Poole v. State of Tennessee

Filing 4

MEMORANDUM AND ORDER: Petitioner's motion for leave to proceed in forma pauperis [Doc. 1] is therefore GRANTED, and the Clerk is DIRECTED to file this action without the prepayment of fees and serve a copy of the petition for a writ of habeas corpus and this Memorandum and Order upon Respondent. The Clerk is DIRECTED to send Petitioner a preprinted form used in this Court to file a proper § 2254 petition. Petitioner is ORDERED to complete this form petition in compl iance with Rule 2 of the Rules Governing Section 2254 Cases, and to file the full, completed petition within thirty (30) days of the date on this Order. Signed by District Judge J Ronnie Greer on 05/09/2018. (Copy of Order and § 2254 petition form mailed to Scott E. Poole and copy of Order and petition mailed to Darren Settles) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

SCOTT E. POOLE,
Petitioner,
v.
STATE OF TENNESSEE, 1
Respondent.

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No. 1:17-cv-288-JRG-SKL

MEMORANDUM AND ORDER
Before the Court are Petitioner’s “motion for relief from judgement or order [under] Rule
60(b)” [Doc. 2], and motion for leave to proceed in forma pauperis [Doc. 1].
Under the Prison Litigation Reform Act (“PLRA”), any prisoner who files a complaint in
a district court must tender the full filing fee or file (1) an application to proceed in forma pauperis
without prepayment of fees and (2) a certified copy of his inmate trust account for the previous
six-month period. 28 U.S.C. § 1915(a)(2). However, no certified inmate trust account is required
for actions under § 2254. Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). For purposes
of the instant case, Petitioner submitted a fully compliant application to proceed in forma pauperis
on October 16, 2017 [Doc. 1], and it appears from that application that he lacks sufficient financial
resources to pay the $5.00 filing fee. Petitioner’s motion for leave to proceed in forma pauperis
[Doc. 1] is therefore GRANTED, and the Clerk is DIRECTED to file this action without the

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As Petitioner is incarcerated at the Bledsoe County Correctional Complex (“BCCX”), the
proper Respondent is the Warden, Darren Settles. Rule 2(a) of the Rules Governing Section 2254
Proceedings in the United States District Courts. Accordingly, the Clerk is DIRECTED to
substitute Darren Settles as Respondent in this matter.

prepayment of fees and serve a copy of the petition for a writ of habeas corpus and this
Memorandum and Order upon Respondent.
Although Petitioner characterizes the action as a motion to alter or amend judgment under
Rule 60 of the Federal Rules of Criminal Procedure, the pro se filing challenges Petitioner’s 2014
guilty plea in the Bradley County Criminal Court, claiming that “[t]he judgment of conviction and
sentence of 8 years . . . was achieved by misrepresentation and prosecutor[ial] misconduct” [Doc.
2 at 1, 4]. Additionally, Petitioner challenges the dismissal of his motion for state post-conviction
relief and his petition for a writ of habeas corpus pursuant to Tenn. Code Ann. § 29-21-101 [Id. at
2–8]. Therefore, after review of the arguments asserted in Petitioner’s motion, the Court finds that
the instant motion was intended as a petition for habeas corpus relief under 28 U.S.C. § 2254.
However, Petitioner’s filing is not in compliance with the Rules Governing Section 2254
Cases. Rule 2(c) of the Rules Governing Section 2254 Cases controls the form of petitions for a
writ of habeas corpus, and requires a petitioner to identify each claim on a specified form in a short
and plain manner. A petition must substantially follow the form appended to the Rules Governing
Section 2254 Cases or a form prescribed by a local district-court rule. See Rule 2(d) of the Rules
Governing Section 2254 Cases. Petitioner has failed to substantially follow an approved form in
attempting to set forth his grounds for relief pursuant to § 2254, instead filing only a three-page
motion with excerpted portions of the record in his state court proceedings [Doc. 2]. Petitioner’s
motion fails to include much of the procedural, factual, and substantive information requested on
a standard form petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Accordingly, because this petition is insufficient under Rule 2(d), Petitioner must submit a
corrected petition. See Advisory Committee Note to 2004 Amendment to Rule 2, Rules Governing
Section 2254 Cases. The Clerk is DIRECTED to send Petitioner a preprinted form used in this

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Court to file a proper § 2254 petition. Petitioner is ORDERED to complete this form petition in
compliance with Rule 2 of the Rules Governing Section 2254 Cases, and to file the full, completed
petition within thirty (30) days of the date on this Order. Petitioner’s failure to comply with this
Order within the allotted time frame may result in the dismissal of this action for failure to
prosecute and/or failure to comply with a court order. See Fed. R. Civ. P. 41(b).
Respondent is hereby ORDERED to answer or otherwise respond to the petition within
thirty (30) days from the date upon which Petitioner files his form § 2254 petition. Respondent
should specifically address the timeliness of Petitioner’s claims and the issue of whether Petitioner
has exhausted his available state court remedies. See 28 U.S.C. § 2244(d), 2254(b).
SO ORDERED.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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