Poston v. Settles
Filing
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ORDER AND MEMORANDUM OPINION. The Respondent is ORDERED to file an answer, plead or otherwise respond to the petition in conformance with Rule 5, Rules § 2254 Cases, within 30 days of the date of receipt of this Order. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/20/18. (xc:Pro se party by regular mail and Respondent/AG by certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
MICHAEL LYNN POSTON,
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Petitioner,
v.
DARREN SETTLES,
Respondent.
No. 2:18-cv-00049
CHIEF JUDGE CRENSHAW
ORDER AND MEMORANDUM OPINION
Petitioner Michael Lynn Poston, an inmate of the Bledsoe County Correctional Complex
in Pikeville, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus
challenging his conviction and sentence for aggravated sexual battery for which he currently is
serving eleven years in the Tennessee Department of Correction. (Doc. No. 1 at 1).
I.
Introduction
On January 4, 2012, a White County, Tennessee jury convicted the Petitioner of one count
of aggravated sexual battery. (Doc. No.1 at 1). The trial court sentenced the Petitioner to eleven
years’ imprisonment. Id. The Petitioner appealed, and the Tennessee Court of Criminal Appeals
affirmed on January 28, 2017. (Id. at 2). The Supreme Court of Tennessee denied the Petitioner’s
application for discretionary review on June 20, 2014. (Id.) The Petitioner did not seek a petition
for writ of certiorari from the United States Supreme Court. (Id.)
On an unspecified date, the Petitioner filed a motion for new trial, which the trial court
denied. (Id. at 3). Although the Petitioner does not include this information in his petition, the
Court takes judicial notice of the decision of the Tennessee Court of Criminal Appeals in which
the appeals court affirmed the trial court’s denial of the Petitioner’s petition for post-conviction
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relief. See Poston v. State, No. M2016-01693-CCA-R3-PC, 2017 WL 4221147, at *1 (Tenn.
Crim. App. Sept. 22, 2017). The Tennessee Supreme Court denied the Petitioner’s application for
discretionary review on January 18, 2018. (Id.)
On May 21, 2018, the Petitioner filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 in this Court. 1 (Doc. No. 1 at 17).
II.
Standard for Preliminary Review of Section 2254 Cases
Under Rule 4, Rules – Section 2254 Cases, the court is required to examine Section 2254
petitions to ascertain as a preliminary matter whether “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court.” If, on the face of
the petition, it appears that the petitioner is not entitled to habeas corpus relief, then the “the judge
must dismiss the petition . . . .” Id.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (codified, inter alia, at 28 U.S.C. §§ 2244, et seq.), prisoners have one year within
which to file a petition for habeas corpus relief that runs from the latest of four (4) circumstances,
one of which is “the date on which the [state court] 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).
The AEDPA’s one-year limitations period is tolled by the amount of time that “a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2); see Ege v. Yukins, 485 F.3d 364, 371
(6th Cir. 2007). However, any lapse of time before a state application is properly filed is counted
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Under the “prison mailbox rule” of Houston v. Lack, 487 U.S. 266, 270 (1988), and the Sixth Circuit’s subsequent
extension of that rule in Richard v. Ray, 290 F.3d 810, 812 (6th Cir. 2002) and Scott v. Evans, 116 Fed. App'x 699,
701 (6th Cir. 2004), a prisoner's legal mail is considered “filed” when he deposits his mail in the prison mail system
to be forwarded to the Clerk of Court. Pursuant to this authority, the Court finds that Petitioner filed his petition on
May 21, 2018, the date he signed the petition (Doc. No. 1 at 17), even though the Clerk of Court received and docketed
the petition on June 6, 2018. Throughout this Memorandum, all dates as they pertain to the federal filings of Petitioner
will reflect the Court’s application of the prison mailbox rule.
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against the one-year limitations period. See Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir. 1999),
aff’d, 531 U.S. 4 (2000). When the state collateral proceeding that tolled the one-year limitations
period concludes, the limitations period begins to run again at the point where it was tolled rather
than beginning anew. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004)(citing McClendon
v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003)).
III.
Rule 4 Preliminary Review
The record before the Court shows that the date on which Petitioner’s judgment became
final by conclusion of direct review was June 20, 2014. On June 21, 2014, the ninety (90) day
period within which the Petitioner could have filed a writ of certiorari with the United States
Supreme Court began. See Fed. R. Civ. P. 6(a)(1)(a) (when the governing time period is stated in
days, the court excludes the day of the event that triggers the period; thus, here, June 20, 2014, is
excluded). During the ninety (90) day period, the AEDPA’s one-year limitations period is tolled.
See Clay v. United States, 537 U.S. 522, 532 (2003). The ninety (90) day period ended on
September 18, 2014. See Fed. R. Civ. P. 6(a)(1)(c)(when the governing time period is stated in
days, the court includes the last day of the period with exceptions that do not apply here). The
AEDPA limitations period began running on September 18, 2014. The Petitioner had one year, or
until September 18, 2015, to timely file his federal habeas petition.
The Petitioner statutorily tolled the limitations period by filing a pro se state petition for
post-conviction relief. However, the record before the Court does not include the date on which
the Petitioner filed his petition. Therefore, the Court is unable to determine on what date the
Petitioner statutorily tolled the AEDPA limitations period and, ultimately, whether the Petitioner
filed his federal habeas petition within the AEDPA’s one-year statute of limitations.
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IV.
Conclusion
After conducting a preliminary review of Petitioner’s Section 2254 petition under Rule 4,
Rules – Section 2254 Cases, the Court concludes that the current record prevents the Court from
determining whether the Petitioner timely filed his petition. If the petition is timely, the Petitioner
has asserted colorable claims, including insufficiency of the evidence and ineffective assistance of
counsel. Consequently, the Respondent is ORDERED to file an answer, plead or otherwise
respond to the petition in conformance with Rule 5, Rules — § 2254 Cases, within 30 days of the
date of receipt of this Order.
By the same date, the Respondent also shall file the complete state court record relevant to
this matter, including the complete trial court record, the complete record on direct appeal, and the
complete trial and appellate court record in connection with any state petition for collateral relief
including, but not limited to, transcripts for all proceedings and rulings on any state petition. See
Habeas Rules 5(c) & (d). The Respondent’s notice of filing shall include a comprehensive index
indicating the precise location of each distinct part of the relevant record (e.g., plea proceedings,
pre-trial hearing transcripts, voir dire, each portion of trial testimony, trial exhibits, jury
instructions, verdict, each party’s briefs at each level of appeal, each court’s final ruling on appeal
and collateral proceedings, etc.). The record shall be organized and appropriately indexed, and
distinct parts of the record should be electronically bookmarked for ease of reference in identifying
documents relevant to the state court proceedings. After the record is filed, the parties shall cite
to the state court record using the Page ID No. provided in CM-ECF.
If the Respondent files an answer, the answer must comply with the requirements set forth
in Habeas Rule 5. The answer shall address each alleged ground for relief and shall be fully briefed
with citations to the state court record and to governing Supreme Court precedent. For each claim,
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the answer shall, at a minimum: (1) assert any procedural defenses; (2) identify the clearly
established Supreme Court precedent governing the claim; (3) state whether the claim was
exhausted in state court; (4) cite the state court’s ruling for exhausted claims; and (5) respond to
the Petitioner’s argument that he is entitled to habeas relief on the claim with appropriate reasoned
legal and factual argument.
Failure to comply with these requirements may result in the
Respondent being directed to file a new answer in conformance with these requirements.
The Petitioner may file a reply to the Respondent’s answer limited to disputing specific
points of fact or law raised by the answer within 30 days of the date the answer is filed. The Court
will consider the matter ripe for review if the Petitioner fails to file a reply, or to seek additional
time to file a reply, within 30 days of the date the answer is filed.
If the Respondent files a motion, the motion shall comply with the requirements of the
Federal Rules of Civil Procedure, see Habeas Rule 12, and where relevant, shall address the issues
of exhaustion and timeliness.
The Petitioner may file a response to the Respondent’s motion within 30 days of the date
the motion is filed. If the Petitioner fails to timely respond to the Respondent’s motion, or fails to
seek additional time to respond, the Court may construe the Petitioner’s failure to respond as the
Petitioner’s agreement that the motion has merit and may grant the motion without further briefing.
The Respondent may file a reply, or seek additional time to file a reply, within 15 days of the date
the Petitioner’s response to the motion is filed.
The Clerk is DIRECTED to serve a copy of the petition and this Order on the Respondent
and the Attorney General of Tennessee. See Habeas Rule 4.
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IT IS SO ORDERED.
____________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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