Matthews v. Liebach et al

Filing 14

ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING MOTION TO DISMISS, AND STAYING PROCEEDINGS AND ADMINISTRATIVELY CLOSING CASE 13 . Signed by Chief Judge S. Thomas Anderson on 4/24/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GEORGE W. MATTHEWS,
Petitioner,
v.
RUSTY WASHBURN,1
Respondent.

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No. 1:17-cv-1199-STA-egb

ORDER DIRECTING CLERK TO MODIFY RESPONDENT,
DENYING MOTION TO DISMISS, AND
STAYING PROCEEDINGS AND ADMINISTRATIVELY CLOSING CASE
On October 16, 2017, Petitioner George W. Matthews filed a pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254 (ECF No. 1). In compliance with the Court’s October 27,
2017 Order (ECF No. 7), Petitioner then filed an Amended Petition on the Court’s form (the
“Amended Petition”) (ECF No. 8). Before the Court is Respondent Rusty Washburn’s Motion to
Dismiss for Failure to Exhaust State Remedies (ECF No. 13). And for the reasons that follow,
the Motion is DENIED, and the case is STAYED and ADMINISTRATIVELY CLOSED.

I.

BACKGROUND
A jury of Lake County, Tennessee, convicted Petitioner of one count of possession with

intent to sell and deliver over half an ounce of marijuana and two counts of attempt to introduce
contraband into a penal facility. Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody, at 1, Nov. 8, 2017, ECF No. 8 [hereinafter “Am. Pet.”]. The criminal
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The warden at the Trousdale Turner Correctional Center, where Petitioner is currently
incarcerated, is Rusty Washburn. The Clerk is therefore DIRECTED to modify the docket to
show only Rusty Washburn as Respondent. See Fed. R. Civ. P. 25(d).
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court sentenced him to twelve years of imprisonment. Id. The Tennessee Court of Criminal
Appeals (the “TCCA”) affirmed the judgments of conviction, and the Supreme Court of
Tennessee denied discretionary review. See State v. Matthews, 2017 Tenn. Crim. App. LEXIS
49, at *2 (Tenn. Crim. App. Jan. 24, 2017), perm. appeal denied (Apr. 13, 2017).
Matthews filed a state pro se petition for a writ of habeas corpus in the Trousdale County
Circuit Court, which was denied. Am. Pet., at 2. On appeal, the TCCA affirmed, and the
Supreme Court of Tennessee again denied discretionary review. See Matthews v. State, No.
2017 Tenn. Crim. App. LEXIS 493, at *1 (Tenn. Crim. App. June 8, 2017), perm. appeal
denied (Sept. 21, 2017).
In 2017, Petitioner initiated this federal habeas proceeding, in which he raises the
following claims: (1) the indictment “fail[ed] to charge attempt by statute” (“Claim 1”); (2) there
is no “attempt” under Tenn. Code Ann. § 39-16-201 (“Claim 2”); and (3) the trial judge erred by
“construct[ivel]y amend[ing] the indictment to the jury” (“Claim 3”). Am. Pet., at 5.
On November 28, 2017, the Court entered an Order (ECF No. 9) directing Respondent to
file the state court record and respond to the Amended Petition. Respondent subsequently filed
the instant Motion to Dismiss (ECF No. 13) but did not file the state court record.

II.

DISCUSSION
In his Motion, Respondent argues that the Amended Petition should be dismissed

without prejudice because it contains only unexhausted claims and because Petitioner is currently
pursuing state post-conviction relief. In support, Respondent submits the affidavit of Assistant
District Attorney General Lance E. Webb. Aff. of Lance E. Webb, Dec. 6, 2017, ECF No. 13-2.
Webb avers that he is representing the State of Tennessee in Petitioner’s post-conviction

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proceeding, which remains pending at the trial level. Id. at 2. Petitioner has not responded to the
Motion, although he was allowed to do so.
As a general matter, a federal court may not grant relief on an unexhausted claim. 28
U.S.C. § 2254(b)(1)(A). A claim is unexhausted if the petitioner “has the right under the law of
the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). A
petition which contains only unexhausted claims is properly dismissed without prejudice to allow
the petitioner to return to state court to exhaust his claims. See e.g., Mckay v. Kennedy, 2016
U.S. Dist. LEXIS 84140, at *5 (W.D. Tenn. June 29, 2016) (dismissing petition without
prejudice where the “claims [were] plainly unexhausted”).
If a petitioner files a “mixed” § 2254 petition containing both exhausted and unexhausted
claims, the district court has some discretion to stay the petition to allow the prisoner to exhaust
his unexhausted claims.

Cf. Rhines v. Weber, 544 U.S. 269, 276–77 (2005).

A stay of

proceedings may also be warranted where all claims in the petition are exhausted but the
petitioner is still pursuing state post-conviction relief. See Watkins v. Smith, 2018 U.S. Dist.
LEXIS 5765, at *7 (E.D. Mich. Jan. 12, 2018) (“A federal district court is authorized to stay
fully exhausted federal habeas petitions pending the exhaustion of other claims in the state
courts.”) (citing Bowling v. Haeberline, 246 F. App’x. 303, 306 (6th Cir. 2007); Nowaczyk v.
Warden, 299 F.3d 69, 77–79 (1st Cir. 2002); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir.
2000); Thomas v. Stoddard, 89 F. Supp. 3d 937, 943 (E.D. Mich. 2015)).
Respondent’s assertion, here, that the Amended Petition contains only unexhausted
claims, and therefore must be dismissed, is without merit. Claim 1 was raised on direct appeal
but denied. See Matthews, 2017 Tenn. Crim. App. LEXIS 49, at *28 (“While Count Two and

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Count Three do not reference the attempt statute, the indictment satisfies the requirements of the
United States Constitution . . . .”). The claim is therefore exhausted.
As for Claims 2 and 3, it does not appear from the published state court decisions that
Petitioner raised these issues on direct appeal or in his state habeas proceeding. But there is no
way for the Court to know that with certainty without having first reviewed the state appellate
briefs, which Respondent has not filed.2 Even if Petitioner did not raise these issues, he probably
no longer has an available state court avenue to assert them. Respondent, however, has not
addressed this issue.
At bottom, then, the Amended Petition is either a fully exhausted petition or a mixed
petition containing a combination of exhausted and unexhausted claims. In either event, the
Court concludes that, in the interests of comity and judicial economy, the most appropriate
procedure is to stay and administratively close this case until the state post-conviction
proceedings are finished. See Rhines, 544 U.S. at 276–77 (permitting the stay procedure for
mixed petitions); Bowling, 246 F. App’x. at 306 (quoting Nowaczyk, 299 F.3d at 83) (holding a
habeas court may delay a decision on a petition that contains only exhausted claims “when
considerations of comity and judicial economy would be served”).

III.

CONCLUSION
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

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As noted, the Court directed Respondent to file the state court record, but he did not do

so.
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(30) days of the state courts’ resolution of his post-conviction petition, Petitioner shall notify the
Court of the resolution and file a motion to lift the stay and reopen this case.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: April 24, 2018.

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