Baxter vs. Steward, et al

Filing 80

ORDER ADDRESSING MOTIONS AND DIRECTING CLERK OF COURT TO MODIFY RESPONDENT 59 60 62 69 70 73 75 76 79 . Signed by Judge J. Daniel Breen on 5/30/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMOTHY AARON BAXTER,
Petitioner,
v.

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

RUSTY WASHBURN,
Respondent.

ORDER ADDRESSING MOTIONS
AND
DIRECTING CLERK OF COURT TO MODIFY RESPONDENT
Before the Court is the November 16, 2017, motion of Respondent, Rusty Washburn,1 to
dismiss the pro se 28 U.S.C. § 2254 petition (the "Petition") filed by the Petitioner, Timothy
Aaron Baxter, for failure to prosecute. (Docket Entry (“D.E.”) 59.) Also pending are the
following pro se motions of the Petitioner: (1) motion to strike Respondent's supplemental
answer (D.E. 70); (2) motion for partial summary judgment as to Claim 1 (D.E. 62); (3) two
motions for “forfeiture” of defense (D.E. 69, 73); (4) motion for entry of default (D.E. 75) and
motion for entry of default judgment (D.E. 76); (5) motion for an evidentiary hearing (D.E. 60)
and supplemental motion for an evidentiary hearing (D.E. 78); and (7) motion for revision of
interlocutory order for bail pending review (D.E. 79).
For the reasons articulated herein, Petitioner’s supplemental motion for an evidentiary
hearing (D.E. 78) is TAKEN UNDER ADVISEMENT and his remaining motions, as well as
Respondent’s motion to dismiss, are DENIED.

1

The Clerk of Court is DIRECTED to substitute Rusty Washburn for Blair Leibach as
Respondent. See Fed. R. Civ. P. 25(d).

I.

PROCEDURAL SUMMARY
Baxter filed the Petition in November 2013 challenging his Tennessee conviction for

aggravated assault. The Petition sets forth the following claims:
1. “Insufficient Evidence” (D.E. 1 at PageID 5);
2. “Unreasonable application to Petitioner of statute [Tennessee Code
Annotated] § 39-11-106(a)(34)(C) procedural unfairness” (Id. at PageID 6);
3. “Whether the appellate court erred in it[]s opinion on the insufficiency of the
evidence when citing the mandate from the [state] supreme court on the legal
standard of proof necessary to satisfy all elements of the statute [Tennessee
Code Annotated] § 39-11-106(a)(34)(C).” (Id. at PageID 7);
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.)
In February 2014, Respondent filed the state court record pertaining to Petitioner’s trial
and direct appeal, as well as an answer to the Petition.2 (D.E. 12, 13.) The inmate subsequently
filed a reply. (D.E. 18.)
In November 2015, the Court stayed the case pending submission by Baxter of a
statement disclosing all state-court challenges to his conviction that were then-pending or that he
contemplated filing. (D.E. 27.) It appeared that Petitioner had filed collateral challenges to his
conviction that had not been disclosed in the Petition. The stay remained in effect until January
2017, when the Court dismissed the case for Baxter’s repeated failures to provide the required
statement. (D.E. 44.) Entry of judgment followed. (D.E. 45.)

2

Respondent subsequently filed the state court record in the inmate’s post-conviction
proceedings. (D.E. 33.)
2

In August 2017, for good cause shown, the Court granted Petitioner’s motion to vacate
the order of dismissal and judgment. (D.E. 53.) The Court also allowed him leave to file an
amended petition within twenty-eight days. On September 11, 2017, the Court granted him an
extension of time to file an amended petition. (D.E. 55.)
II.

PENDING MOTIONS
A. Respondent’s Motion to Dismiss and Petitioner’s Motion to Strike
Following the Court’s August 2017 order allowing the filing of an amended petition, the

inmate filed a document on the Court’s official § 2254 form challenging a different conviction
than he challenges in the instant Petition. (D.E. 56.) Washburn subsequently moved to dismiss
the new petition on the ground that it represented Petitioner’s failure to prosecute his original
claims. (D.E. 59.) Respondent also submitted a supplemental answer, in which he argued, in
part, that Baxter failed to follow the Court’s instructions for the filing of an amended petition.
(D.E. 66.) The inmate responded to the motion to dismiss, asserting that he had intended for the
Clerk of Court to file the new petition as a case-initiating document in a separate proceeding.
(D.E. 63.) On January 8, 2018, the Court struck the new petition and ordered the Clerk to file the
document in a new case. (D.E. 67.)
Several days after entry of that order, the Clerk received Petitioner’s motion to strike
Respondent’s supplemental answer. (D.E. 70.) In his motion, Baxter alleged that Washburn’s
statements in the supplemental answer regarding the circumstances surrounding the misdocketing of the new petition were false.3 He requested that the statements be stricken.

3

Presumably, Petitioner mailed his motion to strike before he received the Court’s order
re-docketing the new petition.
3

Because the new petition has been stricken from the docket and refiled in a new case, the
motion to dismiss (D.E. 59) and the motion to strike (D.E. 70) are DENIED as moot.
B. Petitioner’s Motion for Partial Summary Judgment and Related Motions
On December 7, 2017, Petitioner filed a motion for partial summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure, along with a statement of undisputed facts.
(D.E. 62, 62-1.) In his motion, Baxter sought entry of judgment in his favor on Claim 1, which
asserted that the evidence was insufficient to convict him. Washburn did not respond to the
motion.4
On January 17, 2018, the inmate filed a document styled “Motion Seeking Forfeiture of
Respondent’s Defense to Petitioner’s Motion for Summary Judgment, and Grant of Petitioner’s
Motion for Evidentiary Hearing.” (D.E. 69.) He argued therein that Respondent “forfeit[ed]
[his] defense to the motion” for summary judgment by failing to respond to it. (Id. at PageID
1990.) He therefore requested that the Court “consider the statement of undisputed facts as true
when determining the merits,” and “grant the evidentiary hearing.” (Id.)
On March 21, 2018, Petitioner filed a motion titled “Supplemental Motion to
Amend/Correct D.E. 69 Motion Addressing Respondent’s Forfeiture of Defense to Partial
Summary Judgment.” (D.E. 73.) In that motion, he reiterated his “forfeiture” argument, this
time with citation to legal sources he believed supported his position. On the same day, the

4

In his supplemental answer, Respondent stated that he “opposes the motion for partial
summary judgment and moves this Court to strike it for failure to comply with this Court’s
order.” (D.E. 66 at PageID 1985.) This argument and “motion” are not properly before the
Court, as having been improperly presented as part of the supplemental answer. See e.g., LR
7.2(a)(1) (setting forth requirements for the filing of motions).   

4

inmate also filed a motion for entry of default by the Clerk under Fed. R. Civ. P. 55(a) for
Washburn’s failure to respond to the motion for partial summary judgment. (D.E. 75.) Five
days later, on March 26, 2018, the inmate filed a motion for default judgment under Fed. R. Civ.
P. 55(b)(2) based on the same assertion that Respondent defaulted any defense to Claim 1. (D.E.
76.)
Baxter’s motion for summary judgment does not adequately state why such a motion is
appropriate in this case. Habeas practice is governed by the Rules Governing Section 2254
Cases in the United States District Courts (“Habeas Rules”). Habeas Rule 8(a) authorizes the
Court to examine the petition, the answer, and the state-court record to determine whether an
evidentiary hearing will be required. If a hearing is not required, the Court may resolve the
issues raised in the petition on the record submitted. See Habeas Rule 8 advisory committee's
note to 1976 adoption. If an expansion of the record or an evidentiary hearing is needed, the
Court may so order, consistent with 28 U.S.C.§ 2254(e)(2). Habeas Rule 8 advisory committee's
note to 1976 adoption and 2004 amendments.
The motion for partial summary judgment (D.E. 62) is therefore DENIED as
unnecessary, and the motions for forfeiture and entry of default and entry of default judgment
(D.E. 69, 73, 75, 76) are DENIED as moot.5

5

In any event, Respondent is not in default on Claim 1 because he addressed the claim in
his answer. But even if he had failed to do so, default judgments are not generally available in
habeas corpus proceedings. See Harris v. Warden, London Corr. Inst., No. 17-3944, 2018 WL
1224456, at *2 (6th Cir. Mar. 1, 2018) (citing Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970)).
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C. Petitioner’s Motions for an Evidentiary Hearing
On November 20, 2017, Petitioner filed a “Motion to Set Evidentiary Hearing,” (D.E.
60), arguing that such a hearing was needed to “reconstruct the state court record” (id. at PageID
1938).

On May 14, 2018, he submitted a document styled “Supplemental Motion to Set

Evidentiary Hearing,” in which he sought an expansion of the record for the same reasons
presented in the first motion. (D.E. 78.) However, unlike the first motion, the supplemental
motion also addressed 28 U.S.C. § 2254(e)(2), which narrowly limits the availability of an
evidentiary hearing in § 2254 cases.
Because the supplemental motion appears to supersede the first motion, the first motion
(D.E. 60) is DENIED as moot.
Upon review of Petitioner’s claims under Habeas Rule 8(a), the Court will consider the
merits of the supplemental motion. If the Court determines that resolution of his claims requires
an expansion of the state court record or an evidentiary hearing, it will so order.
The supplemental motion (D.E. 78) is therefore TAKEN UNDER ADVISEMENT.
D. Motion for Release
Baxter’s May 15, 2018, “Motion for Revision of Interlocutory Order for Bail Pending
Review” seeks, for the sixth time, his release on bail pending the resolution of this action. (D.E.
79.) This is the third 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 various
applications have been addressed at length in previous orders and there is nothing further that
can be said. The motion is DENIED.

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In conclusion, it bears emphasizing that additional motions will only serve to delay
resolution of this case.
IT IS SO ORDERED this 30th day of May 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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