Miller v. Lindamood

Filing 67

ORDER denying without prejudice 66 Emergency Motion for an Unconditional Writ of Habeas Corpus. Signed by Chief Judge S. Thomas Anderson on 9/8/2021. (Anderson, S. Thomas)

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

DWIGHT MILLER,
Petitioner,
v.
KEVIN GENOVESE,
Respondent.

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Case No. 1:15-cv-01281-STA-jay

ORDER DENYING WITHOUT PREJUDICE EMERGENCY MOTION
FOR AN UNCONDITIONAL WRIT OF HABEAS CORPUS
On May 13, 2021, the Court issued a conditional writ of habeas corpus. (ECF No. 64.)
The writ specifies that Petitioner Dwight Miller is to be released from state custody “unless
Respondent [Kevin Genovese] notifies the Court within thirty days of entry of this order that the
State of Tennessee intends to retry Miller . . . and actually commences Miller’s retrial within 120
days of entry of this order.” (Id. at 2 (emphasis in original).) Respondent filed a timely notice of
the State’s intent to retry Petitioner. (ECF No. 65.) The time to commence a retrial will expire on
September 10, 2021. On September 7, 2021, Petitioner filed, through counsel, a document titled
“Dwight Miller’s Emergency Motion for an Absolute Grant of Habeas Corpus.” (ECF No. 66.)
For the following reasons, the motion is DENIED.
“[T]he sole distinction between a conditional and an absolute grant of the writ of habeas
corpus is that the former lies latent unless and until the state fails to perform the established
condition, at which time the writ springs to life.” Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.
2006). A court may grant an unconditional writ upon finding that the respondent has not complied

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with the terms of a conditional writ. See e.g., Means v. Phillips, 136 F. Supp. 3d 872, 896 (W.D.
Tenn. 2015) (granting “Petitioner's request to make the conditional writ of habeas corpus an
unconditional writ” due to respondent’s failure to comply with terms of the conditional writ).
In the present matter, Miller seeks “an absolute writ of habeas corpus that ensures his
immediate release from custody and bars his re-prosecution.” (Id. at 7.) In support, he alleges the
State never intended to retry him, filed its notice of intent in “bad faith,” and cannot meet the
approaching retrial date. (Id.) He does not dispute, however, that the time for retrial has not yet
expired. Therefore, the request for an absolute writ of habeas corpus is premature. The motion is
DENIED without prejudice.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: September 8, 2021

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