Harris v. Colson
Filing
62
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Chief Judge J. Daniel Breen on 6/19/15. (Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TRACY LYNN HARRIS,
Petitioner,
v.
JAMES M. HOLLOWAY,
Respondent.
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Case No. 1:12-cv-01204-JDB-egb
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254,
DENYING A CERTIFICATE OF APPEALABILITY,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Before the Court is the Petition under 28 U.S.C.A. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (the "Petition”) filed by Petitioner, Tracy Lynn Harris, Tennessee
Department of Correction (“TDOC”) prisoner number 317389, who is currently incarcerated at the
West Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee. (Pet., Harris v. Holloway,
No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.) For the reasons stated below, the
Petition is DENIED.
I.
BACKGROUND
A.
State Court Procedural History
On January 3, 2000, a grand jury in Carroll County, Tennessee returned a three-count
indictment against Harris. (Indictment, State v. Harris, No. 20CR1470 (Carroll Cnty. Cir. Ct.),
ECF No. 24-1 at PageID 175-78.) Count 1 charged Petitioner with the first-degree murder of
Madelyn Ruth Bomar on or about October 30, 1998. Count 2 alleged Harris committed the
first-degree murder of Bomar during the perpetration of a felony, namely, aggravated burglary and
aggravated rape. Count 3 involved the especially aggravated burglary of the residence of Bomar
by the inmate. Count 4 charged Harris with the aggravated rape of the victim. On January 14,
2000, the State filed notice of its intent to seek the death penalty. (Not. of Intent to Seek Death
Penalty, id., ECF No. 24-1 at PageID 184.)
On March 2, 2000, pursuant to a written plea agreement, Petitioner pleaded guilty to
Counts 2 and 4 of the indictment in exchange for a negotiated sentence of life imprisonment
without the possibility of parole for the felony murder and a concurrent term of twenty years at 100
percent for the aggravated rape. (Request for Acceptance of Plea of Guilty & Pet. to Waive Trial
by Jury & to Waive an Appeal, id., ECF No. 24-1 at PageID 187-88.) Judgments were entered on
March 20, 2000. (J., id., ECF No. 24-1 at PageID 189 (Count 2); J., id., ECF No. 24-1 at PageID
190 (Count 4).) Harris did not take a direct appeal.
On November 17, 2000, the inmate filed a pro se petition in the Carroll County Circuit
Court pursuant to the then-current version of the Tennessee Post-Conviction Procedure Act,
Tennessee Code Annotated §§ 40-30-201 to -222. (Pet. for Relief from Conviction or Sentence,
Harris v. State, No. 20CR1470PC (Carroll Cnty. Cir. Ct.), ECF No. 24-1 at PageID 192-98.) He
checked the box on the form petition for “Conviction was based on unlawfully induced guilty plea
or guilty plea involuntarily entered without understanding the nature and consequences of the
plea,” “Denial of effective assistance of counsel” and “Other grounds” (id. at PageID 196), but
provided no factual support for his claims. On December 1, 2000, the post-conviction court
summarily dismissed the petition for failure to assert a colorable claim. (Preliminary Order (No
Colorable Claim), Harris v. State, No. 20CR1470PC (Carroll Cnty. Cir. Ct.), ECF No. 24-1 at
2
PageID 204.)
The court found that “[t]he petition simply makes bare allegations that
constitutional rights have been violated without accompanying factual basis for the grounds
alleged” and that “T.C.A. § 40-30-206(d) provides in part that failure to state a factual basis for the
grounds alleged shall result in an immediate dismissal of the petition.” (Id.) Harris did not
appeal.1
On July 13, 2006, Harris filed a pro se petition for a writ of habeas corpus in the Criminal
Court for Morgan County, Tennessee, in which he argued that his sentence for aggravated rape
was illegal and, consequently, that his guilty plea was invalid because the trial judge had failed to
sentence him to community supervision for life upon release, as required by state law. (Pet. for
Writ of Habeas Corpus, Harris v. Worthington, No. 9240 (Morgan Cnty. Crim. Ct.), ECF No.
24-21 at PageID 774-79.) The State responded to the petition on April 7, 2008. (Resp. in Opp’n
to Habeas Corpus Pet., id., ECF No. 24-21 at PageID 793-801.) After counsel was appointed
(Order Appointing Legal Counsel, id., ECF No. 24-21 at PageID 824; Order of Substitution &
Withdrawal, id., ECF No. 24-21 at PageID 823), a hearing on the petition occurred on September
15, 2008. (Tr., id., ECF No. 24-22.) At that proceeding, Petitioner testified that community
supervision was not addressed during the guilty plea hearing. (Id. at 8.) He explained that an
amendment to his aggravated rape judgment to impose a community supervision requirement
would not be proper because “the community supervision statute on its face is defined as
1
At some point during the next years, Harris escaped from custody. After his arrest, he
pleaded guilty to one count of felony escape and was sentenced to a term of imprisonment of two
years, to run consecutively to his sentences for felony murder and aggravated rape. See Harris v.
Worthington, No. W2008-00603-CCA-R3-HC, 2008 WL 3892031, at *1 (Tenn. Crim. App. Aug.
22, 2008). The Petition does not address the escape conviction. Respondent has, for some
reason, produced the record of state proceedings challenging the escape conviction.
3
punishment. The judgment reflects 20 years, the State’s trying to utilize the habeas corpus to
secure additional punishment and that’s a breach of the plea agreement.” (Id.) On October 8,
2008, the court denied the habeas petition but remanded the case “to the Carroll County Circuit
Court for entry of an amended judgment on the petitioner’s aggravated rape conviction, No.
20CR1470, so as to direct a sentence of community supervision for life, pursuant to Tenn. Code
Ann. § 39-13-524 and State v. Bronson, 172 S.W.3d 600 (Tenn. Crim. App. 2005).” (Order
Denying Habeas Corpus Relief on the Pet’r’s Convictions & Granting Limited Relief on the
Pet’r’s Aggravated Rape Sentence at 1-2, Harris v. Worthington, Case No. 9240 (Morgan Cnty.
Crim. Ct.), ECF No. 24-1 at PageID 217-18.)2
Harris appealed from the denial of habeas relief. (Not. of Appeal, id., ECF No. 24-21 at
PageID 835.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed, reasoning as
follows:
Relevant to our analysis is Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006),
wherein our supreme court held that when a judgment imposed pursuant to a
negotiated plea agreement contains an illegal element, the Petitioner must show
that the illegality was a bargained-for element of the plea agreement in order to set
aside the conviction. Conversely, if the illegality is not proven to be a
bargained-for element, then only the sentence is void and the habeas corpus court
should remand the case to the convicting court for correction of judgment. Id. at
128–129; but see McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001) (where defendant
bargains for and receives an illegal sentence, the result on habeas corpus review is
an option to resentence or to withdraw the guilty plea and recommence
prosecution). Thus, unless the Petitioner can prove that his guilty pleas and
resulting convictions are “infected with the illegality” caused by the absence of the
community supervision condition on the aggravated rape judgment, the only relief
available is the correction of judgment upon remand to the convicting court.
Smith, 202 S.W.3d at 129.
2
The order does not appear in the technical record for the Morgan County habeas petition.
4
At the evidentiary hearing, the State conceded that the aggravated rape
judgment was void on its face because the trial court failed to impose community
supervision for life as a condition of release upon service of the sentence.
However, the State argued that unless the Petitioner could prove that the condition
was a material element of the plea bargain, the only appropriate relief would be
correction of the judgment by the trial court. The Petitioner testified that there was
no discussion regarding the community supervision for life condition during plea
negotiations. The plea acceptance form does not include any reference to
community supervision.
Our review of the record further reveals that the Petitioner was warned by
counsel that if he were successful in obtaining a withdrawal of the plea agreement,
he could potentially face the death penalty for the felony murder charge. The plea
acceptance form also confirms that the possible sentence the Petitioner faced for
the felony murder charge included the death penalty. The record indicates that the
plea negotiations focused appropriately upon the Petitioner’s avoidance of the
death penalty and convictions for the additional offenses that were dismissed,
rather than the conditions of release from the aggravated rape sentence.
Furthermore, given that the sentence for the aggravated rape was ordered to be
served concurrently with the life without parole sentence, we deem the Petitioner’s
argument that the community supervision for life condition was a bargained-for
element of the plea agreement quite disingenuous. These considerations coupled
with the Petitioner’s testimony at the evidentiary hearing that there was no
discussion of the community supervision condition during plea negotiations lead us
to conclude that neither the presence nor the absence of the community supervision
condition was a bargained-for element of this plea agreement. Accordingly, the
habeas corpus court correctly denied relief and remanded the aggravated rape case
to the trial court for correction of the judgment to include community supervision
for life.
Harris v. Worthington, No. E2008-02363-CCA-R3-HC, 2010 WL 2595203, at *2 (Tenn. Crim.
App. June 29, 2010).3 On January 20, 2011, the Carroll County Circuit Court entered an amended
judgment on the aggravated rape count. (Am. J., State v. Harris, No. 20CR1470 (Carroll Cnty.
Cir. Ct.) (Count 4), ECF No. 24-7 at PageID 477.)
3
In his answer, Respondent states, incorrectly, that, “[o]n June 29, 2010, the Tennessee
Court of Criminal Appeals refused to withdraw the defendant’s guilty plea in connection with his
state habeas-corpus challenge to his aggravated-rape conviction.” (Answer at 8, Harris v.
Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 28.) In the habeas proceeding,
Harris sought to have his guilty pleas declared void; he did not seek to withdraw the pleas.
5
In the meantime, on October 16, 2008, one week after entry of the Morgan County order
directing the Carroll County Circuit Court to issue an amended judgment, Harris filed a motion in
the Carroll County Circuit Court to withdraw his guilty pleas on the ground that the State had
breached the plea agreement by adding additional conditions to the rape conviction, including
community supervision for life and residential and work restrictions. (Mot. to Withdraw Pleas of
Guilty, id., ECF No. 24-1 at PageID 205-09.) On October 22, 2008, the trial court summarily
denied the motion, reasoning that
[t]he motion is not timely and is denied first on that basis. T.R.Cr.P. 32(f).
Secondly, to the extent that the pending motion could be interpreted as a post
conviction proceeding, it is also barred by time and by the fact that it is an
impermissible second such petition. T.C.A. § 40-30-102(a) & (c).
(Order on Mot. to Withdraw Pleas of Guilty, id., ECF No. 24-1 at PageID 213.) On October 29,
2008, Petitioner filed a notice of appeal “from the final Judgment entered in this action on 22 Day
of October, 2008.” (Not. of Appeal, id., ECF No. 24-1 at PageID 232.)4
On appeal, the TCCA held that Harris’s motion to withdraw his guilty pleas was untimely:
4
On October 23, 2008, the inmate submitted an amended motion to withdraw his guilty
pleas, which included, as an attachment, a copy of the order entered by the Morgan County
Criminal Court on October 8, 2008. (Am. Mot. to Withdraw Pleas of Guilty, id., ECF No. 24-1 at
PageID 214-15; see also Order Denying Habeas Corpus Relief on the Pet’r’s Convictions &
Granting Limited Relief on the Pet’r’s Aggravated Rape Sentence, Harris v. Worthington, Case
No. 9240 (Morgan Cnty. Crim. Ct.), ECF No. 24-1 at PageID 217-18.) On the same date, Harris
also filed motions asking to be present at any resentencing and seeking the appointment of counsel.
(Presence of Def. at Sentence Imposition, State v. Harris, No. 20CR1470 (Carroll Cnty. Cir. Ct.),
ECF No. 24-1 at PageID 220; Mot. for Appointment of Counsel, id., ECF No. 24-1 at PageID 224.)
On October 27, 2008, he moved for leave to withdraw his first motion to withdraw his guilty plea,
which had already been ruled on, and sought a ruling on his amended motion. (Mot. to Withdraw,
id., ECF No. 24-1 at PageID 231.) On January 12, 2009, an order denying the amended motion to
withdraw the guilty pleas was entered. (Order Denying Am. Mot. to Withdraw Pleas of Guilty,
id., ECF No. 24-7 at PageID 470.)
6
The State interprets the petitioner’s pro se notice of appeal as his attempt to
appeal the Carroll County Circuit Court Clerk’s October 23, 2008, entry of the copy
of the Morgan County Criminal Court’s order denying the petition for writ of
habeas corpus. The State points out that the petitioner’s appeal from the order
denying habeas corpus relief is pending before this court in a separate case and
argues that this current appeal should be dismissed because the petitioner has no
right of appeal from the October 23, 2008, action of the Carroll County Circuit
Court Clerk in entering a copy of that order. However, having the benefit of the
petitioner’s reply brief, we believe that he is actually appealing the Carroll County
Circuit Court’s denial on October 22, 2008 of his motion to withdraw his guilty
pleas.
Tennessee Rule of Criminal Procedure 32(f) provides that a trial court may
grant a motion to withdraw a guilty plea for any fair and just reason before the
sentence has been imposed. Tenn. R. Crim. P. 32(f)(1). The rule further provides
that after the sentence has been imposed but before a judgment becomes final, “the
court may set aside the judgment of conviction and permit the defendant to
withdraw the plea to correct manifest injustice.” Tenn. R. Crim. P. 32(f)(2). “[A]
judgment of conviction entered upon a guilty plea becomes final thirty days after
acceptance of the plea agreement and imposition of sentence.” State v. Green, 106
S.W.3d 646, 650 (Tenn. 2003).
The petitioner argues that because the convicting court has not yet entered
an amended or corrected judgment in his aggravated rape case, the sentence has not
yet been imposed and his motion to withdraw his guilty pleas is therefore timely.
He acknowledges that he currently has an appeal of the denial of his petition for
writ of habeas corpus pending before the eastern section of this court, but maintains
that the “Habeas Corpus Courts [sic] Final Judgment Appeal is a separate matter
which is irrelevant in this action.” We respectfully disagree. The petitioner relies
on the judgment of the habeas corpus court for his argument as to the timeliness of
his motion to withdraw his guilty pleas and is, in essence, attempting in his pro se
motions to obtain the same relief he sought in his petition for writ of habeas corpus.
In this case, the petitioner’s conviction became final thirty days after the March 20,
2000, entry of his judgments of conviction. Thus, the Carroll County Circuit
Court properly denied his motion to withdraw his guilty pleas as untimely. As the
Morgan County Criminal Court noted in its order, this court has concluded that a
trial court has jurisdiction to correct an illegal sentence at any time. See [State v.]
Bronson, 172 S.W.3d [600,] 602 [(Tenn. Crim. App. 2005)] (holding that judgment
that failed to include statutory requirement of community supervision for life
resulted in illegal sentences, which trial court had jurisdiction to correct by
amending judgments of conviction). Furthermore, our supreme court has
concluded that “where the illegality infects only the sentence, only the sentence is
rendered void and habeas corpus relief may be granted to the extent of the sentence
only.” Smith v. Lewis, 202 S.W.3d 124, 130 (Tenn. 2006).
7
Harris v. State, No. W2008-02507-CCA-R3-CD, 2009 WL 1362365, at *2 (Tenn. Crim. App.
May 15, 2009).
On May 27, 2011, Petitioner presented a second pro se post-conviction petition in the
Carroll County Circuit Court that sought to challenge the amended judgment. (Pet. for Relief
from Conviction or Sentence, Harris v. State, No. 20CR1470 (Carroll Cnty. Cir. Ct.), ECF No.
24-7 at PageID 480-86.) On June 22, 2011, the post-conviction court summarily dismissed the
petition. (Order of Summ. Dismissal, id., ECF No. 24-7 at PageID 498-501.) The court
explained that the pleading was an impermissible second post-conviction petition (id. at PageID
499) and that the issue presented had been previously litigated in the habeas petition and the appeal
from the order denying the motion to withdraw the guilty plea (id. at 499-500). The TCCA
affirmed, Harris v. State, No. W2011-01578-CCA-R3-PC, 2011 WL 6747474 (Tenn. Crim. App.
Dec. 21, 2011), appeal denied (Tenn. Apr. 12, 2012), and held:
Assuming, under the specific facts of this case, that a defendant may file for
post[-]conviction relief from an amended judgment order even where he or she has
previously filed for post-conviction relief from the original judgment,[ 5 ]
5
Our Post–Conviction Procedure Act “contemplates the filing of only one
(1) petition for post[-]conviction relief. In no event may more than one (1)
petition for post-conviction relief be filed attacking a single judgment. If a prior
petition has been filed which was resolved on the merits by a court of competent
jurisdiction, any second or subsequent petition shall be summarily dismissed.”
Tenn. Code Ann. § 40–30–102(c) (emphasis added). We note that an amended
judgment may be distinguishable from a “single” judgment. We also note that, in
this case, the Petitioner’s initial petition for post-conviction relief was not resolved
on the merits. Finally, this Court has previously recognized that a second petition
for post[-]conviction relief may proceed on an amended judgment even where a
previous post-conviction petition on the original judgment was resolved on the
merits. See Manny T. Anderson v. State, No. M2004–02116–CCAR3–HC, 2006
WL 739885, at *1–3 (Tenn. Crim. App. Mar. 23, 2006). Our resolution of this
case on the merits makes it unnecessary for us to resolve this issue.
8
post-conviction relief remains available only where the defendant alleges a
constitutional violation and sets forth facts in support thereof. See Tenn. Code
Ann. §§ 40–30–103 (2006); 40–30–106(d) (2006); Burnett v. State, 92 S.W.3d 403,
406 (Tenn. 2002). The Petitioner claims that, because the trial court never
informed him of the lifetime community supervision requirement at the time he
[pleaded] guilty, the amended judgment order adding that sentencing provision
renders his plea constitutionally infirm, and he must be allowed to withdraw it.
Ward [v. State, 315 S.W.3d 461 (Tenn. 2010)] established that a trial court
commits constitutional error if it fails to ensure that a defendant pleading guilty to
an applicable offense is aware that the sentence includes mandatory lifetime
community supervision. Ward, 315 S.W.3d at 476. However, even accepting as
true the Petitioner’s allegation that the trial court did not inform him in March 2000
of the lifetime community supervision aspect of his sentence that was subsequently
added in January 2011, Ward also held that he is not entitled to set aside his plea if
the record demonstrates that the trial court’s error is harmless beyond a reasonable
doubt. See id. In this case, it is uncontroverted that the Petitioner’s plea
agreement included a sentence of life imprisonment with no possibility of parole.
Given that the Petitioner is not eligible for parole, he, in actuality, will not ever be
subject to the lifetime community supervision requirement. Therefore, any error
by the trial court in failing to ensure that he was aware of the community
supervision requirement for his aggravated rape conviction is harmless beyond a
reasonable doubt. Thus, the Petitioner’s argument establishes no claim for
post[-]conviction relief. Accordingly, we affirm the post-conviction court’s
denial of the Petitioner’s claim for post-conviction relief.
Id. at *2; see also id. at *2 n.2 (“Indeed, we question how a lifetime community supervision
requirement could be a material component of any plea agreement that also contained a sentence of
life imprisonment with no possibility of parole.”).
On December 10, 2012, Harris filed a pro se habeas petition, his second, in the Circuit
Court for Lake County, Tennessee. (Pet. for Writ of Habeas Corpus, Harris v. Steward, No.
12-CR-9813 (Lake Cnty. Cir. Ct.), ECF No. 49-1 at PageID 1111-16.) Harris argued that his
sentence of community supervision for life was illegal because it was imposed eleven years after
he was found guilty (id. at 1114) and that the trial court failed to award jail credit from September
7, 1999 until January 20, 2011, in violation of Tennessee law (id. at PageID 1114-15). On
9
January 3, 2013, the trial judge summarily denied the habeas petition. (Order Denying Pet. for
Writ of Habeas Corpus, Harris v. Steward, No. 12-CR-9813 (Lake Cnty. Cir. Ct.), ECF No. 49-1
at PageID 1133-35.) The TCCA affirmed. Harris v. Steward, No. W2013-00207-CCA-R3-HC,
2013 WL 4011569 (Tenn. Crim. App. Aug. 6, 2013).
B.
Procedural History of the Petition
On August 31, 2012, Harris filed the Petition, accompanied by motions seeking leave to
proceed in forma pauperis and for the appointment of counsel. (Pet., Harris v. Holloway, No.
1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1; Appl. to Proceed in District Court without
Prepaying Fees or Costs (Short Form), id., ECF No. 2; Mot. for Appointment of Counsel, id., ECF
No. 3.) The Court granted leave to proceed in forma pauperis on September 10, 2012. (Order,
id., ECF No. 4.) The Petition presented the following issues:
1.
“Denial of Assistance of Appointed Counsel” (Pet. at PageID 5, id., ECF
No. 1; see also id. at PageID 5-6);
2.
“Breached Plea Agreement” (id. at PageID 6; see also id. at PageID 6-8);
3.
“Denial of a Full and Fair Hearing/sentence (sic) Hearing” (id. at PageID 8;
see also id. at PageID 8-9); and
4.
“Illegal Arrest” (id. at PageID 10; see also id. at PageID 10-11).
In an order issued on October 2, 2012, the Court denied the motion for appointment of counsel and
directed Respondent, Roland Colson, the Warden of the Riverbend Maximum Security Institution
in Nashville, Tennessee (the “Warden”), to file the complete state-court record and a response to
the Petition. (Order, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No.
10
5.) The inmate was instructed that any reply should be filed within thirty days of service of the
answer. (Id. at 4.)
Before Colson had responded to the Petition, Harris filed a number of motions. On
October 26, 2012, he moved to expand the record to include various documents in support of the
fourth issue (“Claim 4”) in the Petition. (Mot. to Expand the Record, Harris v. Holloway, No.
1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 12.) The Warden responded in opposition to the
motion on October 30, 2012. (Resp’t’s Mem. in Opp’n to Pet’r’s Mot. to Expand the Record, id.,
ECF No. 13.) On November 14, 2012, without seeking leave of Court, Petitioner submitted a
reply in further support of his motion to expand the record. (Pet’r’s Reply in Supp. of Mot. to
Expand the Record, id., ECF No. 17.)
On November 2, 2012, Harris filed two motions seeking leave to conduct discovery.
(Mot. for Leave of Court to Conduct Disc., id., ECF No. 14; Mot. for Disc., id., ECF No. 15.)
Colson responded to the motions on October 9, 2012.
(Resp’t’s Mem. in Opp’n to Pet’r’s Mot.
for Leave to Conduct Disc., id., ECF No. 16.) On November 15, 2012, without seeking leave of
Court, he filed a reply in further support of his discovery motions. (Pet’r’s Reply in Supp. of
Mots. for Disc., id., ECF No. 18.)
On December 10, 2012, Harris filed a motion seeking to stay proceedings in this action
because his second state habeas petition was pending in the Lake County Circuit Court. (Mot. to
Stay Proceedings, id., ECF No. 22.) The Warden filed his response in opposition to the motion on
December 18, 2012. (Resp’t’s Resp. in Opp’n to Pet’r’s Mot. to Stay Proceedings, id., ECF No.
28.)
11
On December 14, 2012, Respondent filed most of the state-court record. (Resp’t’s Not. of
Filing of Documents, id., ECF No. 24.) On December 17, 2012, he submitted a corrected filing of
documents, (Resp’t’s Not. of Corrected Filing, id., ECF No. 26), and filed his answer on December
21, 2012. (Answer, id., ECF No. 28.)
On January 16, 2013, the prisoner filed a notice stating that he had not received the answer
and the state-court record. (Compl. [of] Resp’t’s Refusal to Serve Pet’r, id., ECF No. 30.) On
the same date, he filed motions seeking to have the Clerk of Court mail the answer and state-court
record to him so that he could prepare his reply. (Pet’r’s Mot. to Remove Record to Prepare Brief,
id., ECF No. 31; Pet’r’s Mot. to Remove Resp’t’s Answer, id., ECF No. 32; Pet’r’s Mot. to
Remove Docket Entry # 27, id., ECF No. 33.) On January 22, 2013, the Warden responded to
Petitioner’s motions, stating, inter alia, that copies of the documents had previously been served
on Harris and that additional copies were being mailed to him. (Resp’t’s Resp. in Opp’n to Pet’r’s
Mot. to Remove Resp’t’s Answer, id., ECF No. 34; Resp’t’s Resp. in Opp’n to Pet’r’s Mot. to
Remove Record to Prepare Brief, id., ECF No. 35; Resp’t’s Resp. in Opp’n to Pet’r’s Mot. to
Remove Docket Entry # 27, id., ECF No. 36.)
On March 15, 2013, Harris filed a motion seeking enhanced access to the prison law
library. (Mot. for Court Ordered Access to Prison Law Library, id., ECF No. 40.) Colson did
not respond to this motion.6
On May 10, 2013, the Court issued an order striking Harris’ unauthorized reply brief and
denying his motion to expand the record. (Order, id., ECF No. 41.) The order explained, inter
6
On February 27, 2013, the Court substituted Jerry Lester, the Warden of the WTSP, for
Colson as Respondent. (Order, id., ECF No. 39.)
12
alia, that, until the Court addresses whether Claim 4 is barred by procedural default, “no useful
purpose will be served by burdening the record with extraneous material.” (Id. at 2.)
In an order issued on May 20, 2013, the Court denied as moot Harris’ motions to withdraw
Respondent’s various filings because he had represented that he mailed additional copies of the
filings at issue to the inmate. (Order, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D.
Tenn.), ECF No. 42.)
On June 5, 2013, the Court issued an order striking Petitioner’s
unauthorized reply brief and denying his motions for discovery. (Order, id., ECF No. 43.) That
order noted that
Respondent’s answer states that any challenge to Petitioner’s conviction for felony
murder is time-barred and that most of his challenges to his conviction for
aggravated rape are barred by procedural default. Any request for discovery is
premature until the Court has determined the adequacy of those affirmative
defenses and otherwise considered whether the petition asserts any facially
plausible constitutional claim.
(Id. at 3.)
In an order issued on August 1, 2013, the Court denied the inmate’s motion to stay
proceedings because the Lake County habeas petition “does not present any of the issues raised in
his § 2254 petition” and Harris “cannot obtain relief on those new claims in a federal habeas
petition because they arise under Tennessee law.”
(Order at 3, Harris v. Holloway, No.
1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 44.) On August 19, 2013, the Court denied
Harris’ motion for court-ordered access to the prison law library. (Order, id., ECF No. 45.) The
order also sua sponte extended his time to reply to the answer by thirty days, but explained that,
"[b]ecause Petitioner has already had eight months in which to prepare his reply, no further
extensions of time will be granted in the absence of extraordinary circumstances.
13
Inadequate access to the law library is not an extraordinary circumstance that will warrant a further
extension of time. (Id. at 2.)
On October 13, 2013, Petitioner filed a document, titled “Judicial Notice Request,” which
stated that he was undergoing treatment for an unspecified disease of the eye, that the treatment
distorted his vision and that, as a result, he had been unable to prepare a reply. (Judicial Notice
Request, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 46.) He
sought an order directing the TDOC to provide unspecified treatment. (Id. at 2.) He did not,
however, provide any information about the length of time he had allegedly been disabled, and he
did not seek an extension of time in which to file a reply.7
The Court issued an order on November 3, 2014, noting that
Petitioner has filed numerous state-court challenges to his convictions and
sentences. The Warden’s presentation of the record makes it unreasonably
difficult to locate the documents relating to each of those challenges.
Respondent’s Notice of Filing of Documents (ECF No. 24) refers to the various
documents by Addendum, and by document number within several of the addenda.
There is no reference to the ECF Number of any of the filed documents, and the
description of the twenty-nine documents filed at ECF No. 24 does not allow the
Court to identify the proceeding to which each document refers.
7
A habeas petition is not an appropriate means of addressing alleged deficiencies in the
medical care provided to prisoners. See Hodges v. Bell, 170 F. App’x 389, 392-93, 395 (6th Cir.
2006); see also Evans v. Eichenlaub, No. 08-13469, 2008 WL 4771934, at *1 (E.D. Mich. Oct. 29,
2008) (allegation that prisoner was provided inadequate medical care not cognizable in a habeas
petition seeking transfer to a medical facility or a residential re-entry center); Villanueva-Monroy
v. Hobart, No. 05-C-214-C, 2005 WL 941144, at *1 (W.D. Wis. Apr. 18, 2005) (“Even if
petitioner were to prove that his medical need is serious and that respondent has been deliberately
indifferent to it, he would not be entitled to release or modification of his sentence. The injury he
alleges is a claim that must be raised in a civil action brought pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388[] (1971).”). Petitioner’s request for a change in his
medical treatment is DENIED.
14
(Order at 1-2, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 47 at 1-2
(footnote omitted).) The Court observed that “Addendum 2 refers to a direct appeal. Petitioner
filed no direct appeal of his convictions.” (Id. at 2 n.2.) The order further stated that,
[a]lthough it is not possible to determine with certainty, given the limitations of the
index, it appears that Respondent has not filed the complete state-court record.
The transcript of the guilty plea does not appear in the record. No copy of the
amendment judgment, which allegedly imposed additional conditions on the
conviction for aggravated rape, appears in the record.
(Id. at 2.) Respondent was ordered “to file an amended index to the state-court record within
twenty-eight days of the date of entry of this order that includes, in addition to the information
provided in the original and corrected notices of filing, the ECF Number of each document filed”
and to file the missing portions of the state-court record, including the Lake County habeas
petition. (Id.)8
On December 1, 2014, Respondent filed an index to the state-court record, which identified
where the amended judgment could be found. (Resp’t’s Index to the State-Court Record at 2,
Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 48.)9 The Warden also
noted that, “from [his] review of the state-court records, the petitioner does not appear ever to have
presented the transcript of his guilty-plea hearing to the Tennessee state courts in any of his various
attacks on the legality of his plea.” (Id. at 4.) The same day, Respondent filed the record
8
That order also substituted James M. Holloway, the current WTSP Warden, for Lester as
Respondent. (Order at 1-2, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF
No. 47 at 1 n.1.)
9
Respondent’s index did not correct the erroneous reference to a direct appeal. (Resp’t’s
Index to the State-Court Record at 1, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D.
Tenn.), ECF No. 48.)
15
pertaining to the Lake County habeas petition. (Resp’t’s Not. of Filing of Documents, Harris v.
Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 49.)
On December 10, 2014, the prisoner presented a notice of Respondent’s failure to file the
guilty-plea transcript and a motion asking that he be ordered to do so. (Not. [of] Resp’t’s Failure
to File Missing Portions of the Record, id., ECF No. 50; Mot. for Complete Filling (sic) of the
Record, id., ECF No. 51.) The Warden filed a response in opposition to the motion on December
11, 2014. (Resp’t’s Resp. in Opp’n to Pet’r’s Mot. for Complete Filing of the Record, id., ECF
No. 52.) On December 19, 2014, Petitioner replied without seeking leave of Court. (Pet’r’s
Reply in Supp. of Mot. for Complete Filling (sic) of the Record, id., ECF No. 54.)
On April 9, 2015, Harris moved for leave to file a reply in further support of his Petition
after Respondent filed the guilty-plea transcript. (Mot. for Leave to File, id., ECF No. 55.) The
Warden did not respond to that motion. On April 17, 2015, the inmate filed his reply without
waiting for a decision on his motion. (Reply, id., ECF No. 56.)
In an order issued on May 5, 2015, the Court struck Petitioner’s unauthorized reply in
support of the motion to compel, granted the motion to compel Respondent to file the guilty-plea
transcript and ordered him to do so within twenty-eight days, and denied Petitioner’s motion to file
an untimely reply after receipt of the transcript. (Order, id., ECF No. 57.) The Court exercised
its discretion to consider the reply that Harris had filed on April 17, 2015. (Id. at 5 n.4.)
On May 13, 2015, the inmate submitted a document purporting to show that extraordinary
circumstances prevented him from filing a timely reply.
(Extraordinary Circumstances
Supporting Pet’r’s Late Filing of Reply, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D.
Tenn.), ECF No. 58.) On May 28, 2015, Respondent filed a notice that the recording of the
16
guilty-plea hearing could not be located. (Not. of Filing, id., ECF No. 59.) Because a transcript
of the guilty-plea hearing would not be filed, and because the Court previously agreed to consider
the late-filed reply, it is unnecessary to further address Petitioner’s claim of extraordinary
circumstances.
II.
THE STATUTE OF LIMITATIONS
In his answer, Respondent first argues that the Petition is untimely insofar as it seeks to
challenge Harris’ conviction for felony murder. (Answer at 2, 10-12, Harris v. Holloway, No.
1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 28.)10 Twenty-eight U.S.C. § 2244(d) provides:
(1)
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—
10
The entry of an amended judgment on the aggravated rape conviction arguably started a
new § 2254 limitations period for that conviction. See Jimenez v. Quarterman, 555 U.S. 113, 121
(2009) (“[W]here a state court grants a criminal defendant the right to file an out-of-time direct
appeal during state collateral review, but before the defendant has first sought federal habeas
relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A). In such a case, ‘the date on
which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review’ must reflect the conclusion of the out-of-time direct appeal, or the
expiration of the time for seeking review of that appeal.”); see also Magwood v. Patterson, 561
U.S. 320, 333-34 (2010) (a death row prisoner’s § 2254 petition filed after a resentencing is not
“second or successive” even if it raises new issues that could have been raised in response to the
original judgment, because § 2244 applies to “judgments” rather than to a prisoner’s custody).
That Harris is entitled to challenge the new condition imposed in the amended judgment does not
necessarily mean that he is also entitled to raise a challenge to the plea agreement or to events
arising prior to entry of the plea. See Magwood, 561 U.S. at 342 & n.16 (declining to decide
whether petitioners who obtain a conditional writ as to their sentences can file a new habeas
petition that includes challenges to the underlying conviction, but noting that “[s]everal Courts of
Appeals have held that a petitioner who succeeds on a first habeas application and is resentenced
may challenge only the portion of a judgment that arose as a result of a previous successful
action”). It is unnecessary to address whether any of Harris’ claims challenging the aggravated
rape conviction might be time-barred because Respondent has elected not to raise that affirmative
defense.
17
(A)
(B)
the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D)
(2)
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
The time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
subsection.
Because Harris did not appeal his conviction for felony murder, it became final no later
than the expiration of the time for taking a direct appeal. See 28 U.S.C. § 2244(d)(1)(A); see also
Jimenez v. Quarterman, 555 U.S. 113, 118-19 (2009). The judgments were entered on March 20,
2000. The time for taking a direct appeal expired thirty days later, on April 19, 2000, Tenn. R.
App. P. 4(a); State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003) (a judgment of conviction entered
upon a guilty plea becomes final thirty days after acceptance of the plea agreement and imposition
of sentence), at which time the running of the limitations period began.
The limitations period was tolled, pursuant to § 2244(d)(2), when Harris filed his
post-conviction petition on November 17, 2000.
By that time, 211 days of the one-year
limitations period had elapsed. The post-conviction court dismissed the petition on December 1,
2000, and the time to appeal that decision expired thirty days later, on January 2, 2001. See Tenn.
18
R. App. P. 4(a); see also Tenn. Code Ann. § 40-30-216 (“The order granting or denying relief
under this part shall be deemed a final judgment, and an appeal may be taken to the court of
criminal appeals in the manner prescribed by the Tennessee Rules of Appellate Procedure. . . .”)
(2000).11 The running of the limitations period recommenced on that date, and it expired 154
days later, on June 5, 2001. Harris’ Petition was signed on August 16, 2012 (see Pet. at PageID
14, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1), more than eleven
years after the expiration of the limitations period, and, even if it were deemed to have been filed
on that date, see Houston v. Lack, 487 U.S. 266, 270-71, 276 (1988); Brand v. Motley, 526 F.3d
921, 925 (6th Cir. 2008); Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999), every
challenge to the conviction for felony murder is time-barred.12 Therefore, Claims 2 and 4 are
time-barred insofar as they challenge Harris’ plea agreement and conviction for felony murder.
“The doctrine of equitable tolling allows courts to toll a statute of limitations when a
litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond that litigant’s control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (internal
quotation marks omitted). The § 2254 limitations period is subject to equitable tolling. Holland
11
This provision is currently codified at Tennessee Code Annotated § 40-30-116. Because
the thirtieth day fell on a Sunday and the next weekday was a holiday, Harris had until the next
business day to file his § 2254 petition. See Fed. R. Civ. P. 6(a)(1)(C).
12
Petitioner’s various collateral challenges to his sentence for aggravated rape and, by
implication, the plea agreement, did not toll the running of the limitations period for the murder
conviction because that limitations period had already expired. See Vroman v. Brigano, 346 F.3d
598, 602 (6th Cir. 2003) (“The tolling provision does not . . . ‘revive’ the limitations period (i.e.,
restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the
limitations period is expired, collateral petitions can no longer serve to avoid a statute of
limitations.”); Owens v. Stine, 27 F. App’x 351, 353 (6th Cir. 2001) (“A state court post-conviction
motion that is filed following the expiration of the limitations period cannot toll that period
because there is no period remaining to be tolled.”).
19
v. Florida, 560 U.S. 631, 645 (2010). “[T]he doctrine of equitable tolling is used sparingly by
federal courts.” Robertson, 624 F.3d at 784. “The party seeking equitable tolling bears the
burden of proving he is entitled to it.” Id. A habeas petitioner is entitled to equitable tolling
“only if he shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted).
Harris asserts that the Petition is timely because “[t]he Judgment only became final on
April-12-2012 see attached order issued by the Tenn. Supreme court this Petition is being filed less
than one year from that date.”
(Pet. at PageID 13, Harris v. Holloway, No.
1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.) This statement refers only to the amended
judgment for the aggravated rape conviction. For the reasons previously stated, his murder
conviction became final on April 19, 2000.
The inmate’s reply to the answer does not address the statute of limitations and does not
request equitable tolling. (See Reply, id., ECF No. 56.) Instead, Harris argues that, if he were to
succeed on his challenge to the aggravated rape conviction, he would be entitled to withdraw his
plea. He reasons that, because only one plea was entered, that would necessarily invalidate the
plea to felony murder as well. (Id. at 6.) Although Petitioner is correct that his challenge to the
validity of his guilty plea ordinarily would implicate the entire plea agreement, he overlooks the
fact that that challenge must be timely. Even if the challenge to the amended judgment on the
aggravated rape conviction is timely, the opposition to the murder judgment is not.
Petitioner’s apparent ignorance of the law is insufficient to entitle him to equitable tolling.
See Plummer v. Warren, 463 F. App’x 501, 506 (6th Cir.) (“the district court correctly concluded
20
that the reasons Plummer actually gave for the delay in filing her petition—namely her need to find
help and inexperience in the law—are not extraordinary circumstances warranting equitable
tolling”), cert. denied, 133 S. Ct. 169 (2012); Moore v. United States, 438 F. App’x 445, 449 (6th
Cir. 2011) (per curiam) (“Ignorance of the law, even by an incarcerated pro se petitioner, is not
grounds to toll the statute.”); Miller v. Cason, 49 F. App’x 495, 497 (6th Cir. 2002) (“Miller’s lack
of knowledge of the law does not excuse his failure to timely file a habeas corpus petition.”);
Brown v. United States, 20 F. App’x 373, 375 (6th Cir. 2001) (“Ignorance of the limitations period
does not toll the limitations period.”). Harris’ escape from custody also provides no basis for
equitable tolling. See Allen v. Kemp, No. 88-6287, 1989 WL 54764, at *1 (6th Cir. May 25,
1989); Harris v. Warden, S. Ohio Corr. Facility, No. 1:12-cv-261, 2013 WL 492993, at *8 (S.D.
Ohio Feb. 7, 2013) (report & recommendation), adopted, 2013 WL 1438008 (S.D. Ohio Apr. 9,
2013). Therefore, he is not entitled to equitable tolling.
The Court DISMISSES Claims 2 and 4 as time-barred insofar as they challenge Harris’
conviction for felony murder.
III.
THE LEGAL STANDARD
The statutory authority for federal courts to grant habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). A federal court may grant habeas relief to a state prisoner “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).
21
A.
Waiver and Procedural Default
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, 131 S. Ct. 1388, 1398 (2011). The
petitioner must “fairly present”13 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 (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 (1999).
Tennessee Supreme Court Rule 39
eliminated the need to seek review in the Tennessee Supreme Court in order to “be deemed to have
exhausted all available state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003); see
Smith v. Morgan, 371 F. App’x 575, 579 (6th Cir. 2010) (per curiam) (the Adams holding
promotes comity by requiring that state courts have the first opportunity to review and evaluate
claims and by mandating that federal courts respect the duly-promulgated rule of the Tennessee
Supreme Court that recognizes that court’s law and policy-making function and its desire not to be
entangled in the business of simple error correction).
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards
v. Carpenter, 529 U.S. 446, 452-53 (2000) (noting the interplay between the exhaustion rule and
the procedural default doctrine). If the state court decides a claim on an independent and
13
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 (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 (1996).
22
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, 87-88 (1977); see Coleman v. Thompson, 501 U.S.
722, 729-30 (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”). 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.
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, 322 (1995); Coleman, 501 U.S. at 749-50. 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. Schlup, 513 U.S. at 321; see House v. Bell, 547 U.S. 518, 536-39
(2006) (restating the ways to overcome procedural default and further explaining the actual
innocence exception).
B.
Merits Review
Section 2254(d) establishes the standard for addressing claims that have been adjudicated
in state courts on the merits:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim—
23
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). The petitioner carries the burden of proof for this “difficult to meet”
and “highly deferential [AEDPA] standard,” which “demands that state-court decisions be given
the benefit of the doubt.” Cullen, 131 S. Ct. at 1398.14
Review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits. Cullen, 131 S. Ct. at 1399. A state court’s decision is
“contrary” to federal law when it “arrives at a conclusion opposite to that reached” by the Supreme
Court on a question of law or “decides a case differently than” the Supreme Court has “on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 15 An
“unreasonable application” of federal law occurs when the state court “identifies the correct
governing legal principle from” the Supreme Court’s decisions “but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 412-13. The state court’s application of
clearly established federal law must be “objectively unreasonable.” Id. at 409. The writ may not
issue merely because the habeas court, in its independent judgment, determines that the state court
decision applied clearly established federal law erroneously or incorrectly. Renico v. Lett, 559
U.S. 766, 773 (2010); Williams, 529 U.S. at 411.
14
The AEDPA standard creates “a substantially higher threshold” for obtaining relief than
a de novo review of whether the state court’s determination was incorrect. Schriro v. Landrigan,
550 U.S. 465, 473 (2007).
15
The “contrary to” standard does not require citation of Supreme Court cases “so long as
neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam); Treesh v. Bagley, 612 F.3d 424, 429 (6th Cir. 2010).
24
There is little case law addressing the standard in § 2254(d)(2) that a decision was based on
“an unreasonable determination of the facts.” However, in Wood v. Allen, 558 U.S. 290, 301
(2010), the Supreme Court stated that a state-court factual determination is not “unreasonable”
merely because the federal habeas court would have reached a different conclusion. In Rice v.
Collins, 546 U.S. 333, 341-42 (2006), the Court explained that “[r]easonable minds reviewing the
record might disagree” about the factual finding in question, “but on habeas review that does not
suffice to supersede the trial court’s . . . determination.”16
“Notwithstanding the presumption of correctness, the Supreme Court has explained that
the standard of § 2254(d)(2) is ‘demanding but not insatiable.’” Harris v. Haeberlin, 526 F.3d
903, 910 (6th Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 240 (2005)). “Even in the
context of federal habeas, deference does not imply abandonment or abdication of judicial
review.’” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A state court adjudication will not be
overturned on factual grounds unless objectively unreasonable in light of the evidence presented in
the state court proceeding. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010).
IV.
ANALYSIS OF PETITIONER’S CLAIMS
A.
The Alleged Denial of Counsel (Claim 1)
In Claim 1, titled “Denial of Assistance of Appointed Counsel,” Harris alleges that
16
In Wood, the Supreme Court granted certiorari to resolve whether, to satisfy §
2254(d)(2), a petitioner must establish only that the state-court factual determination on which the
decision was based was “unreasonable,” or whether § 2254(e)(1) additionally requires a petitioner
to rebut a presumption that the determination was correct with clear and convincing evidence.
Wood, 558 U.S. at 299. The Court ultimately found it unnecessary to reach that issue. Id. at
300-01, 304-05. In Rice, the Court recognized that it is unsettled whether there are some factual
disputes where § 2254(e)(1) is inapplicable. Rice, 546 U.S. at 339.
25
[t]he trial court sentenced defendant on 1-20-2011 without counsel. Counsel was
denied in the post-conviction proceeding. The appeallte (sic) court denied counsel
on Sept. 15, 2011 by order that post-conviction was filed outside the statuet (sic) of
limitations or did not present a colorable claim. On December 21-2011 the
appellate court found the post-conviction permissible and colorable and determined
the case without assistance of counsel in violation of state law and the U.S.
Constitution.
(Pet. at PageID 5, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.)
Although Respondent has not raised this issue, portions of Claim 1 are not cognizable in a
§ 2254 petition. A federal court may grant habeas relief to a state prisoner “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). Error in the application of state law is not cognizable in a federal habeas
proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (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 (1984) (“A federal court may not issue the writ on the basis of a perceived error of
state law.”). The post-conviction court’s failure to appoint counsel does not provide a ground for
federal habeas relief. The United States Constitution does not require States to provide avenues
for post-conviction relief, Pennsylvania v. Finley, 481 U.S. 551, 557-58 (1987); see also Coleman,
501 U.S. at 752 (“There is no constitutional right to an attorney in state post-conviction
proceedings.”), and, therefore, any deficiencies in those proceedings cannot provide grounds for
relief in a § 2254 petition.
The failure of the Carroll County Circuit Court to appoint counsel before entry of the
amended judgment on the aggravated rape conviction arguably states a federal constitutional
claim. In his answer, Respondent argues that Harris failed to exhaust this claim in state court and,
because there are no further means of doing so, it is barred by procedural default. (Answer at
26
12-13, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), EF No. 28.) Petitioner
did not take a direct appeal from the amended judgment entered on January 20, 2011. Instead, he
filed a second post-conviction petition in which he argued, inter alia, that he had been denied the
assistance of counsel before entry of the amended judgment. (Pet. for Relief from Conviction or
Sentence at 3-4, Harris v. State, No. 20CR1470 (Carroll Cnty. Circ. Ct.), ECF No. 24-7 at PageID
482-83.) The post-conviction court summarily denied the petition on procedural grounds. See
supra p. 8. In the post-conviction appeal, Harris made no argument that there had been a violation
of his Sixth Amendment right to counsel in connection with the amended judgment. (See Br. of
Appellant at 1, Harris v. State, No. 2011-01578-CCA-R3-PC (Tenn. Crim. App.), ECF No. 24-8 at
PageID 563.) He also failed to raise the issue in his second state habeas petition, the only other
collateral proceeding filed after the entry of the amended judgment. (See Br. of the Appellant
Tracy Lynn Harris at 1, Harris v. Steward, No. W2013-00207-CCA-R3-HC (Tenn. Crim. App.),
ECF No. 49-2 at PageID 1143.) This aspect of Claim 1 is barred by procedural default.
Claim 1 is without merit and is DISMISSED.
B.
The Alleged Breach of Contract (Claim 2)
In Claim 2, titled “Breached Plea Agreement,” Petitioner contends that he
pled guilty to a specific plea agreement of 20 years to serve for Agg. Rape. On
1-20-2011 the trial court entered an amended Judgment of conviction imposing an
additional consecutive life term for life time supervision and the plea agreement
explicably (sic) forbid it by recognizing that only the sentence within the agreement
shall be imposed. The trial court did breach the specific sentence agreement.
(Pet. at PageID 6-7, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.)
The inmate raised the alleged breach of contract in his brief to the TCCA in the appeal from
the denial of his second post-conviction petition. (See Br. of Appellant at 1, Harris v. State, No.
27
2011-01578-CCA-R3-PC (Tenn. Crim. App.), ECF No. 24-8 at PageID 563.) In his answer,
Respondent notes that “[t]he precise constitutional issue is left undefined,” but that the TCCA
construed the issue as a challenge to the intelligent nature of the plea. (Answer at 15, Harris v.
Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 28 at PageID 1029.)
The
Warden then explains why the inmate is not entitled to relief. Although the Court agrees that
Harris is not entitled to relief on Claim 2, Respondent’s analysis of that Claim is not persuasive.
First, the alleged breach of contract is not cognizable in a federal habeas petition because
Petitioner has not alleged a violation of the United States Constitution. (See Pet. at PageID 6-7,
Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.) Alleged violations
of state law cannot be litigated in a petition for a writ of habeas corpus under § 2254.
Second, even if Claim 2 were construed as alleging a federal constitutional claim, the
inmate did not properly exhaust that claim because it was not presented to the state courts as a
federal constitutional issue.
[O]rdinarily a state prisoner does not “fairly present” a claim to a state court if that
court must read beyond a petition or a brief (or a similar document) that does not
alert it to the presence of a federal claim in order to find material, such as a lower
court opinion in the case, that does so.
Baldwin, 541 U.S. at 32.
A petitioner can take four actions in his brief which are significant to the
determination as to whether a claim has been fairly presented: (1) reliance upon
federal cases employing constitutional analysis; (2) reliance upon state cases
employing federal constitutional analysis; (3) phrasing the claim in terms of
constitutional law or in terms sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleging facts well within the mainstream of
constitutional law.
Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003) (internal quotation marks omitted),
abrogated on other grounds by English v. Berghuis, 529 F. App’x 734, 744-45 (6th Cir. 2013); see
28
also Pudelski v. Wilson, 576 F.3d 595, 605-06 (6th Cir. 2009) (same); Fulcher v. Motley, 444 F.3d
791, 798 (6th Cir. 2006) (same).
In his brief to the TCCA on the post-conviction appeal, Harris did not cite or refer to the
United States Constitution.
He also did not reference any federal case employing federal
constitutional analysis. The brief discussion of the merits does not rely on federal constitutional
law:
In this case, on March 20, 2000 the trial court was presented with a specific
sentencing contract that for the crime of Agg. Rape the defendant would receive 20
years to serve. On March 20, 2000 the contract was accepted and imposed. Then
eleven years later on January 20, 2011 the trial court did infact (sic) enter an
amended Judgment of Conviction imposing an additional consecutive sentence for,
Life Time Community Supervision T.C.A. 39-13-524. The sentence of
community supervision is punitive. [S]ee, Ward v. State, 315 S.W.3d 461 [(Tenn.
2010)]. [I]mposition of the consecutive sentence was beyond the “Four Corners”
of the sentencing contrant (sic), did create a new obligation, imposed a new duty
and attached a new disability in respect of a transaction or consideration already
passed in violation of Article I section 20 of the Tennessee Constitution and
defendants Due Process Rights. . . .
(Br. of Appellant at 8-9, Harris v. State, No. 2011-01578-CCA-R3-PC (Tenn. Crim. App.), ECF
No. 24-8 at PageID 570 (record citations omitted).) Petitioner explicitly relies on Article I, § 20
of the Tennessee Constitution, which provides, in pertinent part, that “no . . . law impairing the
obligations of contracts[] shall be made.” Tenn. Const., Art. 1, § 20. The general reference to
“due process” is insufficient to alert a state court that Harris also intended to assert a federal
constitutional claim.
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (“General
allegations of the denial of rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims
that specific constitutional rights were violated.”); see also Baldwin, 541 U.S. at 33 (the words
“ineffective assistance of appellate counsel” insufficient to fairly present a federal
ineffective-assistance claim). That the TCCA construed the second post-conviction appeal as
29
presenting a constitutional claim does not cure Harris’ failure to fairly present a federal
constitutional claim to the state courts.
Third, even if it were proper to rely on the TCCA’s opinion on the appeal of the second
post-conviction petition as the source for his constitutional claim, Petitioner has made no showing
that the decision of the TCCA was contrary to, or an unreasonable application of, clearly
established federal law “as determined by the Supreme Court of the United States.” See 28 U.S.C.
§ 2254(d)(1) (emphasis added). The United States Supreme Court has not addressed whether a
defendant must be advised that a guilty plea to certain sexual offenses will subject him to
mandatory lifetime community supervision. The TCCA’s decision relied on the Tennessee
Supreme Court’s decision in Ward, which was based on the Due Process Clause to the United
States Constitution and the requirement that a guilty plea must be “knowingly, voluntarily, and
intelligently” entered. Ward, 315 S.W.3d at 465. In that case, the Tennessee Supreme Court held
that the imposition of a sentence of lifetime community supervision is punitive in nature, id. at
473, and, therefore, “trial courts have an affirmative duty to ensure that a defendant is informed
and aware of the lifetime supervision requirement prior to accepting a guilty plea,” id. at 476. The
state Supreme Court held that “[w]here, as here, the trial court has committed constitutional error
by failing to ensure that the defendant is aware of a direct consequence of his or her guilty plea, the
judgment of conviction must be set aside unless the State proves that the error was harmless
beyond a reasonable doubt.” Id. at 476. The TCCA did so hold that such failure to advise was
harmless beyond a reasonable doubt because Harris was pleading guilty to felony murder in
exchange for a sentence of life imprisonment without the possibility of parole. Harris v. State,
2011 WL 6747474, at *2. The TCCA explained that, “[g]iven that the Petitioner is not eligible for
30
parole, he, in actuality, will not ever be subject to the lifetime community supervision
requirement.” Id.
The inmate has not satisfied his burden of demonstrating that the TCCA’s holding that the
constitutional error was harmless beyond a reasonable doubt was contrary to, or an unreasonable
application of, clearly established federal law as determined by the United States Supreme Court.
“[W]here the precise contours of [a] right remain unclear, state courts enjoy broad discretion in
their adjudication of a prisoner’s claims.” White v. Woodall, 134 S. Ct. 1697, 1705 (2014)
(internal quotation marks omitted). “It is settled that a federal habeas court may overturn a state
court’s application of federal law only if it is so erroneous that there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with [the United States Supreme]
Court’s precedents.” Nevada v. Jackson, 133 S. Ct. 1990 (2013) (internal quotation marks
omitted).
This case is similar to Glebe v. Frost, 135 S. Ct. 429 (2014) (per curiam), in which the
Washington Supreme Court held that a trial court had erred in refusing to permit a defendant to
simultaneously contest criminal liability and argue duress. Glebe, 135 S. Ct. at 431-32. The
state court ruled, however, that the error was harmless beyond a reasonable doubt. Id. at 430.
The Ninth Circuit, sitting en banc, held that the Washington Supreme court unreasonably applied
clearly established federal law by failing to classify the trial court’s restriction of closing
arguments as structural error. Id. The Supreme Court reversed, reasoning that,
[a]ssuming for argument’s sake that the trial court violated the Constitution, it was
not clearly established that its mistake ranked as structural error. Most
constitutional mistakes call for reversal only if the government cannot demonstrate
harmlessness. Only the rare type of error—in general, one that infects the entire
trial process and necessarily renders it fundamentally unfair—requires automatic
31
reversal. None of our cases clearly requires placing improper restriction of closing
argument in this narrow category.
Id. at 430-31 (internal alterations, citations & quotation marks omitted).
Respondent argues, on the basis of the Sixth Circuit’s decision in Ruelas v. Wolfenbarger,
580 F.3d 403 (6th Cir. 2009), that constitutional error in the taking of a guilty plea is subject to
harmless error analysis. (Answer at 18, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D.
Tenn.), ECF No. 28.) In Ruelas, the Sixth Circuit rejected the position that “the remedy for all
involuntary guilty pleas is the right to go back, plead innocent, and have a trial. That is sometimes
the remedy, but not always . . . .” Ruelas, 580 F.3d at 410. The Court of Appeals held that the
petitioner in Ruelas was not entitled to withdraw his guilty plea because the error did not have “a
substantial and injurious effect or influence” on the outcome of the plea process. Id. at 413
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).17 The burden is on the State to show
that the error was harmless. Id. (citing O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).
The Supreme Court has not held that errors during the taking of a guilty plea are always
structural. See United States v. Davila, 133 S. Ct. 2139, 2148 (2013) (judicial participation in
plea process, in violation of Rule 11(c)(1) of the Federal Rules of Criminal Procedure, is not
structural error); Puckett v. United States, 556 U.S. 129, 133-34 (2009) (procedurally forfeited
error, arising out of government’s breach of plea agreement, is subject to “plain error” review);
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004) (a defendant who seeks to withdraw
his guilty plea because of the trial judge’s failure to give a warning required by Rule 11 must show
17
This standard is less demanding than the harmless beyond a reasonable doubt standard
applied by the TCCA in its review of the second post-conviction petition.
32
a reasonable probability that, but for the error, he would not have entered the plea). In Puckett,
the Supreme Court explained that
breach of a plea deal is not a “structural” error as we have used that term. We have
never described it as such and it shares no common features with errors we have
held structural. A plea breach does not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence,
Neder v. United States, 527 U.S. 1, 9 [] (1999); it does not defy analysis by
‘harmless-error’ standards by affecting the entire adjudicatory framework; and the
difficulty of assessing the effect of the error is no greater with respect to plea
breaches at sentencing than with respect to other procedural errors at sentencing,
which are routinely subject to harmlessness review.
Id. at 140-41 (some internal citations & quotation marks omitted).
In his reply, Harris argues that the decision of the TCCA was contrary to, or an
unreasonable application of, Santobello v. New York, 404 U.S. 257 (1971). (Reply at 1-2, 4,
Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 56.) In Santobello, the
prisoner had been charged with two felony offenses: promoting gambling in the first degree and
possession of gambling records in the first degree. Santobello, 404 U.S. at 258. He entered into
an agreement to plead guilty to possession of gambling records in the second degree, which carried
a maximum sentence of one year. Id. The prosecutor agreed to make no recommendation as to
the sentence. Id. At sentencing, a new prosecutor, who presumably had no knowledge of the
agreement, recommended a one-year sentence, to which defense counsel objected. Id. at 259-60.
The trial judge stated that the prosecutor’s statement had not influenced him, noted that the
defendant had a lengthy record, and imposed the one-year maximum sentence. Id. The Supreme
Court granted certiorari and vacated the judgment, reasoning as follows:
This phase of the process of criminal justice, and the adjudicative element
inherent in accepting a plea of guilty, must be attended by safeguards to insure the
defendant what is reasonably due in the circumstances. Those circumstances will
vary, but a constant factor is that when a plea rests in any significant degree on a
33
promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.
On this record, petitioner “bargained” and negotiated for a particular plea in
order to secure dismissal of more serious charges, but also on condition that no
sentence recommendation would be made by the prosecutor. It is now conceded
that the promise to abstain from a recommendation was made, and at this stage the
prosecution is not in a good position to argue that its inadvertent breach of
agreement is immaterial. The staff lawyers in a prosecutor’s office have the
burden of “letting the left hand know what the right hand is doing” or has done.
That the breach of agreement was inadvertent does not lessen its impact.
We need not reach the question whether the sentencing judge would or
would not have been influenced had he known all the details of the negotiations for
the plea. He stated that the prosecutor’s recommendation did not influence him
and we have no reason to doubt that. Nevertheless, we conclude that the interests
of justice and appropriate recognition of the duties of the prosecution in relation to
promises made in the negotiation of pleas of guilty will be best served by
remanding the case to the state courts for further consideration. The ultimate relief
to which petitioner is entitled we leave to the discretion of the state court, which is
in a better position to decide whether the circumstances of this case require only
that there be specific performance of the agreement on the plea, in which case
petitioner should be resentenced by a different judge, or whether, in the view of the
state court, the circumstances require granting the relief sought by petitioner, i.e.,
the opportunity to withdraw his plea of guilty. We emphasize that this is in no
sense to question the fairness of the sentencing judge; the fault here rests on the
prosecutor, not on the sentencing judge.
Id. at 262-63 (internal footnote omitted). The Supreme Court observed, in a footnote, that, “[i]f
the state court decides to allow withdrawal of the plea, the petitioner will, of course, plead anew to
the original charge on two felony counts.” Id. at 263 n.2.
The decision of the TCCA on the post-conviction appeal was not “contrary to” Santobello.
The facts of Harris’ case are not “materially indistinguishable” from those of Santobello, which
involved a prosecutor’s failure to communicate the details of a plea agreement to other attorneys in
the office. See Williams, 529 U.S. at 412-13. Here, by contrast, the alleged constitutional error
34
consisted of the trial judge’s failure to advise Harris of the mandatory lifetime community
supervision requirement during the plea colloquy. Harris v. State, 2011 WL 6747474, at *2.
Petitioner also has not satisfied his burden of demonstrating that the decision of the TCCA
was an “unreasonable application” of Santobello. The Supreme Court has emphasized that
“[c]learly established Federal law’ for purposes of § 2254(d)(1) includes only the
holdings, as opposed to the dicta, of this Court’s decisions. And an “unreasonable
application of” those holdings must be “objectively unreasonable,” not merely
wrong; even “clear error” will not suffice. Rather, as a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.
White, 134 S. Ct. at 1702 (internal citations & some quotation marks omitted).
The Supreme Court’s opinion in Santobello does not exclude the possibility that the
constitutional error found by the TCCA is subject to harmless-error analysis. The opinion in
Santobello emphasized that “the fault here rests on the prosecutor, not on the sentencing judge.”
Santobello, 404 U.S. at 263. The Supreme Court also stressed “fairness in securing agreement
between an accused and a prosecutor,” the existence of “safeguards to insure the defendant what is
reasonably due in the circumstances,” and the “appropriate recognition of the duties of the
prosecution in relation to promises made in the negotiation of pleas of guilty.” Id. at 261-62.
None of those factors are present in the instant case, which did not involve a prosecutor’s breach of
a plea agreement.18
18
In Puckett, the Supreme Court addressed whether Santobello forecloses harmless error or
plain error review:
Santobello did hold that automatic reversal is warranted when objection to the
Government’s breach of a plea agreement has been preserved, but that holding
rested not upon the premise that plea-breach errors are (like “structural” errors)
35
The TCCA also considered whether Harris’ plea “rest[ed] in any significant degree on a
promise or agreement” that must be fulfilled. See id. at 262. The TCCA’s holding that the trial
judge’s omission was harmless beyond a reasonable doubt was based on a finding that, because
Petitioner accepted a guilty plea that included a sentence of life imprisonment without the
possibility of parole on the murder count, the lifetime community supervision on the rape count
cannot be material because it will never take effect. Harris v. State, 2011 WL 6747474, at *2 &
n.2. In his reply, the prisoner takes issue with the TCCA’s factual finding. He asserts that, “[i]n
all actuality the petitioner is entitled to be released on September 09, 2051, if the petitioner is
capable to live long enough. That is how the law was explained to the petitioner before the entry
of the guilty plea. This factual assertion is further supported by a careful reading of T.C.A. §
40-35-501(i)(1), (2).” (Reply at 4-5, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D.
Tenn.), ECF No. 56 at PageID 1237-38.)
Harris’ argument is not well taken.
Tennessee law distinguishes between life
imprisonment and life imprisonment without the possibility of parole:
(1)
Release eligibility for each defendant receiving a sentence of
imprisonment for life for first degree murder shall occur after service of sixty
percent (60% ) of sixty (60) years less sentence credits earned and retained by the
defendant, but in no event shall a defendant sentenced to imprisonment for life be
eligible for parole until the defendant has served a minimum of twenty-five (25)
full calendar years of such sentence, notwithstanding the governor’s power to
somehow not susceptible, or not amenable, to review for harmlessness, but rather
upon a policy interest in establishing the trust between defendants and prosecutors
that is necessary to sustain plea bargaining—an “essential” and “highly desirable”
part of the criminal process.
Puckett, 556 U.S. at 141 (internal footnote omitted). The Supreme Court also observed, in a
footnote, that “[w]e need not confront today the question whether Santobello’s automatic-reversal
rule has survived our recent elaboration of harmless-error principles in such cases as [Arizona v.]
Fulminante[, 499 U.S. 279 (1991)] and Neder.” Id. at 141 n.3.
36
reduce prison overcrowding pursuant to title 41, chapter 1, part 5, or any sentence
reduction credits authorized by § 41-21-236, or any other provision of law relating
to sentence credits. A defendant receiving a sentence of imprisonment for life for
first degree murder shall be entitled to earn and retain such sentence credits, but
such credits shall not operate to make such defendant eligible for release prior to
the service of twenty-five (25) full calendar years.
(2)
There shall be no release eligibility for a defendant receiving a
sentence of imprisonment for life without possibility of parole for first degree
murder.
Tenn. Code Ann. § 40-35-501(h) (1998). 19 The plea agreement, on its face, provides for a
sentence of “Life without parole” on the felony murder count. (Request for Acceptance of Plea of
Guilty [&] Pet. to Waive Trial by Jury & to Waive an Appeal, State v. Harris, No. 20CR1470
(Carroll Cnty. Cir. Ct.), ECF No. 24-1 at PageID 187.) The original judgment on the felony
murder count also contained a check mark before “Life Without Parole,” which is a separate
option from “Life.” (J., id., ECF No. 24-1 at PageID 189.) It was, therefore, unambiguous at the
time that Petitioner accepted the plea agreement that he would be sentenced to life imprisonment
without the possibility of parole. 20 Therefore, the prisoner has not satisfied his burden of
19
The current version of the statute is similar.
20
The relevance of the decision in Penley v. State, No. E2004-00129-CCA-R3-PC, 2004
WL 2439287 (Tenn. Crim. App. Nov. 1, 2004), on which Harris relies, is not explained. Penley
pleaded guilty to first degree murder in exchange for a sentence of life imprisonment. Penley,
2004 WL 2439287, at *1. He later filed a post-conviction petition in which he claimed that he
was unaware that he would have to serve fifty-one years before being eligible for parole. Id. at
*2. Nothing in that decision supports Harris’ current position that he will someday be eligible for
parole.
Petitioner now claims, apparently for the first time, that he was told during the guilty plea
hearing that he would be eligible for parole after serving fifty-one years. (Reply at 4-5, Harris v.
Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 56.) The Court does not
construe these statements as an attempt to amend the inmate’s Petition to assert a new claim that
was not previously presented to the state courts. As previously stated, any challenge to the felony
murder conviction would be time-barred. The statement also does not establish that the decision
of the TCCA “was based on an unreasonable determination of the facts in light of the evidence
37
demonstrating that the decision of the TCCA was contrary to, or an unreasonable application of,
clearly established federal law as determined by the United States Supreme Court, 28 U.S.C. §
2254(d)(1), or that it was based on an objectively unreasonable factual finding.
For all the foregoing reasons, Claim 2 is without merit and is DISMISSED.
C.
Denial of a Full and Fair Hearing (Claim 3)
In Claim 3, titled “Denial of a Full and Fair Hearing/sentence Hearing,” the inmate avers
that
[t]he defendant was sentenced in abstentia without assistance of counsel. The trial
court summarly (sic) dismissed the post-conviction as an impermissible 2nd
petition. The court of appeals ruled the petition was permissible and had merit.
Yet defendant was not permitted counsel to submitt (sic) an amended petition,
object to evidence, submitt (sic) evidence or review what the record is/was utilized
by the courts for authenticity.
(Pet. at PageID 8, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.)
Claim 3 is substantially similar to Claim 1, in which Harris complained that the amended
judgment on the aggravated rape count was entered without the appointment of counsel and that
counsel was not appointed to represent him on the second post-conviction proceeding. For the
reasons previously stated, he did not exhaust his claim arising from the failure to appoint counsel
before entry of the amended judgment and, as there is no longer any means to do so, it is barred by
procedural default.
Petitioner’s objection to the procedures used to adjudicate his second
post-conviction petition is not cognizable in a § 2254 petition.
Claim 3 is without merit and is DISMISSED.
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Harris has cited to no portion
of the record for his second post-conviction proceeding in which he advised the state courts that he
had been promised that he would be eligible for release after fifty-one years.
38
D.
Illegal Arrest (Claim 4)
In Claim 4, titled “Illegal Arrest,” the inmate asserts that
[t]he arresting officers submitted perjurid (sic) testimony to obtain the arrest
warrant that D.N.A. taken from the victim “Matched” that of a sample taken from
Defendant. The sereology (sic) report is specific and does not state the D.N.A.
matched. And therefore the starvation, abuse and torture to extract a false
confession based upon an illegal arresst (sic) should “shock” the conicese (sic) of
this court.
(Pet. at PageID 10, id., ECF No. 1.)
In his answer, Respondent argues that Harris did not exhaust this claim in state court and,
as such, it is now barred by procedural default. (Answer at 14-15, id., ECF No. 28.) The inmate
insists that the claim was presented in his second post-conviction petition. (See Pet. at PageID
10-11, id., ECF No. 1.) Although the issue was raised in the post-conviction petition (Pet. for
Relief from Conviction or Sentence at 4-5, Harris v. State, No. 20CR1470 (Carroll Cnty. Cir. Ct.),
ECF No. 24-7 at PageID 483-84), the only claims presented to the TCCA on the post-conviction
appeal addressed the breach of contract, which arose after the entry of the original judgments (see
Br. of Appellant at 1, Harris v. State, No. W2011-01578-CCA-R3-PC (Tenn. Crim. App.), ECF
No. 24-8 at PageID 560). Petitioner did not appeal the post-conviction court’s determination that
the additional claims in the second post-conviction petition were barred by the “one petition” rule.
Because he has not fairly presented those claims to the state courts, they were not properly
exhausted and are now procedurally barred.
Claim 4 is without merit and is DISMISSED.
Because every claim asserted by Harris is without merit, the Court DENIES the Petition.
The Petition is DISMISSED WITH PREJUDICE and judgment shall be entered for Respondent.
39
V.
APPEAL ISSUES
There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition.
Cockrell, 537 U.S. at 335; Bradley v. Birkett, 156 F. App’x 771, 772 (6th Cir. 2005). 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 (“§ 2254 Rules”). 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).
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; see also Henley v. Bell,
308 F. App’x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not require a showing
that the appeal will succeed. Cockrell, 537 U.S. at 337; 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 Petition is meritless for the reasons previously
stated. Because any appeal by Harris on the issues raised in his Petition does not deserve
attention, the Court DENIES a certificate of appealability.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party seeking
pauper status on appeal must first file a motion in the district court, along with a supporting
40
affidavit. However, 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 prisoner must file his motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). 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 Federal Rule of
Appellate Procedure 24(a), that any appeal in this matter would not be taken in good faith, and
leave to appeal in forma pauperis is DENIED.21
IT IS SO ORDERED this 19th day of June 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
21
If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals
within thirty days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).
41
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