Thompson v. State of Tennessee
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/5/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JOSEPH B. THOMPSON
STATE OF TENNESSEE,
Joseph B. Thompson, an inmate of the South Central Correctional Facility in Clifton,
Tennessee, filed this pro se, in forma pauperis petition pursuant to 28 U.S. § 2241 challenging the
legality of Thompson’s confinement under his 2001 Sullivan County, Tennessee convictions for
aggravated robbery and aggravated kidnapping. The trial court sentenced Thompson to twenty years
of imprisonment for each offense, to be served consecutively. The Tennessee Court of Criminal
Appeals affirmed the trial court’s judgments.
The petitioner has filed numerous collateral challenges to his convictions and sentence. In
2006, after unsuccessfully seeking state post-conviction and habeas relief, he filed a § 2254 habeas
corpus petition contending that (1) the state withheld exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and the trial court improperly excluded testimony regarding that
evidence at trial; (2) evidence introduced by the state at trial was illegally obtained in violation of
the Fourth Amendment; (3) his conviction was obtained in violation of the prohibition against
Double Jeopardy; (4) Tennessee’s Criminal Sentencing Reform Act of 1989 violated his Sixth
Amendment right to a jury trial because it allowed the trial court to enhance his sentence above the
minimum twelve-year sentence; (5) he was denied the right of allocution at sentencing; and (6) his
trial and appellate counsel were ineffective. The district court denied that petition, and Thompson
did not appeal. Thompson v. Parker, No. 2:06-cv-134 (E.D. Tenn. Aug. 10, 2010).
In 2013, Thompson filed another § 2254 petition, arguing that (1) Tennessee’s Criminal
Sentencing Reform Act violated his Sixth Amendment right to a trial by jury under Blakely v.
Washington, 542 U.S. 296 (2004), because it permitted the trial court to enhance his sentence based
on facts not found by a jury; (2) his sentence is void as a result; (3) the evidence was insufficient to
support his convictions; (4) the trial court erred in refusing to require the state to choose between the
offenses of aggravated robbery and aggravated kidnapping; (5) the trial court erred in allowing
certain testimony and evidence; (6) the trial court in erred in denying the motion for severance; (7)
the state failed to provided him with exculpatory evidence in violation of Brady; (8) the trial court
erred in limiting his time to present his closing arguments; and (9) his sentence was excessive and
violated his right to due process. Thompson asserted that his claims were based on new Tennessee
Supreme Court and Sixth Circuit case law regarding aggravated kidnapping and the retroactivity of
Blakely. Thompson v. Stewart, No. 2:13-cv-00290 (E.D. Tenn. Oct. 27, 2016).
The district court transferred the successive petition because Thompson had not yet obtained
the Sixth Circuit’s permission to file it. The petitioner subsequently moved for an order authorizing
the district court to consider a second or successive habeas corpus petition. He raised, including
other issues not relevant herein, the following issues: (1) Tennessee’s Criminal Sentencing Reform
Act violated his Sixth Amendment right to a trial by jury under Blakely because it permitted the trial
court to enhance his sentence based on facts not found by a jury; and (2) his sentence is void as a
result. The Sixth Circuit issued an order denying leave to file a second or successive petition,
finding that, “[t]o the extent that Thompson already had raised his two proposed Blakely-based
sentencing claims in his initial § 2254 petition, they are subject to dismissal.” The Court additionally
explained that Thompson “had not shown that these claims rely on a new rule of constitutional law
satisfying the requirement of § 2244(b)(2)(A) because (1) Blakely was decided before he filed his
initial § 2254 petition in 2006, and (2) Lovins v. Parker, 712 F.3d 283 (6th Cir. 2013), which he
described in his transferred § 2254 petition as “[n]ew case law” supporting his claims, provides no
new rule of constitutional law.” Thompson, 2:13-cv-00290 (Doc. No. 9 at p. 3).
In the instant petition filed under § 2241, Thompson checked the box indicating that he is
challenging “[t]he validity of [his] conviction or sentence as imposed (for example, sentence beyond
the statutory maximum or improperly calculated under the sentencing guidelines).” (Docket No. 1
at 2). Likewise, in the “request for relief” section of his petition, Thompson specifically states that
he wants the court to “correct [his] illegal sentence or remand to trial court to correct or vacate illegal
sentence.” (Id. at p. 6). As grounds for his petition, Thompson contends that he “qualifies for
Bryant’s four factor test” and relies additionally on Blakely and Lovins. (Id. at pp. 8-9).
Thompson is not entitled to relief by way of the instant § 2241 petition. First, Thompson’s
claims challenge the imposition of his sentence, rather than the execution of his sentence, making
it inappropriate for a § 2241 petition. Section 2241 authorizes federal district courts to issue a writ
of habeas corpus to a state or federal prisoner who is in custody in violation of the constitution or
laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). Section 2254 is more specific and
confers jurisdiction on district courts to “entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). A petition brought under § 2241 generally applies to challenges regarding the execution
and manner in which a sentence is served, whereas a petition brought under § 2254 challenges the
constitutionality of a conviction and sentence arising out of a State criminal action. See, e.g.,
Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). Although the petitioner filed his petition
under § 2241, it is clear from the petition and accompanying documents that the petitioner seeks to
attack the validity of his original sentence, not the manner in which the Tennessee Department of
Correction has executed the sentence. As such, § 2241 is inapplicable.1
Second, even if the court construes the instant petition as a petition brought pursuant to §
2254, Thompson has filed previous § 2254 petitions. Before a second or successive petition may
be adjudicated in the district court, a petitioner must move in the appropriate Court of Appeals for
an order authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Further,
the § 2254 petition Thompson filed in 2013 raised the same claims he raises herein: that
Tennessee’s Criminal Sentencing Reform Act violated his Sixth Amendment right to a trial by jury
under Blakely because it permitted the trial court to enhance his sentence based on facts not found
by a jury, and his sentence is void as a result. Indeed, in the instant petition, Thompson cites the
same cases on which he relied in his 2013 petition. Therefore, the court would be unable to construe
and address Thompson’s instant petition as one brought pursuant to § 2254 until Thompson sought
and received permission to file a successive habeas petition which, in this court’s best judgment,
the Sixth Circuit likely would not grant given that he already filed a petition raising the same issues
he raises in the instant petition, and the Sixth Circuit dismissed those claims.
Section 2255 pertains only to Federal prisoners. Because the petitioner is a state prisoner serving a sentence
of imprisonment for a state criminal conviction, § 2255 also is inapplicable.
Finally, Thompson argues that § 2254 is inadequate to test his continued detention and,
pursuant to Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013), he may proceed under § 2241.
Thompson’s reliance on Bryant fails for several reasons. First, Bryant involves Federal prisoners
pursuing relief pursuant to § 2255, not to state prisoners such as Thompson serving a sentence of
imprisonment for a state conviction who would challenge their convictions and sentences pursuant
to § 2254. Second, even if Bryant applied to state prisoners proceeding pursuant to § 2254, Bryant
was decided by the Eleventh Circuit Court of Appeals and therefore is not controlling precedent in
this jurisdiction. See Salmi v. Secretary of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.
1985)(district courts in the Sixth Circuit are not bound by decisions of courts from other circuits).
Second, Bryant recently was overruled by the Eleventh Circuit Court of Appeals, so it is no longer
governing law in the Eleventh Circuit. See McCarthan v. Director of Goodwill Industries-Suncoast,
Inc., 851 F.3d 1076, 1086-95 (11th Cir. 2017)(holding that prisoner was not entitled to additional
round of collateral review of his sentence under savings clause on basis that his claims regarding the
enhancement of his sentence under Armed Career Criminal Act had been foreclosed by binding
circuit precedent, overruling Bryant v. Warden).
Because Thompson is not entitled to invoke § 2241, “it appears from the application that the
applicant or detainee is not entitled to” any relief. 28 U.S.C. § 2243. The court finds it unnecessary
under the circumstances to order the Respondent to file a response to the petition. Thompson’s
petition will be denied, and judgment shall be entered for the Respondent.
To appeal in forma pauperis in a habeas case filed under § 224, the petitioner must obtain
pauper status pursuant to Federal Rule of Appellate Procedure 24(a). Rule 24(a) provides that a
party seeking pauper status on appeal must first file a motion in the district court, along with a
supporting affidavit. However, Rule 24(a) also provides that if the district court certifies that an
appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the
petitioner must file his motion to proceed in forma pauperis in the appellate court.
In this case, because Thompson is clearly not entitled to relief, the court determines that any
appeal would not be taken in good faith. Fed. R. App. P. 24(a).
An appropriate order will enter.
ENTER this 5th day of September 2017.
Aleta A. Trauger
United States District Judge
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