Tommy King v. RICKY BELL, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0257P (6th Cir.)
File Name: 04a0257p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TOMMY KING,
Petitioner-Appellant,
v.
RICKY BELL, Warden,
Respondent-Appellee.
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No. 02-5602
Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 00-00017—Robert L. Echols, Chief District Judge.
Submitted: June 11, 2004
Decided and Filed: August 3, 2004
Before: BOGGS, Chief Judge; and MERRITT and SILER,
Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kelley J. Henry, Paul R. Bottei, FEDERAL
PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for
Appellant. Alice B. Lustre, Michael E. Moore, OFFICE OF
THE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee.
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_________________
OPINION
_________________
BOGGS, Chief Judge. This case already has a three-year
history, although the would-be petitioner, Tommy King, has
yet successfully to file his petition for habeas relief. Upon
examination, this panel unanimously agrees that oral
argument is not needed. Fed. R. App. P. 34(a). Because our
decision in Abela v. Martin, 348 F.3d 164, 172-73 (6th Cir.
2003) (en banc), cert. denied sub nom. Caruso v. Abela, 124
S. Ct. 2388 (2004), and the doctrine of equitable tolling
preclude the government from asserting a valid statute of
limitations defense in this case, we reverse the grant of
summary judgment against King and remand for
consideration of the merits of his petition.
I
Tommy King was convicted of murder and sentenced to
death. The Tennessee Supreme Court denied him relief both
on direct appeal, State v. King, 694 S.W.2d 941 (Tenn. 1985),
and after post-conviction proceedings. King v. State, 992
S.W.2d 946 (Tenn. 1999). King then petitioned the Supreme
Court for certiorari, which was denied on November 15,
1999. King v. Tennessee, 528 U.S. 1007 (1999).
In February 2000, King filed a notification of intent to file
a habeas petition in the Middle District of Tennessee and
requested appointed counsel, which was provided. On March
30, 2000, the parties agreed at a status conference that King’s
attorneys would have six months to prepare their petition but
that no amendments to the petition would be permitted.
Senior Judge Higgins issued an order to that effect, setting a
deadline of September 29, 2000 for the petition to be filed.
On August 23, 2000, King’s attorneys filed a motion to have
the voir dire from King’s trial transcribed, which the court
granted. When the transcription was delayed, the State agreed

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No. 02-5602 King v. Bell 3
on September 28, 2000 (within the original six-month time-
frame) that King would have 15 days after receiving the
transcripts to file his habeas petition. In January 2001, Judge
Higgins transferred the case to Judge Echols.
The transcripts were finally ready in June 2001, and King
filed his petition within the allotted 15 days. The government
responded with a motion to dismiss, citing 28 U.S.C.
§ 2244(d)(1), which states that a petitioner must file for
habeas relief within one year of a final state judgment. The
Tennessee Supreme Court had denied King post-conviction
relief on June 7, 1999, and thus the State argued that King had
missed his filing deadline by over a year. The district court
sua sponte changed the motion to dismiss to a motion for
summary judgment and granted it on the statute of limitations
grounds, following the calculation rules in effect at the time.
King appealed to this court and we ordered briefing on the
statute of limitations issue only.
II
King’s one-year window to file a habeas petition opened
when the Tennessee Supreme Court denied him
post-conviction relief on June 7, 1999. 28 U.S.C.
§ 2244(d)(1). The statute provides that “[t]he 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.” 28 U.S.C. § 2244(d)(2).
We have not decided whether a notice of intent to file a
petition for habeas relief, which King did eight months after
the Tennessee decision, is sufficient to satisfy statute of
limitations requirements. See Williams v. Coyle, 167 F.3d
1036, 1040 n.4 (6th Cir. 1999) (expressing no opinion on
whether filing of an intent to petition for habeas relief and a
motion for the appointment of counsel can satisfy the
timeliness requirements under AEDPA); but see id. at 1041
(Kennedy, J. dissenting) (arguing that such notification
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should be sufficient). We do not need to resolve this question
now.
It is debatable whether the government waived its statute of
limitations defense when it agreed to the filing schedule,
established in March 2000, that provided for the petition to be
filed in September 2000, more than a year after the final state
action. However, our holding in Abela places the original
filing period well within the limitations period. The issue of
whether agreement to a particular briefing schedule
constitutes an implicit waiver of a statute of limitations
defense is therefore moot, and we express no opinion on the
subject. See Benes v. United States, 276 F.2d 99, 109 (6th
Cir. 1960).
After the Tennessee Supreme Court denied him post-
conviction relief, King petitioned for certiorari to the United
States Supreme Court. When the district court considered the
timeliness of King’s petition, the limitations period was not
tolled during the 90-day period that a defendant could petition
for certiorari to the Supreme Court. Isham v. Randle, 226
F.3d 691, 695 (6th Cir. 2000). However, Abela overruled
Isham, and under our subsequent holding, King’s limitations
period was tolled from June 7 to November 15, 1999, when
the Court denied certiorari. Abela, 348 F.3d at 172-73. King
was required to file his habeas petition by November 15,
2000, a year after the United States Supreme Court action.
Appellee Br. at 17 (stating correctly that “[u]nder Abela, the
time period . . . expired on November 15, 2000). The
government accurately states that even using the November
15, 2000 date, King missed the deadline. Ibid. However, we
decline to hold him responsible for a delay caused by the
government and acknowledged by the court when it issued a
modified filing schedule with the consent of the parties.
III
If King had filed his petition in September 2000, as
originally agreed, it would have been timely. Only the

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No. 02-5602 King v. Bell 5
government’s failure to produce the voir dire transcripts
prevented him from complying with the court’s original
scheduling order. When the delay began to affect King’s
ability to comply with the September 29, 2000 deadline, the
court ordered, with the government’s concurrence, that King’s
petition be due 15 days after the transcripts were provided.
King complied with that order. Therefore, we apply the
doctrine of equitable tolling to hold that King’s petition was
timely filed.
Equitable tolling is permissible under the Anti-Terrorism
and Effective Death Penalty Act (AEDPA), although rare.
Dunlap v. United States, 250 F.3d 1001, 1009 (6th Cir. 2001)
(“the circumstances under which this Court has found
equitable tolling appropriate are in fact few in number”). We
review de novo a district court’s decision not to apply
equitable tolling, Id. at 1007, and generally consider the
following factors: “(1) lack of actual notice of filing
requirement; (2) lack of constructive knowledge of filing
requirement; (3) diligence in pursuing one's rights;
(4) absence of prejudice to the defendant; and (5) a plaintiff's
reasonableness in remaining ignorant of the notice
requirement.” Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.
1988). The Andrews factors are not necessarily
comprehensive or always relevant; ultimately every court
must consider an equitable tolling claim on a case-by-case
basis. Miller v. Collins, 305 F.3d 491, 495 (6th Cir. 2002).
When the petitioner does not claim ignorance of the filing
requirement, this court's inquiry is focused on examining his
diligence in pursuing his rights and the reasonableness of his
ignorance of the effect of his delay. Vroman v. Brigano, 346
F.3d 598, 605 (6th Cir. 2003). Although the petitioner
generally bears the burden to provide all the evidence to show
that equitable tolling is warranted, that rule does not apply in
the habeas context, which is “governed by rules that
explicitly recognize the State’s superior access to the record
and explicitly require that the State provide certain elements
of the evidence that are relevant to an equitable tolling
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inquiry.” Griffin v. Rogers, 308 F.3d 647, 654 -55 (6th Cir.
2002).
In this case, King was diligent about pursuing his rights:
within nine months of denial of post-conviction relief, he had
filed a petition for certiorari, an intent to file a habeas petition,
received counsel, and had established a filing schedule.
Furthermore, he did not file according to the original schedule
only because the government did not comply timely with a
court order to produce voir dire transcripts. When King filed
within the court-allotted 15 days after receiving the
transcripts, he had no reason to anticipate any procedural
difficulties: he had complied with the court-approved
schedule, as modified in September 2000, and with the
court’s original order to include all his arguments in one
petition. Therefore, we cannot expect that he would have
known that the effect of the delay, over which he had no
control, would be the loss of his ability to file a petition at all.
The facts of this case constitute one of the rare occasions in
which equitable tolling under AEDPA is appropriate.
The court chose to accommodate the government’s delay in
providing King with the voir dire transcripts by issuing a
modified scheduling order and in doing so equitably tolled the
statute of limitations, given the circumstances of this case.
See In re Maughan, 340 F.3d 337, 344 (6th Cir. 2003)
(ordering time to file extended until the adverse party
produced missing documents); Glarner v. United States Dep’t
of Veterans Admin., 30 F.3d 697, 701 (6th Cir. 1994) (holding
that because “the VA failed in a legal duty to Glarner,” by not
providing him with the proper form, his claim under the
Federal Torts Claim Act was equitably tolled). Otherwise, the
government could prevent any defendant from filing a timely
claim simply by failing to produce relevant evidence in a
reasonable period, agreeing to a court-approved extended
filing schedule, and then sandbagging him with a statute of
limitations defense.

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No. 02-5602 King v. Bell 7
IV
We REVERSE the grant of summary judgment to the
government and REMAND for consideration of King’s
petition on the merits.

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