Gibbs v. Howerton

Filing 19

MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 3/13/14. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at KNOXVILLE
MICHAEL T. GIBBS, JR.

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Petitioner,
v.
TONY HOWERTON, Warden
Respondent.

No.

3:13-cv-64-TAV-HBG

MEMORANDUM
This is a pro se petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254
filed by petitioner Michael T. Gibbs, Jr. ("petitioner"). Petitioner is in the custody of the
Tennessee Department of Correction and incarcerated in the Northeast Correctional
Complex. The matter is before the Court on the motion to dismiss filed by the Attorney
General for the State of Tennessee and plaintiff's response thereto. For the following
reasons, the motion to dismiss [Doc. 14] will be GRANTED and this action will be
DISMISSED WITHOUT PREJUDICE.
As the Court previously noted, although the habeas petition is lengthy, disjointed,
repetitive, and quite often confusing, in its essence the petition primarily concerns an alleged
clerical error in the computation of petitioner's release date after the revocation of his parole
from state criminal charges and petitioner's claim that he continues to be imprisoned after the
expiration of his sentence. The Court ordered the Attorney General of the State of Tennessee
to inform the Court the status of petitioner's incarceration, and to specifically address

petitioner's claims of clerical error and continued imprisonment after the expiration of his
release date. In response to that Order, the Attorney General moves to dismiss the habeas
petition for failure to exhaust state remedies.
Petitioner filed this action on February 4, 2013. [Doc. 2, Petition for Writ of Habeas
Corpus]. As shown by the documents attached to the motion to dismiss [Doc. 14, Motion to
Dismiss, Attachments], petitioner's sentence expires on December 9, 2014, according to the
records of the Tennessee Department of Correction. [Id., Exhibit A, Tennessee Felony
Offender Information Lookup].
Petitioner filed a habeas corpus petition in the Criminal Court of Hamilton County,
Tennessee, alleging claims of clerical error and imprisonment after his release date, which
was denied, and petitioner appealed the state court decision. [Id., Exhibit B, Order of
Hamilton County Criminal Court entered February 6, 2013; Petitioner's Brief on Appeal to
the Tennessee Court of Criminal Appeals filed June 3, 2013]. That appeal was thus pending
at the time plaintiff filed this action.
Petitioner had previously filed a habeas corpus petition in the Criminal Court of
Morgan County, Tennessee, alleging the same claims. [Id., Exhibit D, Order of Morgan
County Criminal Court entered November 29, 2012; Petitioner's Brief on Appeal to the
Tennessee Court of Criminal Appeals filed January 16, 2013]. That appeal was also pending
at the time petitioner filed this action. [Id., Exhibit E, State's Brief on Appeal dated April 9,
2013].

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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
corpus petition must have been presented to the state appellate court. Picard v. Connor, 404
U.S. 270 (1971).
Based upon the foregoing, it is clear that petitioner's proceedings in the state court
were still pending at the time he filed this action and therefore he failed to exhaust his state
remedies before filing this action; the motion to dismiss will be GRANTED. The petition
for habeas corpus relief will be DENIED and this action will be DISMISSED WITHOUT
PREJUDICE for failure to exhaust state court remedies. 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 A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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