Baxter vs. Steward, et al

Filing 34

ORDER TO MODIFY THE DOCKET, DENYING THE MOTION TO ALTER OR AMEND, 30 DENYING LEAVE TO AMEND AND EXTENDING STAY OF CASE. Signed by Chief Judge J. Daniel Breen on 4/18/16. (Breen, J.)

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

TIMOTHY AARON BAXTER,
Petitioner,
v.
BLAIR LEIBACH,
Respondent.

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Case No. 1:13-cv-01306-JDB-egb

ORDER TO MODIFY THE DOCKET,
DENYING THE MOTION TO ALTER OR AMEND,
DENYING LEAVE TO AMEND
AND EXTENDING STAY OF CASE
Before the Court are the filings of Petitioner, Timothy Aaron Baxter, Tennessee
Department of Correction prisoner number 304285, currently incarcerated at the Trousdale Turner
Correctional Center (“TTCC”) in Hartsville, Tennessee: (i) a proposed second amended Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Second
Amended Petition”) (2d Am. Pet., ECF No. 29); (ii) a document titled Statement in Compliance
With the Courts [sic] Order of All Grounds Submitted for Writ of Federal Habeas Corpus Relief
(“Statement”) (Statement, ECF No. 29-1); (iii) a document titled Supplemental Claim for Writ of
Habeas Corpus Review (“Supplemental Claim”) (Suppl. Claim, ECF No. 29-2); and (iv) a Motion
to Alter or Amend (Mot. to Alter or Amend, ECF No. 30).1 For the reasons stated below, the
Court DENIES the Motion to Alter or Amend, denies leave to proceed on the proposed Second
Amended Petition and Supplemental Claim, extends the stay of the case and directs Baxter, for the
1

The Clerk of Court is DIRECTED to substitute TTCC Warden Blair Leibach for Mike
Parris as Respondent in this matter. See Fed. R. Civ. P. 25(d).

second time, to submit a statement regarding current and contemplated state-court challenges to
his conviction and sentence and a list of all collateral challenges he has filed.
I.

PROCEDURAL HISTORY
On November 15, 2013, Baxter filed a pro se Petition under 28 U.S.C. § 2254 for Writ of

Habeas Corpus (“Petition”), accompanied by a legal memorandum, a motion for release on
recognizance or surety and a motion for relief from a final judgment under Federal Rule of Civil
Procedure 60(b). (Pet., ECF No. 1; Mem. of Law in Supp. of Pet., ECF No. 1-1; Mot. for Release
on Recognizance or Surety, ECF No. 2; Mot. for Relief from a Final J., ECF No. 3.) He paid the
habeas filing fee. (Receipt, ECF No. 1-2.) The Petition raises the following claims:
1.

“INSUFFICIENT EVIDENCE” (Pet. at 5, ECF No. 1);

2.

“UNREASONABLE APPLICATION TO PETITIONER OF STATUTE
[Tenn.
Code
Ann.]
§
39-11-106(a)(34)(C)
PROCEDURAL
UNFAIRNESS” (id. at 6);

3.

“WHETHER THE APPELLATE COURT ERRED IN IT’S OPINION ON
THE INSUFFICIENCY OF THE EVIDENCE WHEN CITING THE
MANDATE FROM THE SUPREME COURT ON THE LEGAL
STANDARD OF PROOF NECESSARY TO SATISFY ALL ELEMENTS
OF THE STATUTE [Tenn. Code Ann.] § 39-11-106(A)(34)(C)” (id. at 7);
and

4.

“DENIAL OF COUNSEL AT THE PRELIMINARY HEARING AND
THE DENIAL OF AN INDIGENCY HEARING ALL IN VIOLATION
OF THE SIXTH AMENDMENT RIGHT TO COUNSEL AT THE
CRITICAL STAGES OF PROSECUTION” (id.; see also id. at 7-8).

In an order issued on December 5, 2013, the Court, inter alia, denied the motions for
release and for relief from judgment and directed Respondent, Henry Steward, the Warden of the
Northwest Correctional Complex, to file the state-court record and a response to the Petition.
(Order, ECF No. 5.) Baxter was given thirty days from the date of filing of the answer to submit

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any reply he may have and was instructed that “[h]e may request an extension of time to reply if his
motion is filed on or before the due date of his response.” (Id. at 4.)
On December 16, 2013, the inmate moved for a rehearing of the December 5, 2013, order.
Baxter’s motion addressed the sufficiency of the evidence and argued that the State had withheld
exculpatory evidence in his criminal case. (Mot. to Rehear, ECF No. 6.) In an order issued on
December 23, 2013, the Court, construing the motion as seeking reconsideration of the denial of
the motion for release, again denied Petitioner’s request. (Order, ECF No. 7.)
On January 2, 2014, Baxter filed a Motion for Revision of Interlocutory Order, in which he
sought, for the third time, his release on bond during the pendency of this action. (Mot. for
Revision of Interlocutory Order, ECF No. 10.) Also on January 2, 2014, he filed a Motion for
Inspection of Grand Jury Minutes or, Alternatively, for Particulars as to What Evidence was
Presented to the Grand Jury. (Mot. for Disc., ECF No. 11.) In an order issued on April 7, 2014,
the Court denied both motions, stating that the denial of release on bond “is final and will not be
reconsidered.” (Order, ECF No. 14 at 4.) The motion for discovery was denied because Baxter
had not shown good cause for the information sought insofar as “[e]ach claim presented in the §
2254 Petition addresses the evidence presented at trial or a denial of counsel prior to trial” and
“[t]he evidence presented to the grand jury has no bearing on any of these claims.” (Id. at 5.)
On February 27, 2014, Warden Steward filed his answer and most of the state-court record.
(Answer, ECF No. 12; Not. of Filing, ECF No. 13.)2 Baxter did not file a timely reply. On

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Respondent did not file the state-court record pertaining to Baxter’s post-conviction
petition, which was, at the time, on appeal to the Tennessee Court of Criminal Appeals.
Respondent’s answer also did not mention the post-conviction proceeding. Instead, he appeared
to assume that Baxter did not file a post-conviction petition, as he argued that all unexhausted
3

September 4, 2014, more than five months after a reply was due, Petitioner moved for a thirty-day
extension of time in which to reply. (Mot. for Extension of Time, ECF No. 15.) In an order
issued on May 4, 2015, the Court granted the motion but cautioned Baxter that “[n]o further
extensions of time will be granted without a showing of extraordinary circumstances.” (Order at
2, ECF No. 16.) His reply was docketed on June 8, 2015. (Reply, ECF No. 18.)
On May 14, 2015, Baxter filed his Motion Requesting the Court Order Respondent to
Supplement the Record so Petitioner Can Have His Additional Exhausted Claims Amended and
Supplemented to his Original Petition for Writ of Habeas Corpus. (Mot. for Resp’t to Suppl. the
Record, ECF No. 17.) The Warden did not respond to the motion.
On June 10, 2015, Baxter filed his Motion for Order Directing Respondent to Expand the
Record. (Mot. to Expand the Record, ECF No. 19.) The Warden also did not file a response.
On November 10, 2015, Baxter filed a Motion for Leave of Court to File Amendment in
Support of the Petition for Writ of Habeas Corpus, accompanied by a proposed amended petition.
(Mot. for Leave to Amend, ECF No. 20; Am. Pet., ECF No. 21.) The proposed amendment was
208 pages in length, excluding the cover and table of contents. Also on November 10, 2015,
Petitioner submitted various documents that he sought to have included in the state-court record,
including the preliminary hearing transcript and the oral arguments before the Tennessee Court of
Criminal Appeals (“TCCA”). (Not. of Filing, ECF No. 22.) Finally, on November 10, 2015, he
filed a Supplemental Motion for Conditional Release Pending Federal Habeas Review. (Suppl.
Mot. for Release, ECF No. 23.)

The Warden did not respond to any of these filings.

claims are barred by “the one-year statute of limitations governing post-conviction proceedings
under Tenn. Code Ann. § 40-30-102(a).” (Answer at 3, ECF No. 12.)
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In an order issued on November 25, 2015, the Court addressed each of the pending motions
and issued instructions to the parties for the further conduct of this litigation. (Order, ECF No.
27.) The Court granted Baxter’s Motion to Supplement the Record insofar as it sought an order
directing Respondent to file the state-court record pertaining to the post-conviction petition. (Id.
at 6.) The Motion for Order Directing Respondent to Expand the Record was denied because
none of the information sought by the inmate was introduced into evidence at trial. (Id. at 7-8.)
The Motion for Leave to Amend was denied because the proposed 208-page amendment was not
on the official form and did not substantially follow the format thereof (id. at 8-9), was “replete
with factual representations not contained in the state-court record and arguments having no
bearing on the claims Petitioner exhausted in state court” (id. at 9), and constituted “an
unreasonable waste of judicial resources” (id. at 10). The denial was “without prejudice to
Baxter’s right to present an amended petition on the official form that includes every new claim he
seeks to raise.” (Id.) The Court denied the Supplemental Motion for Conditional Release,
Baxter’s fourth such motion, because his alleged medical condition “is not a circumstance making
his motion for bail exceptional and deserving of special treatment in the interests of justice.” (Id.
at 13 (internal quotation marks & alteration omitted).) Because it appeared that Petitioner had
filed collateral challenges to his conviction that had not been disclosed in his original Petition,
Baxter was instructed as follows:
At this point, the Court has no way of knowing whether all state-court proceedings
in the matter have concluded. Therefore, Petitioner is ORDERED, within
twenty-eight days of the date of entry hereof, to disclose all state-court challenges
to his conviction for aggravated assault, or the sentence imposed, that are presently
pending or that he contemplates filing. That list shall include any application for
permission to appeal the denial of the motion to reopen the post-conviction
proceeding to the Tennessee Supreme Court and any petitions for writs of certiorari
to the United States Supreme Court. Unless Baxter states unequivocally that all
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pending and contemplated state-court challenges to the aggravated assault
conviction have concluded, the Court will administratively close the case to permit
him the opportunity completely to exhaust his claims in state court.
(Id. at 14 (footnote omitted).) The inmate was further instructed that, “[i]n order to facilitate the
filing of the complete state-court record, Baxter shall also disclose all collateral challenges to his
aggravated assault conviction not addressed in [the state-court procedural history section] of [the]
order.” (Id. at 14 n.6.) The order finished with the following directive:
After the Court is satisfied that all state-court proceedings have concluded,
the Warden will be required to file all remaining portions of the state-court record.
After the record has been filed, the inmate will be required to file any amended
petition on the official form. The form must be completely filled out and must list
each issue he intends to raise and the factual basis for that issue. Petitioner must
also list the steps he has taken to exhaust each issue and sub-issue presented,
including whether he appealed any adverse decisions. He may, if he chooses, file
a legal memorandum in support of his amended § 2254 petition. The legal
memorandum must contain appropriate citations to the state-court record and must
comply with LR 7.2(e), governing the length of legal memoranda. The matter is
STAYED until Petitioner has disclosed the status of any remaining collateral
challenges to his aggravated assault conviction.
(Id. at 14-15 (footnote omitted).)
On December 14, 2015, Baxter filed his Statement, his proposed Second Amended Petition
and his Supplemental Claim. Also on December 14, 2015, he filed a Motion to Alter or Amend.
On April 8, 2016, the Warden submitted the state-court record for Petitioner’s first post-conviction
proceeding. (Suppl. Not. of Filing, ECF No. 33.)
II.

THE PENDING MOTION
Baxter’s Motion to Alter or Amend seeks, for the fifth time, his release on bail pending the

resolution of this action. This is the second such motion filed by him since being advised that the
denial of his application for release on bail is final and will not be reconsidered. The merits of the

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various applications have been addressed at length in previous orders and there is nothing further
that can be said. The Motion is DENIED.
III.

BAXTER’S STATEMENT
As previously noted, Petitioner was to have submitted a statement listing all state-court

challenges to his conviction and sentence that he has filed or contemplates filing, including any
applications for permission to appeal to the Tennessee Supreme Court and petitions for writs of
certiorari to the United States Supreme Court. He was also instructed to disclose any additional,
collateral challenges to his conviction or sentence that were not enumerated in the November 25,
2015, order. Baxter was cautioned that, unless he “states unequivocally” that all state-court
proceedings have concluded, the Court will administratively close the matter to enable him to
finish exhausting his claims. The Court also stayed the matter pending receipt of his statement.
The Statement submitted by Baxter on December 14, 2015, does not comply with these
instructions. Instead, his Statement is a fifteen-page summary of each of his claims, and the steps
he has taken to exhaust each claim in state court. The order did not ask the inmate to include that
information in his Statement. That Baxter has chosen to do so is needlessly confusing because the
identical information should be contained in the Second Amended Petition.3
The only relevant portion of the Statement is the final paragraph, where Petitioner says that
“there is no other collateral proceedings sought to attack the conviction for aggravated assault.”
(Statement at 15, ECF No. 29-1.)

This sentence appears to mean that Baxter does not

contemplate filing any future collateral challenges, but it does not address whether he has any
pending challenges, including an application for permission to appeal the TCCA’s decision issued
3

As discussed below, the Statement contains claims that are not included in the Second
Amended Petition or the Supplemental Claim.
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on October 9, 2015, or any application for a writ of certiorari to the United States Supreme Court.4
The Statement also does not address whether he has filed any collateral challenges other than those
listed in the November 25, 2015, order.
Because the Statement does not comply with the Court’s order, it will be disregarded.
Baxter is ORDERED, for the second time, to submit a statement within twenty-eight days
that (i) lists every state-court collateral challenge to his conviction or sentence that has been filed
and the resolution of that challenge, including any appeals, applications for permission to appeal,
and petitions for writs of certiorari5; (ii) states whether any collateral challenge is pending in state
court or any petition for writ of certiorari has been filed with the United States Supreme Court; and
(iii) states whether Baxter plans to file any future collateral challenges to his conviction or
sentence. The stay imposed on November 25, 2015, will continue until Baxter has submitted his
statement and the Court has reviewed it.
IV.

BAXTER’S PROPOSED SECOND AMENDED PETITION
Although Petitioner was not required to submit his amendment until after Respondent had

filed the remainder of the state-court record, he nonetheless did so, submitting both a proposed
Second Amended Petition and a Supplemental Claim. The Court will briefly address those filings
because they fail to comply with the instructions in the previous order.
Baxter’s proposed Second Amended Petition presents the following claims:
4

In his proposed Second Amended Petition, Baxter answered “yes” to the question, “Do
you have any petition or appeal now pending (filed and not decided yet) in any court, either state or
federal, for the judgment you are challenging?” (2d Am. Pet. at PageID 1021, ECF No. 29.) His
response refers to an Application to Quash Indictment that he filed in the Madison County,
Tennessee, Circuit Court.
5

This is a change, in the interest of clarity, from the previous instruction. It seems simpler
to ask for a list of all collateral challenges rather than for a list of any challenges not mentioned in
a court order.
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1.

“The evidence underlying Baxter’s conviction for aggravated assault fails
to satisfy the sufficiency standard of Jackson v. Virginia, 443 U.S. 307
(1979)” (2d Am. Pet. at PageID 1014, ECF No. 29);

2.

“The State trial court violated Baxter’s rights afforded by due process
principles and the Sixth Amendment, by denying him counsel at a critical
stage of prosecution” (id. at PageID 1015);

3.

“The State trial court violated Due Process 14th Amend. by refusing to
permit Baxter a Gerstein hearing, and 14th, 8th Amend. violations by trial
judge was unfair & partial” (id. at PageID 1017); and

5.

“The trial court violated the 6th, 8th, and 14th Amend. by failing to instruct
the Jury on Self Defense afforded by due process principles and the Sixth
Amend.” (id. at PageID 1019).6

His Supplemental Claim contains an additional contention, labeled Claim 10:
10.

“The State judiciary purposely-violated [sic] Mr. Baxter’s rights to Due
Process and the Equal Protection Clause of the 14th Amendment by the
unconstitutional method used to select the foreman at the Grand Jury, a
critical stage of the prosecution” (Suppl. Claim 1, ECF No. 29-2).

Baxter’s proposed Second Amended Complaint does not comply with the Court’s previous
orders and Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts
(“§ 2254 Rules”) in several important respects.

First, Petitioner was instructed that his

amendment must be filed on the official form (Order at 8-9, ECF No. 27) and that “[t]he form must
be completely filled out and must list each issue he intends to raise and the factual basis for that
issue” (id. at 14). Although Claims 1, 2, 3 and 5 are on the official form, Claim 10 is not. Even
more confusingly, Baxter’s Statement includes extensive discussion of ten claims, some of which
include numerous sub-claims. Claims 4, 6, 7, 8 and 9 are not included in any pleading.
Second, even those claims that were submitted on the official form do not include the
factual basis. Instead, the factual section consists of cross-references to the original Petition and
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The proposed Second Amended Petition does not include a Claim 4.
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to the proposed First Amended Petition, which the Court previously declined to allow. (See 2d
Am. Pet. at PageID 1014, 1015, 1017, 1019, ECF No. 29.) This method of presentation puts an
unreasonable burden on the Court, which is apparently expected to sift through multiple
documents in order to discern the factual basis for the claims presented. This improper use of
incorporation by reference serves to compound the logistical difficulties presented by the inmate’s
decision to present his amendment using three separate documents, namely, the form petition, the
Statement and the Supplemental Claim.
The tedious and time-consuming task of compiling the information called for by the
official form and presenting it in a coherent manner in a single document is properly undertaken by
Baxter rather than by the Court and its staff. Leave to amend is DENIED without prejudice to his
right to present a proper amendment after the stay has been lifted.
V.

INSTRUCTIONS TO THE PARTIES
This case was stayed on November 25, 2015, pending receipt of Baxter’s Statement

regarding current and contemplated state-court challenges to his conviction and sentence for
aggravated assault and his itemization of all previous state-court challenges. This order continues
that stay. Petitioner’s amended statement is due twenty-eight days from the date of entry of this
order. After reviewing that statement, the Court will decide whether to administratively close the
case to permit Baxter to exhaust his claims in state court or to lift the stay and proceed to a decision
in the matter. At that time, the Warden will be required to file the remainder of the state-court
record and the inmate will be given a final opportunity to present an amended petition that includes
every claim he seeks to litigate.

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IT IS SO ORDERED this 18th day of April, 2016.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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