Kelly v. Phillips et al
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 4/3/2018. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TIMOTHY EUGENE KELLY
No. 356072,
Petitioner,
v.
SHAWN PHILLIPS, Warden, et al.,
Respondents.
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No. 3:17-cv-01302
CHIEF JUDGE CRENSHAW
MEMORANDUM OPINION
Timothy Eugene Kelly, an inmate of the Northeast Correctional Complex in Mountain City,
Tennessee, has filed a pro se, in forma pauperis petition under 28 U.S.C. § 2254 for a writ of habeas
corpus challenging his 2011 conviction and sentencing for especially aggravated robbery,
aggravated robbery, and fraudulent use of a credit card. (Doc. No. 1 at 2).
Shortly after filing his petition in this case, Petitioner initiated a separate action by filing a
document entitled “Writ of Prohibition.” Kelly v. Phillips, No. 3:17-cv-1457 (M.D. Tenn. Nov. 15,
2017)(Trauger, J., presiding). On December 21, 2017, the Honorable Aleta A. Trauger construed
that document as a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and
ordered the respondent in that case to file a response to the petition. (Id., Doc. No. 6 at 1-2).
Pursuant to Federal Rule of Civil Procedure 42, Respondents’ counsel then filed a motion
to consolidate the Petitioner’s two petitions for a writ of habeas corpus, contending that the two
petitions concern common legal and factual questions and judicial economy would be best served
by consolidation. (Doc. No. 9). Petitioner has not filed a response in opposition to Respondents’
motion to consolidate.
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Rule 42 of the Federal Rules of Civil Procedure states in pertinent part that “[i]f actions
before the court involve a common question of law or fact, the court may consolidate the actions.”
Fed. R. Civ. P. 42(a)(2). The decision to consolidate actions is within the district court’s discretion.
Cantrell v. GAP Corp., 999 F.2d 1007, 1011 (6th Cir. 1993). The district court should weigh the
following factors when deciding whether to consolidate actions:
[W]hether the specific risks of prejudice and possible confusion [are]
overborne by the risk of inconsistent adjudications of common factual
and legal issues, the burden on parties, witnesses and available
judicial resources posed by multiple lawsuits, the length of time
required to conclude multiple suits against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial
alternatives.
Id. The district court must ensure that consolidation does not result in unavoidable prejudice or
unfair advantage to any party. Id.
Here, the two petitions seeking a writ of habeas corpus involve common questions of fact
and fact. The two petitions challenge the constitutionality of Petitioner’s confinement pursuant to
the same judgments of conviction under similar factual and legal theories. For example, both
petitions allege ineffective assistance of counsel claims based on the lack of a sentencing transcript
on direct appeal and a chain of custody claim based on the victim’s jacket. These factors strongly
weigh in favor of consolidation.
If the petitions are not consolidated, the Court risks inconsistent adjudications of common
factual and legal issues. In addition, litigating two petitions that challenge the constitutionality of
the same confinement within the same district and division would be an inefficient use of judicial
resources and the parties’ resources. Consolidation would not result in unfair prejudice or advantage
to any party as the same parties would be litigating the same legal and factual issues in one court.
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In short, the Cantrell factors weigh strongly in favor of consolidation. Therefore, Respondents’
motion to consolidate will be granted. Upon consolidation of the two cases, this action will be
administratively closed because a response to the petition already has been filed 3:17-cv-1457.
After filing his petition in this action, Petitioner filed a “Supplement” to his petition in which
he alleges numerous conditions of confinement claims. (Doc. No. 5). The Court acknowledges the
seriousness of Petitioner’s allegations, but these claims should be raised in a civil rights complaint
filed pursuant to 42 U.S.C. § 1983 instead of in a petition for a writ of habeas corpus. The Court
will direct the Clerk to mail Petitioner a form § 1983 complaint for prisoners and a blank application
to proceed in forma pauperis for prisoners for Petitioner’s convenience, should he wish to pursue
a civil rights action regarding the conditions of his confinement.
Finally, on March 12, 2018, Petitioner filed a “motion to correct illegal sentence” in this
Court in this action, although the caption of his motion indicates that Petitioner intended for this
motion to be filed in the Criminal Court of Davidson County. (Doc. No. 14 at 1). Indeed, the
motion relies solely on Rule 36.1 of the Tennessee Rules of Criminal Procedure. (Id.) The Court
will dismiss the motion without prejudice to Petitioner’s ability to file the motion in the correct
court. The dismissal without prejudice will have no bearing whatsoever on Petitioner’s federal
habeas corpus claims.
An appropriate Order will be entered.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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