Raudenbush v. Osborne
Filing
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MEMORANDUM OPINION whereby the motion to dismiss will be GRANTED. The petition for habeas corpus relief will be DENIED and this action DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies. All other pending motion s will be DENIED as MOOT. A certificate of appealability SHALL NOT ISSUE. The court will CERTIFY that any appeal from this action would not be taken in good faith and would be totally frivolous. The court will further DENY petitioner leave to proceed in forma pauperis on appeal. Signed by District Judge Thomas W Phillips on August 1, 2012. (mailed to Mr. Raudenbush) (AYB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at KNOXVILLE
GEORGE JOSEPH RAUDENBUSH III
Petitioner,
v.
DAVID OSBORNE, Warden
Respondent.
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No. 3:11-cv-580
Phillips
MEMORANDUM
This is a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254
filed by petitioner George Joseph Raudenbush III ("petitioner"). The matter is before the
court on the motion to dismiss filed by the Attorney General for the State of Tennessee on
behalf of the respondent. There are also pending various motions filed by petitioner. For the
following reasons, the motion to dismiss [Court File No. 11] will be GRANTED and this
action will be DISMISSED WITHOUT PREJUDICE. All other pending motions will be
DENIED as MOOT.
Petitioner challenges his state court convictions in the Criminal Court of Monroe
County, Tennessee, for evading arrest (two counts), assault (two counts), reckless
endangerment, failing to comply with the financial responsibility law, speeding, and driving
on a suspended license. He alleges several grounds for relief, including ineffective assistance
of counsel. The Attorney General moves to dismiss the petition for failure to exhaust state
remedies.
Petitioner states that he was convicted on August 24, 2011, and sentenced on October
17, 2011. In support of the motion to dismiss, the Attorney General has provided the court
with relevant orders of the state appellate courts and other documents with respect to
petitioner's state court appeals. [Court File No. 11, Motion to Dismiss, Attachments 1-4].
While his state charges were pending before the trial court, and before his convictions,
petitioner filed an application with the Tennessee Court of Criminal Appeals for permission
to file an interlocutory appeal concerning his criminal proceedings.
[Attachment 1,
Application]. The application was denied on August 2, 2011. [Attachment 2, Order].
Petitioner then filed with the Tennessee Supreme Court, on August 19, 2011, an application
for permission to appeal. [Attachment 3, Application]. The application was denied on
October 20, 2011. [Attachment 4, Order].
Petitioner does not allege, nor does the record suggest, that he filed either a direct
appeal of his convictions and sentence or a petition for post-conviction relief. Petitioner filed
the instant petition for federal habeas corpus relief on December 2, 2011, less than two
months after his sentencing.
A state prisoner's petition for a writ of habeas corpus cannot be granted by a federal
court unless the petitioner has exhausted his available state court remedies. 28 U.S.C. §
2254. This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose
v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas
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corpus petition must have been presented to the state appellate court. Picard v. Connor, 404
U.S. 270 (1971). See also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (exhaustion
"generally entails fairly presenting the legal and factual substance of every claim to all levels
of state court review").
As noted, petitioner filed the instant petition less than two months after he was
sentenced by the Monroe County Criminal Court. Clearly, that was before he had the
opportunity to exhaust an appeal to the Tennessee Court of Criminal Appeals. In addition,
petitioner still has available a remedy for pursuing his constitutional claims, namely a
petition for post-conviction relief pursuant to Tenn. Code Ann. § 40-30-101, et seq.
Accordingly, petitioner has failed to exhaust his available state court remedies.
The motion to dismiss will be GRANTED. The petition for habeas corpus relief will
be DENIED and this action DISMISSED WITHOUT PREJUDICE for failure to exhaust
state court remedies. All other pending motions will be DENIED as MOOT. A certificate
of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253(c); Rule 22(b) of the Federal Rules
of Appellate Procedure. The court will CERTIFY that any appeal from this action would
not be taken in good faith and would be totally frivolous. See Rule 24 of the Federal Rules
of Appellate Procedure. The court will further DENY petitioner leave to proceed in forma
pauperis on appeal.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas W. Phillips
United States District Judge
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