Webb v. Phillips

Filing 11

ORDER STAYING PROCEEDINGS AND ADMINISTRATIVELY CLOSING CASE. Signed by Judge J. Daniel Breen on 10/24/17. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BRIAN LEE WEBB,
Petitioner,
v.

No. 1:17-cv-01095-JDB-egb

SHAWN PHILLIPS,
Respondent.

ORDER STAYING PROCEEDINGS
AND
ADMINISTRATIVELY CLOSING CASE

On May 8, 2017, the Petitioner, Brian Lee Webb, filed a habeas corpus petition
(“Petition”) under 28 U.S.C. § 2254. (Docket Entry (“D.E.”) 2.) In compliance with the Court’s
orders of May 24, 2017, (D.E. 5), and June 23, 2017, (D.E. 8), the Petitioner filed a “Statement
of Compliance” (“Statement”) reporting that he has a post-conviction petition pending in state
court. (D.E. 10.) For the following reasons, proceedings on Webb’s federal Petition will be
stayed and this case administratively closed.
Before a federal court will review the merits of a claim brought under § 2254, the
petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). A claim must be “properly” exhausted, meaning it must be “fairly presented”
through “one complete round of the State’s established appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). In Rose v. Lundy, the United States Supreme Court held
that a district court must dismiss a “mixed” § 2254 petition containing both exhausted and
unexhausted claims, “leaving the prisoner with the choice of returning to state court to exhaust
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his claims or of amending or resubmitting the habeas petition to present only exhausted claims to
the district court.” 455 U.S. 509, 510 (1982). Subsequently, in Rhines v. Weber, the Supreme
Court held that a district court has discretion to stay a mixed habeas petition to allow the
prisoner to exhaust his unexhausted claims. 544 U.S. 269, 278 (2005).
Petitioner was convicted by a Benton County, Tennessee jury of rape of a child and
aggravated sexual battery. State v. Webb, No. W2015-01809-CCA-R3-CD, 2016 WL 4060650,
at *1 (Tenn. Crim. App. July 27, 2016). On direct appeal, Webb argued that the evidence was
insufficient to convict him and that the trial court erred by failing to consider certain mitigating
evidence at sentencing. Id. The Tennessee Court of Criminal Appeals rejected the arguments.
Id. at *3-6. The appellate court remanded the case for a corrected sentence, however, because
“neither the record nor the judgment reflect[ed] service of the aggravated sexual battery
conviction at 100% as mandated by statute . . . .” Id. at *1.
In his Petition, Webb alleged that the evidence was insufficient to convict him (Grounds
One and Two); he was “take[n] advantage of,” as he “was in a bad car wreck and ha[s] trouble
with [his] memory” (Ground Three); and the victim’s testimony was hearsay (Ground Four).
(D.E. 2 at PageID 12-13, 15, 17.) He also asserted that his counsel “denied [him] help.” (Id. at
PageID 12.) Although this allegation is not set forth in a separate ground, the Court construes
the Petition as asserting an ineffective assistance of counsel claim. (Id.)
The Court finds that the Petition is a “mixed” petition for purposes of Rhines, 544 U.S. at
278. The Petitioner’s evidence-sufficiency claim appears to have been exhausted. See Webb,
2016 WL 4060650, at *3-4. However, as revealed by the information provided in Webb’s
Statement, the remaining federal claims are unexhausted and are pending or may be brought in
the state post-conviction proceeding. (See D.E. 10 at PageID 53-54.)

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The

proceedings

in

this

case

are

therefore

STAYED

and

the

case

is

ADMINISTRATIVELY CLOSED. Nothing in this order or the related docket entry shall be
considered a dismissal or disposition of this case. It is further ORDERED that, within thirty days
of the state courts’ resolution of his post-conviction petition, the Petitioner shall notify the Court
of the resolution and file a motion to lift the stay and reopen this case.
IT IS SO ORDERED, this 24th day of October 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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