Vantrease v. Taylor

Filing 79

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS for the reasons explained below that: 1) the requirement in the order of referral (Doc. 11 ) to conduct an evidentiary hearing be RESCINDED because an evidentiary hearing is unnecessary; 2) respondent's motion to dismiss (Doc. 6 ) be GRANTED; 3) petitioner's amended petition under 28 U.S.C. § 2254 (Doc. 70 ) be DENIED; 4) this action be DISMISSED WITH PREJUDICE; 5) acceptance and adoption of this R&R constitute the FINAL JUDGMENT in this action; 6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); 7 should the petitioner file a timely notice of appeal, that such notice be docketed as both a notice of appeal and applic ation for a certificate of appealability, which SHOULD NOT ISSUE because jurists of reason would not debate whether the district court was correct in its procedural ruling; 8) any pending motions be TERMINATED AS MOOT. Signed by Magistrate Judge Joe Brown on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
EARL VANTREASE, JR. # 289250,
Petitioner,
v.
SHARON TAYLOR,
Respondent.

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No. 3:14-00728
Judge Sharp/Brown

REPORT AND RECOMMENDATION
The Magistrate Judge RECOMMENDS for the reasons explained below that:
1)

the requirement in the order of referral (Doc. 11) to conduct an
evidentiary hearing be RESCINDED because an evidentiary hearing
is unnecessary;

2)

respondent’s motion to dismiss (Doc. 6) be GRANTED;

3)

petitioner’s amended petition under 28 U.S.C. § 2254 (Doc. 70) be
DENIED;

4)

this action be DISMISSED WITH PREJUDICE;

5)

acceptance and adoption of this R&R constitute the FINAL
JUDGMENT in this action;

6)

any appeal NOT BE CERTIFIED as taken in good faith pursuant to
28 U.S.C. § 1915(a)(3);

7

should the petitioner file a timely notice of appeal, that such notice
be docketed as both a notice of appeal and application for a certificate
of appealability (COA), 28 U.S.C. § 2253(c); Rule 22(b), Fed. R.
App. P.; see Slack v. McDaniel, 529 U.S. 473, 483 (2000), which
SHOULD NOT ISSUE because jurists of reason would not debate
whether the district court was correct in its procedural ruling, see
Castro v. United States of America, 310 F.3d 900, 901-02 (6th Cir.
2002)(citing Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1072
(6th Cir. 1997));

8)

any pending motions be TERMINATED AS MOOT.

I. BACKGROUND
A. Statement of the Case
Petitioner, proceeding pro se and informa pauperis, was a prisoner at the Northeast
Correctional Complex (NECX) in Mountain City, Tennessee when he brought this action on March
7, 2014 seeking federal habeas relief under 28 U.S.C. § 2254.1 (Doc. 1) Petitioner named Warden
Sharon Taylor as the respondent. (Doc. 1, p. 1 of 91)2
Respondent filed a motion to dismiss, memorandum of law, and supporting documents on
April 15, 2014. (Docs. 6-8) Respondent argued that the petition should be dismissed as time barred
under 28 U.S.C. § 2244(d)(1). (Doc. 7) Petitioner filed a response on April 25, 2014 in opposition
to respondent’s motion to dismiss. (Doc. 9)
The District Judge referred this matter to the Magistrate Judge on July 17, 2014 to conduct
an evidentiary hearing to: 1) determine whether the petition was timely and, if not, to determine
whether equitable tolling of the 1-year limitations period (the limitations period) under § 2254 would
be appropriate; 2) recommend the proper disposition of respondent’s motion to dismiss. (Doc. 11)
The Magistrate Judge was further instructed “to hold any other proceedings that might be needed
to ascertain the timeliness of the instant action.” (Doc. 11)
The Magistrate Judge instructed the Federal Public Defender’s Office to appoint counsel on
July 30, 2014. (Doc. 16) Assistant Federal Public Defender (AFPD) Ronald Small filed a notice

1

The record shows that petitioner filed his petition on March 12, 2014. However, the envelope in which
petitioner mailed his petition to the district court is stamped as having been received by the NECX mail room on March
7, 2014. (Doc. 1-6) Under the mailbox rule, March 7, 2014 is the date that petitioner is deemed to have filed his petition.
See Richard v. Ray, 290 F.3d 810, 813 (6th Cir. 2002)(citing Houston v. Lack 487 U.S. 266, 270 (1988)(a pro se prisoner
filing is deemed filed on the date that the filing is turned over to prison officials for transmittal to the court.)).
2

The exhibits filed by the parties have not been paginated progressively as required by LR7.03(a), Local Rules
of Court. Therefore, the page numbers in the documents to which reference is made herein are to those generated by
the court’s CMECF system.

2

of appearance on petitioner’s behalf on August 1, 2014. (Doc. 19)
On October 8, 2014, the Magistrate Judge entered an order scheduling a telephone
conference with the parties on October 21, 2014 regarding the instruction in the order of referral to
conduct an evidentiary hearing. (Doc. 24) Petitioner moved on October 10, 2014 to continue the
telephone conference. (Doc. 25) Petitioner’s motion was granted on October 15, 2014, and the
telephone conference was rescheduled to November 6, 2014. (Doc. 26) The telephone conference
was held on November 6, 2014 as scheduled, and an order entered the same day scheduling the
evidentiary hearing for “30 days after discovery [is] completed or denied.” (Doc. 27) On December
8, 2014, AFPD Small noticed the court of petitioner’s “intent not to file any additional petition or
other pleading and instead to proceed on [the] pro se petition and all claims related thereto.” (Doc.
28)
The Magistrate Judge amended the November 6, 2014 scheduling order on January 8, 2015
following a telephone conference with the parties the day prior. (Docs. 29-30) Petitioner “advised”
the Magistrate Judge during the January 7, 2015 telephone conference “that he would not be filing
amended pleadings in this matter.” (Doc. 30) The evidentiary hearing was scheduled for April 21,
2015. (Doc. 30)
A third telephone conference was held with the parties on April 9, 2015 (Doc. 31), pursuant
to which the evidentiary hearing was reset to June 16, 2015 (Doc. 32), and a Rule 16 case
management conference scheduled for the same day (Doc. 33). Thereafter, petitioner filed a 3-page
motion to appointment new counsel on June 11, 2015 arguing, inter alia, that: 1) he and AFPD
Small had been at odds regarding the authenticity of certain records that petitioner sought to
introduce; 2) AFPD Small had threatened “to withdraw from further representation [i]f petitioner
. . . testif[ied] [that] certain documents in the record [we]re authentic”; 3) AFPD Small had been

3

bribed by the state to reject all witnesses and evidence. (Doc. 36)3 On June 15, 2015, AFPD Small
moved to continue the evidentiary hearing for sixty (60) days to give the court time to consider
petitioner’s motion. (Doc. 37)
The scheduled June 16, 2015 evidentiary hearing gave way to an in camera review of
plaintiff’s motion to appoint new counsel. (Doc. 42) AFPD Small did not oppose the motion,
arguing that he was ethically obligated not to introduce documentary evidence provided by
petitioner that he thought to be fraudulent. The Magistrate Judge granted petitioner’s motion for
appointment of new counsel on June 17, 2015, and continued the evidentiary hearing until
September 28, 2015. (Doc. 39) Attorneys Michael Terry and Stephanie Gore filed notices of
appearance on petitioner’s behalf on June 29, 2015. (Docs. 40-41)
The Magistrate Judge entered an order on August 17, 2015 noting that “analysis of the record
and opinions of the Tennessee Court of Criminal Appeals [CCA] is that the petition is untimely.
Absent evidence to the contrary, the only question is whether the limitations period should be
equitably tolled.” (Doc. 43) The Magistrate Judge directed respondent to file a written brief by
September 9, 2015 to show “why equitable tolling is not appropriate in this case, including analysis
of factual innocence versus legal insufficiency,” and directed petitioner to respond not later than
September 23, 2015. (Doc. 43)
Petitioner filed a motion through counsel on September 1, 2015 to continue the evidentiary
hearing and to amend the scheduling order. (Doc. 45) In that motion, new counsel made the
following argument:
On December 8, 2014, petitioner’s counsel (FPD) filed a notice of
intent to proceed on petitioner’s pro se petition alleging the petition
‘adequately sets forth his claims for relief’ and that no other

3

Unnecessary capitalization has been omitted in those instances where the pleadings are quoted.

4

pleadings would be filed on petitioner’s behalf (Docket No. 28).
Petitioner did not agree, and filed a pro se motion for appointment of
new counsel (Docket No. 36) Petitioner intends to file an amended
petition.
(Doc. 45, ¶ 4, pp. 1-2 of 4) In an order dated September 3, 2015, the Magistrate Judge noted:
It is now some 17 months since the original petition was filed and 16
months since the motion to dismiss was filed . . . [and] . . . [w]e still
do not have a final petition. Rather than continuing the case
indefinitely the Magistrate Judge may well administratively close this
case until the Petitioner files a motion to reopen and attaches to that
motion an actual amended petition. In view of the statement by the
Petitioner that he intends to file an amended petition, it would appear
that the Magistrate Judge would also terminate the current motion to
dismiss without prejudice to being refiled once an actual amended
petition is filed.
(Doc. 47) Petitioner’s September 1, 2015 motion was granted on September 14, 2015, and the case
was ordered closed administratively. (Doc. 49)
Petitioner filed a 9-page motion under seal on April 11, 2016 seeking appointment of new
counsel, and an in camera hearing on his motion. (Doc. 54) The Magistrate Judge directed
respondent to file a response within 14 days, and noted the following with respect to petitioner’s
repeated request for new counsel:
The Petitioner is cautioned that he is not advancing his case by
continually finding fault with counsel appointed for him and accusing
them of dishonest and bribery. If the Petitioner wishes to represent
himself he may certainly do so, but he cannot have it both ways. The
P[etitioner] stated in his motion he could have hired an attorney. If
the P[etitioner] wants to hire his own attorney at his expense he may
do so at any time.
(Doc. 55) The Magistrate Judge granted petitioner’s April 11, 2016 motion on May 9, 2016, and
set a in camera hearing on petitioner’s request to appoint new counsel for June 15, 2016, making
the following related observations pertaining to petitioner’s request:
The Petitioner has gone through a series of attorneys at the state level
5

and is now attempting to go to a third attorney in this proceeding.
Unfortunately, just as the Magistrate Judge predicted at the June 16,
2015[] hearing (Docket Entry 42) the Petitioner is back again with
essentially the same complaint against Mr. Terry as he had against
Mr. Small. Attorneys have ethical obligations in what they can and
cannot do and no client can require an attorney to do something the
attorney believes to be unethical.
...
Quite frankly, the Magistrate Judge has little confidence that the
appointment of a third attorney in this case would produce a different
result. The Petitioner does not have a right to unlimited attorneys and
he does not have a right to require an attorney to do any particular act
if the attorney has good reasons for not doing so.
(Doc. 59)
The June 15, 2016 hearing was held as scheduled. Thereafter, on June 17, 2016, the
Magistrate Judge ordered the case restored to the active docket, granted petitioner’s motion to
relieve counsel, denied petitioner’s motion for appointment of new counsel, ordered petitioner to
proceed pro se with assistance of appointed elbow counsel, and received petitioner’s motion to
amended his habeas petition.4 (Doc. 64) Attorney G. Kerry Haymaker filed a notice of appearance
on June 20, 2016 as petitioner’s elbow counsel. (Doc. 66)
Respondent filed a response to petitioner’s motion to amend (Doc. 68), following which the
Magistrate Judge granted petitioner’s motion to amend on June 28, 2016 (Doc. 69). Petitioner’s
amended petition and supporting memorandum were filed that same day. (Docs. 70-71) Petitioner
presented the following issues in his amended petition: 1) the vehicle stop that led to his arrest and
conviction was not supported by probable cause (Doc. 71, pp. 13-20 of 56); 2) the identification
procedure that led to his arrest and conviction was overly prejudicial (Doc. 71, pp. 21-28 of 56); 3)
4

The Magistrate Judge also noted in his June 17, 2016 order that plaintiff had been transferred to the
Whiteville Correctional Facility (Whiteville) in Whiteville, Tennessee. (Doc. 64, p. 1) The action against Warden
Taylor was terminated on June 28, 2016, and Tammy Ford, Warden at Whiteville, was substituted.

6

he was denied his right to present a defense at trial (Doc. 71, pp. 29-31 of 56); 4) ineffective
assistance of trial counsel (Doc. 71, pp. 32-35 of 56); 5) his sentence was enhanced based on facts
that were not before the jury; (Doc. 71, pp. 36-43 of 56); 6) the judgment of conviction (judgment)
and order to issue capias were void (Doc. 71, pp. 44-50 of 56); 7) he was denied jail credits in
violation of his due process rights (Doc. 71, pp. 51-54 of 56); 8) his sentence was miscalculated in
violation of due process rights (Doc. 71, pp. 55-56 of 56). Petitioner also wrote the following in
response to the query in the petition regarding the question of timeliness:
This petition is timely. However, if this court deems otherwise, it is
due to state interference (the state courts failed to notify petition of
the entry of its judgments). As such, petitioner would be entitled to
equitable tolling of the statute of limitation (at least 274 days of
AEDPA’s 1-year deadline). Moreover, grounds 1 thru 4 are claims
of actual innocence, while grounds 5, 6, and 8 have no statute of
limitation in Tennessee. So although 274 days should be equitably
tolled, the petition is timely (and would be timely) even if equitable
tolling were not granted.
(Doc. 70, ¶ 18, p. 14)
Respondent filed a response to the amended petition on July 15, 2016, in which she argued
that the petition was not timely, and that petitioner had failed to exhaust his claims in state court
prior to raising them in the instant action. (Doc. 74) Petitioner filed a traverse on August 18, 2016.
(Doc. 75) This matter is now properly before the court.
B. Statement of the Facts
The Putnam County Grand Jury indicted petitioner on December 16, 2002 on one count of
aggravated robbery in violation of Tenn. Code. Ann. § 39-13-402.5 (Doc. 1-2, p. 22 of 138)
Petitioner was tried and convicted by a jury on April 24, 2003 before Judge Leon Burns in the

5

Petitioner also was tried and convicted at the same time of assuming a false identity with the intent to injure
another in violation of Tenn. Code Ann. § 39-16-301. However, the petition before this court pertains solely to
petitioner’s conviction and sentence for aggravated robbery.

7

Criminal Court for Putnam County in Cookeville, Tennessee, criminal case no. 02-0666. (Docs. 1-2,
pp. 30-86 of 138; 1-3, pp. 1-23 of 101; 8-6, pp. 83-145 of 145; 8-7, pp. 5-77 of 116)6 A sentencing
hearing was held on July 25, 2003. (Doc. 1-3, pp. 38-58 of 101) Judge Burns sentenced petitioner
to 16 years in the Tennessee Department of Correction (TDOC) to be served at 35 percent as a range
II, multiple offender. (Doc. 1-3, pp. 50-51 of 101) The sentence was ordered served consecutive
to sentences for previous convictions for which petitioner was incarcerated in TDOC at the time of
the sentencing hearing. (Doc. 1-3, pp. 50-51 of 101) Judge Burns informed petitioner of his
appellate rights at the hearing. (Doc. 8-7, pp. 75-76 of 116)
At the sentencing hearing, petitioner attempted to file a pro se motion for a judgment of
acquittal or, in the alternative, a motion for a new trial. (Doc. 1-3, pp. 52-54 of 101) Petitioner then
sought to “fire” his attorney because counsel would not file the aforementioned motion which was
based on an alleged “recently discovered” witness who would corroborate petitioner’s alibi defense.
(Doc. 1-3, pp. 52-55 of 101) Defense counsel stated that he “did not see any grounds in there that
I, as his attorney, would argue.” (Doc. 1-3, p. 52 of 101) The trail court permitted defense counsel
to withdraw from his representation, filed petitioner’s pro se motion as a one for a new trial,
appointed new counsel, and agreed to schedule a hearing on the petitioner’s motion for a new trial
at a later date. (Doc. 1-3, pp. 55-57 of 101) Although the “Sentence-imposed date” on the judgment
form was “07/25/2003,” Judge Burns did not enter the order of judgment at the time.
A hearing was held on April 2, 2004 on petitioner’s motion for a new trial in case no. 020666, following which the motion was denied on April 6, 2004. (Doc. 8-1, p. 61 of 102) Thereafter,
petitioner signed a written waiver on May 4, 2004 of his right to appeal his conviction and sentence.

6

There is not a complete transcript of the trial in the record. The record comprises portions of the transcript
filed at various times by the parties.

8

(Doc. 8-1, p. 62 of 102) Forty-eight days after he waived his right to appeal, petitioner was
“released in error” from TDOC on June 21, 2004 based on time served in connection with other
sentences that he was serving at the time. (Doc. 1-1, p. 8 of 55) The record suggests that petitioner
was “released in error” because TDOC had not been provided a copy of the judgment in case no. 020666. (Doc. 1-1, p. 7 of 55)
For reasons that are not clear, Judge Burns did not enter judgment in case 02-0666 until
December 16, 2005, following which the clerk of court filed the order of judgment on December 20,
2005. (Doc. 1-3, p. 60 of 101) Judge Burns also entered an order for capias on December 16, 2005
to take petitioner back into custody to begin serving his sentence in case no. 02-0666. (Doc. 1-3,
p. 62 of 101)
Petitioner was returned to custody on December 30, 2005, and subsequently reincarcerated
in TDOC. (Doc. 1-1, p. 5 of 55) Once back in custody, petitioner did not seek to appeal his
conviction, having waived his right to do so more than 19 months earlier, nor did he seek to rescind
that waiver. Instead, petitioner filed a pro se motion for a reduction of sentence on April 18, 2006
in case no. 02-0666. (Doc. 71-1, p. 10 of 57) Judge Burns denied the motion on May 3, 2006.7
(Doc. 71-1, p. 10 of 57)
Petitioner filed a pro se application for state habeas relief pertaining to case no. 02-0666 on
July 31, 2006 (the first state habe), Hickman County Circuit Court, case no. 06-5053C. (Docs. 1-1,
p. 31 of 55; 1-3, p. 68 of 101; 8-1, pp. 7-39 of 102) Petitioner raised the following grounds for relief
in his first state habe: 1) judgment and sentencing were void because he was denied the right to
counsel prior to judgment entering; 2) he was never presented with an information or indictment as

7

Petitioner asserts in his traverse that he “learned about the judgment of conviction around May 31, 2006
(about 6-months after its entry) . . . .” (Docs. 71, p. 3 of 56; 75, p. 5 of 24)

9

to the nature of the cause of action against him prior to judgment entering; 3) he was denied his right
to trial prior to being convicted of an offense that had been reversed on post-conviction; 4) the
proceedings surrounding the judgment and sentence violated his due process rights. (Doc. 8-1, pp.
19-34 of 102) On August 23, 2006, Judge Jeffery Bivins granted the State’s motion to dismiss,
ruling that petitioner “has failed to state a colorable claim for habeas corpus relief.” (Doc. 1-1, p.
13 of 55)
On September 25, 2006, petitioner filed a motion to alter or amend judgment in case no. 065053C, as well as a notice of appeal. (Doc. 8-1, pp. 89-99 of 102) The first state habeas court took
no action on petitioner’s motion to alter or amend, and an appeal ensued. On October 9, 2007, the
CCA initially affirmed the judgment of the first state habeas court. (Doc. 8-5, p. 2 of 7) Petitioner
filed a pro se motion for a rehearing on October 18, 2007. (Doc. 8-4, pp. 2-5 of 22) The CCA
granted petitioner’s motion on December 14, 2007, subsequent to which it reversed the first state
habeas court’s decision, vacated its judgment, and remanded the matter for an evidentiary hearing
on the merits.8 (Doc. 8-5)
On remand, Judge Robbie Beal entered an order on April 25, 2008 ruling that petitioner
stated a colorable post-conviction claim of ineffective assistance of counsel, and directed counsel
to file an amended petition if necessary. (Doc. 1-1, pp. 21-23 of 55) After a lengthy delay, an
evidentiary hearing was held in case no. 06-5053C before Circuit Court Judge Timothy Easter on
November 21, 2011. (Docs. 1-1, pp. 31-32 of 55, 1-4, pp. 1-38 of 38) In his December 6, 2011
order granting the state’s motion to dismiss, Judge Easter wrote: “The petitioner has failed to
demonstrate that on the face of the judgment or record the convicting court was without jurisdiction
or authority to sentence the petitioner, or that the petitioner’s sentence has expired.” (Doc. 1-1, pp.

8

The CCA referred in its opinion to the questionable validity of evidence that petitioner had submitted.

10

34-35 of 55) Judge Easter specifically ruled at the hearing that Judge Burns “had jurisdiction” in
petitioner’s case, that any delay in entering judgment“constitute[d] . . . mere negligence,”9 and that
petitioner’s sentence had not expired. (Doc. 1-4, pp. 33-36 of 38) Judge Easter determined further
that the remaining grounds raised were “not appropriate for habeas corpus relief.”10 Petitioner did
not appeal Judge Easter’s ruling. (Doc. 1-4, p. 33 of 38)
Petitioner filed an application for state habeas corpus relief in the Wilson County Criminal
Court on July 3, 2012 (the second state habe). (Doc. 71-1, p. 34 of 57) Petitioner’s application was
dismissed on July 11, 2012 for want of jurisdiction. (Doc. 71-1, p. 34 of 57)
Petitioner filed a third application for state habeas relief on July 26, 2012 in Hickman
County Circuit, case no. 12-CV-43 (the third state habe). (Doc. 8-6, pp. 4-62 of 145) Petitioner
raised the following grounds for relief: 1) the judgment was void due to an unlawful show-up
identification; 2) the trial court denied him his right to present a witness in support of his defense;
3) Judge Burns acted without jurisdiction or authority to enter judgment in case no. 02-0666 on
December 16, 2005 and the subsequent order of capias; 4) the trial court exceeded its authority by
enhancing his sentence based on two factors not presented to the jury; 5) the judgment was void
because he was not awarded pre-trial jail time; 6) he was denied due process because he was not
permitted to raise his other claims in state habeas proceedings. (Doc. 8-10) Judge Beal granted the

9

Under Tennessee law, “[t]he court may at any time correct clerical mistakes in judgments . . . and errors in
the record arising from oversight or omission.” Rule 36, Tenn. R. Crim. P. The Tennessee Supreme Court has
characterized the failure to enter a judgment as a “technical” error, the solution for which is for the trial court to enter
“a proper judgment order.” Taylor v. State, M2012-01549-CCA-R3-PC, 2013 WL 2145776 *2 (Tenn. Crim. App., May
15, 2013)(internal citation omitted). “‘[T]he effective date for entry of a judgment or order of sentence is the date of its
filing with the court clerk after being signed by the Judge.’” See State v. Vaughn, 279 S.W.3d 584, 593 (Tenn. Crim.
App., Nashville June 16, 2008)(quoting State v. Kirby Stephens, 264 S.W.3d 719, 727-29 (Tenn. Crim. App., Nashville,
Sept. 21, 2007)).
10

Judge Easter discussed at length the questionable validity of documents that petitioner had filed in his first
state habe, but made no specific findings to that end. Instead he referred the matter back to Judge Burns. There is
nothing in the record to indicate that Judge Burns took any action on the matter.

11

state’s motion to dismiss on the grounds that petitioner “failed to meet the qualifications for relief
under the habeas corpus statute.” (Doc. 8-8, pp. 34, 36-42 of 52)
Petitioner filed a notice of appeal on October 11, 2012. (Docs. 1-1, p. 46 of 55; 8-8, pp. 2-52
of 52) Petitioner raised the same six grounds for relief on appeal that he did in the court below.
(Doc. 8-10) The CCA determined that the third state habeas court did not err in dismissing his
habeas application, and denied petitioner’s request for appellate relief.11 (Docs. 8-14, 8-15)
Petitioner filed a motion to rehear on June 4, 2013, which the CCA denied the same day. (Doc. 1-1,
p. 48 of 55) The Tennessee Supreme Court denied petitioner’s application for permission to appeal
on November 13, 2013. (Doc. 1-1, p. 49 of 55) Petitioner did not seek a writ of certiorari in the
United States Supreme Court.
Petitioner also took the following actions both during and after his third state habe.
Petitioner filed an inmate information request on July 25, 2012 while incarcerated in NECX seeking
to obtain credit for time served, in response to which the records office advised petitioner that his
time was correct. (Doc. 71-1, pp. 41-42 of 57) Petitioner petitioned TDOC on March 13, 2013 to
issue a declaratory order that he be awarded credit for time served. (Doc. 71-1, pp. 45-47 of 57)
TDOC denied the petition on July 15, 2013, noting, in part: “you were not in custody[] from June
22, 2004 - December 29, 2005; a total of 556 days of dead time (unserved time).” (Doc 71-1, p. 48
of 57) Petitioner filed a pro se motion on April 24, 2012 seeking to have the Putnam County
Criminal Court correct an alleged clerical error in connection with his sentence. (Doc. 71-1, pp. 2931 of 57) The court dismissed petitioner’s motion on May 11, 2016, explaining that “pre-trial jail
credit issues . . . must be taken up thorough the Administrative Procedure Act, T.C.A. § 4-5-101 et

11

The CCA again made lengthy references as to the questionable authenticity of documents that petitioner had
submitted on appeal.

12

sq.”12 (Doc. 71-1, p. 32 of 57) Finally, petitioner filed a petition for declaratory judgment in the
Davidson County Circuit Court on January 25, 2016 seeking credit for the time at issue. (Doc. 71-1,
pp. 51-53 of 57) Petitioner was notified on February 24, 2016 that his petition was not filed because
he had not paid his past fees, taxes, costs, and other expenses stemming from his prior litigation.
(Doc. 71-1, p. 56-57 of 57)
II. STANDARD OF REVIEW
A. Motion to Dismiss Under Rule 12(b)(6)
In assessing a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the court is required
to construe the pleadings in the light most favorable to the plaintiff, accept the plaintiff’s factual
allegations as true, and determine whether the pleadings “contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Heinrich v. Waiting Angels Adoption
Services, Inc., 668 F.3d 393, 403 (6th Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 663
(2009)(internal quotation and citation omitted)). A motion to dismiss under Rule 12(b)(6) “should
not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.’” Dubay v. Wells, 506 F.3d 422, 427 (6th Cir.
2007)(quoting Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004)(internal citations omitted)).
However, “the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
B. Relief Under 28 U.S.C. § 2254
Petitions for federal habeas relief filed after April 24, 1996 are subject to the AEDPA. See

12

Petitioner avers in his amended petition that he was aware of the Putnam County Criminal Court’s decision
on this matter. (Doc. 70, ¶ 11(e), p. 5 of 15)

13

Martin v. Mitchell, 280 F.3d 594, 602 (6th Cir. 2002)(citing Lindh v. Murphy, 521 U.S. 320, 326-27
(1977)). Title 28 U.S.C. § 2254, as amended by the AEDPA, provides the following with respect
to granting habeas relief to prisoners who are in custody pursuant to a state court judgment:
(d)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim
–
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

The “unreasonable application” of clearly established federal law differs from an “incorrect
application.” Williams v. Taylor, 529 U.S. 362, 365 (2000). Under the former, “a federal habeas
corpus court may grant relief if the state court identifies the governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. The latter clause is satisfied when a state court “arrives at a conclusion opposite that
reached by [the Supreme] Court on a question of law or . . . decides a case differently than the Court
. . . on a set of materially indistinguishable facts.” Id. at 364-65.
Where state courts have made factual determinations regarding issues presented for federal
habeas review, such determinations are presumed to be correct, and the petitioner has the burden
of rebutting that presumption of correctness by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); see Miller-el v. Cockrell, 537 U.S. 322, 324 (2003). Under the AEDPA, the purpose of
federal habeas review is to “ensure that state court convictions are given effect to the extent possible
under the law,” not to conduct a federal re-trial. Bell v. Cone, 535 U.S. 685, 693 (2002).
14

III. ANALYSIS
A. Timeliness of Filing
Prisoners have one year under the AEDPA to file a petition for habeas relief which runs from
the latest of four (4) circumstances, the relevant circumstance here being “the date on which the
judgment became final by the conclusion of direct review . . . .” 28 U.S.C. §§ 2244(d)(1)(A); 2254
6(1). A conviction becomes “final” in the Sixth Circuit when the time to file an appeal expires and
no appeal has been filed. See Gillis v. U.S., 729 F.3d 641, 644 (6th Cir. 2013); Eberle v. Warden,
Mansfield Correctional Inst., 532 Fed.Appx. 605, 609 (6th Cir. 2013). As a general rule, judgment
in a criminal case in Tennessee becomes “final” thirty days after entry of judgment unless a timely
notice of appeal or a specified post-trial motion is filed. See State v. Howard, 2012 WL 3064653
at * 8 (Tenn. Crim App. 2012)(citing State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)).
The limitations period is tolled by the amount of time that “a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending . . . .” 28 U.S.C. § 2244(d)(2); see Ege v. Yukins, 485 F.3d 364, 371 (6th Cir. 2007). “The
Supreme Court has defined ‘properly filed’ as ‘when [an application’s] delivery and acceptance are
in compliance with the applicable laws and rules governing filings.’” Williams v. Birkett, 670 F.3d
729, 733 (6th Cir. 2012)(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)). Any lapse of time before
a state application is “properly filed” will be counted against the limitations period. See Bennett v.
Artuz, 199 F.3d 116, 122 (2nd Cir. 1999), aff’d, 531 U.S. 4 (2000). When the state proceedings that
tolled the limitations period concludes, the limitations period resumes at the point where it was
tolled rather than beginning anew. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004)(citing
McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003)).
The limitations period is not jurisdictional. See Day v. McDonough, 547 U.S. 198, 205

15

(2006). Courts may review time-barred petitions for habeas relief under the doctrine of equitable
tolling. A habeas petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been
pursuing his rights diligently, AND (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)(citing Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)(bold and capitalization added)); see Hall v. Warden, Lebanon
Correctional Inst., 662 F.3d 745, 749-50 (6th Cir. 2011)(overruling the previous 5-part test set forth
in Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001) based on Holland). A credible claim of
“actual innocence” also may equitably toll the limitations period. Bell v. Howes, 703 F.3d 848, 854
(6th Cir. 2012)(citing Souter v. Jones, 395 F.3d 577 (6th Cir. 2005)). “‘[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615
(1998)). “[A] credible claim of actual innocence is extremely rare,” Souter, 395 F.3d at 600, and
“should ‘remain rare’ and ‘only be applied in the extraordinary case,’” Souter, 395 F.3d. at 590
(quoting Schlup v. Delo, 513 U.S. 298 (1995)). To demonstrate actual innocence, petitioner must
show “new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence – that was not presented at trial.” Schlup, 513 U.S. at 324.
The first question analyzing the question of timeliness in this case is when did the limitations
period begin to run. Tennessee courts have determined that “‘the effective date for entry of a
judgment or order of sentence is the date of its filing with the court clerk after being signed by the
judge.’” Vaughn, 279 S.W.3d at 593 (quoting Stephens, 264 S.W.3d at 729). Here, the trail court’s
judgment became final on December 20, 2005 when the order of judgment was filed by the clerk of
court. As noted above at pp. 8-9, petitioner waived his right to appeal, and there is nothing in the
record that suggests he sought to rescind that waiver prior to being “released in error” from TDOC,
or after he was reincarcerated. Consequently, the limitations period began to run 30 days after the

16

judgment was filed by the clerk of court, i.e., on January 20, 2006.
The record shows that petitioner moved to reduce his sentence on April 18, 2006. Rule 35,
Tenn. R. Crim. P. proves the following: “The trial court may reduce a sentence upon motion filed
within 120 days after the date the sentence is imposed or probation is revoked. No extensions shall
be allowed on the time limitation. No other actions toll the running of this time limitation.” A
properly filed motion to reduce one’s sentence tolls the period of limitations. See Wall v. Kholi, 562
U.S. 545 (2011).
The motion was timely under Rule 35. Therefore, the period of limitations was tolled during
the pendency of the motion, of which 88 days had run between January 20, 2006 and the date
petitioner filed his motion on April 18, 2006. Judge Burns denied the motion on May 3, 2006, and
petitioner did not appeal. The limitations period was tolled for 45 days during this period, and began
to run again on June 3, 2006, thirty days after petitioner could have appealed.13
Petitioner filed his first state habe on July 31, 2006, 58 days after he could have appealed
Judge Burns’ May 3, 2006 denial of his motion to reduce his sentence. A total of 146 days of the
limitations period had run by the time petitioner filed his first state habe: 88 days + 58 days = 146
days. The first state habe ultimately was dismissed after lengthy delays on December 6, 2011, prior

13

The amended petition contains the following instruction regarding the proceedings that he pursued in state
court prior to seeking federal habeas relief: “[i]f you did not appeal to the highest state court having jurisdiction, explain
why you did not.” (Doc. 50, ¶ 11(e), p. 5 of 15) Petitioner responded: “The lower courts failed to notify petitioner of
its judgments, except for the motion to correct clerical error, habeas denial in case no. 06-5053C & in Wilson County.”
(Doc. 70, ¶ 11(e), p. 5 of 15) One may infer from petitioner’s failure to list Judge Burns’ ruling in his response that he
did not appeal that ruling because he was never advised of it. That said, there is nothing in the record that would lead
a reasonable jurist to conclude that petitioner did not appeal Judge Burns’ decision because he was unaware of the ruling.
On the contrary, petitioner admits in the statement of facts in his memorandum in support of his amended petition that
his attorney told him that the motion had been denied, but says nothing else about the proceeding. (Doc. 71, p. 3 of 56)
In short, any claim that he did not know about the ruling in order to appeal is waived. See United States v. Stewart, 628
F.3d 246, 256 (6th Cir. 2010)(“Issues averted to in a perfunctory manner, unaccompanied by some effort at development
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal
way, leaving it to the court to . . . put flesh on its bones.”; see also Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1990)(the
less stringent standard for pro se p[etitioners] does not compel the courts to conjure up unpled facts to support conclusory
claims).

17

to which the limitations period had been tolled since July 31, 2006. As shown below at n. 14,14
petitioner was aware of Judge Easter’s ruling, and he chose not to appeal. The limitations period
began to run again on January 6, 2012, 30 days after petitioner could have appealed the ruling of the
first habeas corpus court, once again, even though he did not.
Petitioner filed an application for state habeas relief in the Wilson County Criminal Court
on July 3, 2012. (Doc. 71-1, p. 34 of 57) Petitioner’s application was dismissed on July 11, 2012
for want of jurisdiction. (Doc. 71-1, p. 34 of 57) As explained above at p. 15, this habe did not toll
the limitations period because it was not filed properly.15 See Williams, 670 F.3d at 733; Bennett,
199 F.3d at 122.
Petitioner filed his third state habe on July 26, 2012. Two hundred two (202) days of the
limitations period had elapsed from January 6, 2012 to the date petitioner filed his second habe,

14

As noted above at p. 17 n. 13, petitioner claimed that he did not appeal various state court proceedings
because “[t]he lower courts failed to notify [him] of its judgments, except for the motion to correct clerical error, habeas
denial in case no. 06-5053C & in Wilson County.” (Doc. 70, ¶ 11(e), p. 5 of 15)(emphasis added) It may be inferred
from petitioner’s response above that he was aware of the proceedings in case no. 06-5053C, but elected not to appeal
Judge Easter’s ruling.
Notwithstanding the foregoing, petitioner has included a letter to his supporting memorandum dated April
24, 2012 purportedly requesting a copy of Judge Easter’s order denying his request for state habeas relief in which letter
petitioner also writes, “I do wish to appeal but cannot until I receive a copy of the ‘Order of Dismissal.’” (Doc 71-1,
p. 23 of 57) The petitioner’s response in his petition conflicts with the letter in which he claimed that he wanted to appeal
because he did not have Judge Easter’s order of dismissal.
The Magistrate Judge assumes for the sake of discussion that petitioner wanted to appeal but did not because
he had not received a copy of the order of dismissal.” A plain reading of petitioner’s amended petition, supporting
memorandum, and traverse reveals that petitioner never actually argues in these proceedings that, but for the fact that
he did not have a copy of Judge Easter’s order of dismissal, he would have appealed, thereby tolling the limitations
period. Consequently, for reasons previously explained above at p. 17 n. 13, this argument is waived.
In addition to the foregoing, petitioner could have late-filed a notice of appeal in case no. 06-5053C pursuant
to Rule 4(a), Tenn. R. App. P. once he received a copy of Judge Easter’s order. See Aldridge v. Fortner, M2009-00477CCA-R3-HC, 2009 WL 3126260 * 5 (Nashville, Sep. 30, 2009). Rule 4(a) provides, in relevant part, that a notice of
appeal “is not jurisdictional and the filing of such document may be waived in the interest of justice. The statement of
facts in the memorandum in support of his amended petition shows that petitioner wanted to file a “delayed appeal.”
(Doc. 71, p. 7 of 56) The record also shows that he elected instead to file another state habeas application “[w]hen the
Court did not respond within a reasonable time . . . .” (Doc. 71, p. 5 of 56) In short, the record shows that petitioner
made a conscious decision not to file a delayed appeal in case no. 06-5053C.
15

Petitioner avers in his amended petition that he was aware of the Wilson County Criminal Court’s decision
in this matter. (Doc. 70, ¶ 11(e), p. 5 of 15)

18

bringing the total number of days when the limitations period was not tolled to 348 days: 202 days
+ 146 days = 348 days. The Tennessee Supreme Court denied petitioner’s application for
permission to appeal on November 13, 2013, and petitioner did not seek a writ of certiorari in the
United States Supreme Court.16 Thus, the limitations period began to run again on February 12,
2014, 90 days after petitioner could have sought a writ of certiorari in the United States Supreme
Court.
Given that 348 days of the limitations period had run prior to the AEDPA clock starting to
tick again on February 12, 2014, petitioner would have had to file his petition for federal habeas
relief not later than Monday, March 3, 2014 to avoid exceeding the limitations period.17 As
previously established, petitioner did not file his petition until March 7, 2014. In short, petitioner
filed his petition 5 days late. The Magistrate Judge notes that petitioner did not raise his first and
fourth ground for relief in this action until he filed his amended petition on June 28, 2016. Since
these two claims do not relate back to the original petition, they were filed 2 years and 3-plus months
after the period of limitations period ran. “An amended habeas petition does not relate back (and
thereby escape AEDPA”s one-year time limit) when it asserts a new ground for relief supported by
facts that differ in both time and type from those in the original pleading.” See Mayle v. Felix, 545
U.S. 644, 649 (2005); Hill v. Mitchell, 842 F.3d 910, 922 (6th Cir. 2016).
As previously noted above at pp. 12-13, petitioner filed several administrative actions
connected with his sentence. The informal inmate information request filed by petitioner while

16

Once again, case no. 12-CV-43 is not among those listed in the response in petitioner’s amended petition,
addressed above at p. 17 n. 13. However, petitioner writes in his traverse that, “[s]ince he “did not seek a writ of
certiorari from the U.S. Supreme Court, the statute of limitations began to run (again) 90–days after the Tennessee
Supreme Court Denied Review.” (Doc. 75, p. 4 of 24) In short, petitioner admits tacitly that he decided not to take his
appeal to the next level.
17

The three hundred sixty-fifth day of the limitations period fell on Friday, February 28, 2014. Under Rule
6(a)(1)(C), Fed. R. Civ. P., petitioner had until the following Monday to file his petition.

19

incarcerated in NECX would not have tolled the limitations period. Petitioner’s petition to TDOC
to issue a declaratory order on March 13, 2013 would not have tolled the limitations period because
it already was tolled by his third state habe. Petitioner’s April 24, 2012 motion in the Putnam
County Court Criminal Court was deemed improperly filed, so it would not have tolled the
limitations period. Finally, petitioner’s January 25, 2016 petition for declaratory judgment filed in
the Davidson County Circuit Court was filed after the limitations period had run. In short, none of
these administrative actions would have changed the fact that petitioner filed his petition for federal
habeas relief five days after the limitations period had run. The next question is whether petitioner
is entitled to equitable tolling.
B. Equitable Tolling
1. Petitioner’s Diligence in Pursuing His Rights
The record shows that petitioner was an aggressive pro se advocate for his rights in
numerous proceedings in state court, including two pro se actions at the appellate level. Petitioner
also demonstrated his commitment to advocating for his rights by the numerous civil actions that
he filed in this court during the relevant time frame. Vantrease v. John Does 1-14, et al., No. 2:0300063 (M.D. Tenn., Feb. 18, 2004, Haynes, J.)(filed June 18, 2003); Vantrease v. Putnam County
Mayor, et al., No. 2:03-00074 (M.D. Tenn., Feb. 18, 2004, Haynes J.)(filed July 23, 2003);
Vantrease v. Brandon, et al., No. 1:04-00004 (M.D. Tenn., Jan. 14, 2004, (Higgins, J.)(filed January
14, 2004); Vantrease v. Lunar et al., No. 3:06-00538 (M.D. Tenn., Sept. 17, 2007, Echols, J.)(filed
May 25, 2006); Vantrease v. Potter, No. 3:06-000630 (M.D. Tenn., June 1, 2007, Trauger, J.)(filed
June 23, 2006); Vantrease v. Horst, No. 2:06-00076 (M.D. Tenn., Sept. 26, 2006, Echols, J.)(Filed
September 26, 2006); State of Tennessee v. Vantrease, No. 3:07-00207 (M.D. Tenn., Feb. 21, 2007,
Echols, J.)(removal action brought by petitioner on February 21, 2007); Vantrease v. Gibson, et al.,

20

No. 2:07-00019 (M.D. Tenn., Apr. 26, 2007, Campbell, J.)(filed April 26, 2007); Vantrease v.
Department of Education, et al., No. 3:07-00446 (M.D. Tenn., Apr. 26, 2007, Campbell, J.)(filed
April 26, 2007); Vantrease v. Hester, et al., No. 3:07-00518 (M.D. Tenn., May 16, 2007, Trauger,
J.)(filed May 16, 2007). Petitioner filed each of the cases above during the pendency of the actions
in state court pertaining to his aggravated robbery conviction. The seven cases beginning with
Vantrease v. Lunar, et al. above all were filed between the time petitioner was returned to custody
on December 30, 2005 and when the limitations period ran on February 28, 2014.18
Any reasonable person, especially one with petitioner’s bent for litigation, would have or
should have sought to obtain his release from TDOC the moment the cell door went “clunk” on
December 30, 2005. Even if petitioner were unfamiliar with federal habeas filing requirements, the
law is well established that “ignorance of the law alone is not sufficient to warrant equitable tolling.”
Allen, 366 F.3d at 403 (citing Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)). Had petitioner
spent just a tiny fraction of the time seeing to his federal habeas rights that he spent engaging in
recreational litigation, he would have become aware of the federal habeas filing requirements in the
8-plus years between the time he was taken back into custody and when the limitations period ran
on March 3, 2014. The aforementioned actions shows that petitioner was not diligent in pursuing

18

The Magistrate Judge notes for the record that petitioner was indicted on two counts of forging the signature
of a United States District Judge less than two months after he was mistakenly discharged from TDOC. U.S.A. v.
Vantrease, 3:09cr00182 (M.D. Tenn, July 25, 2011)(Campbell, J.) Petitioner pled guilty to count two of the indictment,
he was sentenced to 12 months imprisonment to be served concurrently with his sentence in case no. 02-0666, and
ordered to pay a $100.00 fine. Vantrease, 3:09cr00182 (Doc. 48).
The Magistrate Judge also notes for the record that, at the June 16, 2015 evidentiary hearing – that turned
into a hearing on petitioner’s motion for new counsel (Doc. 42) – the majority of the testimony adduced pertained to
petitioner’s claim that AFPD Small would not file a version of the July 25, 2003 sentencing hearing transcript where
Judge Burns purportedly ruled that, “[a]s far as your aggravated robbery conviction, it is hereby, set - aside and over
turned [sic] for good cause” (Doc. 8-4, p. 16-18 of 22), one of the documents the validity of which the state courts
questioned. Petitioner testified that he received this version of the sentencing hearing from defense counsel , but then
stated: “But, of course, he’s going to lie – he’s going to testify that he didn’t get it, that he didn’t – that . . . it’s not
authentic.” (Doc. 42, pp. 46-47 of 64) It is apparent to the Magistrate Judge from this and other testimony at the hearing
that petitioner’s attempt to have AFPD Small introduce this version of the sentencing hearing transcript into evidence
was a bald-faced effort on his part to perpetrate fraud upon the court.

21

his rights.
Next, as previously noted above at p. 9 n. 7, petitioner admitted that he “learned about the
judgment of conviction around May 31, 2006.” Taking petitioner’s recollection of “around May 31,
2006” as accurate, 131 days passed from January 20, 2006 when judgment became final for federal
habeas purposes and May 31, 2006 when petitioner allegedly first learned of the judgment. Of those
131 days, 45 were tolled during the pendency of petitioner’s motion to reduce his sentence, leaving
279 days – 9-plus months – for petitioner to learn about and comply with federal habeas filing
requirements before the expiration of the limitations period on February 28, 2014. Petitioner’s
failure to file during the 279 days of the limitations period still remaining, especially given that the
limitations period was tolled for much of the intervening 7 years 9-plus months, reflects an utter lack
of diligence on petitioner’s part.
2. Extraordinary Circumstances
Because petitioner was not diligent in pursuing his federal habeas corpus rights, he cannot
satisfy both parts of the two-part test under Holland. Therefore, it is not necessary to address
whether extraordinary circumstances prevented petitioner from timely filing his habeas petition.
Nevertheless, the Magistrate Judge will do so for the sake of completeness.
Petitioner argues in his amended petition that “the state courts failed to notify [him] of the
entry of its judgments.” (Docs. 70, p 5 of 15; 71 pp. 9-11 of 56) These are the “extraordinary
circumstance” on which petitioner relies in arguing that he is entitled to equitable tolling.
As shown above at pp. 17-19, petitioner waived his right to pursue a direct appeal, he
decided not to appeal Judge Burns’ denial of his motion for a reduction of sentence, he decided not
to appeal Judge Easter’s decision in the first state habe, he decided not to appeal the Wilson County
Criminal Court’s denial of the second habe, and decided not to seek a writ of certiorari in the United

22

States Supreme Court in his third state habe. Petitioner’s decision not to appeal in these instances
does not constitute extraordinary circumstances.
D. Actual Innocence
Finally, petitioner asserts that “grounds [for relief] 1 thru 4 are claims of actual innocence.”
(Doc. 70, p. 14 of 15) Petitioner identifies the following grounds for relief in the context of his
“actual innocence” argument: 1) the vehicle stop in which he was apprehended following the crime
for which he was tried and convicted was not supported by probable cause; 2) the process used to
identify him was overly prejudicial; 3) he was denied the right to present a defense; 4) ineffective
assistance of trial counsel. (Docs. 70, pp. 5-10, 14 of 15; 71 pp. 13-35 of 56)
A plain reading of the arguments pertaining to these four claims shows that petitioner has
not provided new reliable evidence that was not presented at trial. On the contrary, petitioner
merely rehashes evidence that was addressed at length during the March 7, 2003 suppression hearing
(Doc. 1-2, pp. 30-86) on all but petitioner’s ineffective assistance claim. Consequently, petitioner
fails to satisfy the most fundamental “actual innocence” standard. Neither has petitioner provided
legal argument that establishes by clear and convincing evidence that, had any of these claims been
decided in his favor in the proceedings below, a reasonable jury to have found petitioner factually
innocent of the offense. In other words, for reasons previously explained at p. 17 n. 13, his claim
of actual innocence also is waived.
E. Conclusion
Petitioner’s petition for federal habeas relief should be denied as untimely for the reasons
explained above. Should petitioner file a notice of appeal, a COA should not issue because jurists
of reason would not debate whether the district court was correct in its ruling.
IV. EXHAUSTION AND OTHER
CONSIDERATIONS
23

Respondent also has moved to dismiss this action on the grounds that petitioner did not
exhaust his grounds for relief prior to raising them in this action. The AEDPA places notable
restrictions on a federal court’s ability to grant habeas relief to state prisoners. Federal habeas
courts may only consider claims that a habeas petitioner has previously raised before the state
courts. See 28 U.S.C. § 2254(b); Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002). The purpose of
the exhaustion requirement is to “give the state courts an opportunity to act on [a petitioner’s] claims
before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999).
Claims that have not been raised in state court are deemed unexhausted, and ordinarily are
dismissed without prejudice so that the habeas petitioner may pursue them in state court. Alley, 307
F.3d at 385. However, if the petitioner is barred from raising an unexhausted claim in state court
due to a state procedural rule, then that claim is procedurally defaulted for purposes of federal
habeas review. See Coleman v. Thompson, 501 U.S. 722 (1991). A claim also is procedurally
defaulted where that claim was presented to the state court, but the court, rather than reaching the
merits of the claim, relied on an independent and adequate state ground in deciding the issue, such
as a state procedural rule barring review of the claim. Coleman, 501 U.S. at 722.
“[F]or a claim to be considered exhausted, the petitioner must have ‘fairly presented’ to the
state courts the ‘substance of his federal habeas corpus claim.’” Alley, 307 F.3d at 386 (quoting
Anderson v. Harless, 459 U.S. 4, 6 (1982))(internal citations omitted); see also Wong v. Money, 142
F.3d 313, 322 (6th Cir. 1998)(“[T]he doctrine of exhaustion requires that a claim be presented to the
state courts under the same theory in which it is later presented in federal courts.”). More
particularly, to satisfy the federal habeas exhaustion requirement, the petitioner must fairly present
the substance of each constitutional claim to the state courts as a federal constitutional claim.

24

Anderson, 459 U.S. at 6; Picard v. Connor, 404 U.S. 270, 275 (1971).
If a claim is procedurally defaulted, then federal habeas review is prohibited unless the
petitioner demonstrates both “cause” and “prejudice” for his failure to raise the claim in state court
while state court remedies were available, or that a miscarriage of justice will result if the claim is
not reviewed. Alley, 307 F.3d at 386; Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000). To
establish “cause,” a petitioner must “show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986); Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). “[A] showing that the factual or legal basis
for a claim was not reasonably available to counsel, or that ‘some interference by officials’ made
compliance impracticable,” constitutes “cause” under this standard. Murray, 477 U.S. at 488
(citations omitted); see also Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002)(“Cause is shown
when the factual basis of the claim was ‘reasonably unknown’ to the defendant’s counsel.”). To
show “prejudice,” default of the claim must not merely have created a possibility of prejudice to the
defendant, it must have “worked to his actual and substantial disadvantage, infecting his entire trial
with errors of constitutional dimensions.” Jamison, 291 F.3d at 388 (citing United States v. Frady,
456 U.S. 152, 170-171 (1982)). Finally, to demonstrate a “fundamental miscarriage of justice,” a
petitioner must show that the alleged constitutional violation probably resulted in the conviction of
one who actually is innocent. Murray, 477 U.S. at 496.

25

1. Vehicle Stop Not Supported by
Probable Cause
(Doc. 71, pp. 13-21 of 56)
Petitioner alleges that the vehicle stop that lead to his arrest and subsequent conviction was
unconstitutional. (Doc. 71, pp. 13-21 of 56) The record shows that petitioner did not raise this
claim in any state court prior to raising it in the instant action. Not only is this claim unexhausted,
it now is procedurally defaulted as well.
Petitioner argues that he was denied a direct appeal, and that denial of his right to appeal was
the cause for his having not raised this claim in state court. However, as previously established
above at pp. 8-9, petitioner was not denied his right to appeal – he waived it on May 4, 2004.
Moreover, as previously established above at p. 9, petitioner did not seek to rescind that waiver
between May 4, 2004 and June 21, 2004 when he was mistakenly released from custody, nor did he
seek to do so after he was returned to custody on December 30, 2005. Defense counsel also argued
the vehicle stop at length during the March 7, 2003 suppression hearing. (Doc. 1-2, pp. 30-86 of
138) Given these facts, petitioner cannot show that his failure to appeal this claim was due to factors
external to the defense, or interference by state officials. Because petitioner cannot establish the first
half of the two-part cause-and-prejudice test, it is unnecessary to address the prejudice half of test.
Petitioner asserts in his traverse that failure to remand his case for retrial on this ground
would constitute a fundamental miscarriage of justice, because “the evidence is so convincing, ‘it
is more likely than not that no reasonable juror would have convicted him.’” (Doc. 75, p. 17 of 24)
Apart from this naked assertion, petitioner makes no effort to explain why the circumstances of the
vehicle stop would establish that he was actually innocent of the offense. For reasons previously

26

explained above at p. 17 n. 13, this argument is waived.19 See Stewart, 628 F.3d 256; Wells, 891
F.2d at 594. Because petitioner has failed to demonstrate actual innocence by clear and convincing
evidence, he fails to show that a fundamental miscarriage of justice would occur were the court not
to review this claim.
This claim should be denied for the reasons explained above. Should petitioner file a notice
of appeal as to this claim, a COA should not issue because jurists of reason would not debate
whether the district court was correct in its ruling.
2. Overly Prejudicial Identification Procedure
(Doc. 71, pp. 21-28 of 56)
Petitioner asserts that the identification process that led to his arrest and conviction was
unconstitutional. (Doc. 71, pp. 21-28 of 56) Petitioner raised this issue in his third habe. (Docs.
8-6, pp. 31-37 of 145; 8-10, pp. 24-31 of 69)
As an initial matter, the Magistrate Judge notes that “‘the grounds upon which [state] habeas
corpus relief will be granted [in Tennessee] are narrow.’” Hickman v. State, 153 S.W.3d 16, 20
(Tenn. 2004)(Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)). State “[h]abeas corpus is a vehicle
for attacking a judgment that is void on its face.” Hickman, 153 S.W.3d at 20 (citing State v.
Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000)). “‘[A] void judgment is one in which the judgment is
facially invalid because the court lacked jurisdiction or authority to render the judgment or because
the defendant’s sentence has expired.’” Hickman, 153 S.W.3d at 20 (quoting Ritchie, 20 S.W.3d at
630). In contrast, a voidable judgment “‘is facially valid and requires the introduction of proof
beyond the face of the record or judgment to establish its invalidity.’” Hickman, 153 S.W.3d at 20

19

In addition to petitioner’s fundamental-miscarriage-of-justice argument being waived, it is doubtful that a
“reasonable juror” would have concluded that the circumstances of the stop – which occurred later in time and at a
distance from where the crime was committed – would have trumped the victim’s testimony that petitioner was the
person who robbed her.

27

(quoting Ritchie, 20 S.W.3d at 633)). “‘[I]n all cases where a petitioner must introduce proof
beyond the record to establish the invalidity of his conviction, that conviction by definition is merely
voidable, and a Tennessee court cannot issue the writ of habeas corpus under such circumstances.’”
Hickman, 153 S.W.3d at 24 (quoting Ritchie, 20, S.W.3d at 633).
As previously explained at above at pp. 11-12, the third state habeas court dismissed
petitioner’s application for want of jurisdiction or authority to grant petitioner’s demand for relief.
Because the state habeas court lacked jurisdiction or authority to grant the relief demanded, the
claim was not “fairly presented” for federal habeas exhaustion purposes. For these reasons, this
claim was not exhausted in a state court of competent jurisdiction, and now it is procedurally
defaulted.20
As for cause and prejudice, as previously established at pp. 8-9, petitioner waived his right
to pursue a direct appeal, and he never sought to rescind that waiver. Defense counsel also argued
the identification procedure at issue during the March 7, 2003 suppression hearing. (Doc. 1-2, pp.
30-86 of 138) Consequently, petitioner cannot show that his failure to appeal this claim in a court
of competent jurisdiction was due to factors external to the defense, or interference by state officials.
Because petitioner cannot establish the first half of the two-part cause-and-prejudice test, it is
unnecessary to address the prejudice half of test.
In addition to not satisfying the two-part cause-and-prejudice test, petitioner also has not
shown that a fundamental miscarriage of justice will occur if the district court does not review this

20

In addition to not having “fairly presented” this issue in a Tennessee court of competent jurisdictions, the
record shows that petitioner argued the merits of this claim in his third habe solely on state grounds. (Doc. 8-10, pp. 2431 of 69) Although petitioner avers – generally – in this proceeding that “the United States Supreme Court and the
Tennessee Supreme Court have condemned the use of Show-ups” (Doc. 71, p. 25 of 26), petitioner’s actual argument
before this court is couched in solely terms of Tennessee law. Thus, even if the district court were to review this claim,
it would be subject to dismissal on the merits because it fails to allege and show that petitioner is in custody in violation
of the Constitution and/or laws of the United States.

28

claim. Here too petitioner makes no effort to explain why the circumstances of the identification
procedure would establish that he was actually innocent of the offense. Consequently, for reasons
previously explained above at p. 17 n. 13, this argument is waived.21 Because petitioner has failed
to demonstrate actual innocence by clear and convincing evidence, he fails to show that a
fundamental miscarriage of justice would occur were the court not to review this claim.
This claim should be denied for the reasons explained above. Should petitioner file a notice
of appeal as to this claim, a COA should not issue because jurists of reason would not debate
whether the district court was correct its ruling.
3. Petitioner’s Right to Present a Defense Denied
(Doc. 71, pp. 29-31 of 56)
Petitioner argues that the trial court denied his constitutional right to defend against the
charge that he was in possession of a weapon when he was stopped after the robbery. Petitioner
asserts that Mike Moser, a reporter, would have testified that no weapon was found in petitioner’s
vehicle when he was stopped.
Petitioner raised this ground for relief in his third state habe which, as noted above pp. 11-12,
failed to state a cognizable habeas claim under Tennessee law. Because petitioner did not raise this
claim in a court of competent jurisdiction, it is both unexhausted and now procedurally defaulted.
As for cause and prejudice, as previously noted above at pp. 8-9, petitioner waived his right
to pursue a direct appeal, and he never sought to rescind that waiver. The record also shows that
defense counsel raised the question of Mr. Moser’s testimony in a jury-out hearing at trial. (Doc.
8-7, pp. 46-49 of 116) Mr. Moser testified that the newspaper article he wrote was based “entirely
[on] what [he] w[as] told from others . . . .” (Doc. 8-7, p. 47-49 of 116) Judge Burns ruled that Mr.

21

Here too it is doubtful that a “reasonable juror” would have concluded that the circumstances of the
identification procedure would have trumped the victim’s testimony that petitioner was the person who robbed her.

29

Moser’s testimony was hearsay and, therefore, not admissible.22 (Doc. 8-7, p. 49 of 116) Once
again, petitioner cannot show that his failure to appeal this claim was due to factors external to the
defense, or interference by state officials. Because petitioner cannot establish the first half of the
two-part cause-and-prejudice test, it is unnecessary to address the prejudice half of test.
In addition to not satisfying the two-part cause-and-prejudice test, petitioner also has not
shown that a fundamental miscarriage of justice would occur if the district court does not review this
claim. Specifically, petitioner once again makes no effort to explain why the circumstances of the
identification procedure would establish that he was actually innocent of the offense. Consequently,
as explained above at p. 17 n. 13, this argument is waived.23
This claim should be denied for the reasons explained above. Should petitioner file a notice
of appeal as to this claim, a COA should not issue because jurists of reason would not debate
whether the district court was correct its ruling.
4. Ineffective Assistance of Trial Counsel
(Doc. 71, pp. 32-35 of 56)
Petitioner asserts that he was denied his constitutional right to effective assistance of counsel
at trial. Petitioner alleges, inter alia, that defense counsel failed to call witnesses and to obtain
investigative assistance.

22

Hearsay is defined in Tennessee as “a statement, other than one made by the declarant while testifying at
th trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 801(c), Tenn. R. Evid. Hearsay is
inadmissible except as provided by the hearsay rules. Rule 802, Tenn. R. Evid. Mr. Moser’s proposed testimony, based
on information provided to him by law enforcement officials, is not one of the exceptions to the hearsay rule. Rule 803,
Tenn. R. Evid. Therefore, Judge Burns’ decision to suppress Mr. Moser’s testimony as hearsay was correct. Even if
the correctness of Judge Burn’s hearsay ruling were at issue, federal habeas courts “‘must defer to a state court’s
interpretation of its own rules of evidence and procedure’ when assessing a habeas petition.” Henness v. Bagley, 644
F.3d 308, 326 (6th Cir. 2011)(citing Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)). Therefore, even if this claim
were exhausted, the court would be bound by Judge Burn’s ruling.
23

Here too it is doubtful that a “reasonable juror” would have concluded that the alleged circumstances of the
identification procedure would have trumped the victim’s testimony that petitioner was the person who robbed her.

30

As noted above at p. 8, petitioner sought to “fire” defense counsel at the sentencing hearing,
and Judge Burns permitted trial counsel to withdraw from his representation at that hearing.
Therefore, although not the norm, petitioner could have raised an ineffective assistance claim on
direct appeal. However, as previously established above at pp. 8-9, petitioner waived his right to
appeal, and he never sought to rescind that waiver.
Having waived his right to appeal, petitioner still had the more conventional approach
available to him of raising his ineffective assistance claim pursuant to the Tennessee post-conviction
statute, under which petitioner had one year from the date judgement became final to file, i.e., until
December 20, 2006.24 Petitioner did not raise his ineffective assistance claim on post-conviction,
and he offers no reason in these proceedings why he did not. Indeed there is no mention whatsoever
of petitioner’s post-conviction rights in his amended petition, memorandum, or traverse vis-a-vis his
ineffective assistance claim.
Petitioner did raise this claim in his first state habe. As previously noted above at p. 10,
Judge Beal ruled that petitioner had stated a colorable post-conviction claim of ineffective assistance
of counsel. Judge Beal did not rule that petitioner had received ineffective assistance of counsel –

24

The relevant portion of the Tennessee Post-Conviction Statute, Tenn. Code Ann. § 40-30-102, provides the
following with respect to the time limits for filing a petition for post-conviction relief:
Except as provided in subsections (b) and (c), a person in custody under a sentence
of a court of this state must petition for post-conviction relief under this part within
one (1) year of the date of the final action of the highest state appellate court to
which an appeal is taken or, if no appeal is taken, within one (1) year of the date on
which the judgment became final, or consideration of the petition shall be barred.
The statute of limitations shall not be tolled for any reason, including any tolling or
saving provision otherwise available at law or equity. Time is of the essence of the
right to file a petition for post-conviction relief or motion to reopen established by
this chapter, and the one-year limitations period is an element of the right to file the
action and is a condition upon its exercise. Except as specifically provided in
subsections (b) and (c), the right to file a petition for post-conviction relief or a
motion to reopen under this chapter shall be extinguished upon the expiration of the
limitations period.

31

only that petitioner had stated a “colorable claim.” For reasons previously explained above at pp.
10-11, Judge Beal did not have jurisdiction or the authority to make such a determination because
ineffective assistance does not constitute grounds for state habeas relief. Because petitioner did not
pursue this claim either on direct appeal or post-conviction, and because the first state habe court
lacked jurisdiction or authority to grant petitioner relief on his ineffective assistance claim, this
claim is unexhausted and now procedurally defaulted.
As for cause and prejudice to excuse the default, the petitioner cannot show “cause” for his
failure to exhaust his ineffective assistance claim. As discussed above, petitioner demanded to “fire”
defense counsel at the sentencing hearing, clear evidence that petitioner was on notice that he had
an ineffective assistance claim. Moreover, in a letter dated May 31, 2006 from attorney Nathan
Whittle to petitioner, Mr. Whittle writes about his “investigation into the possibility of filing for post
conviction relief on [petitioner’s] behalf.” (Docs. 1-1, p. 11 of 55; 71-1 p. 9 of 57) This letter shows
that petitioner was aware of his post-conviction rights not later than 6-plus months prior to the postconviction statute of limitations running. In short, petitioner sat on his rights. Because petitioner
cannot establish the first half of the two-part cause-and-prejudice test, it is unnecessary to address
the prejudice half of test.
Petitioner argues that a miscarriage of justice will occur if the district court does not consider
this claim because, had defense counsel investigated his background in music, he would have
learned that he had a history of recording albums, that his records sold well in different stores
throughout the region, that he was respected for his work, that there were “recording deals (by large
corporation and labels) . . . on the table” at the time he was arrested, that he “was friends with or
related to . . . numerous recording artists . . . as well as actors and actresses” who would have
provided whatever monetary assistance he needed.” (Doc. 71, pp. 34-35 of 56) Petitioner’s lack-of-

32

motive argument is not supported by his testimony at the sentencing hearing that he owned no
property, had no assets, and that his family had to help him employ defense counsel. (Doc. 8-7, p.
109 of 116)
In addition to the foregoing, petitioner cannot show that a miscarriage of justice will occur
if the district court does not consider this claim. More particularly, there is nothing inherent in an
ineffective assistance claim that goes to the question of actual innocence, i.e., defense counsel’s
alleged ineffectiveness would not have been before the jury and, therefore, would not have been part
the jury’s guilt-innocence deliberations. Because petitioner cannot demonstrate actual innocence
by clear and convincing evidence, he fails to show that a fundamental miscarriage of justice would
occur were the court not to review this claim.
This claim should be denied for the reasons explained above. Should petitioner file a notice
of appeal as to this claim, a COA should not issue because jurists of reason would not debate
whether the district court was correct its ruling.
5. Sentence Enhancement Based Facts Not
Charged to and Found by a Jury
(Doc 71, pp. 36-44 of 56)
Petitioner asserts that his sentence was enhanced in violation of Apprendi v. New Jersey, 530
U.S. 466 (2000) and its progeny. Petitioner argues that his sentence violated Apprendi because
Judge Burns enhanced his sentence based on the following judicially determined factors: more than
one victim, and a 1997 theft charge.
Petitioner raised this claim in his third state habe which, for reasons already explained above
at pp. 11-12, lacked jurisdiction or authority to grant the relief requested. Because petitioner failed
to raise this claim in a court of competent jurisdiction, this claim is both unexhausted and now
procedurally defaulted for reasons previously explained.

33

As for cause and prejudice, as previously noted above at pp. 8-9, petitioner waived his right
to pursue a direct appeal, and he never rescinded that waiver. Consequently, petitioner cannot show
that his failure to raise this claim on direct appeal was due to factors external to the defense, or
interference by state officials. Because petitioner cannot establish the first half of the two-part
cause-and-prejudice test, it is unnecessary to address the prejudice half of test. Moreover, petitioner
cannot show that a fundamental miscarriage of justice will result if the district court does not review
this claim, because what transpired during the sentencing hearing was not before the jury and,
therefore, not part the jury’s guilt-innocence calculus.
This claim should be denied for the reasons stated above. Should petitioner file a notice of
appeal as to this claim, a COA should not issue because jurists of reason would not debate whether
the district court was correct in its ruling.
6. Void Judgment and Order to Issue Capias
(Doc. 71, pp. 44-50 of 50)
Petitioner asserts that Judge Burns entered judgment and the order of capias in violation of
his constitutional rights. This claim is the only claim that petitioner exhausted in the state courts,
i.e., it was the only claim raised by petitioner that was cognizable in a state habeas proceeding.
Jurisdiction and the authority of state courts are the exclusive domain of the state. Judge
Easter held during the third habe that it was within Judge Burn’s jurisdiction and authority to enter
judgment against petitioner on December 16, 2005, and Judge Easter’s ruling was affirmed by the
CCA on appeal. Notwithstanding petitioner’s arguments to the contrary, “federal habeas corpus
relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). As previously
noted above at p. 30 n. 22, federal habeas courts must defer to a state court’s interpretation of its
own rules of evidence and procedure when assessing a habeas petition. Because the state courts
determined that Judge Burns retained jurisdiction in petitioner’s case, this court is bound by that
34

determination as well as the determination that Judge Burns retained the authority to issue capias.
This claim should be denied for the reasons stated above. Should petitioner file a notice of
appeal on this claim, a COA should not issue because jurists of reason would not debate whether the
district court was correct in its ruling.
7. Jail Credit Denied in Violation of Due Process
(Doc. 71, pp. 51-54 of 56)
Petitioner alleges that he has been denied jail credit in violation of his constitutional rights.
Petitioner argued this ground in his third habe solely in terms of Tennessee case law and statutes.
He made no reference whatsoever to the United States Constitution, federal statutes, or federal case
law. In the instant action, however, petitioner tries to cloak his claim in a federal context with vague
references to due process and Preiser v. Rodriguez, 411 U.S. 475 (1973).25 (Doc. 71, p. 51 of 56)
To the extent that petitioner raised this claim in the state habeas corpus court solely on state
law grounds, but now attempts to couch it in federal terms by making vague reference to due process
and Preiser the issue in the state habe and that in the instant action is not the same. Consequently,
the claim has not been exhausted for reasons explained above at pp. 24-25 and, as such, it is now
procedurally defaulted.
Petitioner also makes no effort to show cause and prejudice. Consequently, as explained
above at p. 17 n. 13, any argument to that end is waived. Neither is this ground for relief amenable
to a claim of actual innocence because the matter at issue would not have been presented to the jury.
Therefore, the substance of the claim would not have been taken into consideration in determining
guilt or innocence. Finally, to the extent that petitioner argues the actual merits of his claim in terms

25

The holding in Preiser is very limited: it holds that federal habeas relief is a prisoner’s sole remedy when
challenging the fact or duration of confinement, and that the federal habeas corpus exhaustion requirement applies to
such claims. In other words, Preiser establishes that petitioner’s petition for habeas relief on the grounds asserted is
proper – nothing more.

35

of state law in both his second habe and the instant proceedings, petitioner fails to allege and show
that he is imprisoned in violation of the constitution and/or laws of the United States.
This ground for relief should be denied for the reasons stated above. Should petitioner file
a notice of appeal, a COA should not issue because jurists of reason would not debate whether the
district court was correct in its ruling.
8. Sentence Miscalculated in Violation of Due Process
(Doc. 71, pp. 55-56 of 56)
Petitioner asserts that his sentence has been miscalculated in violation of his constitutional
rights. Petitioner also argues that “the trial court’s failure to address this matter for monetary
reasons denied him . . . equal protection of the laws.” (Doc. 71, p. 55 of 56) Plaintiff’s reference to
the state court’s alleged failure to address his sentencing calculation claim for “monetary reasons”
suggests that petitioner is referring to his January 25, 2016 petition for declaratory judgment in the
Davidson County Circuit Court.
Petitioner does not assert, nor can it be determined from the record, whether he attempted
to appeal the Circuit Court’s apparent refusal to file the petition for want of having failed to pay past
fees and charges due. Unless and until petitioner appeals the Circuit Court’s apparent refusal to file
the petition for “monetary reasons,” petitioner has not exhausted the claim that his sentence has been
miscalculated.
Notwithstanding the foregoing, 28 U.S.C. §2254(b)(1)(B) provides an exception to the
exhaustion requirement when “circumstances exist that render such process ineffective to protect
the rights of the applicant.” However, petitioner bears the burden to demonstrate that compliance
with the exhaustion requirement or that the state procedure would be futile. See Rust, 17 F.3d at
160; see also Sullivan v. Perry, 2017 WL 25496 * 1 (M.D. Tenn. 2016)(Sharp, CJ); Bostic v.
Thomas, 2016 WL 4177103 (M.D. Tenn. 2016)(Campbell, J); Taylor v. Tennessee, 2015 WL
36

4042203 * 1 (M.D. Tenn. 2015)(Nixon, J); Short v. Donahue, 2015 WL 1413383 * 1 (M.D. Tenn.
2015)(Sharp, CJ); Logan v. Tennessee, 2014 WL 2197026 * 1 (M.D. Tenn. 2014)(Trauger, J);
Blackman v. Jobe, 2010 WL 5441968 * 2 (M.D. Tenn. 2010)(Trauger, J); Bass v. Easterling, 2010
WL 3075295 *2 (M.D. Tenn. 2010)(Campbell, J). To satisfy that burden, petitioner must allege and
show that he sought to appeal the Circuit Court’s apparent refusal to file his petition, and that the
appellate court declined to consider his appeal for the same reason that the lower court declined to
file it, or that the appellate court accepted the appeal but affirmed the lower court’s decision.
Because petitioner has not satisfied his burden to establish futility, this claim remains subject to the
AEDPA’s exhaustion requirement.
This ground for relief should be denied for the reasons stated above.26 Should petitioner file
a notice of appeal, a COA should not issue because jurists of reason would not debate whether the
district court was correct in its ruling.
IV. RECOMMENDATIONS
The Magistrate Judge RECOMMENDS for the reasons explained above that:
1)

the requirement in the order of referral (Doc. 11) to conduct an
evidentiary hearing be RESCINDED because an evidentiary hearing
is unnecessary;

2)

respondent’s motion to dismiss (Doc. 6) be GRANTED;

3)

petitioner’s amended petition under 28 U.S.C. § 2254 (Doc. 70) be
DENIED;

26

The Magistrate Judge is aware of the Supreme Court’s stay-in-abeyance procedure announced in Rhines v.
Weber, 544 U.S. 269, 275-79 (2005)(the district court may stay and hold a timely-filed habeas corpus petition to permit
the petitioner to return to state court to exhaust unexhausted claims). Holding the present action in abeyance to permit
petitioner to exhaust this claim in state court is not warranted for two reasons. First, for reasons previously explained,
petitioner did not timely file this action. Second, even if the petition were timely filed, petitioner would not be prejudiced
by summary denial and dismissal of this claim. Section 2254 provides state prisoners the means to challenge the
constitutionality or legality of their sentence. On the other hand, 28 U.S.C. § 2241 is used to challenge the manner in
which prisoners are serving their sentence.

37

4)

this action be DISMISSED WITH PREJUDICE;

5)

acceptance and adoption of this R&R constitute the FINAL
JUDGMENT in this action;

6)

any appeal NOT BE CERTIFIED as taken in good faith pursuant to
28 U.S.C. § 1915(a)(3);

7

should the petitioner file a timely notice of appeal, that such notice
be docketed as both a notice of appeal and a COA, 28 U.S.C. §
2253(c); Rule 22(b), Fed. R. App. P.; see Slack, 529 U.S. at 483,
which SHOULD NOT ISSUE because jurists of reason would not
debate whether the district court was correct in its procedural ruling,
see Castro, 310 F.3d at 901-02 (citing Lyons, 105 F.3d at 1072);

8)

any pending motions be TERMINATED AS MOOT.

The parties have fourteen (14) days of being served with a copy of this R&R to serve and
file written objections to the findings and recommendation proposed herein. A party shall respond
to the objecting party’s objections to this R&R within fourteen (14) days after being served with a
copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this R&R
may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142, reh’g denied, 474 U.S.
111 (1986); see Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011).
ENTERED this the 31st day of January, 2017.

/s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge

38