Stevenson v. Perry

Filing 15

ORDER DENYING 8 MOTION TO DISMISS AND DIRECTING RESPONDENT TO ANSWER THE PETITION. Signed by Chief Judge J. Daniel Breen on 2/8/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
SAM EDWARD STEVENSON,
Petitioner,
v.

No. 1:16-cv-01052-JDB-egb

GRADY PERRY,
Respondent.
ORDER DENYING MOTION TO DISMISS
AND
DIRECTING RESPONDENT TO ANSWER THE PETITION
On March 14, 2016, Petitioner, Sam Edward Stevenson, filed a habeas corpus petition
under 28 U.S.C. § 2254. Respondent, Warden Grady Perry, thereafter filed a motion to dismiss
the petition as untimely. (ECF No. 8.) On February 3, 2017, Stevenson responded to the motion
after securing leave of Court to file a late response. (ECF No. 14.) For the reasons that follow,
the motion is DENIED without prejudice.
In his motion to dismiss, Perry calculates that the one-year limitations period for the
filing of Petitioner’s § 2254 petition, see 28 U.S.C. § 2244(d)(1), expired on May 13, 2015.
Respondent properly excluded the period of time during which Petitioner’s state post-conviction
proceedings were pending.

See 28 U.S.C. § 2244(d)(2).

Petitioner does not dispute

Respondent’s calculation of the limitations period but contends that he is entitled to equitable
tolling. He alleges that due to the failure of prison officials to deliver mail to him during a period
of numerous prison lockdowns, confusion created by his appellate counsel, and the slow
updating of available legal materials at the prison library, he did not learn of the Tennessee

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Supreme Court’s denial of his application for permission to appeal (“APA”) until one-year after
it was issued.
Stevenson has submitted affidavits and documentary evidence in support of his equitable
tolling argument. (ECF No. 14 at 7-25.) In particular, Petitioner makes a factual showing that
his appellate counsel, by letter, declined to file an APA on his behalf. Counsel subsequently
filed an APA, which Petitioner said was done without informing him. Petitioner filed a pro se
APA in reliance on counsel’s representation that she would not file an APA. The pro se APA
was later dismissed as duplicative of the APA filed by counsel, and the surviving APA was
eventually denied. Petitioner avers that he did not receive notice of the denial, either directly
from the Tennessee Supreme Court or his counsel. He further contends that if a notice was
mailed to him, prison officials did not deliver it to him. He believes prison lockdowns in
February, March, May, June, September, and October of 2015, and January of 2016, may
account for the lack of mail delivery. The inmate alleges that he first learned of the denial of his
APA in February of 2016, when an inmate legal assistant discovered the Tennessee Supreme
Court’s decision on a Lexis compact disc. He insists that the prison library’s Lexis materials are
updated on a quarterly basis only. In support of his allegations, Petitioner has submitted the
affidavit of the inmate legal assistant.
The § 2254 limitations period is subject to equitable tolling. Holland v. Florida, 560 U.S.
631, 645 (2010). A habeas court’s equitable tolling analysis involves a fact- and case-specific
inquiry into whether the petitioner has been “pursuing his rights diligently” and whether “some
extraordinary circumstance” prevented a timely filing of the petition. Id. at 649, 650 (internal
quotation marks omitted). Because a Rule 12(b)(6) motion is not a proper vehicle for the
evaluation of factual issues and matters lying outside a § 2254 petition, Winkfield v. Lindamood,

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No. 1:14-cv-01182-JDB, 2015 WL 5497275, at *4-5 (W.D. Tenn. Sept. 17, 2015), it is often not
a proper vehicle for addressing the equitable tolling issues of petitioner’s diligence and the
circumstances surrounding the petitioner’s late filing of his petition. See, e.g., id. (holding that
the respondent’s motion to dismiss the petition on timeliness grounds was not a proper
procedural device for resolving equitable tolling issues). Here, Stevenson has asserted equitable
tolling and has presented factual materials outside the four-corners of the petition which facially
support his argument. The Warden’s motion to dismiss is therefore DENIED without prejudice.
See id. at *6 (denying without prejudice respondent’s motion to dismiss on timeliness grounds
where the petitioner asserted specific grounds for equitable tolling, and ordering the respondent
to answer the petition).
The Habeas Rules provide a procedural framework for addressing equitable tolling, as
well as the merits of the petitioner’s claims. See generally Rules Governing Section 2254 Cases
in the United States District Courts (“Habeas Rules”). Habeas Rule 5 provides that, when “a
judge so orders,” the respondent shall file an answer to the petition. Habeas Rule 5(a). In
addition to “address[ing] the allegations in the petition,” an answer “must state whether any
claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, nonretroactivity, or a statute of limitations.” Id. Habeas Rules 7 and 8 allow district courts to
consider matters outside of the pleadings without an evidentiary hearing. See Habeas Rules 7
and 8 (the Court may require the parties to expand the record to include other materials, such as
factual affidavits and documents, which can be considered without holding an evidentiary
hearing).
Perry has not yet filed an answer to the petition. He is therefore ORDERED to submit an
answer to the petition within twenty-eight (28) days.

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If Respondent raises the statute of

limitations issue, the answer should include any relevant documents or other evidence addressing
the allegations that Petitioner has advanced in support of his equitable tolling argument. See
Habeas Rule 7. Stevenson may, if he chooses, submit a reply within twenty-eight (28) days of
service. Petitioner may request an extension of time to reply if his motion is filed on or before
the due date of his reply.
IT IS SO ORDERED this 8th day of February 2017.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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