Webb v. Steward

Filing 6

ORDER ON PENDING MOTIONS,ORDER OF PARTIAL DISMISSAL, TRANSFERRING SUCCESSIVE PETITION TO UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PURSUANT TO 28 U.S.C. § 2244(b)(3) AND CLOSING CASE. Signed by Chief Judge J. Daniel Breen on 12/19/13. (Breen, J.)

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

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RICKY LEE WEBB,
Petitioner,
vs.
HENRY STEWARD,
Respondent.

No. 1:13-1130-JDB-egb

ORDER ON PENDING MOTIONS,
ORDER OF PARTIAL DISMISSAL,
TRANSFERRING SUCCESSIVE PETITION
TO UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
PURSUANT TO 28 U.S.C. § 2244(b)(3)
AND
CLOSING CASE

On

May

6,

2013,

Petitioner,

Ricky

Lee

Webb,

Tennessee

Department of Correction prisoner number 84686, an inmate at the
Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee,
filed a pro se Petitioner [sic] Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (“§ 2254 Petition”),
accompanied by a Motion for Appointment of Counsel.
Entries (“D.E.”) 1 & 2.)
3.)

Webb paid the habeas filing fee.

(Docket
(D.E.

The Clerk shall record the respondent as NWCX Warden Henry

Steward.
“The constitutional right to counsel in criminal proceedings
provided by the Sixth Amendment does not apply to an application

for writ of habeas corpus, which is a civil proceeding.” Staple v.
Lafler, No. 07-cv-12542, 2010 WL 3341530, at *2 (E.D. Mich. Aug.
24, 2010); see also Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.
1994) (same, collecting cases).

There is no constitutional right

to the appointment of counsel in civil cases, and the Court has
broad

discretion

appointed.
1987).

in

determining

whether

counsel

should

be

Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir.

“The decision to appoint counsel for a federal habeas

petitioner is within the discretion of the court and is required
only where the interests of justice or due process so require.”
Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986); see also 18
U.S.C. § 3006A(a)(2)(B) (counsel may be appointed for persons
seeking relief under 28 U.S.C. § 2254 who are financially eligible
whenever the court determines “that the interests of justice so
require”).

The appointment of counsel is mandatory only when an

evidentiary hearing is required.

Rule 8(c), Rules Governing

Section 2254 Cases in the United States District Courts (Ҥ 2254
Rules”) (“If an evidentiary hearing is warranted, the judge must
appoint an attorney to represent a petitioner who qualifies to have
counsel appointed under 18 U.S.C. § 3006A.”).
In exercising its discretion, the district court should
consider the legal complexity of the case, the factual
complexity of the case, and the petitioner’s ability to
investigate and present his claims, along with any other
relevant factors.
Where the issues involved can be
properly resolved on the basis of the state court record,

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a district court does not abuse its discretion in denying
a request for court-appointed counsel.
Hoggard, 29 F.3d at 471 (citations omitted).
Because the Court is unable to address the merits of this §
2254

Petition

for

the

reasons

stated

infra,

the

motion

for

appointment of counsel is DENIED.
On July 5, 2013, Petitioner filed a Motion to [sic] Leave for
his First Amended Petition.

(D.E. 5.)

Although the motion refers

to an attached First Amended Petition, a copy of the amendment has
not been submitted.

Thus, leave to amend is DENIED.

Webb is serving two life sentences for the first degree murder
and rape of Charlotte Blurton on September 22, 1976.
Petitioner was convicted on October 21, 1983, in the
Law Court of Gibson County, Tennessee, of first degree
murder and rape. He was sentenced to life imprisonment
for each offense, ordered to run consecutively.
Subsequently, on direct appeal in the Tennessee Court of
Criminal Appeals, Petitioner raised two issues: 1)
whether the trial court erred in not granting a change of
venue;
and
2)
whether
there
was
insufficient
corroboration of an accomplice’s testimony to support a
conviction. The Court of Criminal Appeals affirmed the
conviction on December 1, 1983. Petitioner raised the
same issues in his application for permission to appeal
to the Tennessee Supreme Court, which was denied on March
12, 1984.
Tennessee Code Annotated § 40-30-102 provides that
petitions for post-conviction relief must be filed within
three years of the final action of the highest state
court to which an appeal was taken. On June 22, 1989,
more than four years after the Tennessee Supreme Court
denied his application for permission to appeal,
Petitioner filed a “Petition for Post-Conviction Relief
Filing To Be Held in Abeyance” in the state court,
seeking an extension of the three year statute of
limitations in § 40-30-102. In the petition, he stated
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his intention to raise a claim of ineffective assistance
of counsel. Petitioner’s request for an extension of
time was denied by the trial court; Petitioner
subsequently appealed the denial to the Tennessee Court
of Criminal Appeals. The appellate court dismissed the
appeal on February 21, 1991, holding that the trial
court’s denial of Petitioner’s request for an extension
of time was not an appealable final judgment within the
meaning of Tenn. R. App. P. 3(b).
(Webb v. Compton, No. 92-1208-JDT (W.D. Tenn. Feb. 5, 1993), D.E.
11.)1
On October 16, 1992, Webb filed a petition pursuant to 28
U.S.C. § 2254 in this district.
1.

Whether

the

trial

The issues presented were:

court

denied

Petitioner

due

process of law by committing error in not granting
the Petitioner a change of venue;
2.

Whether the trial court committed error in not
granting

Petitioner’s

motion

for

judgment

of

acquittal at the conclusion of the State’s proof
where the evidence did not support the verdict; and
3.

Whether Petitioner had ineffective assistance of
counsel

in

the

trial

court

by

his

attorney’s

failure to make appropriate motions.
(Id., D.E. 1.)

After receiving a response from the State, United

States District Judge James D. Todd issued an order on February 5,
1993, granting in part and denying in part the State’s motion to

1
Webb’s convictions in an earlier trial were reversed on appeal.
State v. Webb, 625 S.W.2d 281 (Tenn. Crim. App. 1980), aff’d, 625 S.W.2d 259
(Tenn. 1981), cert. denied sub nom. Tenn. v. Webb, 456 U.S. 910, 102 S. Ct. 1760,
72 L. Ed. 2d 168 (1982).

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dismiss the petition as barred by procedural default.

Judge Todd

dismissed Claim 3 as barred by procedural default but directed the
(Id. at 3—4.)

State to address the merits of Claims 1 and 2.

After the State filed its Answer, on April 27, 1993, Judge Todd
dismissed the § 2254 petition.

(Id., D.E. 14.)

He concluded that

Claims 1 and 2 were not cognizable in a § 2254 petition because
they presented state-law issues.
entered on April 28, 1993.

(Id. at 2—3.)

(Id., D.E. 15.)

Judgment was

Webb did not appeal.

In the instant § 2254 Petition, the inmate presents the
following issues:
1.

Whether the trial judge abused his discretion by
denying a change of venue (D.E. 1 at 3—7);

2.

Whether

the

trial

judge

erred

by

denying

Petitioner’s motion for acquittal at the conclusion
of the State’s proof (id. at 7—10); and
3.

Whether the Petitioner is factually innocent, and
his attorneys failed properly to present this issue
(id. at 10—11).

State prisoners ordinarily may file only one § 2254 petition.
There are severe restrictions on a district court’s ability to
consider “second or successive” petitions:
(1)

A claim presented in a second or successive habeas
corpus application under section 2254 that was
presented in a prior application shall be
dismissed.

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(2)

A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless —
(A) the applicant shows that the claim relies on a
new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court,
that was previously unavailable; or
(B)(i) the factual predicate for the claim could
not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable
factfinder
would
have
found
the
applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(1)—(2).

Issues 1 and 2 were presented in

Webb’s first § 2254 petition and, therefore, they are DISMISSED
pursuant to 28 U.S.C. § 2244(b)(1). Issue 3 has not been presented
in a previous § 2254 petition.
The successive § 2254 petition cannot be considered by this
Court unless Petitioner first obtains permission from the United
States Court of Appeals for the Sixth Circuit.

28 U.S.C. §

2244(b)(3)(A); see also United States v. Bender, 96 F. App’x 344,
345 (6th Cir. 2004) (“the Rule 60(b) motion was properly construed
as a second or successive motion to vacate his sentence under §
2255 and his case was properly transferred to our court for an
initial determination as to whether he should be allowed to file
such a motion”).

“[W]hen a second or successive petition for

habeas corpus relief or § 2255 motion is filed in the district
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court without § 2244(b)(3) authorization from [the Sixth Circuit],
the district court shall transfer the document to [the Sixth
Circuit] pursuant to 28 U.S.C. § 1631.”

In re Sims, 111 F.3d 45,

47 (6th Cir. 1997) (per curiam). Webb has not sought, or obtained,
authorization from the appellate court to file this petition.
Therefore, under Sims, 111 F.3d at 47, and 28 U.S.C. § 1631,
it is hereby ORDERED that the Clerk transfer this petition to the
United States Court of Appeals for the Sixth Circuit.
The Clerk is directed to close this case without entry of a
judgment.
IT IS SO ORDERED this 19th day of December, 2013.

s/J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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