Jones v. Lindamood

Filing 324

MEMORANDUM OPINION AND ORDER OF THE COURT: Petitioner's Motion to Quash the Indictment 288 is DENIED. Petitioner's Motion to Take Judicial Notice of Adjudicative Facts 289 is DENIED. The Motion to Take Judicial Notice Concerning a Di screpancy on the Face of Petitioner's Indictment 294 is DENIED. Motion to Take Judicial Notice of the Initial Phone Call to the Police Made by Petitioner's Wife 315 is DENIED. Petitioner's Motion to Consider These Procedural Def enses Concerning Trial Counsel Jack Byrd Pursuant to 28 U.S.C. § 2254(b)(1)(B) 290 and Motion to Consider These Exhaustion Defenses 296 are DENIED. Petitioner's Motion for Discovery 291 is DENIED. Petitioner's "Motion to T ake Judicial Notice of the Attached Exhibits and that the Petitioner's Motion for Discovery 291 is Applicable to this Case 297 " also is DENIED. Motion to Rename Docket re: 315 Motion 321 is DENIED AS MOOT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/25/2022. (xc: Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CEDRIC JONES,
Petitioner,
v.
GRADY PERRY, Warden,
Respondent.

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No. 3:16-cv-02631

MEMORANDUM OPINION AND ORDER
Pending before the Court are the following pro se Motions filed and titled by Petitioner:
Motion to Quash the Indictment and Void the Petitioner’s Conviction (Doc. No. 288); Motion to
Take Judicial Notice of Adjudicative Facts (Doc. No. 289); Motion to Consider These Procedural
Defenses Concerning Trial Counsel Jack Byrd Pursuant to 28 U.S.C. § 2254(b)(1)(B) (Doc. No.
290); Motion for Discovery for complaint Number 2010-0220858 and or Case No. GS481605
(Doc. No. 291); Motion to Take Judicial Notice Concerning a Discrepancy on the Face of
Petitioner’s Indictment (Doc. No. 294); Motion to Consider These Exhaustion Defenses (Doc. No.
296); Motion to Take Judicial Notice of the Attached Exhibits and that the Petitioner’s Motion for
Discovery (Doc. 291) is Applicable to this Case (Doc. No. 297); Motion to Take Judicial Notice
of the Initial Phone Call to the Police Made by Petitioner’s Wife (Doc. No. 315); and Motion to
Rename Docket re: 315 Motion (Doc. No. 321). The Court also recently received Petitioner’s
Notice of Filing (Doc. No. 323) in which he updates his address due to a facility transfer.
I.

Motion to Quash the Indictment and Void the Petitioner’s Conviction (Doc. No. 288)
Petitioner moves to quash the indictment and void his conviction in Davidson County

Criminal Court Case No. 2010-B-1532. (Doc. No. 288).
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Petitioner’s request to quash his indictment fails for at least two reasons. First, Petitioner
cannot move now to quash a state court indictment that already has resulted in Petitioner’s
conviction. After his conviction, the appropriate time for Petitioner to raise the validity of his
indictment was on direct appeal and in other available state proceedings, see Carman v. Pinkney,
No. 1:19 CV 2101, 2020 WL 224572, at *4 (N.D. Ohio Jan. 15, 2020), and Petitioner did so. In
this action, Petitioner could have asserted a claim of ineffective of assistance of counsel based on
trial counsel’s failure to quash the indictment, but it does not appear that Petitioner asserts such a
claim.
Second, even if Petitioner had not already been convicted in state court when he filed his
motion to quash the indictment in federal court, a defect in the indictment typically does not rise
to the level of extraordinary circumstances required to trigger an exception to Younger abstention.
Id. (citing Martin v. Sheldon, No. 1:17 CV 120, 2017 WL 1969464, at *3 (N.D. Ohio May 10,
2017) (denying § 2241 petition and declining to interfere with pending state criminal proceeding
where petitioner challenged the validity of the indictment, among other claims); Jenkins v.
Kentucky, No. CIV.A. 14-31-HRW, 2014 WL 2758762, at *2 (E.D. Ky. June 3, 2014) (denying §
2241 petition and declining to interfere in pending state criminal proceeding where petitioner
argued that the state charges are void because the indictment was returned without a grand jury
being in session); Simpson v. Jones, No. 11-CV-422-JBC-CJS, 2012 WL 3912755, at *3 (E.D.
Ky. July 16, 2012) (recommending dismissal of § 2241 petition where petitioner argued that
pending state criminal proceeding is illegal and petitioner seeks to quash the indictment), report
and recommendation adopted, No. CIV.A. 11-422-JBC, 2012 WL 3912738 (E.D. Ky. Sept. 7,
2012)). Accordingly, Petitioner’s Motion to Quash the Indictment (Doc. No. 288) is DENIED.

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To the extent Petitioner’s Motion seeks to void his conviction, the Motion mirrors Claim
13 raised by Petitioner in the instant federal habeas petition. (See Doc. No. 161 at PageID# 2210).
Respondent contends that this claim is procedurally defaulted and barred from review. (See Doc.
No. 204 at 34-35). The resolution of this issue requires a full merits review of Petitioner’s case,
which the Court will undertake in due time.
II.

Motion to Take Judicial Notice of Adjudicative Facts (Doc. No. 289); Motion to Take
Judicial Notice Concerning a Discrepancy on the Face of Petitioner’s Indictment
(Doc. No. 294); Motion to Take Judicial Notice of the Initial Phone Call to the Police
Made by Petitioner’s Wife (Doc. No. 315)
Federal Rule of Evidence 201 governs judicial notice of adjudicative facts. The Rule, in

relevant part, provides that “[t]he Court may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(1)-(2). The Court “must take judicial notice if a party requests
it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2) .
“Judicial notice ‘is a limited tool,’ and for it to be available, ‘a high degree of indisputability
is the essential prerequisite.’” Frees v. Duby, 2010 WL 4923535, at *2 (W.D. Mich. Nov. 29,
2010) (quoting Ventana Med. Sys., Inc. v. St. Paul Fire & Marine Ins. Co., No. cv 09-102, 2010
WL 1752509, at *23 (D. Ariz. Jan. 13, 2010)). “A judicially noticed fact is conclusive in a civil
case.” United States v. Husein, 478 F.3d 318, 337 (6th Cir. 2007). Where “there is considerable
dispute over the significance of [a document’s] contents,” judicial notice is not appropriate.
Husein, 478 F.3d at 337 (citing United States v. Bonds, 12 F.3d 540, 553 (6th Cir. 1993)). The
party requesting judicial notice bears the burden of persuading the court that a particular fact is not
reasonably subject to dispute and is capable of immediate and accurate determination by resort to

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a source whose accuracy cannot reasonably be questioned. StarLink Logistics, Inc. v. ACC, No.
1:18-cv-00029, 2019 WL 2341403, at *3 (M.D. Tenn. June 3, 2019).
In his first Motion (Doc. No. 289), Petitioner asks the Court to take judicial notice of the
following items and the “Specific Facts” he enumerates in his Motion:
the Affidavit of Complaint Number 2010-0220858 for Warrant Number GS481605
and Arrest Warrant Pertaining To The Petitioner’s Case # 2010-B-1532 attached
hereto, the letter (Exhibit “A”) he sent Ashley Mondelli, (Custodian of Records at
the The [sic] Office of The District Attorney General, Davidson County), her
response (Exhibit “B”), a copy of the government’s affidavit of complaint #20100220858 (exhibit “C)) and arrest warrant #GS481605 (exhibit “D”) attached
pertaining to Petitioner’s Conviction case No. 2010-b-1532 as well as the original
indictment (counts 1-5) and the “Specific Facts” pointed out in these documents on
Petitioner’s Page 2.
(Doc. No. 289 at 1). Two of these items—the True Bill and Indictment (Compare Doc. No. 289-1
at 4-9 to Doc. No. 178-1 at 4-9)—are part of state court record in this case. Thus, the Court will
consider these items and there is no need to take judicial notice of any facts therein. However, to
the extent Petitioner’s Motion sets forth allegations and legal argument with regard to these items
(see Doc. No. 281 at 1 ¶ 5), such allegations and argument are not adjudicative facts of which the
Court may take judicial notice. The Court will consider all of Petitioner’s allegations and legal
argument when ruling on his habeas petition, but the Court will not take judicial notice of such.
As best the Court can discern, 1 the documents to which Petitioner refers as Exhibits A, B,
C, and D are not part of the state court record in this case. Essentially then, Petitioner is asking the
Court to expand the record to consider these documents and take judicial notice of the alleged
“specific adjudicative facts” therein as identified by Petitioner on the second page of his Motion.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the ability
of a federal habeas court to develop and consider new evidence. Shoop v. Twyford, __ U.S. __,
If either party is aware of the inclusion of these documents in the existing state court record, the party should notify
the Court in writing and provide a citation to the location of the document(s).

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142 S. Ct. 2037, 2043 (June 21, 2022). Review of factual determinations under Section 2254(d)(2)
is expressly limited to “the evidence presented in the State court proceeding.” See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (holding that review of legal claims under Section 2254(d)(1)
is “limited to the record that was before the state court.”).
In addition, Rule 7 of the Rules Governing Section 2254 Cases in the United States District
Courts states that “[i]f the petition is not dismissed, the judge may direct the parties to expand the
record by submitting additional materials relating to the petition.” R. 7(a), R. Gov’g § 2254 Cases.
Rule 7’s advisory notes state that “the purpose [of the rule] is to enable the judge to dispose of
some habeas petitions not dismissed on the pleadings, without the time and expense required for
an evidentiary hearing.” R. 7, R. Gov’g § 2254 Cases advisory committee’s note. “Unless it is
clear from the pleadings and the files and records that the prisoner is entitled to no relief . . . [i]t
may be perfectly appropriate . . . for the district court to proceed by requiring that the record be
expanded.” Id. (quoting Raines v. United States, 423 F.2d 526, 529–30 (4th Cir. 1970)). Thus,
Rule 7 suggests that the Court should not permit expansion of the record if the pleadings and state
court record adequately resolve Petitioner’s claims.
If a petitioner moves to expand the record, “the petitioner ought to be subject to the same
constraints that would be imposed if he had sought an evidentiary hearing.” Samatar v. Clarridge,
225 F. App’x 366, 375 (6th Cir. 2007) (citing Owens v. Frank, 394 F.3d 490, 499 (7th Cir. 2005)).
Therefore, Petitioner must also satisfy the statutory prerequisites articulated in Section 2254(e)(2)
to expand the record. Section 2254(e)(2) states:
(2)
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A)

the claim relies on—

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(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B)
the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty
of the underlying offense.
28 U.S.C. § 2254(e)(2)(A)–(B).
Here, other than asserting that his Motion was filed “for good cause,” Petitioner does not
explain how his request to expand the record relates to any of the claims in his federal habeas
petition. (Doc. No. 289 at 1). Thus, Petitioner fails to satisfy the prerequisites set forth in Section
2254(e). See Samatar v. Clarridge, 225 F. App’x 366, 375 (6th Cir. 2007). In any event, the Court
has not yet decided Petitioner’s claims using the pleadings and the existing state-court record;
therefore, at this time expansion of the record is premature and unwarranted according to Rule 7’s
advisory notes. R. 7(a), R. Gov’g § 2254 Cases and advisory committee’s note; Flores v. Holloway,
No. 3:17o-cv-00246 2018 WL 573121, at *4. Consequently, Petitioner’s Motion (Doc. No. 289)
is DENIED.
Next, in Petitioner’s Motion to Take Judicial Notice Concerning a Discrepancy on the Face
of the Petitioner’s Indictment (Doc. No. 294), Petitioner enumerates five “Specific Facts” of which
he asks the Court to take judicial notice. (Id. at 2). These “facts,” however, include deductions by
Petitioner, such as “the Petitioner’s Original Indictment appears to have already been stamped . . .
.” "(Id.) (emphasis added). Petitioner weaves together “facts” such as the ink color of a handwritten
signature to support his conclusion that his indictment was modified by an individual named
Robert Carrigan. These “facts” therefore include substantial argument by Petitioner. He therefore

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fails to persuade the Court that these particular facts are not reasonably subject to dispute and
capable of immediate and accurate determination by resort to a source whose accuracy cannot
reasonably be questioned. See StarLink Logistics, 2019 WL 2341403, at *3. The Court will
consider Petitioner’s legal arguments when ruling on his habeas petition, but the Court will not
take judicial notice of arguments. Further, Petitioner again appears to rely in part on documents
that are not part of the existing state court record. (See Doc. No. 294, Ex. 1). This Motion (Doc.
No. 294) is DENIED.
Next, in his Motion to Take Judicial Notice of the Initial Phone Call to the Police Made by
Petitioner’s Wife (Doc. No. 315), Petitioner asks the Court to take judicial notice of several
“Specific Facts.” (Id. at 2-5). Interspersed with these “Specific Facts” is argument by Petitioner
pertaining to whether he “used a gun” to rape the victim as opposed to being in possession of a
gun at the time of the rape. (Id.) Indeed, Petitioner entitles some paragraphs in his Motion
“Argument.” (See, e.g., id.)
There are only two paragraphs in Petitioner’s ten-page Motion entitled “Fact.” In the first
“Fact” paragraph, Petitioner paraphrases a portion of the victim’s trial testimony. (Id.) The trial
transcript is part of the state court record in this case and will be considered by the Court; the Court
need not take judicial notice of it. Following the paraphrasing of the victim’s trial testimony,
Petitioner’s first “Fact” paragraph concludes as follows:
This is where the petitioner asserts that the victim did not tell the truth. The victim
testified differently at the preliminary hearing and counsel caught it and said to her:
“Okay. When you testified—do you remember testifying at the preliminary hearing
that he pulled it off a shelf? And the victim answered No.” See Doc. 178-8,
PageID#2986.
(Doc. No. 315 at 3). It goes without saying that Petitioner’s argument contained in the above
excerpt does not qualify as an adjudicative fact of which the Court can take judicial notice.

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In the section paragraph labeled “Fact”, Petitioner recounts the partial procedural history
of his post-conviction case. (Id. at 4). To the extent Petitioner’s account is verified by the existing
state court record submitted by Respondent, those facts will be considered by the Court. However,
any argument included by Petitioner in this paragraph (i.e., “thereby violating the Petitioner’s due
process rights as he could not effectively appeal his post-conviction”) does not constitute an
adjudicative fact of which the Court can or will take judicial notice. The Motion is DENIED.
III.

Motion to Consider These Procedural Defenses Concerning Trial Counsel Jack Byrd
Pursuant to 28 U.S.C. § 2254(b)(1)(B) (Doc. No. 290); Motion to Consider These
Exhaustion Defenses (Doc. No. 296)
Petitioner has filed Motions in which he asks the Court to consider certain “procedural

defenses” and “exhaustion defenses” when ruling on claims raised in Petitioner’s federal habeas
corpus petition. (Doc. Nos. 290, 296). In support of his Motions, he cites 28 U.S.C. §
2254(b)(1)(B), which sets forth one of the three bases on which a federal court may grant an
application for a writ of habeas corpus by a person in custody pursuant to a state court judgment.
Petitioner’s combined twenty-six (26) pages of Motion text contain two primary
arguments: one in support of Petitioner’s ineffective assistance of trial counsel claims (Doc. No.
290) and (2) another in support of Petitioner’s assertion that the Court should “dispense with the
exhaustion requirement” with respect to certain claims because state court litigation would have
been futile. (Doc. No. 296 at 6).
By Memorandum Opinion and Order entered on February 10, 2020, the Court designated
Petitioner’s “Supplemental/Amended Petition” (Doc. No. 161) as the governing petition in this
case. (Doc. No. 193). Therein, the Court also found that no further amendments or supplements to
the petition would be permitted. (Id. at 5). Petitioner’s latest Motions (Doc. Nos. 290, 296) will
not be permitted as an attempt by Petitioner to amend or supplement the governing petition. Neither

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can these motions replace the governing petition to which Respondent already has filed an Answer.
Petitioner’s Motions (Doc. Nos. 290, 296), therefore, are DENIED. Nevertheless, to the extent
that Petitioner made any of these same arguments in his governing petition, the Court will fully
consider the arguments.
IV.

Motion for Discovery for complaint Number 2010-0220858 and or Case No.
GS481605 (Doc. No. 291); Motion to Take Judicial Notice of the Attached Exhibits
and that the Petitioner’s Motion for Discovery (Doc. 291) is Applicable to this Case
(Doc. No. 297)
In his Motion for Discovery, Petitioner once again seeks the “preliminary hearing

transcripts/testimony, either written or oral and the police report” in Nashville General Sessions
court case No. 481605 to support Ground 1 of his petition. (Doc. No. 291 at 1).
Petitioner has filed a prior motion seeking discovery of this transcript. (See Doc. No. 186).
The Court thoroughly considered Petitioner’s prior request in light of his argument that the
discovery request supported (1) Ground 1 of his petition, that he “was denied a FAIR TRIAL”
because Judge Cheryl A. Blackburn was not “impartial” during his trial (Doc. No. 199 at 2) and
(2) Ground 20 of his petition where Petitioner alleges that Judge Casey Moreland was biased
against Petitioner. (Doc. No. 199 at 4). (See Doc. No. 223 at 5-19). In summary, the Court found:
[T]he preliminary hearing transcript sought by Petitioner is not part of the
state court record. Petitioner has not established that the preliminary hearing
occurred in the case resulting in the convictions and sentence challenged by the
instant federal habeas petition. Petitioner is not entitled to an expansion of the
record at this time. Neither is Petitioner entitled to discovery of the transcript. While
Petitioner alleges that discovery of the transcript would support his federal habeas
claim that he was denied a fair trial due to Judge Blackburn’s partiality, Petitioner
properly exhausted that claim in state court; therefore, any discovery with regard to
that claim is not permitted here. Further, Petitioner alleges that discovery of the
transcript would support his federal judicial bias claim, but that claim is
procedurally defaulted, and Petitioner has not established cause and prejudice or
actual innocence to excuse the default. Therefore, Petitioner’s motion seeking the
preliminary hearing transcript will be denied.

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(Id. at 19-20). In his instant Motion for Discovery, Petitioner provides no reason for the Court to
revisit its prior fourteen-page analysis of Petitioner’s request for discovery of the preliminary
hearing transcript.
However, in his “Motion to Take Judicial Notice of the Attached Exhibits and that the
Petitioner’s Motion for Discovery (Doc. 291) is Applicable to this Case” (Doc. No. 297), Petitioner
posits that he has resolved the confusion regarding the preliminary hearing of which he seeks a
transcript. 2 Specifically, Petitioner attaches correspondence from the Nashville/Davidson County
Division III Deputy Criminal Court Clerk stating that “Case GS481605 was indicted to a criminal
case on 6/22/2010, and became Count 1, in case #2010-B-1532.” (Doc. No. 297, Ex. 1 at 1).
Petitioner explains: “Apparently, the Petitioner got his dates wrong thinking that May 3, 2012 was
the date the preliminary hearing occurred, but it was actually March 18, 2010 in former Judge
Casey Moreland’s Court (See exhibit ‘1’) attached hereto.” (Doc. No. 297 at 2).
While the Court acknowledges and appreciates Petitioner’s efforts to resolve the
date/court/judge discrepancy, this new information—even if considered—does not change the
Court’s prior analysis in denying Petitioner’s motion seeking discovery of the transcript. That is
so because, pursuant to Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011), Petitioner’s request for
any discovery related to his judicial bias claim (in support of which he seeks discovery) must be
denied because Petitioner’s impartial judge/right to a fair trial claim was adjudicated on the merits
by the state court. Further, as explained in detail by the Court previously (see Doc. No. 223 at 918), the judicial bias claim for which Petitioner seeks discovery is procedurally defaulted, and
See Doc. No.223 at 12 n.3 (“Petitioner alleges that Judge Moreland presided over the preliminary hearing on May
3, 2012 [during which he allegedly made the “piece of shit” comment] and Judge Blackburn presided over Petitioner’s
trial. Petitioner has consistently alleged that he did not receive a fair trial in part because Judge Blackburn did not
recuse herself after Judge Moreland made a derogatory comment about Petitioner during a previous hearing related to
the case. The Court reiterates that the case number for the purported Moreland preliminary hearing does not match the
case number for the convictions and sentence challenged by the instant federal habeas petition. Petitioner does not
explain this discrepancy.”).
2

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Petitioner has not established cause and prejudice or actual innocence to excuse the default. Indeed,
the Court undertook its prior analysis while noting that “[a]lthough the state court case numbers
do not match, it is clear that Petitioner has pursued, and state courts have considered to some
extent, judicial bias claims relating to Judge Moreland’s alleged ‘piece of shit’ comment.” (Id. at
12). Accordingly, Petitioner’s Motion for Discovery (Doc. No. 291) is DENIED. 3
Petitioner’s “Motion to Take Judicial Notice of the Attached Exhibits and that the
Petitioner’s Motion for Discovery (Doc. 291) is Applicable to this Case (Doc. No. 297”) also is
DENIED. To the Court’s knowledge, the exhibits attached by Petitioner are not part of the existing
state record, and the Court finds that Petitioner is not entitled to expansion of the record for the
reasons provided in denying Petitioner’s Motion for Discovery. However, as noted above, the
Court considered the exhibits for purposes of determining whether its prior Order denying
Petitioner’s request for discovery should be revisited.
V.

Motion to Rename Docket re: 315 Motion (Doc. No. 321)
Finally, Petitioner filed a Motion in which he takes issue, once again, with the title used

for one of his motions on the docket. Specifically, Petitioner complains about a case administrator
titling Docket No. 315 “Motion to Take Judicial Notice of the Initial Phone Call to the Policy
Made by the Petitioner’s Wife” rather than “Motion to Take Judicial Notice of the Initial Phone
Call to the Police Made by the Petitioner’s Wife,” as Petitioner himself titled the filing. (Doc. No.
321).
In all likelihood, the substitution of the word “Policy” for “Police” was an inadvertent
clerical error. Indeed, a review of the docket reveals that the title of the motion already has been

While reviewing all of the claims raised in Petitioner’s Supplemental/Amended petition, should it become necessary
for the Court to consider Petitioner’s request for discovery of the preliminary hearing transcript at issue, the Court will
take appropriate action. Petitioner need not submit any additional filings. Doing so will delay the Court’s resolution
of his habeas petition.

3

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changed on the docket. Therefore, no action by the Court is necessary, and the Motion (Doc. No.
321) is DENIED AS MOOT.
Petitioner is advised, however, that the Clerk of Court ultimately determines how pleadings
and motions will be docketed on the Court’s CM/ECF system and, at times, submissions by pro se
parties will be renamed if doing so accurately reflects the pro se litigant’s intentions without
causing any prejudice to the pro se litigant.
IT IS SO ORDERED.
______________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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