Baxter v. Washburn

Filing 41

ORDER DIRECTING THE CLERK TO MODIFY THE DOCKET AND DIRECTING THE PARTIES TO SUBMIT ADDITIONAL BRIEFING ON CLAIM 3. Signed by Chief Judge S. Thomas Anderson on 2/2/2021. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMOTHY A. BAXTER,
Petitioner,
v.
GRADY PERRY,
Respondent.

)
)
)
)
)
)
)
)
)

No. 1:18-cv-01007-STA-jay

ORDER DIRECTING THE CLERK TO MODIFY THE DOCKET
AND
DIRECTING THE PARTIES TO SUBMIT ADDITIONAL BRIEFING ON CLAIM 3
Petitioner Timothy A. Baxter has filed a pro se habeas corpus petition (the “Petition”),
pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the following reasons, the Court DIRECTS
Petitioner and Respondent Grady Perry 1 to file supplemental briefs on Claim 3.
In 2012, Petitioner was convicted after a jury trial of failure to appear in his aggravated
assault case. State v. Baxter, No. W2012-02555-CCA-R3CD, 2014 WL 29102, at *1 (Tenn. Crim.
App. Jan. 3, 2014). In Baxter’s direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”)
rejected his argument that his conviction should be vacated because the trial court improperly
admitted a transcript containing hearsay comments by Judge Roy Moore and by Baxter’s defense
counsel. Baxter, 2017 WL 3822903, at *1.

1

Petitioner is currently imprisoned at South Central Correctional Facility. Because the warden of
that facility is Grady Perry, the Clerk is DIRECTED to substitute Perry for Russell Washburn as
Respondent. See 28 U.S.C. §§ 2242, 2243; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004).
The Clerk is also DIRECTED to update the docket to reflect Petitioner’s current address.

After an unsuccessful post-conviction appeal, see Baxter v. State, No. W2016-00563-CCAR3-PC, 2017 WL 3822903, at *1 (Tenn. Crim. App. Aug. 31, 2017), Baxter filed his Petition
seeking federal habeas relief. Claim 3, as set forth in the Petition, asserts:
GROUND THREE: State Trial Court abused its discretion by allowing admission
of hearsay evidence violating Crawford v. Washington, [541 U.S. 36 (2004)].
(a) Supporting facts[:]
The TCCA held this claim to be harmless error. The TCCA dodged the
federal/constitutional harm analysis under Chapman v. California, [386 U.S. 18
(1967)] . The TCCA’s opinion omits any federal harm analysis under Chapman
error.”
(ECF No. 1 at 8.)
Because the TCCA conducted a harmless-error analysis only with respect to Judge
Morgan’s statement, it appears from the Petition that Baxter is challenging the court’s ruling only
as to the judge’s statement. However, Petitioner’s memorandum in support of the Petition, which
references numerous theories not set forth in the Petition, includes a challenge to the TCCA’s
ruling regarding the admission of defense counsel’s statement and also presents arguments based
on state evidentiary law. The somewhat confusing presentation of arguments pertaining to Claim
3, and the inconsistencies between the Petition and the memorandum, may explain why
Respondent’s argument in opposition to Claim 3 only addresses Judge Morgan’s comment.
In addition, upon the Court’s review of the briefs in Baxter’s direct appeal, it appears that
Petitioner might not have “fairly presented” to the TCCA the federal contours of Claim 3.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). If a court raises a procedural default issue sua
sponte, it must give the petitioner notice and an opportunity to address the issue and present any
grounds for excusing the default. See Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004);
Mason v. Brunsman, 483 F. App'x 122, 129 (6th Cir. 2012); cf. Day v. McDonough, 547 U.S. 198,

2

209-10 (2006). In the alternative, a court may simply deny a claim on the merits, if warranted.
See 28 U.S.C. § 2254(b)(2). As noted above, however, the scope of Claim 3 is uncertain.
Therefore, in order to advance the proper resolution of the Petition, the Court DIRECTS
the parties to resubmit briefing on Claim 3. Petitioner is ORDERED to file, within fourteen days
of entry of this order, a supplemental brief regarding Claim 3 that includes clarification as to
whether he is also challenging the TCCA’s ruling regarding the admission of his defense counsel’s
statement. He may, if he wishes, also address the procedural default issue. Respondent is
ORDERED to file, within fourteen days of Petitioner’s submission, a supplemental brief
addressing Claim 3. If Respondent concludes that the issues were exhausted or chooses to waive
that affirmative defense, his supplemental brief should address the merits of Claim 3. Petitioner
may file a supplemental reply within fourteen days after service of Respondent’s supplemental
brief. No brief of either party shall exceed five pages, and no extensions of time will be granted.
The Court will address all arguments pertaining to Claim 3, including any affirmative defenses, at
the time it issues its decision on the Petition as a whole.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: February 2, 2021

3