Gardner v. Qualls
ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS ORDERED that Magistrate Judge Holmes's R & R is accepted and adopted as the findings and conclusions of this Court. IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is denied and this action dismissed. Signed by Senior Judge Bernard A. Friedman on 5/15/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
Civil Action No. 3:14-CV-1440
HON. BERNARD A. FRIEDMAN
ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court on a petition for a writ of habeas corpus [docket
entry 1]. Magistrate Judge Barbara D. Holmes has submitted an extremely thorough Report and
Recommendation (“R & R”) in which she recommends that the Court dismiss the petition. On
April 28, 2017, petitioner filed four objections, which the Court now considers.
Under Fed. R. Civ. P. 72(b)(3), the Court “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” The Court has reviewed
petitioner’s four objections to the R & R and finds that petitioner has failed to show that Magistrate
Holmes erred in any way. Because petitioner did not object to Magistrate Holmes’s statement of
facts, the Court adopts and relies on them. Taking the objections in turn:
Objection 1. Magistrate Holmes recommends that the Court find that petitioner
received his file in August 2010, filed his coram norbis petition in February 2011 (which everyone
agrees tolled the period of limitations), received the Court’s decision on his coram norbis petition
in August 2013, and filed the instant petition in July 2014. Excluding the two and a half years
during which his coram norbis petition was decided, petitioner filed his petition sixteen months
after receiving his criminal case file—that is, four months past the deadline in 28 U.S.C. §
Petitioner’s sole objection here is that the period of limitations should not begin
running when he received his file because it took him “months” to read it. Rather, he argues, the
period of limitations should begin on the day he filed his coram norbis petition, six months later.
The Court recognizes the merit in petitioner’s argument, but denies his objection
for three reasons. First, petitioner fails to show how large his criminal file was, so it is impossible
to discern whether it would really have taken him six months to read it. Second, while the Court
might consider a request that the period of limitations be tolled a week or two because petitioner
needed to read a file reasonable, a request that it be tolled for six months seems patently
unreasonable. Third, even if it did take him months to read his file, he certainly discovered the
pertinent evidence well before he filed his coram norbis petition, because that petition relied on
the evidence; it makes no sense to toll the period of limitations until the date of filing.
Objection 2. Like Objection 1, this objection is to Magistrate Judge Holmes’s
recommendation that the Court not toll the period of limitations between August 2010 and
February 2011. Petitioner requests that the Court equitably toll the period of limitations because
the state allegedly suppressed exculpatory evidence, and because petitioner was an inmate, poor,
relatively uneducated, and had limited access to legal and research materials.
None of these proffered reasons warrants equitable tolling. First, petitioner argues
that he is entitled to relief because the state wrongfully failed to disclose exculpatory evidence of
a second shooter and fourth bullet.
The Court finds the exculpatory evidence argument
unpersuasive; the second shooter used a .45 caliber handgun and the fourth bullet was a .45 caliber
bullet, while Wright was killed by multiple .38 caliber bullets. Moreover, one witness identified
petitioner as the shooter and another identified him as standing over the victim after shots were
To successfully pursue a Brady claim, petitioner must show a probability that the
undisclosed evidence would have produced a different verdict. Here, there is overwhelming
evidence that petitioner committed the crime, and the undisclosed evidence is not compelling.
Consequently, there is no viable exculpatory challenge here. Second, the Sixth Circuit has
repeatedly found that petitioner’s other reasons do not warrant equitable tolling.
Objection 3. Petitioner objects to Magistrate Judge Holmes’s finding that petitioner
has not demonstrated that a manifest injustice will occur if his claims are not reviewed. Petitioner
argues that the witness statement and ballistics report he uncovered undermine the state’s theory
of the crime and present a “colorable showing of actual innocence.”
Pet’r’s Objs. p. 4.
Consequently, petitioner argues, the “Court should address the merits of” the “claims to avoid a
manifest injustice.” Id. at 5. The Court denies this objection because Magistrate Holmes, after
concluding that the petition was untimely, did address each claim on the merits.
Objection 4. This is a “catchall” objection. Petitioner argues that he is entitled to
relief because the state failed to disclose its evidence of a second shooter and fourth bullet.
Petitioner contends that this evidence might have given the jurors a reasonable doubt as to his guilt.
For the reasons articulated in rejecting Objection 2, the Court is not persuaded by petitioner’s
second-shooter and fourth-bullet arguments.
IT IS ORDERED that Magistrate Judge Holmes’s R & R is accepted and adopted
as the findings and conclusions of this Court.
IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is denied
and this action dismissed.
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: May 15, 2017
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