Bru'Ton v. Johnson
| Decision Date | 09 March 2016 |
| Docket Number | No. 3:15-cv-00884,3:15-cv-00884 |
| Parties | MELL T. BRU'TON, No. 131799, Petitioner, v. DEBRA JOHNSON, Respondent. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Petitioner Mell T. Bru'ton has filed a pro se, in forma pauperis petition for a writ of habeas corpus. (Docket No. 1). An inmate of the South Central Correctional Complex in Clifton, Tennessee, the petitioner is serving a term of imprisonment of fourteen years. The petitioner claims he was denied pre-trial, sentencing, and/or good behavior credits in his underlying state criminal case.
On June 8, 2006, Bru'ton entered a plea of guilty to five counts of identity theft trafficking in Davidson County Criminal Court. (Docket No. 1, Attach. 3 at pp. 24-32; Notice of Filing, Attach. 1 at 38-46). On November 9, 2011, the petitioner's supervised release on community corrections was revoked, and he was ordered to serve his fourteen-year sentence. (Docket No. 1, Attach. 3 at 33-34; Notice of Filing, Attach. 1 at 49-53). The petitioner pursued a direct appeal of the revocation, and the Tennessee Court of Criminal Appeals denied his appeal on October 19, 2012. State of Tennessee v. Mell Bru'ton, No. M2011-02548-CCA-R3-CD, 2012 WL 5188113 (Tenn. Crim. App. Oct. 19, 2012). The petitioner did not petition the Tennessee Supreme Court for a writ of certiorari to review the Tennessee Court of Criminal Appeals' decision. He did, however, later file with the Tennessee Supreme Court a "Declaratory Order of Certoraia [sic] Petition to Show Manifest and Plain Error—Fatal Variance" on January 15, 2014. . The Tennessee Supreme Court, interpreting the filing as a petition for writ of certiorari raising claims of ineffective assistance of counsel, denied the petition on January 21, 2014. .
The petitioner filed the instant federal petition for writ of habeas corpus on August 11, 2015. (Docket No 1). The petitioner named Debra Johnson, the Warden of the Turney Center Industrial Complex, as the respondent. On October 19, 2015, the petitioner filed a motion to substitute wardens (Docket No. 15), which the court will grant by accompanying order.
After reviewing the petition, the court ordered the petitioner to show cause why the petition should not be dismissed for a failure to exhaust state remedies (Docket No. 4), to which the petitioner responded (Docket No. 7). On September 25, 2015, the court directed the respondent to file an answer, plead, or otherwise respond to the petition pursuant to Rule 5 of the Rules Governing § 2254 Cases. (Docket No. 9).
The respondent has now filed a motion to dismiss urging the court to deny the petition and dismiss the action. (Docket Nos. 17 and 18). The petitioner has filed a response to the motion to dismiss. (Docket No. 33).
Upon consideration of the record, the court concludes that an evidentiary hearing is not needed. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003)(an evidentiary hearing is not required when the record conclusively shows that the petitioner is not entitled to relief). Therefore, the court shall dispose of the petition as the law and justice requires. Rule 8(a), Rules — § 2254 Cases.
Jurisdiction and venue in this court are appropriate under 28 U.S.C. § 2241(d) because the petitioner was convicted in the Davidson County Criminal Court in Nashville, Tennessee.
In the motion to dismiss, the respondent contends that the claims raised in the instant petition are time-barred because the petitioner filed his petition 600 days (or one year, seven months, twenty-three days) after the governing one-year statute of limitations expired. (Docket No. 18 at p. 4). In addition, the respondent argues that the petitioner has not exhausted his available state remedies, and this petition should be dismissed. (Id. at p. 5).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (), prisoners have one year within which to file a petition for habeas corpus relief which runs from the latest of four (4) circumstances:
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 (2nd 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 December 19, 2012.1 The federal-limitations period ran from December 19, 2012, to December 18, 2013.
The petitioner filed his federal habeas petition on August 11, 2015. (Docket No. 1). The petition was filed at least 600 days beyond the AEDPA's one-year limitations period. Thus, the petition is untimely.
Although the petition is untimely, the law is well-settled that the one-year limitations periodexpressed in §§ 2244 and 2255 does not operate as a jurisdictional bar to habeas corpus petitions; the one-year limitations period may be equitably tolled under exceptional circumstances. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010).
Until recently, the Sixth Circuit used a five-factor inquiry to determine whether a habeas petitioner was entitled to equitable tolling. Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001)(factors included (1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim). The Supreme Court's decision in Holland v. Florida, 560 U.S. 631 (2010), replaced the five-factor inquiry with a two-part test, under which a habeas petitioner is entitled to equitable tolling only if the petitioner shows that (1) "he has been pursuing his rights diligently," and (2) "some extraordinary circumstance stood in his way and prevented timely filing." Hall v. Warden, 662 F.3d 745, 749 (6th Cir. 2011)(citing Holland, 560 U.S. at 648). A movant has the burden to persuade the court that he or she is entitled to equitable tolling. McSwain v. Davis, 287 Fed. Appx. 450, 455-456 (6th Cir. 2008) (collecting cases).
"Ultimately, the decision whether to equitably toll a period of limitations must be decided on a case-by-case basis." Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002)(citation omitted.). Equitable tolling should be "applied sparingly" by federal courts, Dunlap, 250 F.3d at 1008, and is typically used "only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003).
As grounds for equitable tolling, the petitioner first claims that his attorneys failed to notifyhim of the final judgment entered by the Court of Criminal Appeals for a period of eleven months. (Docket No. 33 at p. 1). The Sixth Circuit has pointed out that "there is some question as to whether attorney negligence of the 'garden variety' can ever warrant equitable tolling." Clark v. Nissan Motor Mfg. Corp, 1998 WL 786892, at *3 n.8 (6th Cir. Oct. 26, 1998)(citing Cantrell v. Knoxville Community Dev. Corp., 60 F.3d 1177, 1179-80 (6th Cir. 1995)). Additionally, the petitioner's argument fails to acknowledge his personal responsibility as a litigant to prosecute his own case. Bru'ton could have inquired as to the status of his appeal. Had Bru'ton acted with reasonable diligence, he could have learned the status of his appeal sooner and filed his federal habeas petition on time. The petitioner has not submitted any evidence showing that he stayed abreast of the law or wrote numerous letters to the court or to his attorney seeking information.
According to the petitioner, when he learned of the state appellate court's decision, he did not know that the appropriate next step was to file a petition for post-conviction relief in state court. Instead, he claims that he filed a document called "Motion to Establish Merits Per Dissuade Court Rule in Defendants' Favor" in this court in an attempt to challenge the state court's denial of his appeal. (Docket No. 33 at p. 2).
Even if, as the petitioner alleges, his attorneys waited until September of 2013 to notify him of the decision of the Court of Criminal...
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