Ellison v. Phillips

Filing 21

ORDER DIRECTING CLERK TO MODIFY RESPONDENT AND DENYING MOTION TO EXPAND THE RECORD 18 . Signed by Chief Judge S. Thomas Anderson on 4/25/19. (skc)

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

CALVIN ELLISON,
Petitioner,
v.
HILTON HALL, JR.,
Respondent.

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Case No. 1:18-cv-01001-STA-jay

ORDER DIRECTING CLERK TO MODIFY RESPONDENT
AND
DENYING MOTION TO EXPAND THE RECORD
On April 18, 2018, Respondent Hilton Hall, Jr. filed the state court record from Petitioner
Calvin Ellison’s criminal and post-conviction proceedings. 1 (ECF No. 15). Nearly nine months
later, after briefing had been completed, Petitioner filed a motion to expand the state court record.
(ECF No. 18.) He requests that the Court direct Respondent to “file a copy of the Sentencing
Hearing Transcript[],” insisting that the “Court may be aided by this [t]ranscript” in ruling on his
claim “concern[ing] his sentence.” (Id.) For the following reasons, the motion is DENIED.
In Claim 4(d) of his Petition, Ellison asserts that counsel rendered ineffective assistance
by failing to investigate and challenge the imposition of consecutive sentences relating to his
convictions for aggravated assault and employing a firearm during the commission of a dangerous
felony. (ECF No. 1 at 10; ECF No. 1-1 at 7-8.) He unsuccessfully raised the claim before the
Tennessee Court of Criminal Appeals (“TCCA”). See Ellison v. State, No. W2016-01784-CCA-

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The Clerk is DIRECTED to substitute Hilton Hall Jr. for Shawn Phillips as Respondent.
See Fed. R. Civ. P. 25(d).
1

R3-PC, 2017 WL 2472374, at *6 (Tenn. Crim. Ap. June 7, 2017), perm app. denied (Tenn. Oct.
6, 2017).
In rejecting the claim, the TCCA held that counsel and the trial court were mistaken that
consecutive sentencing was mandatory under Tennessee law in the circumstances of Ellison’s case.
Id. The appellate court found, however, that Ellison did not establish that he was prejudiced by
counsel’s error. Id. Because Petitioner did not provide a transcript of the sentencing hearing, the
court reasoned, it could not “say with certainty that the trial court would not have elected to impose
consecutive sentencing based upon one of the permissive grounds contained in [Tennessee] Code
section § 40-35-115,” especially in light of the defendant’s “extensive criminal history.” Id.
Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts
(“Habeas Rules”) provides that a district court may, in its discretion, “direct the parties to expand
the record by submitting additional materials relating to the petition.” Habeas Rule 7(a). “The
materials that may be required include letters predating the filing of the petition, documents, [and]
exhibits ” Habeas Rule 7(b).
A court’s discretion under Rule 7 to order an expansion of the record is circumscribed,
however, where a claim has been adjudicated on the merits. In that instance, “review under [28
U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The Supreme Court in Pinholster
observed that “[i]t would be strange to ask federal courts to analyze whether a state court’s
adjudication resulted in a decision that unreasonably applied federal law to facts not before the
state court.” Id. at 182-83.

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Ellison’s ineffective assistance claim regarding his consecutive sentences was adjudicated
on the merits in the Tennessee Court of Criminal Appeals. This Court’s review of the TCCA’s
decision under the deferential review standards of 28 U.S.C. § 2254(d) is therefore limited to the
record that was before that court. As noted, the transcript of Ellison’s sentencing hearing was
never submitted to the TCCA. This Court therefore may not consider the transcript in ruling on
Claim 4(d). Because an expansion of the record to include the document would serve no purpose,
the motion is DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: April 25, 2019

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