Rhodes v. Steward

Filing 16

ORDER: Petitioner's Motion to Accept Late Filed Petition for Writ of Habeas Corpus is DENIED. The instant petition is DENIED as untimely and this action is hereby DISMISSED. Signed by District Judge Aleta A. Trauger on 9/23/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

HENRY DEQUAN RHODES
Petitioner,
v.
HENRY STEWARD
Respondent.

)
)
)
)
)
)
)

No. 3:13-0649
Judge Trauger

ORDER

On May 22, 2013, the petitioner initiated this action with the pro se filing of a petition
(Docket Entry No. 1) under 28 U.S.C. § 2254, for writ of habeas corpus.
Upon preliminary review of the petition, the Court determined that it had not been filed in
a timely manner. Accordingly, an order (Docket Entry No. 10) was entered giving the petitioner
thirty (30) days in which to show cause why the petition should not be denied for that reason.
Since the entry of this order, the petitioner has filed a Motion to Accept Late Filed Petition
for Writ of Habeas Corpus (Docket Entry No. 15). In the Motion, the petitioner does not question
the Court’s finding that this action is untimely. Rather, he attributes the untimeliness of the petition
to his attorney’s failure thirteen (13) years ago to inform the petitioner that counsel would be
withdrawing upon completion of the direct appeal of petitioner’s conviction.
A lawyer’s mistake, in and of itself, is not a valid basis for equitable tolling of the limitation
period. Jurado v. Burt, 337 F.3d 638, 644-645 (6th Cir. 2003). The petitioner has waited thirteen
years to file the instant action. Given the length of delay and a presumption that the petitioner has
not been actively pursuing his legal options, the Court finds that the petitioner has failed to show

that he is entitled to an equitable tolling of the limitation period.
Accordingly, petitioner’s Motion to Accept Late Filed Petition for Writ of Habeas Corpus
is DENIED. The instant petition is DENIED as untimely and this action is hereby DISMISSED.
Rule 4, Rules - - - § 2254 Cases.
Having failed to make a substantial showing of the denial of a constitutional right, a
certificate of appealability shall NOT issue in this instance. 28 U.S.C. § 2253(c)(2).
It is so ORDERED.

_____________________________
Aleta A. Trauger
United States District Judge