Pisano v. Steward

Filing 25

ORDER TO MODIFY THE DOCKET, ADDRESSING PENDING MOTIONS, PARTIALLY GRANTING RESPONDENTS RENEWED MOTION TO DISMISS, DENYING PETITION PURSUANT TO 28 U.S.C. § 2254, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 10 13 19 20 . Signed by Chief Judge J. Daniel Breen on 2/13/2015. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

SALVATORE PISANO, JR.,
Petitioner,
v.
MIKE PARRIS,
Respondent.

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No. 1:14-cv-01086-JDB-egb

ORDER TO MODIFY THE DOCKET,
ADDRESSING PENDING MOTIONS,
PARTIALLY GRANTING RESPONDENT’S RENEWED MOTION TO DISMISS,
DENYING PETITION PURSUANT TO 28 U.S.C. § 2254,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Before the Court are the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (the “Petition”) (Pet., Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D.
Tenn.), ECF No. 1), filed by Petitioner, Salvatore Pisano, Jr., Tennessee Department of Correction
prisoner number 490172, an inmate at the Northwest Correctional Complex (“NWCX”) in
Tiptonville, Tennessee; Respondent’s Motion to Dismiss (Mot. to Dismiss, id., ECF No. 10), filed
by Henry Steward, the previous Warden of the NWCX;1 and the following motions filed by Pisano:
(i) Petitioner’s “Motion for Default Judgement [sic] and Relief Requested” (Mot. for Default J., id.,
ECF No. 13); (ii) “Motion for Disposition (Status of a Case)” (Mot. for Disposition, id., ECF No.
19); and (iii) “Motion for Summary Judgement [sic] Granting the Petitioner Relief” (Mot. for Summ.

The Clerk is DIRECTED to substitute current NWCX Warden Mike Parris for Henry
Steward as Respondent in this action. See Fed. R. Civ. P. 25(d).
1

J., id., ECF No. 20). For the reasons stated below, the Court DENIES the Motion for Default
Judgment, GRANTS the Motion for Disposition, DENIES the Motion for Summary Judgement,
GRANTS the Motion to Dismiss in part and DENIES the Petition.
I.

BACKGROUND
A.

State Court Procedural History

On July 19, 2010, a grand jury in Hardin County, Tennessee returned an eight-count
indictment charging Pisano with the rape of K.L., a child more than three years of age but less than
thirteen years of age, on various dates in January 2010. (Indictment, State v. Pisano, No. 9269
(Hardin Cnty. Circ. Ct.), ECF No. 11-1 at PageID 91-99.) The victim was the twelve-year-old
girlfriend of Pisano’s son. On June 9, 2011, Petitioner appeared in the Circuit Court for Hardin
County to plead guilty to four counts of aggravated sexual battery in exchange for a negotiated
sentence of imprisonment of eight years on each count to run concurrently. (Request for Acceptance
of Plea of Guilty [&] Pet. to Waive Trial by Jury & to Waive an Appeal, id., ECF No. 11-1 at
PageID 122-24.) Judgments were entered on June 20, 2011. (J., id., ECF No. 11-1 at PageID 125
(Count 1); J., id., ECF No. 11-1 at PageID 126 (Count 2); J., id., ECF No. 11-1 at PageID 127
(Count 3); J., id., ECF No. 11-1 at PageID 128 (Count 4).) Pisano did not appeal, having waived
the right to do so.
On August 22, 2011, the inmate filed a pro se petition in the Hardin County Circuit Court
pursuant to the Tennessee Post-Conviction Procedure Act, Tennessee Code Annotated §§ 40-30-101
to -122. (Pet. for Relief from Conviction or Sentence, Pisano v. State, No. 9269 (Hardin Cnty. Circ.
Ct.), ECF No. 11-1 at PageID 133-36.) On August 25, 2011, the post-conviction court dismissed
the petition for failure to state a colorable claim. (Preliminary Order (No Colorable Claim), id., ECF
No. 11-1 at PageID 137.) On September 6, 2011, Pisano filed an amendment to his post-conviction
petition (Colorable Claim, id., ECF No. 11-1 at PageID 138-41) and a motion to reopen the post-

2

conviction proceeding (Mot. to Reopen Post-Conviction Pet., id., ECF No. 11-1 at PageID 142-47).
On September 28, 2011, the post-conviction court denied the motion to reopen. (Order, id., ECF
No. 11-1 at PageID 148.) A corrected order was entered on October 19, 2011. (Order, id., ECF No.
11-1 at PageID 149.) On November 1, 2011, Pisano filed another amendment to his post-conviction
petition (Colorable Claim, id., ECF No. 11-1 at PageID 150-53) and a second motion to reopen
(Mot. to Reopen Post-Conviction Pet., id., ECF No. 11-1 at PageID 154-57). On November 15,
2011, the post-conviction court again denied the motion to reopen, finding that “no new grounds
have been raised that remotely suggest any abridgement of a Constitutional right or provide any
grounds for relief whatsoever.” (Order, id., ECF No. 11-1 at PageID 88.) The order also stated that
“these continued pleadings constitute frivolous actions which will be sanctioned by the Court if any
additional frivolous actions are filed.” (Id.) The Tennessee Court of Criminal Appeals (“TCCA”)
dismissed Pisano’s appeal for want of jurisdiction. Pisano v. State, No. W2011-02535-CCA-R3-PC,
2012 WL 5507328 (Tenn. Crim. App. Nov. 13, 2012).
B.

Procedural History of Pisano’s Petition

On April 11, 2014, Petitioner filed his pro se Petition, accompanied by the habeas filing fee.
(Pet., Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 1; Case initiation fee,
id., ECF No. 2.) The Petition presents the following claims:
1.

“Ineffective Assistance of Counsel” (Pet. at PageID 5, id., ECF No. 1; see
also id. at PageID 15);

2.

“Violation Rule 11” (id. at PageID 6; see also id. at PageID 6-7, 16-22); and

3.

“New law” (id. at PageID 8; see also id. at PageID 23).

In an order issued on April 30, 2014, the Court directed Respondent to submit a response to the
Petition within twenty-three days. (Order, Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D.
Tenn.), ECF No. 4.)

3

On June 9, 2014, Respondent filed a Motion to Dismiss the Petition as time-barred,
accompanied by the state-court record. (Mot. to Dismiss, id., ECF No. 10; Not. of Filing, id., ECF
No. 11.) On June 20, 2014, the inmate filed a document that appears to be a response to the Motion
to Dismiss, titled “Habeas Corpus Petition Tolling Statute of Limitation Timeliness of Petition:.”
(Resp. to Mot. to Dismiss, id., ECF No. 15.)2
On June 11, 2014, Pisano sought an entry of default (Request for Entry of Default, id., ECF
No. 12), which the Clerk denied on June 13, 2014 (Order Denying Pet’r’s Mot. for Entry of Default,
id., ECF No. 14).3 Also on June 11, 2014, Pisano moved for a default judgment. (Mot. for Default
J. & Relief Requested, id., ECF No. 13.) The motion is meritless because Respondent filed a timely
Motion to Dismiss. Moreover, the Federal Rules of Civil Procedure are applicable to habeas
petitions only to the extent the practice in those proceedings “has previously conformed to the
practice in civil actions.” Fed. R. Civ. P. 81(a)(4)(B). The entry of default is governed by Rule
55(a), which “has no application in habeas corpus cases.” Allen v. Perini, 424 F.2d 134, 138 (6th
Cir. 1970); Herrington v. Bezotte, No. 14-cv-13395, 2015 WL 268412, at *4 (E.D. Mich. Jan. 21,
2015). District courts may not enter default judgments in habeas cases without consideration of the
merits of a prisoner’s claims. Perini, 424 F.2d at 138. Finally, although the motion purports to
enumerate various defects in the state-court judgments and to request jail credit, a Motion for
Default Judgment is not a proper vehicle to seek leave to amend to raise additional claims. The
Motion for Default Judgment is DENIED.

The Clerk erroneously docketed this filing as an amendment to the Petition. The Clerk is
DIRECTED to modify the docket to reflect that this filing is a response to the Motion to Dismiss.
2

Petitioner filed another Request for Entry of Default on December 5, 2014. (Request for
Entry of Default, id., ECF No. 21.) The Clerk denied the application on December 10, 2014. (Order
Denying Pet’r’s Mot. for Entry of Default, id., ECF No. 22.)
3

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On September 2, 2014, Pisano filed a motion seeking the disposition of this matter. (Mot.
for Disposition (Status of the Case), Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.),
ECF No. 19.) His eighteen-page filing is largely unintelligible. To the extent Petitioner seeks a
ruling on the matter, his motion is GRANTED. This order constitutes that ruling.
On October 23, 2014, the inmate filed a “Motion for Summary Judgement Granting the
Petitioner Relief.” (Mot. for Summ. J., id., ECF No. 20.) In that thirty-one-page filing, he repeats
the arguments presented in his Motion for Disposition about his entitlement to sentence credit.
Local Rule 56.1(a) provides that,
[i]n order to assist the Court in ascertaining whether there are any material facts in
dispute, any motion for summary judgment made pursuant to Fed. R. Civ. P. 56 shall
be accompanied by a separate, concise statement of the material facts as to which the
moving party contends there is no genuine issue for trial. Each fact shall be set forth
in a separate, numbered paragraph. Each fact shall be supported by specific citation
to the record. If the movant contends that the opponent of the motion cannot produce
evidence to create a genuine issue of material fact, the proponent shall affix to the
memorandum copies of the precise portions of the record relied upon as evidence of
this assertion.
Pisano has not filed a statement of undisputed facts. He also has not filed a legal memorandum, as
required by Local Rule 7.2(a)(1). Consideration of the merits of his summary judgment motion is
premature until the Court has ruled on the Motion to Dismiss. Thus, the Motion for Summary
Judgement is DENIED.
II.

RESPONDENT’S MOTION TO DISMISS
Respondent has filed a Motion to Dismiss the Petition as time-barred. (Mot. to Dismiss,

Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 10.) Twenty-eight U.S.C.
§ 2244(d) provides:
(1)

A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(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;
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(B)

(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)

(2)

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;

the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

The 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 shall not be counted toward any period of limitation under this
subsection.

Because Pisano did not appeal his convictions, they became final no later than the expiration
of the time for taking a direct appeal. 28 U.S.C. § 2244(d)(1)(A); see Jiminez v. Quarterman, 555
U.S. 113, 118-19 (2009). The judgments were entered on June 20, 2011. The time for taking a
direct appeal expired thirty days later, on July 20, 2011, Tenn. R. App. P. 4(a); State v. Green, 106
S.W.3d 646, 650 (Tenn. 2003) (a judgment of conviction entered upon a guilty plea becomes final
thirty days after acceptance of the plea agreement and imposition of sentence), at which time the
running of the limitations period began.4

Section 2244(d)(1) provides that the limitations period begins to run from the latest of the
four specified circumstances. In this case, however, there is no reason to conclude that the
limitations period for Claims 1 and 2 commenced at any time later than the date on which
Petitioner’s convictions became final.
4

Respondent has not separately analyzed the timeliness of Claim 3, which relies on a
Tennessee statute that took effect on July 1, 2012. The statute of limitations is an affirmative
defense, Scott v. Collins, 286 F.3d 923, 927 (6th Cir. 2002), abrogated on other grounds by Day v.
McDonough, 547 U.S. 198, 205 (2006), and, therefore, it is Respondent’s burden to demonstrate that
the Petition is untimely, Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Because Respondent
has failed to establish that claim is time-barred, the Motion to Dismiss is DENIED as to Claim 3.
6

The limitations period ordinarily would be tolled, pursuant to 28 U.S.C. § 2244(d)(2), when
Pisano filed his post-conviction petition on August 22, 2011. By that time, thirty-three days of the
one-year limitations period had elapsed. The TCCA dismissed Pisano’s appeal for want of
jurisdiction on November 13, 2012. Assuming that Tennessee allows an application for permission
to appeal a dismissal for want of jurisdiction, the time to do so expired sixty days later, on January
12, 2012. See Tenn. R. App. P. 11(b). The running of the limitations period recommenced on that
date, and it expired 332 days later, on December10, 2012. The Petition was signed on April 1, 2014
(see § 2254 Pet. at PageID 14, Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF
No. 1), more than fifteen months after the expiration of the limitations period, and, even if it were
deemed to have been filed on that date, see Houston v. Lack, 487 U.S. 266, 270-71, 276 (1988);
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008); Towns v. United States, 190 F.3d 468, 469 (6th
Cir. 1999) (§ 2255 motion), Claims 1 and 2 are time-barred.5
Parris argues that the limitations period was not tolled by the filing of the post-conviction
petition because that petition was not “properly filed.” (See Resp’t’s Mem. in Supp. of Mot. to
Dismiss at 2, Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 10-1.) “[A]n
application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable
laws and rules governing filings. These usually prescribe, for example, the form of the document,
the time limits upon its delivery, the court and office in which it must be lodged, and the requisite
filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis & internal footnote omitted).
Respondent contends that the original post-conviction petition was not “properly filed” because it
did not contain sufficient factual allegations to state a colorable claim. (Resp’t’s Mem. in Supp. of
Mot. to Dismiss at 2, Pisano v. Parris, No. 1:14-cv-01086-JDB-egb (W.D. Tenn.), ECF No. 10-1.)

Because the last day of the limitations period fell on Sunday, December 9, 2012, Petitioner
had until the end of the next business day to file a timely § 2254 petition. Fed. R. Civ. P. 6(a)(1)(C).
5

7

Respondent has cited no authority for the proposition that Tennessee courts view a failure to state
a colorable claim as a procedural defect rather than a decision on the merits.6 For the reasons
previously stated, Claims 1 and 2 of the Petition are untimely even if Petitioner were given credit
for the time the post-conviction petition was pending in state court.7
“The doctrine of equitable tolling allows courts to toll a statute of limitations when a
litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond
that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (internal quotation
Parris has not addressed whether Petitioner’s two motions to reopen the post-conviction
proceedings were “properly filed” within the meaning of § 2244(d)(2). Respondent also has not
argued that Pisano’s appeal from the denial of the second motion to reopen was not “properly filed.”
The latter argument might have been persuasive. The TCCA dismissed the appeal for want of
jurisdiction, reasoning that an appeal for a denial of a motion to reopen is a discretionary appeal that
requires the filing of an application for permission to appeal rather than a notice of appeal. Pisano
v. State, 2012 WL 5507328, at *3.
6

The Tennessee Supreme Court has determined that the contents of an application for
appeal must include the date and judgment from which the petitioner seeks review,
the issue which the petitioner seeks to raise, and the reasons why the appellate court
should grant review. The brief notice of appeal which the petitioner filed contains
only the date of the judgment and identifies it as “the final judgment entered” but
contains no account of the issue or reasons for granting review. We conclude that
the petitioner’s pleading cannot be construed as an application for permission to
appeal and has failed to satisfy the statutory requirement.
Failure to fulfill the statutory requirements of Tennessee Code Annotated
section 40–30–117(c) deprives this court of jurisdiction to decide the issues raised.
This court cannot waive or suspend the statutory requirement. Accordingly, our
jurisdiction does not extend to this matter and we must dismiss the appeal.
Id. (internal citations & some quotation marks omitted). Because the Petition is time-barred even
if Pisano were to be given full credit for the time during which his post-conviction petition, the
motions to reopen, and the appeal were pending in state court, it is unnecessary to decide this issue.
In his Response to the Motion to Dismiss, Pisano cites Tennessee Code Annotated § 40-30202(b) (1997), which is currently codified at Tennessee Code Annotated § 40-30-102(b). That
statute addresses the timeliness of state post-conviction petitions. (See Resp. to Mot. to Dismiss,
Pisano v. Parris, No. 1:14-cv-1086-JDB-egb (W.D. Tenn.), ECF No. 15.) It has no bearing on
federal habeas petitions, which are governed by 28 U.S.C. § 2244(b)(1).
7

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marks omitted). The § 2254 limitations period is subject to equitable tolling. Holland v. Florida,
560 U.S. 631, 645 (2010). “[T]he doctrine of equitable tolling is used sparingly by federal courts.”
Robertson, 624 F.3d at 784. “The party seeking equitable tolling bears the burden of proving he is
entitled to it.” Id. A habeas petitioner is entitled to equitable tolling “only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)) (internal quotation marks omitted).
Pisano did not respond to the Motion to Dismiss in which he claimed to be entitled to
equitable tolling. In the section of the Petition addressing the timeliness of the filing, Petitioner
addressed the standards for granting habeas relief, which he appears to assume are exceptions to the
statute of limitations. (See Pet. at PageID 24, Pisano v. Parris, No. 1:14-cv-1086-JDB-egb (W.D.
Tenn.), ECF No. 1.) Pisano’s apparent ignorance of the law is insufficient to entitle him to equitable
tolling. See Plummer v. Warren, 463 F. App’x 501, 506 (6th Cir. 2012) (“the district court correctly
concluded that the reasons Plummer actually gave for the delay in filing her petition—namely her
need to find help and inexperience in the law—are not extraordinary circumstances warranting
equitable tolling”); Moore v. United States, 438 F. App’x 445, 449 (6th Cir. 2011) (“Ignorance of
the law, even by an incarcerated pro se prisoner, is not grounds to toll the statute.”); Miller v. Cason,
49 F. App'x 495, 497 (6th Cir. 2002) (“Miller’s lack of knowledge of the law does not excuse his
failure to timely file a habeas corpus petition.”); Brown v. United States, 20 F. App'x 373, 375 (6th
Cir. 2001) (“Ignorance of the limitations period does not toll the limitations period.”). Therefore,
Pisano is not entitled to equitable tolling.
The Court GRANTS Respondent’s Motion to Dismiss Claims 1 and 2 as time-barred.

III.

ANALYSIS OF CLAIM 3

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The Court ordinarily would order Respondent to file a response to Claim 3. It is unecessary
to do so in this case because it is clear that Pisano is not entitled to relief under 28 U.S.C. § 2254 on
that claim. Claim 3, titled “New law,” seeks relief in light of a Tennessee statute that took effect on
July 1, 2012, and that is codified at Tennessee Code Annotated § 40-28-115. (See Pet. at PageID
23, Pisano v. Parris, No. 1:14-cv-1086-JDB-egb (W.D. Tenn.), ECF No. 1.) That statute addresses
eligibility for parole.
A federal court may grant habeas relief to a state prisoner “only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Error in the application of state law is not cognizable in a federal habeas proceeding.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions”); Pulley v. Harris, 465 U.S. 37, 41
(1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”).
Claim 3, which asserts a right to relief under Tennessee law, cannot be addressed in a federal habeas
petition. Therefore, Claim 3 is DISMISSED.
Because every claim asserted by Petitioner has been dismissed, the Petition is DISMISSED
WITH PREJUDICE. Judgment shall be entered for Respondent.
IV.

APPEAL ISSUES
There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition.

Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); Bradley v. Birkett, 156 F. App’x 771, 772 (6th Cir.
2005). The Court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the United
States District Courts (“Section 2254 Rules”). A petitioner may not take an appeal unless a circuit
or district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).

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A COA may issue only if the petitioner has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue or issues that satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made when the petitioner
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336; see also Henley v. Bell,
308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing that
the appeal will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15
(6th Cir. 2011). Courts should not issue a COA as a matter of course. Bradley, 156 F. App’x at 773.
In this case, there can be no question that the Petition is time-barred and that Claim 3 cannot
be litigated in federal court. Because any appeal by Petitioner on the issues raised in the Petition
does not deserve attention, the Court DENIES a certificate of appealability.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party seeking
pauper status on appeal must first file a motion in the district court, along with a supporting affidavit.
However, if the district court certifies that an appeal would not be taken in good faith, or otherwise
denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in forma
pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). In this case, for the same reasons
the Court denies a COA, the Court determines that any appeal would not be taken in good faith. It
is therefore CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in
this matter would not be taken in good faith, and leave to appeal in forma pauperis is DENIED.8

If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals
within thirty days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).
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IT IS SO ORDERED this 13th day of February 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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