Heard v. Lee

Filing 19

MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 12/21/18. (copy mailed to Jimmy Heard) (JBR) Modified to reflect copy mailed to United States District Court for the Middle District of Tennessee, Nashville Division on 12/21/2018 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
JIMMY HEARD,
Petitioner,
v.
RANDY LEE,
Respondent.

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No.:

3:18-CV-34-TAV-DCP

MEMORANDUM OPINION
The Court is in receipt of this pro se prisoner’s petition for a writ of habeas corpus
filed under 28 U.S.C. § 2241 [Doc. 1], an amended § 2241 petition [Doc. 4], and a second
amended petition [Doc. 13], as well as Respondent’s motion to dismiss the petition [Doc.
6] and numerous other motions from Petitioner [Docs. 8, 9, 10, 12, 14, and 17]. Petitioner
did not file a response to Respondent’s motion to dismiss the petition, and the time for
doing so has passed. E.D. Tenn. L.R. 7.1. Therefore Petitioner has waived any opposition.
E.D. Tenn. L.R. 7.2; Elmore v. Evans, 449 F. Supp. 2, 3 (E.D. Tenn. 1976), aff’d 577 F.2d
740 (6th Cir. 1978). For the reasons set forth below, this action will be DISMISSED
without prejudice due to Petitioner’s failure to exhaust his available state-court remedies.
In this action, Petitioner, a prisoner of the Tennessee Department of Correction,
challenges the legality of a detainer against him filed by Warren County, Kentucky

[Doc. 1 p. 1–4; Doc. 4 p. 1–2].1 However, before the Court may grant habeas relief to a
state prisoner, the prisoner must exhaust remedies available in the state courts. Although
there is no express statutory exhaustion requirement for a prisoner who properly files under
§ 2241, the Supreme Court has, in a case where, as here, a state prisoner challenged another
state’s detainer against him under § 2241, applied the exhaustion doctrine as a “judicially
crafted instrument.” See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 489–
91 (1973).
To fulfill the exhaustion requirement, a state prisoner must have fairly presented his
federal claims to all levels of the state appellate system, including the state’s highest court.
Duncan, 513 U.S. at 365–66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley
v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). “[S]tate prisoners must give the state courts
1

In his second amended petition, Petitioner seeks to challenge his underlying convictions
in Rutherford County, Tennessee [Doc. 13]. These convictions are separate and unrelated to the
Kentucky detainer at issue in his original § 2241 petition, and Petitioner has previously filed a
petition for relief under § 2254 for these convictions. See Heard v. McAllister, No. 3:15-CV-925,
2015 WL 6872583 (M.D. Tenn. Nov. 9, 2015). Therefore, it appears that Petitioner requires
permission from the United States Court of Appeals for the Sixth Circuit to file a second or
successive petition arising out of these convictions. 28 U.S.C. § 2244(b)(3)(A).
Moreover, under 28 U.S.C. § 2241(d), this Court has discretion to transfer a habeas
application to the district court for the district in which the petitioner was convicted, and it will do
so here. Petitioner was convicted in Rutherford County, Tennessee, which is within the jurisdiction
of the Middle District of Tennessee. 28 U.S.C. § 123(b)(1).
Accordingly, in the interests of justice, judicial economy, and convenience of the parties
and witnesses, the Clerk will be DIRECTED to send a copy of this memorandum opinion, the
accompanying order, and Petitioner’s second amended petition [Doc. 13] to the United States
District Court for the Middle District of Tennessee, Nashville Division, in accordance with 28
U.S.C. § 2241(d), so that the Middle District Court may transfer the petition to the Sixth Circuit if
necessary.
Also, Petitioner’s motion to file a second amended petition [Doc. 12] will be DENIED.
2

one full opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845. The
district court can and must raise the exhaustion issue sua sponte, when it clearly appears
that habeas claims have not been presented to the state courts. See Prather v. Rees,
822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138–39.
It is apparent from the amended petition and Respondent’s motion to dismiss that
Petitioner has filed an appeal of the denial of his state-court petition for a writ of habeas
corpus challenging the legality of the detainer [Doc. 4 p. 19; Doc. 7 p. 3; Doc. 7-1].
Respondent states that this appeal is still pending, and Petitioner does not dispute this
assertion. Further, the Court takes judicial notice that a search of the public casehistory

database

for

the

Tennessee

Court

of

Criminal

Appeals

(“TCCA”)

(https://www2.tncourts.gov/PublicCaseHistory/index.aspx) for case number E201800700-CCA-R3-HC, which Respondent states is the case number for Petitioner’s statecourt appeal of the denial of his habeas petition, establishes that the TCCA has not issued
a decision in this case. Thus, the record demonstrates that Petitioner has not exhausted his
state-court remedies as required for him to pursue relief under § 2241. See Braden v.
30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 488–89 (1973).

Accordingly, this

§ 2241 petition will be DISMISSED without prejudice for failure to exhaust available state
remedies.2

2

Braden also permits Petitioner to file his habeas petition in Kentucky, whose detainer he
wishes to challenge. 410 U.S. at 488–89. That may be appropriate here given that, like in Braden,
“his dispute is with the Commonwealth of Kentucky,” id. at 499, rather than Tennessee.
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The Court must now consider whether to issue a certificate of appealability
(“COA”), should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a
petitioner may appeal a final order in a habeas proceeding only if he is issued a COA, and
a COA may only be issued where a petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court denies a habeas
petition on a procedural basis without reaching the underlying claim, a COA should only
issue if “jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). The Court finds that jurists of reason would not debate the
Court’s finding that Petitioner has not exhausted his state-court remedies.
The Court CERTIFIES that any appeal from this action would not be taken in good
faith and would be totally frivolous. Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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