Hollis v. Donahue
Filing
12
MEMORANDUM OPINION OF THE COURT signed by District Judge Todd J. Campbell on 3/3/2015. (xc: Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ds)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HORACE E. HOLLIS
Petitioner,
]
]
]
]
]
]
]
v.
MICHAEL DONAHUE, WARDEN
Respondent.
No. 3:14-2369
Judge Campbell
M E M O R A N D U M
The petitioner, proceeding
pro se, is an inmate at the
Hardeman County Correctional Facility in Whiteville, Tennessee. He
brings this action pursuant to 28 U.S.C. § 2254 against Michael
Donahue, Warden of the facility, seeking a writ of habeas corpus.
In February, 2011, a Dickson County jury found the petitioner
guilty of child rape (2 counts) and aggravated sexual battery (2
counts).
By
operation
of
law,
the
aggravated
sexual
battery
convictions were merged with the child rape convictions. For his
crimes, the petitioner received two consecutive sentences of twenty
(20) years in prison.
On appeal, the Tennessee Court of Criminal Appeals affirmed
the convictions. No further direct review of the convictions was
sought by the petitioner.
In December, 2012, however, the petitioner filed a petition
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for post-conviction relief in the Circuit Court of Dickson County.
Following an evidentiary hearing, the petitioner was denied postconviction relief. An appeal of this ruling is currently pending in
the Tennessee Court of Criminal Appeals.
On
December
18,
2014,
the
petitioner
filed
the
instant
petition (Docket Entry No.1) for writ of habeas corpus. In the
petition, he sets forth nine primary claims for relief. More
specifically, the petitioner alleges that :
1)
2)
appellate counsel was ineffective;
4)
denial of a speedy trial;
5)
convictions obtained in violation
of the prohibition against double
jeopardy;
6)
hearsay testimony was allowed in
violation of the Confrontation Clause;
7)
the evidence was insufficient to support
the convictions;
8)
petitioner is actually innocent of the
charges; and
9)
its
trial counsel was ineffective;
3)
Upon
pre-trial counsel were ineffective;
post-conviction counsel was ineffective.
receipt,
the
Court
examined
the
petition
and
determined that it was not facially frivolous. Accordingly, an
order (Docket Entry No.3) was entered directing the respondent to
file an answer, plead or otherwise respond to the petition. Rule 4,
2
Rules – § 2254 Cases.
Presently
pending
before
the
Court
are
the
petition,
respondent’s Motion to Dismiss (Docket Entry No.9) and petitioner’s
Reply (Docket Entry No.11) to the Motion to Dismiss.
The
respondent
asserts
that
this
action
is
subject
to
dismissal because the petitioner has not yet fully exhausted his
state court remedies for each and every claim in his petition.
A federal district court will not entertain a petition for
writ of habeas corpus unless the petitioner has first exhausted all
available state court remedies for each claim in his petition.
Cohen v. Tate, 779 F.2d 1181, 1184 (6th Cir.1985).While exhaustion
is not a jurisdictional requirement, it is a strictly enforced
doctrine which promotes comity between the states and federal
government by giving the state an initial opportunity to pass upon
and correct alleged violations of its prisoners’ federal rights.
Granberry v. Greer, 107 S.Ct. 1671, 1674-1675 (1987). Thus, as a
condition precedent to seeking federal habeas corpus relief, the
petitioner is required to fairly present his claims to the state
courts. Rose v. Lundy, 102 S.Ct. 1198, 1205 (1982). A claim has
been fairly presented when the petitioner has raised both the
factual and legal basis for his claim in the state courts. Fulcher
v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). Once his federal
claims have been raised in the highest state court available, the
exhaustion requirement is satisfied, even if that court refused to
3
consider the claims. Wilson v. Mitchell, 498 F.3d 491, 498-99 (6th
Cir. 2007).1
According to the respondent, all but one of the petitioner’s
claims are currently on appeal to the Tennessee Court of Criminal
Appeals. In his Reply, the petitioner does not dispute this
assertion. Therefore, the Court finds that the petitioner has
failed to fully exhaust all of his claims prior to filing the
instant action.
In the Reply, the petitioner suggests that exhaustion would be
futile because “the State of Tennessee has on numerous instances
shown a disregard for timely proceeding with prosecutions.” For
that reason, coupled with his claim of actual innocence, the
petitioner believes that he should be excused from the requirement
of exhaustion.
An exception to the exhaustion requirement does exist if there
is no opportunity to obtain redress in the state courts or if the
corrective process is so clearly deficient as to render futile any
further effort to obtain relief. Duckworth v. Serrano, 454 U.S. 1,3
(1981). Here, all but one of the petitioner’s claims are currently
pending appeal in the state courts. There has been no showing that
the
corrective
process
available
1
in
the
state
courts
is
so
In Tennessee, a petitioner need only take his claims to
the Tennessee Court of Criminal Appeals in order to fully exhaust
his available state court remedies. Rule 39, Tenn. Sup. Ct.
Rules; Adams v. Holland, 324 F.3d 838 (6th Cir. 2003).
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deficient as to render futile any further effort to obtain relief
there.
When a habeas corpus petitioner has failed to exhaust all
state court remedies for each claim in his petition, a district
court is obliged to dismiss the petition. Rose v. Lundy, supra, at
455 U.S. 422. Accordingly, an appropriate order will be entered
dismissing the petition without prejudice to petitioner's right to
pursue any state court remedies which might be available to him.
Rule 4, Rules --- § 2254 Cases.
____________________________
Todd Campbell
United States District Judge
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