RUCKER v. GENOVESE (2020)

ORDER

James R. Rucker, a pro se Tennessee prisoner, appeals the district court's judgment dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as barred by the one-year limitations period, 28 U.S.C. § 2244(d), and for failing to demonstrate grounds for equitable tolling. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In 2009, Rucker pleaded guilty to second-degree murder, in violation of Tennessee Code Annotated § 39-13-210. The trial court sentenced him to thirty-two years of imprisonment on July 2, 2009. He did not appeal. In March 2010, Rucker filed a petition for a writ of error coram nobis, which was denied in December 2012. He again did not appeal. In October 2018, he filed a second petition for a writ of error coram nobis based on documents he received on or about April 23, 2018, pursuant to a public records request from the Davidson County District Attorney General's Office. The trial court denied the petition, and Rucker voluntarily dismissed his appeal of that decision.

On March 25, 2019, Rucker filed his § 2254 petition in the district court. He asserted that he had obtained the prosecution's case file through a public records request and discovered that it contained a report from a police officer detailing an interview with a witness who stated that he saw a black Monte Carlo in the vicinity of the murder around the time of the crime. Rucker claimed that this report was significant because, in his own version of events, he had an altercation with an individual in a black Monte Carlo fifteen minutes before the murder. He claimed that when he attempted to take a shotgun out of his house to confront this individual, the victim tried to dissuade him from going outside and struggled with Rucker for the shotgun, causing it to discharge and kill her. Rucker also claimed that he discovered a fax from a forensic examiner indicating that the victim's DNA was found on the shotgun, although he admitted that this evidence does not prove when the victim came into contact with the shotgun. He therefore alleged that the prosecution suppressed evidence favorable to him and that he would not have pleaded guilty had he known that this evidence existed. He also claimed that trial counsel performed ineffectively by failing to independently investigate and discover this evidence.

The State moved to dismiss because the petition had not been filed within the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) one-year limitations period. See 28 U.S.C. § 2244(d)(1)(A). The district court granted the motion, finding that the limitations period had expired and that Rucker had not demonstrated that he was entitled to equitable tolling. The court granted Rucker a certificate of appealability, however.

On appeal, Rucker argues that the limitations period should have been tolled because he did not discover this evidence until April 23, 2018, after he had submitted a public records request to the District Attorney General's Office for the prosecution's case file. He also cites Jefferson v. United States, 730 F.3d 537, 546 (6th Cir. 2013), and argues that the limitations period should not have begun to run until he obtained the reports in the prosecutor's case file. See 28 U.S.C. § 2244(d)(1)(D).

In an appeal from the denial of a habeas corpus petition, we review the district court's legal conclusions de novo and its factual findings for clear error. Jackson v. Bradshaw, 681 F.3d 753, 759 (6th Cir. 2012). AEDPA mandates a one-year statute of limitations period for habeas corpus petitions that begins to run from the latest of four possible circumstances, usually at the conclusion of direct review or when the time for seeking direct review expires. 28 U.S.C. § 2244(d)(1). Because Rucker did not appeal his conviction, the limitations period began to run under § 2244(d)(1)(A) on August 1, 2009, which was thirty days after the entry of judgment. See Tenn. R. App. P. 4(a). Rucker then filed his first post-conviction petition for error coram nobis 233 days later, which statutorily tolled the limitations period. See 28 U.S.C. § 2244(d)(2). The limitations period resumed running on January 17, 2013—thirty days after the dismissal of that motion—and expired on May 28, 2013. Rucker did not file his § 2254 petition until March 14, 2019, long after the limitations period had expired.

Rucker's citation to Jefferson on appeal indicates that he believes that the statute of limitations should not have begun to run when his conviction became final, but instead when “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)(D); see Jefferson, 730 F.3d at 545-46. When considering a petitioner's diligence, the question “is not when prisoners first learned of the new evidence; it is when they should have learned of the new evidence had they exercised reasonable care.” Townsend v. Lafler, 99 F. App'x 606, 608 (6th Cir. 2004) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)). The due-diligence standard in § 2244(d)(1)(D) “does not require maximum feasible diligence, only ‘due,’ or reasonable, diligence.” DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir. 2006) (quoting Granger v. Hurt, 90 F. App'x 97, 100 (6th Cir. 2004)).

In Jefferson, we analyzed the analogous limitations period for federal motions to vacate under 28 U.S.C. § 2255(f)(4), and concluded that due diligence “does not require a petitioner repeatedly to seek out information that the government unconstitutionally failed to disclose despite having notice that petitioner sought the very information suppressed.” 730 F.3d at 545. Rucker asserted, as the basis for his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the prosecution suppressed the police and forensic reports described above despite stating that it would disclose any exculpatory evidence. The district court determined that the burden to show that this alternate accrual date applied was on Rucker, see McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003), but he had not adequately developed the record to demonstrate that he exercised due diligence or specified when he decided to start pursuing public records requests.

Assuming the truth of Rucker's allegations, Jefferson is distinguishable from this case. Jefferson involved the prosecution actively suppressing information concerning government promises to witnesses that only came to light after an internal investigation of misconduct. 730 F.3d at 543. Here, the prosecutor's case file and the reports in question became subject to public disclosure when Rucker's initial collateral attack on his conviction became final on December 18, 2012. See Swift v. Campbell, 159 S.W.3d 565, 576 (Tenn. Ct. App. 2004). Rucker's claim does not suggest that the prosecution continued to suppress the reports described above after the alleged initial failure to disclose them prior to his decision to plead guilty. And as noted by the district court, Rucker did not describe his attempts to secure the prosecution's case file in the nearly five years that the documents were a publicly available record before the date that he claimed that he received them. He did not demonstrate that he satisfied the required due diligence standard to come under § 2244(d)(1)(D).

Rucker also argues that he is entitled to equitable tolling under Holland v. Florida, 560 U.S. 631, 634, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A petitioner seeking equitable tolling must demonstrate (1) that “some extraordinary circumstance stood in his way and prevented timely filing” and (2) that “he has been pursuing his rights diligently.” Id. at 649, 130 S.Ct. 2549 (internal citation omitted). For the same reasons discussed above, Rucker has not demonstrated that he has been pursuing his rights diligently, nor that some extraordinary circumstance stood in his way to prevent timely filing. Accordingly, he is not entitled to equitable tolling. He also does not demonstrate his actual innocence as a potential gateway through the procedural bar. See McQuiggin v. Perkins, 569 U.S. 383, 392, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013).

Accordingly, we AFFIRM the district court's judgment.