Kelly v. Phillips
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/21/2018. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TIMOTHY EUGENE KELLY,
Petitioner,
v.
RANDY LEE, Warden,
Respondent.
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No. 3:17-cv-1457
Judge Trauger
MEMORANDUM
Pending before the court is Timothy Eugene Kelly’s pro se, in forma pauperis petition
under 28 U.S.C. § 2254 for a writ of habeas corpus challenging his 2011 conviction and sentence
for especially aggravated robbery, aggravated robbery, and fraudulent use of a credit card. Kelly
is an inmate of the Northeast Correctional Complex in Mountain City, Tennessee, where he is
serving a term of imprisonment of thirty-seven years in the Tennessee Department of Correction.
(Docket No. 1 at 2).
I.
Background
On March 22, 2011, a Davidson County, Tennessee, jury convicted Petitioner of one count
of especially aggravated robbery and two counts of fraudulent use of a credit card. State v. Kelly,
No. M2011-01260-CCA-R3-CD, 2012 WL 5193401, at *1 (Tenn. Crim. App. Oct. 22, 2012),
perm. app. denied, (Tenn. Jan. 14, 2013). On May 9, 2011, the trial court sentenced Petitioner to
an effective thirty-seven years of imprisonment. Id.
On appeal, Petitioner challenged the
sufficiency of the evidence supporting his convictions and the sentences imposed by the trial court.
The Tennessee Court of Criminal Appeals affirmed. Id. at *8. The Supreme Court of Tennessee
denied Petitioner’s application for discretionary review on January 8, 2013. Id. at *1.
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Petitioner properly filed a pro se petition for post-conviction relief in the post-conviction
trial court on September 5, 2013. Kelly v. State, No. M2014-01666-CCA-R3-PC, 2015 WL
5882695, at *4 (Tenn. Crim. App. Oct. 8, 2015), perm. app. denied, (Tenn. Feb. 18, 2016). The
post-conviction trial court appointed post-conviction counsel who filed an amended petition on
June 3, 2014. Kelly, 2015 WL 5882695, at *4. The post-conviction trial court held an evidentiary
hearing on the petition and denied relief in a written order. Id. at *6. The Court of Criminal Appeals
affirmed, and the Supreme Court of Tennessee denied Petitioner’s application for discretionary
review on February 18, 2016. Id. at *1.
On September 20, 2017, Petitioner filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in this court. (Docket No. 1 at 1). That case was assigned to the
Honorable Waverly D. Crenshaw, Jr. See Case No. 3:17-cv-1302, Kelly v. Shawn Phillips, (M.D.
Tenn. 2017).
On November 13, 2017, Petitioner filed the instant pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in this court. (Docket No. 1 at 10). That case was assigned
to the undersigned, Honorable Aleta A. Trauger.
By order entered on April 3, 2018, the Honorable Waverly D. Crenshaw, Jr. consolidated
Case No. 3:17-cv-1302, Kelly v. Shawn Phillips, (M.D. Tenn. 2017), with this action. (Docket No.
16). On January 19, 2018, in this now-consolidated action, Respondent filed a motion to dismiss
the petition for a writ of habeas corpus as untimely filed in violation of the appliable one-year
statute of limitations. (Docket No. 10-1 at 4-6). By order and accompanying memorandum entered
on May 3, 2018, the court ordered Petitioner to show cause why his petition should not be
dismissed as time-barred. (Docket Nos. 12 & 13). In response, Petitioner submitted a “Notice of
Additional Information.” (Docket No. 14).
The court then ordered Respondent to address
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Petitioner’s latest filing because it asserted what could be construed as an equitable tolling
argument. (Docket No. 15). Respondent filed his response on September 17, 2018, asserting that
Petitioner is not entitled to equitable tolling and his petition should be dismissed. (Docket No. 21).
II.
Analysis
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 which 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
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)).
The record before the court shows that the date on which the petitioner’s judgment became
final by conclusion of direct review was April 8, 2013. 1 Thus, pursuant to Federal Rule of Civil
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Petitioner does not state whether he petitioned for certiorari in the Supreme Court on direct appeal. On January 8,
2013, the ninety (90) day period within which the prisoner could file 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, January 8, 2013, is excluded). During the ninety
(90) day period, the AEDPA’s one-year limitations period is tolled. See Clay, 537 U.S. 522, 532. The ninety (90)
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Procedure 6(a)(1)(A), the AEDPA limitations period began running on April 9, 2013, the day after
the Supreme Court limitation period expired. See Fed. R. Civ. P. 6(a)(1)(A)(“exclude the day of
the event that triggers the period[.]”). Therefore, Petitioner had one year, or until April 10, 2014,
to timely file his federal habeas petition.
However, on September 5, 2013, Petitioner statutorily tolled the limitations period by
properly filing a pro se state petition for post-conviction relief. The AEDPA’s one-year limitations
had run for 149 days prior to Petitioner’s post-conviction filing. On February 18, 2016, Petitioner
completed the state post-conviction process when the Tennessee Supreme Court denied his
application for discretionary review. Therefore, the limitations period resumed the next day,
February 19, 2016. See Fed. R. Civ. P. 6(a)(1)(A). Petitioner then had 216 days, or until
September 22, 2016, to timely file his federal habeas petition.
Petitioner placed his petition into the prison mail system on November 13, 2017. 2 (Docket
No. 1at 10). Petitioner filed his petition 417 days after the AEDPA’s one-year limitations period;
therefore, the petition is untimely. Even using the earlier-filed petition in this consolidated action,
signed by Petitioner on September 25, 2017, Petitioner filed his petition 368 days after the AEDPA
deadline expired.
However, the one-year statute of limitations in AEDPA is not jurisdictional and is subject
to equitable tolling. See Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 177 L. Ed. 2d 130
(2010); Perkins v. McQuiggin, 670 F.3d 665, 670 (6th Cir. 2012) (observing that limitations statutes
day period ended on April 8, 2013. 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).
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Petitioner did not include a month and day on the signature line of his petition but the envelope in which the petition
was mailed to the court is postmarked November 13, 2017, so Petitioner could not have signed and submitted his
petition for mailing any later than November 13, 2017.
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do not require courts to dismiss claims as soon as the “clock has run.”). The doctrine of equitable
tolling is used sparingly and is applied typically “only when a litigant's failure to meet a legally
mandated deadline unavoidably arose from circumstances beyond that litigant's control.” Jurado
v. Burt, 337 F.3d 638, 642 (6th Cir. 2003) (citing Graham–Humphreys v. Memphis Brooks
Museum of Art, 209 F.3d 552, 560–61 (6th Cir. 2000)). The petitioner bears the burden of showing
that he is entitled to equitable tolling. McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003).
Tolling is warranted only where the petitioner shows (1) that he has been pursuing his rights
diligently and (2) that some extraordinary circumstance prevented timely filing. Holland, 560 U.S.
at 649. “Absent compelling equitable considerations, a court should not extend limitations by
even a single day.” Graham-Humphreys, 209 F.3d at 561.
Petitioner contends that he is entitled to equitable tolling for two reasons. First, Petitioner
contends that he suffers from mental conditions and that his mental conditions caused him “to be
unable to comprehend certain matters such [as] regarding law.” (Docket No. 14 at 1). Second,
Petitioner contends that, “between 2015 to 2017, the Petitioner were [sic] not given adequate legal
assistance nor adequate legal library research document[s].” (Docket No. 14 at 2). Respondent
urges that neither argument constitutes an extraordinary circumstance excusing the untimely filing
of Petitioner’s federal habeas petition.
Respondent also argues that Petitioner has not
demonstrated that he exercised reasonable diligence.
To obtain equitable tolling of AEDPA's statute of limitations on the basis of mental
incompetence,
a petitioner must demonstrate that (1) he is mentally incompetent
and (2) his mental incompetence caused his failure to comply with
AEDPA's statute of limitations. In short, a blanket assertion of
mental incompetence is insufficient to toll the statute of limitations.
Rather, a causal link between the mental condition and untimely
filing is required.
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Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). See McSwain v. Davis, 287 F. App'x 450, 456 (6th
Cir. 2008) (citations omitted) (“mental incompetence is not a per se reason to toll a statute of
limitation); Price v. Lewis, 119 F. App'x 725, 726 (6th Cir. 2005) (citations omitted) (“Illnessmental or physical-tolls a statute of limitations only if it actually prevents the sufferer from
pursuing his legal rights during the limitations period.”); Nowak v. Yukins, 46 F. App'x 257, 259
(6th Cir. 2002) (citations omitted) (“The mental incapacity of the petitioner can warrant the
equitable tolling of the statute of limitations. The petitioner must make a threshold showing of
incompetence, and demonstrate that the alleged incompetence affected [petitioner's] ability to file
a timely habeas petition.”).
Here, Petitioner alleges that he suffers from a learning disorder, “bi-polar,” and depression.
(Docket No. 14 at 1). He alleges that, between 2015 and 2018, he was “very unstable” and
attempted suicide on several occasions. (Id. at 1-2). However, Petitioner has not alleged any facts
that would suggest his mental conditions prevented him from timely filing the instant action.
Therefore, Petitioner’s mental health conditions cannot form the basis for equitable tolling.
Compare Ward v. Donahue, No. 3:13-cv-658-HSM-HBG, 2014 WL 3534057, at *2-3 (E.D. Tenn.
July 16, 2014) (finding that petitioner was not entitled to equitable tolling when he alleged his
habeas petition was filed late due to his bipolar disorder and antisocial personality disorder;
although petitioner provided mental health records supporting his mental conditions, he did not
claim that his mental conditions actually prevented him from filing a habeas corpus petition) and
Powell v. Morrow, No. 1:10-cv-181, 2011 WL 294295, at *4 (E.D. Tenn. Jan. 27, 2011) (where
petitioner alleged that his unspecified mental illness prevented him from filing a timely habeas
petition, court rejected equitable tolling argument because “Petitioner’s unsupported allegations
of mental incapacity are belied by his ability to pursue—as a pro litigant—his pro se federal habeas
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petition.”) to Ata, 662 F.3d at 740 (finding that petitioner's mental incompetence tolled the statute
of limitations where petitioner presented specific evidence of hospitalization and medication on
numerous occasions for paranoid schizophrenia during the one-year period after his conviction
became final).
Moreover, the record establishes that, during the time Petitioner alleges his mental
conditions constituted an extraordinary circumstance warranting equitable tolling, Petitioner
mailed a document to Davidson County District Attorney General Victor S. Johnson and a
document to the Board of Professional Responsibility on February 22, 2016; another document to
the Board of Professional Responsibility on April 14, 2016; a document to the Gibson County,
Tennessee Circuit Court Clerk on May 10, 2016; a document to the Board of Professional
Responsibility on July 11, 2016; a document to Criminal Court I of Davidson County on January
3, 2017; a mailing to the Board of Judicial Conduct on January 5, 2017; a mailing to postconviction counsel on January 12, 2017; a document to Davidson County Criminal Court Clerk on
January 25, 2017; and a document to the Davidson County Criminal Clerk’s Office on June 9,
2017. (See Docket Nos. 20, Attach. 2). Petitioner’s prolific filings throughout the time period at
issue contradict any assertion by Petitioner that he was mentally incompetent and thus unable to
timely file his federal habeas petition. See Howard v. Tenn., No. 3:13-0292, 2015 WL 520521, at
*6 (M.D. Tenn. Feb. 9, 2015) (rejecting petitioner’s equitable tolling argument based on his mental
illness where “Petitioner’s pro se federal habeas petition and other pro se filings in this action []
reflect orderly, cogent thought.”); Sales v. Taylor, No. 4:14-CV-58-HSM-SKL, 2015 WL
4487833, at *8 (E.D. Tenn. July 23, 2015) (rejecting petitioner’s equitable tolling argument
because “the fact Petitioner was able to file two state petitions under the same alleged condition of
mental incompetence . . . is conclusive proof that his cognitive disability was not so incapacitating
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that it caused his failure to comply with 28 U .S.C. § 2254(d).”). Petitioner has not demonstrated
that, during the applicable time period, he was so incapable of rational thought he could not
appreciate his legal situation or ascertain that he must take steps to protect his rights.
Consequently, the court finds that Petitioner’s mental health conditions cannot form the basis for
equitable tolling.
Next, Petitioner contends that, “between 2015 to 2017, the Petitioner were [sic] not given
adequate legal assistance nor adequate legal library research document[s].” (Docket No. 14 at
895). The Sixth Circuit has found that limited access to a law library does not warrant equitable
tolling, even in cases where the petitioner is in solitary confinement. See Hall v. Warden, Lebanon
Corr. Inst., 662 F.3d 745, 752 (6th Cir. 2011) (finding that a petitioner’s “pro se status and limited
law-library access” did not allow for equitable tolling); Grayson v. Grayson, 185 F. Supp.2d 747,
751 (E.D. Mich. 2002) (holding denial of access to legal materials was not an exceptional
circumstance warranting equitable tolling).
Even if Petitioner's access to the law library and other legal materials may have been more
restricted than general population inmates, that alone does not entitle him to equitable tolling. See
e.g., Hall, 662 F.3d at 752 (“[Petitioner's] inability to access the transcript of his trial is unfortunate.
But it is not enough, even in combination with his pro se status and limited law-library access, to
warrant the equitable tolling of AEDPA's limitations period.”); Jones v. United States, 689 F.3d
621, 627 (6th Cir. 2012) (“Generally, to qualify as ‘extraordinary circumstances,’ the petitioner
must show more than just his status as pro se or his limited access to a law library.”); Hawkins v.
Warden, Ross Corr. Inst., No. 2:14-CV-00579, 2015 WL 1100813, at *4 (S.D. Ohio Mar. 11,
2015) (“A prisoner's pro se incarcerated status, lack of knowledge regarding the law, and limited
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access to the prison's law library or to legal materials together or alon[e] do not provide a sufficient
justification to apply equitable tolling of the statute of limitations.”).
Neither does a prisoner's limited access to legal aids constitute an extraordinary
circumstance warranting equitable tolling. See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)
(holding a habeas petitioner has no constitutional right to an attorney or other legal assistance and
his “lack of legal training, his poor education, or even his illiteracy does not give a court reason to
toll the statute of limitation.”); Powell, 2011 WL 294295, at *4 (rejecting petitioner’s equitable
tolling argument based on his lack of assistance from legal aid or his lack of awareness of the oneyear statute of limitations).
Here, Petitioner does not support his contentions that he was not given adequate legal
assistance or adequate research materials with evidence. In any event, the fact that Petitioner
mailed ten distinct documents between February 2016 and June 2017 suggests that he was not
denied access to legal research or to persons who could help him with legal tasks. Petitioner has
failed to show that a lack of legal paperwork prevented him from timely filing his petition and
does “not explain satisfactorily how the lack of his legal materials prevented him from timely filing
his habeas corpus petition.” Bowling v. Lee, No. 2:17-cv-35-RLJ-MCLC, 2018 WL 1595789, at
*5 (E.D. Tenn. Mar. 30, 2018) (denying petitioner's request for equitable tolling).
The court
therefore finds that Petitioner has failed to satisfy his burden of proving that he is entitled to
equitable tolling on these grounds.
Finally, the Supreme Court has held that “[t]he diligence required for equitable tolling
purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653
(internal citations and quotation marks omitted); Taylor v. Palmer, 623 F. App’x 783, 787-88 (6th
Cir. 2015). A petitioner establishes due diligence by showing that he took “prompt action” as soon
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as he realized he had an interest in challenging his conviction. Johnson v. United States, 544 U.S.
295, 308, 125 S. Ct. 1571, 161 L. Ed. 2d 542 (2005).
Here, Petitioner mailed ten documents using the prison mail system throughout 2016 and
2017. Petitioner therefore had ample opportunity and the apparent ability to file his federal habeas
petition during this same time period, but failed to do so. Petitioner’s mailings during this period
show that he was able to pursue his federal habeas rights but chose not to pursue them for many
months. This evidence does not show due diligence on the part of Petitioner.
III.
Conclusion
After conducting a review of Petitioner’s § 2254 petition, and considering Respondent’s
motion to dismiss the petition and Petitioner’s response thereto, the court finds that the petition
was untimely filed. Under the circumstances, Petitioner has not demonstrated that he is entitled
to equitable tolling of the statute of limitation.
Therefore, the petition for the writ of habeas corpus will be denied as time-barred and this
action will be dismissed. A certificate of appealability shall not issue. 28 U.S.C. § 2253; Rule
22(b) of the Federal Rules of Appellate Procedure.
An appropriate order will be entered.
ENTER this 21st day of September 2018.
_________________________________________
Aleta A. Trauger
United States District Judge
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