Hearing v. Lindamood
Filing
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MEMORANDUM & ORDER; Petitioner's motion for summary judgment 29 is DENIED. Petitioners motion objecting to Respondent's motion for extension of time to file an answer to the amended petition 35 is DENIED. Petitio ner's motion for relief from the Courts order granting Respondent's motion for extension of time to file an answer to the amended petition 38 is DENIED. Petitioner's motion for clarification in docketing 40 is DENIED as moot. P etitioner's motions for an order to show cause regarding prosecutorial misconduct 41 , 45 are DENIED. Petitioner's ex parte motion application to conduct limited discovery and request for in camera proceeding 42 is DENIED. Petiti oner's motion for a Martinez hearing 47 is DENIED. Petitioner's motion to appoint counsel 48 is DENIED. Respondent's motion to substitute counsel 44 is GRANTED.. Signed by District Judge R. Leon Jordan on 9/28/20. (c/m David Hearing #395482 South Center Correctional Facility555 Forrest Ave. Clifton, TN 38425 ) (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DAVID HEARING,
Petitioner,
v.
CHERRY LINDAMOOD, Warden,
Respondent.
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No. 2:18-CV-094-RLJ-CRW
MEMORANDUM & ORDER
This is a pro se prisoner’s petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254. Now before the Court are Petitioner’s motion for summary judgment and supporting
filings [Docs. 29, 30, and 31]; motion objecting to Respondent’s motion for extension of time to
file an answer to the amended petition [Doc. 35]; motion for relief from the order granting
Respondent’s motion for extension [Doc. 38]; motion for clarification regarding docketing [Doc.
40]; two motions for a show cause order regarding prosecutorial misconduct [Docs. 41 and 45];
ex parte application to conduct limited discovery and request for in camera proceeding and
declaration in support thereof [Docs. 42 and 43]; motion for evidentiary hearing pursuant to
Martinez [Doc. 47]; motion for appointment of counsel [Doc. 48]; and memorandum in support of
his motion for an evidentiary hearing and for appointment of counsel [Doc. 49]. Also before the
Court is Respondent’s motion to substitute counsel [Doc. 44].
Petitioner has filed motions opposing Respondent’s motions to substitute counsel and for
extension [Docs. 35 and 45] but Respondent did not file a response to Petitioner’s motions, and
the time for doing so has passed. See E.D. Tenn. L.R. 7.1. The Court will address these motions
in turn based on the substance thereof.
I.
SUMMARY JUDGMENT
Petitioner has filed a motion for summary judgment, a forty-six-page memorandum in
support thereof, and statement of undisputed facts in support thereof [Docs. 29, 30, and 31]. For
the reasons set forth below, this motion [Doc. 29] will be DENIED.
A. Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary
judgment, the court must draw all reasonable inferences in favor of the nonmoving party. McLean
v. 988011 Ontario Ltd, 224 F.3d 797, 800 (6th Cir. 2000). As such, the moving party has the
burden of conclusively showing the lack of any genuine issue of material fact. Smith v. Hudson,
600 F.2d 60, 63 (6th Cir. 1979).
To successfully oppose a motion for summary judgment, “the non-moving party . . . must
present sufficient evidence from which a [finder of fact] could reasonably find for him.” Jones v.
Muskegon Cnty., 625 F.3d 935, 940 (6th Cir. 2010). However, a district court cannot grant
summary judgment in favor of a movant simply because the adverse party has not responded.
Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998). Rather, the court is required to,
at a minimum, examine the motion to ensure that the movant has met its initial burden. Id. In
doing so, the court “must not overlook the possibility of evidentiary misstatements presented by
the moving party.” Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 407 (6th Cir. 1992). The court
must “intelligently and carefully review the legitimacy of [] an unresponded-to motion, even as it
refrains from actively pursuing advocacy or inventing the riposte for a silent party.” Id.
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Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28
U.S.C. §2254, et. seq., a district court may not grant habeas corpus relief for a claim that a state
court adjudicated on the merits unless the state court’s adjudication of the claim:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d)(1) and (2). This standard is “intentionally difficult to meet.” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (quotation marks omitted).
B. ANALYSIS
As Petitioner acknowledges in his most recent motion, the essential dispute in this case is
whether Petitioner’s 2005 guilty plea for two counts of felony murder in the underlying state
criminal proceedings was knowing and voluntary and whether Petitioner’s counsel was effective
with regard to that guilty plea [Doc. 42 p. 1–2]. The record establishes that Petitioner and
Respondent substantially disagree about and that genuine issues of material fact remain as to these
issues [compare Docs. 1 and 25-1 with Docs. 18 and 37].
This Court will ultimately have to decide whether Petitioner is entitled to habeas corpus
relief from his guilty plea. However, after reviewing Petitioner’s summary judgment filings and
drawing all reasonable inferences from the evidence in the record in favor of Respondent, the Court
finds Petitioner has not met his burden to establish that he is entitled to habeas corpus relief as a
matter of law. Accorbothdingly, his motion for summary judgment [Doc. 29] will be DENIED.
II.
ORDER OF EXTENSION
On September 9, 2019, Petitioner filed a motion to amend/revise his petition and to file a
two-hundred and forty-seven page amended § 2254 petition [Docs. 25 and 25-1]. On September
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18, 2019, the Court granted Petitioner’s motion to amend his petition and provided Respondent
sixty days to file a response to the amended petition [Doc. 27 p. 2].
On January 2, 2020, Respondent filed a motion for extension of time to file his answer to
the amended petition in which counsel apologized for the failure to comply with the previous
response deadline and stated that this failure was due to “inner-office oversight” [Doc. 33 p. 1–2].
On January 7, 2020, the Clerk docketed Petitioner’s “motion in objection” to Respondent’s
motion for extension of time in which he asserted that Respondent had not established his failure
to timely file an answer to the amended petition was due to excusable neglect and pointed out that
Respondent had not sought extension of the deadline to file a response to Petitioner’s motion for
summary judgment or filed a response thereto, which Petitioner asserted was prejudicial to him
[Doc. 35 p. 1–5]. As relief, Petitioner sought both denial of Respondent’s motion for extension
and that the Court grant him habeas corpus relief, or in the alternative that the Court grant
Respondent an extension of time to file a response to his summary judgment motion and hold a
hearing on the issues therein, should the Court find a genuine issue of material fact remains [Id. at
5].
On January 8, 2020, the Court granted Respondent’s motion for extension of time to file
his answer to the amended petition without addressing Petitioner’s motion in opposition thereto
[Doc. 36]. Petitioner then filed a motion entitled “Motion for Relief from Ex Parte Order Granting
Respondent 45 Days to Respond to Amended Habeas Petition” in which he asserts that the Court
lacked jurisdiction to grant Respondent’s motion for extension and seeks relief from that order
under Rule 60(b) of the Federal Rules of Civil Procedure [Doc. 38].
As the Court has granted Respondent’s motion for extension, will deny Petitioner’s motion
for summary judgment as set forth above, and has not yet considered the merits of the § 2254
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petition or determined whether an evidentiary hearing in this matter may be necessary, Petitioner’s
“motion in objection” to Respondent’s motion for extension [Doc. 35] will be DENIED.
Also, Petitioner has not set forth any grounds for the Court to alter or amend its order
granting Respondent’s motion for extension under Rule 60(b) in his motion for relief from that
order. Rather, it is apparent from this motion that Petitioner simply disagrees with the Court’s
decision to grant that motion and reasserts his previous objections to that motion, all of which were
in the record when the Court granted Respondent’s motion for extension. Thus, Petitioner’s
motion for relief from the Court’s order granting Respondent’s motion for extension [Doc. 38] is
without merit and will be DENIED.
III.
DOCKETING CLARIFICATION
Petitioner also filed a motion for clarification in docketing [Doc. 40] in which he asserts
that the Clerk improperly docketed his motion for a show cause order regarding prosecutorial
misconduct as part of the appendix to his reply to Respondent’s response in opposition to petition
and requests that the Clerk docket it separately [Doc. 39-2 p. 11–20]. However, after Petitioner
filed this motion, he refiled his motion seeking relief for prosecutorial misconduct and the Clerk
docketed in a separate docket entry [Doc. 42]. Thus, this motion will be DENIED as moot.
IV.
PROSECUTORIAL MISCONDUCT, DISCOVERY, AND HEARING
As noted above, Petitioner has also filed two motions seeking a show cause order regarding
prosecutorial misconduct [Docs. 41, 45]. In his first motion seeking this relief, Petitioner asserts
that prosecutorial misconduct in the underlying state court criminal proceedings against him
establishes his right to habeas corpus relief from his underlying guilty plea [Doc. 41]. In the second
motion, Petitioner asserts that Respondent’s motion to substitute counsel amounts to misconduct
before setting forth the exact same motion regarding prosecutorial misconduct in his underlying
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criminal proceedings [Docs. 41, 45]. Petitioner has also filed a motion for limited discovery and
an in-camera hearing regarding evidence he asserts the state has regarding the alleged prosecutorial
misconduct in his underlying criminal proceedings [Doc. 42].
However, nothing in the record suggests that Respondent’s motion to substitute counsel is
improper in any way, and as the Court has previously notified Petitioner [Doc. 27 p. 1–2], Rule 7
of the Rules Governing Section 2254 Cases provides that “[i]f the petition is not dismissed, the
judge may direct the parties to expand the record by submitting additional materials relating to the
petition.” The Court has not yet determined whether the petition may be dismissed based on the
record before the Court, including the state court record. Should the Court determine that it needs
additional materials relating to the petition or that it will hold an evidentiary hearing, the Court
will enter order stating as such.
Accordingly, Petitioner’s motions for a show cause order regarding prosecutorial
misconduct [Docs. 41 and 45] and for limited discovery and a hearing [Doc. 42] will be DENIED.
V.
MOTION FOR MARTINEZ HEARING
Petitioner has also filed a motion for the Court to hold a hearing regarding his procedurally
defaulted claims that he asserts are excused under Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012)
[Doc. 47]. However, as noted above, the Court has not yet determined whether it may hold an
evidentiary hearing in this case, and if it does decide to do so, it will enter an order stating as such.
Thus, this motion [Id.] will be DENIED.
VI.
MOTION TO APPOINT COUNSEL
Petitioner also filed a motion seeking appointment of counsel to conduct discovery
regarding his procedurally defaulted claims that he asserts are excused under Martinez v. Ryan,
132 S. Ct. 1309, 1320 (2012) and to represent him at an evidentiary hearing on these claims [Doc.
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48]. However, the constitutional right to counsel in criminal prosecutions does not apply to habeas
corpus cases. Baker v. Ohio, 330 F.2d 594, 595 (6th Cir. 1964). The decision to appoint counsel
for a federal habeas petitioner is within the discretion of the Court and is required only where the
interests of justice or due process so require, 18 U.S.C. § 3006A(a)(2); Mira v. Marshall, 806 F.2d
636, 638 (6th Cir. 1986), or where an evidentiary hearing is necessary. Rule 8(c), Rules Governing
§ 2254 Cases.
Again, the Court has not determined whether it will hold an evidentiary hearing in this
matter, nor does it see or any other reason to appoint counsel for Petitioner. Accordingly, this
motion [Id.] will be DENIED.
VII.
SUBSTITUTE COUNSEL
For good cause shown therein, Respondent’s motion to substitute counsel [Doc. 44] will
be GRANTED.
VIII. CONCLUSION
For the reasons set forth above:
1. Petitioner’s motion for summary judgment [Doc. 29] is DENIED;
2. Petitioner’s motion objecting to Respondent’s motion for extension of time to file an
answer to the amended petition [Doc. 35] is DENIED;
3. Petitioner’s motion for relief from the Court’s order granting Respondent’s motion for
extension of time to file an answer to the amended petition [Doc. 38] is DENIED;
4. Petitioner’s motion for clarification in docketing [Doc. 40] is DENIED as moot;
5. Petitioner’s motions for an order to show cause regarding prosecutorial misconduct
[Docs. 41, 45] are DENIED;
6. Petitioner’s ex parte motion application to conduct limited discovery and request for in
camera proceeding [Doc. 42] is DENIED;
7. Petitioner’s motion for a Martinez hearing [Doc. 47] is DENIED;
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8. Petitioner’s motion to appoint counsel [Doc. 48] is DENIED;
9. Respondent’s motion to substitute counsel [Doc. 44] is GRANTED; and
10. Petitioner is ORDERED to immediately inform the Court and Respondent of any
address changes in writing. Pursuant to Local Rule 83.13, it is the duty of a pro se
party to promptly notify the Clerk and the other parties to the proceedings of any change
in his or her address, to monitor the progress of the case, and to prosecute or defend the
action diligently. E.D. Tenn. L.R. 83.13. Failure to provide a correct address to this
Court within fourteen days of any change in address will result in the dismissal of this
action.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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