Jones v. Steward

Filing 17

ORDER GRANTING RESPONDENTS MOTION TO DISMISS 9 , DENYING MOTION FOR ORDER TO BE RELEASED 12 , DENYING MOTION FOR COURT TO RENDER A DECISION 16 , DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Chief Judge J. Daniel Breen on 1/14/14. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

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GEORGE L. JONES,
Petitioner,
vs.
HENRY STEWARD,
Respondent.

No. 13-1119-JDB-egb

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS,
(DOCKET ENTRY 9)
DENYING MOTION FOR ORDER TO BE RELEASED,
(DOCKET ENTRY 12)
DENYING MOTION FOR COURT TO RENDER A DECISION,
(DOCKET ENTRY 16)
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On

April

24,

2013,

Petitioner,

George

Jones,

Tennessee

Department of Correction prisoner number 221227, an inmate at the
Northwest Corrctional Complex (“NWCX”) in Tiptonville, Tennessee,
filed a pro se petition for a writ of habeas corpus against
Respondent, NWCX Warden, Henry Steward, pursuant to 28 U.S.C. §
2254, accompanied by a motion seeking leave to proceed in forma
pauperis.

(Docket Entries (“D.E.”) 1 & 2.)

In an order issued on

April 30, 2013, the Court granted leave to proceed in forma
pauperis.

(D.E. 3.)

On June 3, 2013, the Court directed Steward

to file an answer to the petition.

(D.E. 4.)

On June 26, 2013,

Respondent moved to dismiss the petition as unexhausted. (D.E. 9.)
Jones was convicted by a Madison County Circuit Court jury of
aggravated burglary, a Class C felony, and theft under $500, a
Class A misdemeanor and sentenced to an effective term of ten years
in prison.

The Tennessee Court of Criminal Appeals affirmed his

convictions on appeal.

State v. Jones, No. W2011-02144-CCA-R3CD,

2012 WL 3192829 (Tenn. Crim. App. Aug. 6, 2012), perm. app. denied
(Tenn. Nov. 21, 2012).
On

September

28,

2012,

the

inmate

petitioned

for

post-

conviction relief alleging that he received ineffective assistance
of trial counsel.

(D.E. 9-2 at 1-2.)

the petition on April 1, 2013.

The trial court dismissed

(Id.)

Jones’ appeal of the

dismissal remains pending in the Tennessee Court of Criminal
Appeals.

(Id.)

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, 79 L. Ed. 2d 557 (2011).

2

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. 837, 847-48, 119 S. Ct. 1728, 1733-34, 144 L.
Ed. 2d 1 (1999).

Tennessee Supreme Court Rule 39 eliminated the

need to seek review in the Tennessee Supreme Court to “be deemed to
have exhausted all available state remedies.”

Adams v. Holland,

330 F.3d 398, 402 (6th Cir. 2003), cert. denied, 541 U.S. 956, 124
S. Ct. 1654, 158 L. Ed. 2d 392 (2004); see Smith v. Morgan, 371 F.
App’x 575, 579 (6th Cir. 2010)(“Adams not only requires the federal
courts to ensure that the state courts have the first opportunity
to review and evaluate legal claims . . . but also mandates that
the

federal

courts

respect

the

duly-promulgated

rule

of

the

Tennessee Supreme Court that recognizes the law and policy-making
function of that court and the court’s desire not to be entangled
in the business of simple error correction.”).
Because Jones’ appeal of the dismissal of his post-conviction
petition remains pending, it is apparent that he has not yet
exhausted his state court remedies. A petitioner has not exhausted
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 citation
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).

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his state remedies if “he has the right under the law of the State
to raise, by any available procedure, the question presented” to
the district court.

28 U.S.C. § 2254(c).

This petition presents

no exhausted claims for review.
The Court has discretion to stay a prematurely filed § 2254
petition while the inmate exhausts his claims in state court.

See

Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440
(2005).

Petitioner has not established that the Court should

exercise its discretion to do so in this case.

This habeas

petition raises only unexhausted claims of ineffective assistance.
(D.E. 1 at 5.)

He must await the Tennessee Court of Criminal

Appeals’ resolution of his claims of ineffective assistance before
proceeding in this forum.
The Court GRANTS Respondent’s motion to dismiss the petition
as unexhausted and DISMISSES the Petition without prejudice.

Rose

v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198, 1199, 71 L. Ed. 2d
379

(1982).

Judgment

shall

be

entered

for

Respondent.

Petitioner’s motion for an order to be released (D.E. 12) is
DENIED.

His motion for the Court to render a decision (D.E. 16) is

also DENIED as MOOT.
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).

4

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).
A COA may issue only if the petitioner has made a substantial
showing of the denial of a constitutional right, and it 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; 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, 123 S. Ct. at 1039; Caldwell

v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011).
not, however, issue a COA as a matter of course.
App’x at 773.

Courts should

Bradley, 156 F.

In this case, reasonable jurists cannot conclude

that the Court abused its discretion in declining to stay the
matter

and

hold

the

Petition

Respondent’s motion to dismiss.

in

abeyance

or

in

granting

Because any appeal by Petitioner

5

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
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.
P. 24(a) (4)-(5).

See Fed. R. App.

In this case, for the same reasons it 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. Leave to
appeal in forma pauperis is DENIED.2
IT IS SO ORDERED this 14th day of January 2014.
/s J. Daniel Breen
J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

2

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 (30) days of the
date of entry of this order. See Fed. R. App. P. 24(a)(5).

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