Branham v. State of Tennessee (RHC)

Filing 5

MEMORANDUM AND ORDER: Because the completed, amended petition is contained in the latter case, Branham v. Donahue, No. 3:15-CV-83, the Court will DISMISS without prejudice the first habeas corpus case which was opened, Branham v. St ate of Tennessee, No. 3:14-CV-580. Obviously, Respondent need not file an answer or other response to the petition in No. 3:14-CV-580. In addition, because the Court entered an order granting Petitioners motion to proceed informa pauperis in Branham v. State of Tennessee, No. 3:14-CV-580 [Docs. 3,4], the Clerk is DIRECTED to refile the in forma pauperis motion and the order granting the motion in Branham v. Donahue, No. 3:15-CV-83. The Court has reviewed the petition in No. 3:15-CV-83 and DIRECT S the Clerk to servecopies of the petition in that case and this Memorandum and Order on Respondent and the Attorney General for The State of Tennessee. Since it does not plainly appear from the face of the petition that it should be summarily dismis sed, Respondent is hereby ORDERED to answer or otherwise respond to the petitionwithin thirty (30) days from the date of this Order. A separate order will enter DISMISSING without prejudice Branham v. State of Tennessee, No. 3:14-CV-580.Signed by District Judge Pamela L Reeves on 2/8/17. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at KNOXVILLE
MELVIN BRANHAM,

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Petitioner,
v.
STATE OF TENNESSEE,
Respondent.

No. 3:14-cv-00580
REEVES/SHIRLEY

and

MELVIN BRANHAM,
Petitioner,
v.
MICHAEL DONAHUE, Warden,
Respondent.

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No. 3:15-cv-00083
REEVES/SHIRLEY

MEMORANDUM and ORDER

On December 10, 2014, Melvin Branham (“Petitioner”), a prisoner confined in the
Bledsoe County Correctional Complex, in Pikeville, Tennessee, filed a pro se petition for a writ
of habeas corpus, 28 U.S.C. § 2254, challenging his 2012 Sevier County, Tennessee conviction
for especially aggravated robbery. The petition was opened as a new case, Branham v. State of
Tennessee, No. 3:14-CV-580. Because the petition was insufficient in certain respects, the
Court entered an order on January 21, 2015, pointing out those deficiencies, directing the Clerk
to send Petitioner a form petition, and advising Petitioner that unless, within thirty (30) days of
that date, he amended his § 2254 petition by filing out the form petition in its entirety, signing

it, and returning it to the Clerk’s Office, the Court would assume that he did not desire to proceed
in the matter and would dismiss his case without prejudice.
Petitioner complied with that order and returned a completed, signed petition. However,
the returned form petition was inadvertently opened as a new case, Branham v. Donahue, No.
3:15-CV-83, rather than being recognized as being the amended petition which the Court had
invited Petitioner to file in its deficiency order. Thus, at this point in time, there are two separate,
pending § 2254 cases, but only one true habeas corpus petition.
Therefore, because the completed, amended petition is contained in the latter case,
Branham v. Donahue, No. 3:15-CV-83, the Court will DISMISS without prejudice the first
habeas corpus case which was opened, Branham v. State of Tennessee, No. 3:14-CV-580.
Obviously, Respondent need not file an answer or other response to the petition in No. 3:14CV-580.
In addition, because the Court entered an order granting Petitioner’s motion to proceed in
forma pauperis in Branham v. State of Tennessee, No. 3:14-CV-580 [Docs. 3,4], the Clerk is
DIRECTED to refile the in forma pauperis motion and the order granting the motion in
Branham v. Donahue, No. 3:15-CV-83.
The Court has reviewed the petition in No. 3:15-CV-83 and DIRECTS the Clerk to serve
copies of the petition in that case and this Memorandum and Order on Respondent and the
Attorney General for The State of Tennessee.
Since it does not plainly appear from the face of the petition that it should be summarily
dismissed, Respondent is hereby ORDERED to answer or otherwise respond to the petition
within thirty (30) days from the date of this Order. Rule 4, Rules Governing Section 2254 Cases
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In The United States District Courts. Respondent should specifically address whether the
petition was timely filed and whether Petitioner has exhausted his available state court remedies.
28 U.S.C. §§ 2244(d), 2254(b).
Although a reply is not necessary, if Petitioner wishes to file a reply, he SHALL file that
reply within thirty (30) days from the date Respondent files his answer with the Court. Rule
5(e), Rules Governing Section 2254 Proceedings In The United States District Courts. Any
reply should not exceed twenty-five pages; must directly reply to the points and authorities in
the Warden’s answer; and must not to be used to reargue the points and authorities included in
the petition or to present any new issues. See E.D. Tenn. L.R. 7.1(b) and (c).
A separate order will enter DISMISSING without prejudice Branham v. State of
Tennessee, No. 3:14-CV-580.
SO ORDERED.

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UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT

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