ 2244(d)(1)(D) to restart his limitations period in December 2015.
Petitioner also disputes the accuracy of the procedural history recited by the Tennessee
Supreme Court (ECF No. 6, at 1–2), but he does not provide dates, captions or courts of filing
for any appeals or collateral challenges to these convictions filed before the expiration of his
AEDPA limitations period. Petitioner alleges that procedural error on the part of the Maury
County Circuit Court clerk delayed the processing of his “original Writ; Writ of Error Coram
Nobis And Writ of Audita Querela,” which he says was filed “timely after the Supreme Court of
the United States decision in Johnson, supra.” (ECF No. 6, at 4.) The Court takes this as a
reference to Johnson v. United States, 135 S. Ct. 2551 (2015), which was decided on June 26,
2015. As discussed further below, Johnson declared a portion of the Armed Career Criminal
Act (ACCA) – a federal sentencing statute applicable to certain federal convictions – to be
unconstitutionally vague. Id. The ACCA and Johnson therefore have no bearing on Petitioner’s
challenge under § 2254 to his state-court convictions for drug offenses, and the Johnson
decision does not provide Petitioner with a new limitations period under § 2244(d)(1)(C).
Accordingly, nothing Petitioner filed after Johnson was decided constituted a timely challenge to
his 1992 convictions or tolled his long-expired AEDPA limitations period.
AEDPA’s one-year statute of limitations may be subject to equitable tolling under
appropriate circumstances, allowing courts to review otherwise time-barred habeas petitions
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where the failure to file in a timely fashion “unavoidably arose from circumstances beyond that
litigant’s control.” Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 461 (6th Cir. 2012);
accord Holland v. Florida, 460 U.S. 631, 645 (2010). To be entitled to equitable tolling, a
petitioner must show: “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida,
549 U.S. 327, 336 (2007) (citation and internal quotation marks omitted). This is a fact-intensive
inquiry to be evaluated on a case-by-case basis, and Petitioner carries “the ultimate burden of
persuading the court that he or she is entitled to equitable tolling.” Keeling, 673 F.3d at 462.
Petitioner has not carried this burden in either his petition or his response to the Court’s
previous Order.

Accordingly, it is clear that the pending petition is untimely and must be

dismissed.
Alternatively, it is now clear that the gist of Petitioner’s claim is that he is challenging the
use of his 1992 state convictions to enhance his subsequent federal sentence under the ACCA,
which has allegedly “cost him over 20-years of ‘false arrest’ and ‘false imprisonment.’” (ECF No.
6, at 2–3.) On November 29, 1995, Petitioner was found guilty by a federal jury in this Court of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), possession with intent
to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm
during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Jury Verdict,
United States v. Mauldin, No. 1:95-cr-00006-1 (M.D. Tenn. Nov. 29, 1995), Docket Entry No. 56.
On February 28, 1996, the Court sentenced Petitioner to an effective total sentence of 322
months. Judgment, id., (M.D. Tenn. Feb. 28, 1996), Docket Entry No. 116. On direct appeal,
the Sixth Circuit affirmed Petitioner’s convictions and sentence and commented on the basis for
enhancement of his sentence:
On Count One (felon in possession of a firearm in violation of 18 U.S.C. §
922(g)), Mauldin received an enhanced sentence pursuant to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). It mandates a minimum fifteen year
term of imprisonment in the case of a person who violates 18 U.S.C. § 922(g)
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and has three prior “serious drug or violent felony offenses,” committed on
occasions different from one another. Enhancement of Mauldin’s sentence was
based on three prior “serious drug offenses” under state law.
United States v. Mauldin, 109 F.3d 1159, 1162 (6th Cir. 1997). Petitioner’s belief that he can
attack those three prior state drug offense convictions or the resulting federal sentence
enhancement at this point fails for at least two reasons.
First, to the extent Petitioner claims that Johnson provides him with an opportunity to
challenge the enhancement of his federal sentence, Johnson does not even apply to his case
because it did not involve the portion of the ACCA pertaining to enhancement for prior drug
offenses. Another district court in this circuit has recently explained the distinction:
Johnson does not provide relief to Defendant because, as previously discussed,
Defendant received a sentence enhancement based on his three prior
convictions for serious drug offenses, not violent felonies. “Serious drug offense”
and “violent felony” are separate terms under the statute. See 924(e)(2)(A)-(B).
The residual clause invalidated by Johnson only related to violent felonies. Thus,
Johnson is inapplicable to Defendant's case.
United States v. Jackson, No. CR 5:07-004-KKC, 2016 WL 3648283, at *2 (E.D. Ky. July 1,
2016). Accordingly, even if the Court could consider this petition as a challenge to Petitioner’s
federal sentence rather than his state convictions,1 any Johnson claim would fail.
Second, Petitioner’s sentence for the 1992 state convictions was community service, a
fine and eight years in a community corrections program, set to end on September 18, 2000.
(ECF No. 1, at 1; ECF No. 1-3, at 42–45.)

In November 1992, the trial court found that

Petitioner had violated the rules of community corrections program, revoked the community
corrections sentence and transferred Petitioner to the Tennessee Department of Correction
(TDOC) to serve the remainder of his eight year sentence. (ECF No. 1-3, at 46.) TDOC records
confirm that Petitioner’s sentence ended on September 18, 2000. See https://apps.tn.gov/foilapp/results.jsp. The Petitioner describes himself as “a state prisoner in federal custody since
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Petitioner has already filed multiple motions challenging his federal sentence pursuant to 28 U.S.C. §
2255, and has been repeatedly denied permission to file successive § 2255 motions. See Order
Transferring to Sixth Circuit, Mauldin v. USA, No. 1:15-cv-00106 (M.D. Tenn. Feb. 25, 2016), ECF No. 14.
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1995,” and asserts that this is “not a custody case.” (ECF No. 1, at 1.) But jurisdiction only
exists under § 2254 when a petitioner is “in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2254(a); Steverson v. Summers, 258 F.3d 520, 522 (6th Cir. 2001). Once a state
sentence has expired, enhancement of a federal sentence on the basis of the state conviction
does not provide a new opportunity to bring a collateral challenge to the state conviction under
either § 2254 or § 2255:
On its face, the [§ 2254] petition challenges the 1981 convictions, convictions for
which Petitioner is not “in custody” since their sentences had expired by the time
he filed his petition. Accordingly, we lack subject matter jurisdiction to consider
his petition. See Maleng [v. Cook], 490 U .S. [488] at 490–91 [(1989)]. Moreover,
even if we were to construe his petition as a § 2255 petition attacking his current
federal sentence, the teaching of Daniels [v. United States, 532 U.S. 374 (2001)]
and [Lackawanna Cnty. District Attorney v.] Coss[, 531 U.S. 923 (2001)] is clear:
Petitioner cannot rely on §§ 2254 or 2255 as vehicles to challenge his prior
convictions used to enhance his current federal sentence. Like the petitioner in
Daniels, Petitioner “is without recourse” because his “prior conviction[s] used to
enhance [his] federal sentence [are] no longer open to direct or collateral attack
in [their] own right because the defendant failed to pursue those remedies while
they were available.” Daniels, 532 U.S. at ––––, 121 S.Ct. at 1583.
Steverson, 258 F.3d at 525. Like the petitioners in Steverson and Daniels, Petitioner failed to
challenge his 1992 state convictions while remedies were still available, and may not do so now
despite their impact on his federal sentence. This Court therefore lacks jurisdiction over this
petition regardless of its timeliness or of what type of petition it is construed to be.
For the forgoing reasons, it is apparent that Petitioner is not entitled to relief. This action
will be dismissed as untimely and for lack of jurisdiction.
An appropriate Order shall enter.

Kevin H. Sharp, Chief Judge
United States District Court

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