Simmons v. Taylor

Filing 16

MEMORANDUM. An appropriate order will be entered. Rule 8(a), Rules - - -§ 2254 Cases. Signed by District Judge Aleta A. Trauger on 6/14/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TARINA SHANTAYNE SIMMONS
Petitioner,
v.
SHARON TAYLOR, WARDEN
Respondent.

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No. 3:13-0436
Judge Trauger

M E M O R A N D U M
The petitioner, proceeding pro se, is an inmate at the Mark
Luttrell Reception Center in Memphis, Tennessee. She brings this
action pursuant to 28 U.S.C. § 2254 against Sharon Taylor, Warden
of the facility, seeking a writ of habeas corpus.
I. Background
On March 12, 2010, the petitioner entered a best interest plea
to two counts of second degree murder in the Criminal Court of
Davidson County. Docket Entry No.2 at pgs.22-23. For these crimes,
she received an aggregate sentence of thirty five (35) years in
prison. Id. Having pled guilty, there was no direct appeal of the
convictions taken by the petitioner.
Later, the petitioner filed a pro se petition for postconviction relief in the Criminal Court of Davidson County. Id. at
pg.3. Following the appointment of counsel and an evidentiary

1

hearing, the trial court denied the post-conviction petition. Id.
On appeal, the Tennessee Court of Criminal Appeals affirmed the
denial

of

post-conviction

relief.

Docket

Entry

No.11-1.

The

Tennessee Supreme Court then rejected petitioner’s application for
further post-conviction review. Docket Entry No.11-2.
II. Procedural History
On May 3, 2013, the petitioner filed the instant petition
(Docket Entry No.1) for federal habeas corpus relief.1 The petition
contains four claims for relief. These claims include
1)

the petitioner was denied the
effective assistance of counsel;2

2)

the petitioner was given an
illegal sentence;

3)

the petitioner’s best interest
plea was involuntary; and

4)

judicial misconduct.

Upon its receipt, the Court conducted a preliminary review of
the petition and determined that the petitioner had stated a
colorable claim for relief. Accordingly, an order (Docket Entry
No.4) was entered directing the respondent to file an answer, plead

1

The petition was stamped by the Clerk’s Office as received
on May 8, 2013. A pleading from a prisoner, though, is deemed
filed on the day that it was given to a prison official for
posting. Houston v. Lack, 487 U.S. 266 (1988). In this case, the
petitioner avers that her petition was given to prison officials
for posting on May 3, 2013. See Docket Entry No.1 at pg.15.
2

The petitioner was represented by David Collins, a member
of the Davidson County Bar.
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or otherwise respond to the petition. Rule 4, Rules - - § 2254
Cases.
Presently before the Court is the respondent’s Motion to
Dismiss (Docket Entry No.11), to which the petitioner has offered
no response. Having carefully considered this pleading and the
record as a whole, it appears that an evidentiary hearing is not
needed to resolve the respondent’s Motion at this time. Therefore,
the Court shall dispose of the respondent’s Motion to Dismiss as
the law and justice require. Rule 8, Rules - - § 2254 Cases.
III. Timeliness of the Claims
In the Motion to Dismiss, the respondent argues that this
action is untimely. A one year period of limitation has been placed
on the filing of § 2254 petitions. Thus, a prisoner in custody
pursuant to the judgment of a state court has one year from the
“date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review” in which to file his petition for federal habeas corpus
relief. 28 U.S.C. § 2244(d)(1)(A).3
The petitioner pled nolo contendere on March 12, 2010. She did
not seek a direct appeal of the convictions. The time for filing a
direct appeal expired thirty (30) days after the petitioner was

3

28 U.S.C. § 2244(d) actually provides that the limitation
period will begin to run from the latest of four dates, one of
which is the date the judgment became final. The other three
potential dates do not apply in this case.
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sentenced, Rule 4(a), Tenn. R. App. P., rendering her convictions
final on April 12, 2010. Therefore, the petitioner had until April
12, 2011 in which to seek federal habeas corpus relief.
After two hundred seven days had past, on November 4, 2010,
the petitioner filed a timely petition for state post-conviction
relief.4 Docket Entry No.2 at pg.3. This filing had the effect of
tolling the limitation period during the time that the postconviction proceeding remained pending in the state courts. 28
U.S.C. § 2244(d)(2).
On June 20, 2012, the Tennessee Supreme Court rejected the
petitioner’s application for further review of his post-conviction
petition, Docket Entry No.11-2, thus concluding the petitioner’s
state post-conviction proceedings. When the state court proceedings
that tolled the limitation period are no longer pending, the
limitation period resumes at that point where it was tolled rather
than starting anew. DiCenzi v. Rose, 452 F.3d 465, 468-469 (6th Cir.
2006). As a consequence, having already expended two hundred seven
(207) days of the limitation period, the petitioner was left with
one hundred fifty eight (158) days remaining (365 days - 207 days),
or until November 25, 2012, in which to initiate the instant

4

The 207 days are calculated as follows : 19 days (4/12/10
- 4/30/10) + 31 days (5/10) + 30 days (6/10) + 31 days (7/10) +
31 days (8/10) + 30 days (9/10) + 31 days (10/10) + 4 days
(11/1/10 - 11/4/10) = 207 days.
4

action.5
As noted above, the habeas corpus petition initiating this
action was filed on May 3, 2013, more than five months after the
limitation period had expired. Accordingly, the instant action was
not filed in a timely manner.
IV. Equitable Tolling of the Limitation Period
At first blush, then, it appears that the respondent’s Motion
to Dismiss has merit. Nevertheless, the limitation period does not
act as a jurisdictional bar. Consequently, the one year limitation
period

is

subject

to

equitable

tolling

in

appropriate

circumstances. Griffin v. Rogers, 399 F.3d 626, 631 (6th Cir.2005).
The doctrine of equitable tolling, 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

she

is

entitled to an equitable tolling of the limitation period. Keenan
v. Bagley, 400 F.3d 417, 420 (6th Cir.2005). To satisfy this burden,
the petitioner must establish (1) that she has been pursuing her
rights diligently, and (2) that some extraordinary circumstance has
stood in her way. Pace v. DiGuglielmo, 544 U.S. 408,418 (2005).
In this regard, the petitioner has not specifically addressed
the issue of an equitable tolling of the limitation period. In

5

The 158 days are calculated as follows : 10 days (6/21/12
- 6/30/12) + 31 days (7/12) + 31 days (8/12) + 30 days (9/12) +
31 days (10/12) + 25 days (11/1/12 - 11/25/12) = 158 days.
5

fact, the petitioner avers that her habeas corpus petition was
“filed in a timely manner within statutory guidelines”. Docket
Entry No.1 at pg.14. Nevertheless, the petitioner has alleged that
she suffers from a psychological impairment. Docket Entry No.2 at
pg.1. In addition, she offers “newly discovered evidence” of her
innocence. Id. at pgs.15-27.
The petitioner claims that she “was diagnosed with manic
depression, bi-polar disorder, and severe delusions.” Id. at pg.9.
Mental

incapacity

circumstance

that

can

constitute

would

justify

the
an

type

equitable

of

extraordinary

tolling

of

the

limitation period. See Biester v. Midwest Health Service, Inc., 77
F.3d 1264,1268 (10th Cir.1996).
Of further note is that the Supreme Court, in a recent
opinion, has held that a credible showing of actual innocence may
allow a prisoner to pursue her constitutional claims on the merits
notwithstanding the untimeliness of the habeas corpus petition.
McQuiggin v. Perkins, 2013 WL 2300806 (5/28/13). To invoke actual
innocence as an exception to the limitation period, the petitioner
must show that it is more likely than not that no reasonable juror
would have convicted her in light of the new evidence. Id. at
pg.11.
The petitioner did not go to trial. She chose instead to enter
a best interest plea to reduced charges. Her newly discovered
evidence consists of four sworn affidavits from prisoners who

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suggest that the petitioner was not involved in the murders. Docket
Entry No.2 at pgs.25-28. Additionally, the petitioner has learned
that

her

attorney

was

suffering

from

throat

cancer

and

was

receiving treatment for that condition at the time she entered her
plea. Id. at pg.12.
The petitioner’s “newly discovered evidence” may not, in and
of itself, establish her actual innocence. However, when coupled
with the petitioner’s mental impairments, they are sufficient to
constitute the type of extraordinary circumstance needed to qualify
the petitioner for an equitable tolling of the limitation period.
Accordingly, the Court finds that the limitation period in
this instance was equitably tolled so as to allow the late filing
of this action. For that reason, the respondent’s Motion to Dismiss
will be denied.
An appropriate order will be entered. Rule 8(a), Rules - - § 2254 Cases.

____________________________
Aleta A. Trauger
United States District Judge

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