Gallaher v. State of Tennessee

Filing 11

MEMORANDUM in support of the following Order granting Respondent's motion to dismiss for failure to exhaust state remedies. Signed by District Judge Pamela L Reeves on 3/17/16. (c/m)(ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TYLER SCOTT GALLAHER,
Petitioner,
v.
STATE OF TENNESSEE,
Defendant.

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No.: 3-14-CV-447-PLR-CCS

MEMORANDUM
This is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before
the Court is a motion to dismiss for failure to exhaust state remedies filed by Respondent [Doc.
8]. As Petitioner has not responded to this motion and the time for doing so has passed,
Petitioner has waived his opposition to the dispositive motion. Elmore v. Evans, 449 F. Supp. 2,
3 (E.D. Tenn. 1976), aff’d mem. 577 F.2d 740 (6th Cir. 1978); E.D. TN. LR 7.2. For the reasons
set forth below, the Court finds that the petition contains claims for which Petitioner has not
exhausted his state remedies.

Accordingly, Respondent’s motion to dismiss for failure to

exhaust state remedies [Doc. 9] will be GRANTED and this action will be DISMISSED
without prejudice.
The petition for a writ of habeas corpus in this case sets forth the following: (1) claims
asserting ineffective assistance of counsel on various occasions; (2) a claim that Petitioner’s
conviction resulted from coerced confessions from others; (3) a claim alleging a double jeopardy
violation; and (4) a claim alleging coercion of Petitioner by the district attorney. In his motion to
dismiss, Respondent asserts that Petitioner has not presented any of these claims to the

Tennessee Court of Appeals. Respondent has therefore filed only Petitioner’s trial court records
with the Court [Doc. 10].
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).
As Respondent has demonstrated that Petitioner has not exhausted his state remedies and
in the absence of any objection, the motion to dismiss for failure to exhaust state court remedies
[Doc. 8] will be GRANTED and this action will be DISMISSED without prejudice for failure
to exhaust state court remedies.
The Court has found that Petitioner is plainly procedurally barred from the relief sought
in the petition for a writ of habeas corpus at this time and no reasonable jurist could conclude
that Petitioner is entitled to proceed with the petition at this time.

The Court therefore

CERTIFIES 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. For the same
reasons, the Court will also DENY petitioner leave to proceed in forma pauperis on appeal and a
certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253(c); Rule 22(b) of the
Federal Rules of Appellate Procedure; Slack v. McDaniel, 529 U.S. 473, 484 (2000).
ENTER:

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UNITED STATES DISTRICT
A S S
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UNITED STATES DISTRICT JUDGE

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