Clifton v. Easterling

Filing 38

ORDER GRANTING PLAINTIFFS MOTION TO AMEND 22 , GRANTING RESPONDENTS MOTION TO DISMISS 24 ,ORDER OF DISMISSAL, DENYING REMAINING MOTIONS AS MOOT 33 34 36 , DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge J. Daniel Breen on 3/12/13. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
________________________________________________________________
_
TERRY LEE CLIFTON,
)
)
Petitioner,
)
)
vs.
)
No. 1:11-1347 JDB-egb
)
JOE EASTERLING,
)
)
Respondent.
)
________________________________________________________________
_
ORDER GRANTING PLAINTIFF’S MOTION TO AMEND,
(DOCKET ENTRY 22)
GRANTING RESPONDENT’S MOTION TO DISMISS,
(DOCKET ENTRY 24)
ORDER OF DISMISSAL,
DENYING REMAINING MOTIONS AS MOOT,
(DOCKET ENTRIES 33, 34, & 36)
DENYING A CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
________________________________________________________________
_
On October 28, 2011, Petitioner, Terry Lee Clifton,
Tennessee Department of Correction (“TDOC”) prisoner number
100826, an inmate at the Hardeman County Correctional Facility
(“HCCF”) in Whiteville, Tennessee, filed a habeas corpus
petition under 28 U.S.C. § 2254 in the United States District
Court for the Middle District of Tennessee.
(“D.E.”) 1.)

(Docket Entry

Clifton alleges that the Tennessee Board of

Probation and Parole (“BOPP”) denied him due process during his
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parole revocation hearing on March 31, 2011.

(Id.)

On November

10, 2011, United States District Judge Todd J. Campbell
transferred the petition to the Western District of Tennessee.
(D.E. 6.)
On October 28, 2011, Petitioner filed a motion to proceed
in forma pauperis which the Court granted on November 10, 2011.
(D.E. 3, 8.)

On April 13, 2012, the Court issued an order

directing Warden Joe Easterling to respond to the petition.
(D.E. 15.)

On May 14, 2012, the inmate filed a motion to amend

his petition.

(D.E. 22.)

The motion to amend is GRANTED.

On June 21, 2012, Respondent moved to dismiss the petition
as procedurally defaulted, along with a supporting memorandum,
to which Clifton responded on August 6, 2012. (D.E. 24, 27, 30.)
On January 2, 2013, Petitioner filed a motion for a complete and
certified copy of his parole files.

(D.E. 33.)

On January 7,

2013, Clifton submitted a motion for an order to show cause and
on

March 4, 2013, he asked that this matter be set for a

hearing and ruling.

(D.E. 34, 36.)
Procedural History

A Madison County jury convicted Petitioner of grand larceny
and found him to be a habitual criminal.

The trial court

sentenced him on September 20, 1983, to life imprisonment.
(D.E. 1 at 1.)

The Tennessee Court of Criminal Appeals affirmed

his conviction in an unreported opinion styled State v. Clifton,
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released on May 31, 1984.

See State v. Clifton, C.C.A. No. 8,

1986 WL 2308 at *1 (Tenn. Crim. App. Feb. 19, 1986).
Clifton filed a petition for post-conviction relief, which
the trial court denied and the Tennessee Court of Criminal
Appeals affirmed.

Id.

Petitioner filed a petition for a writ

of habeas corpus which the state trial court denied.

The Court

of Criminal Appeals affirmed the decision and the Tennessee
Supreme Court denied Petitioner’s application for permission to
appeal.

Clifton v. State, No. W2004-01385-CCA-R3-HC, 2005 WL

1363104 (Tenn. Crim. App. June 9, 2005), app. denied (Tenn. Nov.
28, 2005).
On March 10, 2010, Clifton was released on parole.
27-1 at 2.)

(D.E.

On April 12, 2010, the Appellate Court Cost Center

informed Petitioner that he owed $124.10 in outstanding court
costs.

(D.E. 1 at 57; D.E. 27-1 at 3.)

On July 23, 2010, the BOPP issued a parole violation report
and warrant alleging that Petitioner had violated his parole by
engaging in assaultive, abusive, threatening, or intimidating
behavior.

(D.E. 27-1 at 4-6.)

After several continuances, the

BOPP conducted a parole violation hearing on March 31, 2011.
(D.E. 27-1 at 8-14; D.E. 27-2.)

The Board sustained the

violation and revoked Petitioner’s parole.

(D.E. 27-1 at 13-15;

D.E. 27-2 at 30-31.)
Clifton appealed the decision to the BOPP on May 24, 2011.
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(D.E. 27-1 at 16-17.)

The Board denied the appeal on July 6,

2011. (D.E. 27-1 at 18.)

Petitioner attempted to appeal to the

Chancery Court of Davidson County; however, the notice of appeal
was returned “unfiled” on October 5, 2011, because he failed to
pay outstanding court costs from a previous matter.
46-49.)

(D.E. 1 at

On October 28, 2011, the inmate filed the instant

petition alleging that he was denied due process during his
parole revocation hearing on March 31, 2011.

(D.E. 1.)

Analysis
Respondent contends the petition should be dismissed as
barred by procedural default because the claims were not fairly
or adequately presented to the state courts and no mechanism to
exhaust those claims exists.

(D.E. 24-1 at 3.)

Petitioner

responds that he was unfairly prevented from filing his appeal
to the Davidson County Chancery Court because of his failure to
pay outstanding fees.
Twenty-eight U.S.C. §§ 2254(b) and (c) provide that a
federal court may not grant a writ of habeas corpus on behalf of
a state prisoner unless, with certain exceptions, the prisoner
has exhausted available state remedies by presenting the same
claim sought to be redressed in a federal habeas court to the
state courts.

Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.

Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011), reh’g denied, ___ U.S.
___, 131 S. Ct. 2951, 180 L. Ed. 2d 239 (May 31, 2011).
4

The

petitioner must “fairly present”1 each claim to all levels of
state court review, up to and including the state’s highest
court on discretionary review, Baldwin v. Reese, 541 U.S. 27,
29, 124 S. Ct. 1347, 1349, 158 L. Ed. 2d 64 (2004), except where
the state has explicitly disavowed state supreme court review as
an available state remedy, O’Sullivan v. Boerckel, 526 U.S. 838,
847-48, 119 S. Ct. 1728, 1733-34, 144 L. Ed. 2d 1 (1999).
Decisions of the BOPP are subject to limited review by the
common law writ of certiorari using the procedures set out in
Tenn. Code Ann. § 27-9-101 et seq.

See Baldwin v. Tennessee Bd.

of Paroles, 125 S.W.3d 429, 433 (Tenn. Crim. App. 2003).

Such

petitions must be filed within sixty (60) days from the entry of
the order or judgment for which review is sought.

Tenn. Code

Ann. § 27-9-102; Wheeler v. City of Memphis, 685 S.W.2d 4, 6
(Tenn. Ct. App. 1984).

If a timely administrative appeal is

pursued, the sixty (60) days period begins to run upon entry of
the final decision from the administrative appeal.

Moore v.

Tennessee Bd. of Prob. and Parole, App. No. M2003-03110-COA-R3CV, 2005 WL 1025763, at *3 n.3 (Tenn. Ct. App. May 02, 2005).
Failure to file a petition for a writ of certiorari within the

1
For a claim to be exhausted, “[i]t is not enough that all the
facts necessary to support the federal claim were before the state courts, or
that a somewhat similar state-law claim was made.” Anderson v. Harless, 459
U.S. 4, 6, 103 S. Ct. 276, 277, 74 L. Ed.2d 3 (1982) (per curiam) (internal
citations omitted).
Nor is it enough to make a general appeal to a broad
constitutional guarantee. Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct.
2074, 2081, 135 L. Ed. 2d 457 (1996), reh’g denied, 518 U.S. 1047, 117 S. Ct.
22, 135 L. Ed. 2d 1116 (Aug. 27, 1996).

5

statutorily mandated time requires dismissal of the petition.
Gore v. Tennessee Dep’t of Corr., 132 S.W.3d 369, 379 (Tenn. Ct.
App. 2003); see also Hickman v. Tennessee Bd. of Paroles, 78
S.W.3d 285, 289 (Tenn. Ct. App. 2002); Johnson v. Metro. Gov’t
of Nashville and Davidson Cnty., 54 S.W.3d 772, 774-75 (Tenn.
Ct. App. 2001); Thandiwe v. Traughber, 909 S.W.2d 802, 803-804
(Tenn. Ct. App. 1994).

A failure to file within the statutory

time results in the Board’s decision becoming final, and once
the decision has become final, the Chancery Court is deprived of
jurisdiction.

Thandiwe, 909 S.W.2d at 804 (citing Wheeler, 685

S.W.2d at 6).
Clifton’s appeal to the BOPP was denied on July 6, 2011.
(D.E. 27-1 at 18.)

He had sixty days from that date to file an

appeal to the Chancery Court.

Although he attempted to file an

appeal to the Davidson County Chancery Court, that appeal was
returned “unfiled” because Petitioner had unpaid court costs
from a previous matter.

(D.E. 1 at 46-49.)

The state court

indicated that it would not file the appeal until prior fees,
taxes, costs, or other expenses assessed to Petitioner were paid
in full.

(D.E. 1 at 49.)

The inmate had previously been

notified of the outstanding charges upon his release on parole.
(D.E. 27-1 at 3.)
The procedural default doctrine is ancillary to the
exhaustion requirement.

See Edwards v. Carpenter, 529 U.S. 446,
6

452-53, 120 S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) (noting
the interplay between the exhaustion rule and the procedural
default doctrine).

If the state court decides a claim on an

independent and adequate state ground, such as a procedural rule
prohibiting the state court from reaching the merits of the
constitutional claim, a petitioner ordinarily is barred from
seeking federal habeas review.

Wainwright v. Sykes, 433 U.S.

72, 81-82, 97 S. Ct. 2497, 2503-04, 52 L. Ed. 2d 594 (1977),
reh’g denied, 434 U.S. 880, 98 S. Ct. 241, 54 L. Ed. 2d 163
(Oct. 3, 1977); see Coleman v. Thompson, 501 U.S. 722, 729-30,
111 S. Ct. 2546, 2554, 115 L. Ed. 2d 640 (1991)(a federal habeas
court will not review a claim rejected by a state court “if the
decision of [the state] court rests on a state law ground that
is independent of the federal question and adequate to support
the judgment”), reh’g denied, 501 U.S. 1277, 112 S. Ct. 27, 115
L. Ed. 2d 1109 (Sept. 13, 1991).

If a claim has never been

presented to the state courts, but a state court remedy is no
longer available (e.g., when an applicable statute of
limitations bars a claim), the claim is technically exhausted,
but procedurally barred.

Coleman, 501 U.S. at 732, 111 S. Ct.

at 2555; see Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004)
(the procedural default doctrine prevents circumvention of the
exhaustion doctrine), cert. denied, 544 U.S. 928, 125 S. Ct.
1653, 161 L. Ed.2d 490 (2005).
7

Under either scenario, a petitioner must show “cause” to
excuse his failure to present the claim fairly and “actual
prejudice” stemming from the constitutional violation or,
alternatively, that a failure to review the claim will result in
a fundamental miscarriage of justice.

Schlup v. Delo, 513 U.S.

298, 318-22, 115 S. Ct. 851, 862-64, 130 L. Ed. 2d 808 (1995);
Coleman, 501 U.S. at 750, 111 S. Ct. at 2565.

The latter

showing requires a petitioner to establish that a constitutional
error has probably resulted in the conviction of a person who is
actually innocent of the crime.
S. Ct. at 864; see

Schlup, 513 U.S. at 321-22, 115

House v. Bell, 547 U.S. 518, 536-539, 126 S.

Ct. 2064, 2076-78, 165 L. Ed. 2d 1 (2006) (restating the ways to
overcome procedural default and further explaining the actual
innocence exception).
Clifton has not established cause and prejudice for his
procedural default.

He contends that Davidson County Chancery

Court violated his due process rights by failing to file his
appeal.

A habeas petitioner cannot circumvent the exhaustion

requirement by not complying with state procedural rules.
Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001).

See
Because

Petitioner did not follow the court rules in filing his appeal
with the Davidson County Chancery Court, he has not fully
exhausted his habeas claims in the Tennessee courts.

Whether

the state court properly refused his appeal for nonpayment of
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court costs constitutes a state law issue.

Error in the

application of state law is not cognizable in federal habeas
proceedings.

See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.

Ct. 475, 480, 116 L. Ed. 2d 385 (1991) (“it is not the province
of a federal habeas court to reexamine state-court
determinations on state-law questions”); Pulley v. Harris, 465
U.S. 37, 41, 104 S. Ct. 871, 875, 70 L. Ed. 2d 29 (1984) (“A
federal court may not issue the writ on the basis of a perceived
error of state law.).
Therefore, the Court GRANTS Respondent’s motion to dismiss
the petition as barred by Petitioner’s procedural default.

The

remaining motions (D.E. 33, D.E. 34, & D.E. 36) are DENIED as
MOOT.

Judgment shall be entered for Respondent.
There is no absolute entitlement to appeal a district

court’s denial of a § 2254 petition.

Miller-El v. Cockrell, 537

U.S. 322, 335, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003);
Bradley v. Birkett, 156 F. App’x 771, 772 (6th Cir. 2005), reh’g
& reh’g en banc denied (Jan. 10, 2006).

The Court must issue or

deny a certificate of appealability (“COA”) when it enters a
final order adverse to a § 2254 petitioner.

Rule 11, Rules

Governing Section 2254 Cases in the United States District
Courts.

A petitioner may not take an appeal unless a circuit or

district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R.
App. P. 22(b)(1).
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A COA may issue only if the petitioner has made a
substantial showing of the denial of a constitutional right, and
the COA must indicate the specific issue or issues that satisfy
the required showing.

28 U.S.C. §§ 2253(c)(2) & (3).

A

“substantial showing” is made when the petitioner demonstrates
that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’”

Cockrell, 537 U.S.

at 336, 123 S. Ct. at 1039 (internal quotation marks omitted);
see also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir.) (per
curiam) (same), cert. denied, 555 U.S. 1160, 129 S. Ct. 1057,
173 L. Ed. 2d 482 (2009).
the appeal will succeed.

A COA does not require a showing that
Cockrell, 537 U.S. at 337, 123 S. Ct.

at 1039; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir.
2011).

Courts should not issue a COA as a matter of course.

Bradley, 156 F. App’x at 773.
In this case, there can be no question that the claims in
this petition are barred by procedural default.

Because any

appeal by Petitioner on the issues raised in this petition does
not deserve attention, the Court DENIES a certificate of
appealability.
Federal Rule of Appellate Procedure 24(a)(3) provides that
a party who was permitted to proceed in forma pauperis in the
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district court may proceed in forma pauperis on appeal unless
the district court certifies that an appeal would not be taken
in good faith or otherwise denies leave to appeal in forma
pauperis.

In this case, for the same reasons the Court denies a

certificate of appealability, the Court determines that any
appeal would not be taken in good faith.

It is therefore

CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in
this matter would not be taken in good faith, and leave to
appeal in forma pauperis is DENIED.2
IT IS SO ORDERED this 12th day of March 2013.

s/J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

2

If Petitioner files a notice of appeal, he must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and
supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30)
days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).

11