Seymore v. Parris
Filing
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MEMORANDUM AND ORDER: The respondent's motion (ECF No. 20 ) is DENIED. The respondent SHALL file a response to the petition within 21 days of the date of entry of this order. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 11/22/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JACKIE D. SEYMORE #411539,
Petitioner,
v.
MICHAEL W. PARRIS,
Respondent.
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No. 3:16-cv-01963
JUDGE TRAUGER
MEMORANDUM AND ORDER
This matter is before the court on the respondent’s motion to dismiss the habeas petition
as untimely, filed along with a memorandum in support. (ECF Nos. 20, 21.) The petitioner has
submitted a letter (ECF No. 22) regarding the timeliness of his petition, which the court deems
to be his response to the respondent’s motion.
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). The running of the period is tolled during “[t]he time during which 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).
According to the respondent, the trial court entered amended judgments of conviction
against the petitioner on June 27, 2011, but the petitioner did not seek direct appeal until May
10, 2012, when he also filed his state petition for post-conviction relief. (ECF No. 21, at 2; ECF
No. 19-1, at 24.) At that point, the trial court granted permission to take a delayed direct appeal,
finding that the failure to file a timely appeal was due to attorney oversight. (ECF No. 21, at 2;
ECF No. 19-1, at 23.) The petitioner then proceeded to exhaust his direct appeal on the merits.
See State v. Seymore, No. M2012-01109-CCA-R3-CD, 2013 WL 772917, at *3 (Tenn. Ct. Crim.
App. Jan. 16, 2013), perm. app. denied (Tenn. May 7, 2013). At the conclusion of his direct
appeal proceedings, the petitioner expeditiously proceeded with his already-pending postconviction action, which had simply been held in abeyance for the direct appeal. (ECF No. 1912, at 8.) The trial court denied post-conviction relief, and the Tennessee Court of Criminal
Appeals (TCCA) affirmed on June 2, 2015. See Seymore v. State, No. M2014-00895-CCA-R3PC, 2015 WL 3466544 (Tenn. Ct. Crim. App. June 2, 2015).
The respondent argues that because the petitioner did not originally appeal the trial
court’s judgment within the 30 days provided by state rule, his convictions became final on July
27, 2011, for the purpose of triggering the 1-year limitations period under 28 U.S.C.
§ 2244(d)(1)(A). (ECF No. 21, at 2, 4.) Therefore, according to the respondent, 288 days of the
limitations period elapsed before the petitioner filed his post-conviction petition with delayed
appeal on May 10, 2012, leaving only 77 days after the conclusion of those proceedings within
which to file his federal habeas petition. (ECF No. 21, at 4.) The respondent states that the
limitations period began to run again on August 1, 2015, 60 days after the TCCA affirmed denial
of post-conviction relief, 1 and calculates that the petitioner’s limitations period expired on
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Although he does not explain the selection of that date, the court presumes it is because Rule 11(b) of
the Tennessee Rules of Appellate Procedure gave the petitioner 60 days to petition the Tennessee
Supreme Court for permission to appeal. The law on this point is not entirely clear in this circuit, but the
current weight of authority indicates that the AEDPA limitations period is indeed tolled during that appeal
window, even though the petitioner did not file such a petition. See Holbrook v. Curtin, 833 F.3d 612, 618
(6th Cir. Aug. 15, 2016), reh’g en banc denied (Oct. 26, 2016) (stating in dicta that a petitioner would be
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October 17, 2015. (ECF No. 21, at 4.) The petitioner filed his habeas petition by placing it in the
prison mailing system on July 13, 2016. (ECF No. 1, at 16.)
The respondent’s primary premise – that the petitioner’s conviction was “final” for
AEDPA’s purposes 30 days after entry of judgment – appears to be contrary to Supreme Court
precedent. In 2009, the court reversed the dismissal of a federal habeas petition as untimely
where the district court refused to consider the state courts’ delayed reopening of direct appeal
proceedings in determining when the petitioner’s judgment was final:
We hold that, where a state court grants a criminal defendant the right to file an
out-of-time direct appeal during state collateral review, but before the defendant
has first sought federal habeas relief, his judgment is not yet “final” for purposes
of § 2244(d)(1)(A). In such a case, “the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for seeking such
review” must reflect the conclusion of the out-of-time direct appeal, or the
expiration of the time for seeking review of that appeal.
Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (quoting § 2244(d)). The state courts in the
present case permitted the petitioner to pursue a direct appeal while his post-conviction petition
was pending. According to Jimenez, therefore, his conviction was not final for the purpose of
assessing the timeliness of his habeas petition until the conclusion of that direct review.
Specifically, the petitioner’s conviction was final on Monday, August 5, 2013, upon the expiration
of the 90 days in which he could have petitioned the United States Supreme Court for a writ of
certiorari following the Tennessee Supreme Court’s May 7, 2013 denial of review on direct
entitled to tolling during appeal window if he had not appealed); and Martin v. Wilson, 110 F. App’x 488
(6th Cir. 2004) (observing that the petitioner had 30 days to appeal the denial of post-conviction relief and
that “the petition is still ‘pending’ for purposes of § 2244(d)(2) during this appeal period”); but see Scarber
v. Palmer, 808 F.3d 1093, 1096 (6th Cir. Dec. 22, 2015), reh’g en banc denied (Jan. 29, 2016), cert.
denied (Oct. 3, 2016) (holding that petitioner was not entitled to tolling during period in which he could
have sought reconsideration and stating in dicta that “[r]eview of Scarber’s post-conviction motion ended
when the Michigan Supreme Court issued a final order denying his application for leave to appeal – but
only because he had appealed the intermediate court’s earlier final order” (emphasis added)); and
Quatrine v. Berghuis, No. 14-1323, 2016 WL 1457878, at *2 (6th Cir. Apr. 12, 2016), petition for cert. filed
(U.S. Nov. 3, 2016) (No. 16-6723) (“This case hinges on the issue certified by this court—whether the
statute of limitations is statutorily tolled for the time during which Quatrine could have appealed the denial
of his post-conviction motions for relief from judgment, but did not. The answer is no.”).
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appeal. See Jimenez, 555 U.S. at 119–120 (holding that state convictions are final under §
2244(d)(1)(A) when Supreme Court certiorari is exhausted or when the time for filing a certiorari
petition expires).
Because the petitioner’s post-conviction action was already pending on the date his
convictions became final, his habeas limitations period was immediately tolled for the rest of the
time that post-conviction action remained “pending,” pursuant to 28 U.S.C. § 2244(d)(2). The
TCCA affirmed denial of post-conviction relief on June 2, 2015, and the respondent
acknowledges that the tolling period was lifted and the limitations period began to run 60 days
later, on August 1, 2015. (ECF No. 21, at 4.)
Pursuant to Jimenez, that day marked the
beginning of the petitioner’s one-year limitations period. The petition filed on July 13, 2016, is
therefore timely filed.
Accordingly, the respondent’s motion (ECF No. 20) is DENIED. The respondent SHALL
file a response to the petition within 21 days of the date of entry of this order.
It is so ORDERED.
ALETA A. TRAUGER
United States District Judge
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