Webb v. Phillips

Filing 5

ORDER DIRECTING PETITIONER TO FILE STATEMENT. Signed by Judge J. Daniel Breen on 5/24/17. (Breen, J.)

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

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

ORDER DIRECTING PETITIONER TO FILE STATEMENT
On May 8, 2017, Petitioner, Brian Lee Webb, filed a habeas corpus petition under 28
U.S.C. § 2254 in the United States District Court for the Eastern District of Tennessee. (Pet.,
ECF No. 2.) On May 19, 2017, the case was transferred to this district. (ECF No. 3.) The
Petition is before the Court for initial review.
Petitioner was convicted by a Benton County 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. at *6. The Tennessee Court of Criminal Appeals rejected the arguments. Id. at
*4-6. The appellate court remanded 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 federal habeas petition, Petitioner alleges that the evidence was insufficient to
convict him (Grounds One and Two); he was “take[n] advantage of” because he “was in a bad
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car wreck and ha[s] trouble with [his] memory (Ground Three); and the victim’s testimony was
hearsay (Ground Four). (Pet., ECF No. 2 at 6, 7, 9, 11.) Petitioner also asserts that his counsel
“denied [him] help.” (Id. at 6.) Although the allegation regarding his attorney is not set forth in
a separate ground, the Court construes the petition as asserting an ineffective assistance of
counsel claim.
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, 455 U.S. 509 (1982), the United States
Supreme Court held that a district court must dismiss a “mixed” 28 U.S.C. § 2254 petition
containing both exhausted and unexhausted claims, “leaving the prisoner with the choice of
returning to state court to exhaust his claims or of amending or resubmitting the habeas petition
to present only exhausted claims to the district court.” Id. at 510. Subsequently, in Rhines v.
Weber, 544 U.S. 269 (2005), 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. Id. at 278.
Here, Webb’s evidence-sufficiency claim appears to have been exhausted. See Webb,
2016 WL 4060650, at *4. It is unclear from the petition, however, whether the remaining claims
have been or are being exhausted in a state post-conviction proceeding. On the habeas corpus
form, Petitioner checked the boxes indicating that he filed for post-conviction relief and that the
state appellate court denied his post-conviction claims. However, a Westlaw search reveals no
post-conviction appellate decisions. It appears that he may have misunderstood some or several
of the questions asked in the habeas form regarding post-conviction proceedings. The Court

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notes that Webb filed his federal habeas petition just six months after his direct appeal
concluded. It is therefore possible that Petitioner has a post-conviction petition pending in the
state lower court, or he may yet intend to file one.
Because the Court is unable to determine the status of any post-conviction proceedings or
whether Petitioner intends to file for post-conviction relief, he is ORDERED to file a statement
with the Court indicating whether he has a petition for post-conviction or other collateral relief
pending in the state courts and, if yes, the claims raised in the state petition and the status of
those proceedings. If Petitioner has not yet filed for any post-conviction or other collateral relief
in state court he must state whether he intends to do so. In addition, because it is not clear from
the petition whether the remand proceedings ordered by the Tennessee Court of Criminal
Appeals have concluded, Webb must also report the status of the remand. He must file his
statement within twenty-eight (28) days of the date of this order.
Petitioner’s failure to comply with this order will result in dismissal of the petition
without further notice pursuant to Federal Rule of Civil Procedure 41(b). See Fed. R. Civ. P.
41(b).

IT IS SO ORDERED this 24th day of May 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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