Dunnam v. Cocke County Jail et al
Filing
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MEMORANDUM OPINION: this petition will be DISMISSED without prejudice to petitioners' his right to assert his claims in a habeas corpus case, after exhaustion of state remedies has occurred. The Court DENIES issuance of a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). Signed by District Judge Harry S Mattice, Jr on 7/6/2012. (BJL, )
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE
JAMES ROBERT DUNNAM
v.
COCKE COUNTY JAIL and LUANN
BALLEW, Child Support Magistrate
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NO. 2:10-CV-246
Mattice/Carter
MEMORANDUM OPINION
James Robert Dunnam brings this pro se petition for habeas corpus relief under
28 U.S.C. § 2254, challenging his November 10, 2010, conviction for contempt of court,
entered in the Chancery Court of Cocke County, Tennessee. For this offense, he received a
ten-day jail sentence. However, there is a major problem with this petition, which calls for
its dismissal sua sponte.
It must be clear on the face of a petition that a petitioner has exhausted his state
remedies, or that there is an absence of state corrective process, or that circumstances exist
that render such process ineffective to protect a petitioner’s rights. 28 U.S.C.§ 2254(b)(1)(A)
and (B); Rose v. Lundy, 455 U.S. 509 (1982) (finding that federal claims must be completely
exhausted by being fully and fairly offered to the state courts before seeking federal habeas
corpus relief). It is a petitioner’s burden to show exhaustion of available state court remedies.
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
In this case, petitioner indicates that his wife, Lori Jo Dunnam, filed a habeas
corpus action in two different state courts on his behalf, but that the state courts declined to
permit her to act in the capacity of next friend and denied the petitions.
Under 28 U.S.C. § 2254(c), a petitioner has not “exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right,
under the law of the State to raise, by any available procedure, the question presented.”
Petitioner has not alleged or even suggested that the state courts are closed to a challenge to
the contempt conviction brought by petitioner, rather than his wife, and, therefore, has not
borne his burden of establishing that he has exhausted all available state court remedies.
Thus, for this reason, this petition will be DISMISSED without prejudice to
petitioners’ his right to assert his claims in a habeas corpus case, after exhaustion of state
remedies has occurred. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“This Court
has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner
has not exhausted available state remedies as to any of his federal claims.”) (citations omitted)
Finally, after reviewing the claims under the appropriate standards in Slack v.
McDaniel, 529 U.S. 473 (2000), the Court finds that petitioner has failed to make a
substantial showing of the denial of a constitutional right because jurists of reason would not
disagree about the correctness of the procedural ruling with regard to exhaustion, nor would
they find debatable or wrong the Court’s conclusion that exhaustion has not occurred. See
id; Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001); Porterfield v. Bell, 258 F.3d 484, 487
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(6th Cir. 2001). Therefore, the Court DENIES issuance of a certificate of appealability. 28
U.S.C. § 2253; Fed. R. App. P. 22(b).
A separate order will enter.
ENTER:
/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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