Todd v. State of Tennessee et al

Filing 19

ORDER TO MODIFY THE DOCKET, DENYING MOTION TO COMPEL 13 , AND DISMISSING CERTAIN CLAIMS. Signed by Judge S. Thomas Anderson on 3/7/2017. (Anderson, S.)

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

XAVIER SHERROD TODD,
Petitioner,
v.
DARREN SETTLES, et al.,
Respondent.

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Case No. 2:15-cv-02312-STA-dkv

ORDER TO MODIFY THE DOCKET,
DENYING MOTION TO COMPEL (ECF No. 13),
AND DISMISSING CERTAIN CLAIMS
Before the Court is the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
(“§ 2241 Petition”), as amended, filed by Petitioner, Xavier Sherrod Todd, Bureau of Prisons
register number 16647-076, who was, when he commenced this action, an inmate at the Federal
Correctional Institution Medium in Forrest City, Arkansas (“FCI Forrest City Medium”) (ECF
No. 1), and Todd’s Motion to Compel (ECF No. 13).1 For the reasons stated below, the Court
DENIES the Motion to Compel and DISMISSES certain claims in the § 2241 Petition.2
1

Todd was released from federal custody on December 23, 2016.
See
www.bop.gov/inmateloc (searched Feb. 7, 2017). He is currently in the custody of the
Tennessee Department of Correction (“TDOC”) housed at the Bledsoe County Correctional
Complex (“BCCX”) in Pikeville, Tennessee. The Clerk is directed to modify the docket to
include Todd’s TDOC prisoner number of 126502, which was obtained from the TDOC’s Felony
Offender Information, https://apps.tn.gov/foil-app/search.jsp (searched Feb. 7, 2017), and mail a
copy of this order to him in an envelope bearing his TDOC number.
2

In this action, Todd has filed various documents asserting a series of claims on three
unrelated subjects: (i) a series of documents challenging various convictions obtained in the
Shelby County Criminal Court; (ii) documents challenging the fact that Todd’s state sentences
were not run fully concurrently with a federal sentence that was imposed in 1999; and (iii)
documents challenging Todd’s federal sentence in light of the Supreme Court’s decision in

I.

BACKGROUND AND PROCEDURAL HISTORY
Until he was released on December 23, 2016, Todd was serving a federal sentence for

bank fraud, which was imposed in 2014, and a sentence for violating the terms of his supervised
release from his 1999 sentence. Upon his release, Todd was transferred to state custody to serve
one or more state sentences. Most of the filings in this case address various convictions and
sentences obtained in the Criminal Court for Shelby County, Tennessee.
A.

Todd’s Tennessee Convictions and Sentences

On January 9, 1989, Todd entered guilty pleas in the Criminal Court for Shelby County,
Tennessee, to burglary of an automobile, assault with intent to commit first degree murder, and
grand larceny. Todd was sentenced to a term of imprisonment of five years. On March 3, 1989,
Todd pled guilty to one count of burglary of an automobile and two counts of grand larceny.
The trial judge sentenced Todd to a term of imprisonment of three years, with that sentence to
run concurrently to the sentence that had been imposed on January 9, 1989. On June 30, 1989,
Todd pled guilty to attempt to commit third degree burglary. He was sentenced to a term of
imprisonment of two years, to run concurrently with his outstanding sentences. Todd served
those sentences and was released. See Todd v. State, No. W2005-00681-CCA-R3-HC, 2005 WL
2259060, at *1, 2 (Tenn. Crim. App. Sept. 16, 2005) (“Todd I”).
On July 9, 1998, Todd pled guilty to driving while a habitual motor vehicle offender. He
was sentenced to two years.
On June 19, 2000, Todd pled guilty to two counts of theft of property over $60,000, one
count of intentionally evading arrest in a motor vehicle, three counts of burglary of a building,
two counts of driving while a habitual motor vehicle offender, one count of possession of a
Johnson v. United States, 135 S. Ct. 2551 (2015). In the interest of clarity, this order addresses
only the first of these topics.
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handgun by a convicted felon, and one count of theft of property over $1000. The trial judge
imposed an effective sentence of thirty years to be served as a career offender with 60% release
eligibility, to run concurrently to the sentence Todd was serving for his 1999 federal conviction.
Todd v. State, No. W2005-02483-CCA-R3-PC, 2006 WL 2771035 (Tenn. Crim. App. Sept. 27,
2006), appeal denied (Tenn. Jan. 22, 2007) (“Todd II”).
On October 4, 2004, Todd filed a petition for a writ of habeas corpus in the Shelby
County Criminal Court in which he alleged that his 1989 sentences were illegal under Tennessee
law because all of his sentences were to run concurrently. Because Todd committed some of his
offenses while he was on bail, the sentences obtained for those convictions were supposed to
have been run consecutively to the first sentences that were imposed. The trial court summarily
denied the petition. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed, holding that
Todd was not entitled to habeas relief because he “is no longer in the custody of the State of
Tennessee and . . . the challenged sentences have long since expired.” Todd I, 2005 WL
2259060, at *2.
B.

Case Number 2:15-cv-02312

On May 11, 2015, Todd filed his pro se § 2241 Petition. (ECF No. 1.) The Clerk shall
record the respondents as Attorney General Jeff Sessions and BCCX Warden Darren Settles.3
The § 2241 Petition bears the docket numbers of twenty-five cases from the Criminal Court for
Shelby County, Tennessee, dated between 1988 and 1999. (ECF No. 1 at PageID 1.) The §
2241 Petition asserts that, on February 18, 2015, Todd mailed a private Administrative Notice

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The § 2241 Petition lists the respondents as FCI Forrest City Medium Warden Rivera
and the State of Tennessee, et al. (ECF No. 1 at PageID 1.) The only proper respondent to a
habeas petition is the petitioner’s custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004).
The Clerk is directed to terminate the State of Tennessee as a party to this proceeding. The Clerk
is further directed to terminate Warden Rivera as respondent. See Fed. R. Civ. P. 25(d).
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and Counterclaim bearing these docket numbers to the Criminal Court. (Id. at PageID 4.)4 The
Administrative Notice gave the Respondents twenty-one days to respond. Because they failed to
respond, Todd argues that his numerous criminal judgments are now void. (ECF No. 1 at
PageID 4.)5 On March 18, 2015, Todd mailed Private Administrative Notices of Default and
Opportunity to Cure. Because the “Respondents” did not respond within fourteen days, as
demanded, Todd argues that they have conceded to default judgments and final judgments.
(ECF No. 1 at PageID 4.) The prayer for relief asks the Court to
perfect my Judgment by releasing the Proceeds, Products, Accounts, Fixtures, and
Credit and Orders of Judgment back to me, the Principal and Owner of the
Accounts, further i [sic] request the court to perform full set off, Settlement,
Closure, Adjustment, Expungement of all accounts of record with the State of
Tennessee Department of Corrections, NCIC, Interpol, and all other Local, State,
4

Attached to the § 2241 Petition is a copy of a document, entitled “PRIVATE
ADMINISTRATIVE NOTICE AND COUNTER CLAIM, PURSUANT TO THE
REDEMPTION OF THE PLEDGE IN THE PUBLIC POLICY OF PUBLIC LAW 73-10 (HJR192) AND DEMAND FOR FULL SET OFF OF ALL CASES AND ACCOUNTS AND
FOREVER EXPUNGE, SETTLE, CLOSE AND RETURN OF THE CREDIT BACK TO THE
BENEFICIARY AND EXECUTOR OF THE TRUST IN CASE ACCOUNTS AND ALL
DERIVATIVES OF RECORD . . . .” (ECF No. 1-4 at PageID 29.)
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The respondents named in the Private Administrative Notice and Counterclaim were

STATE OF TENNESSEE INSOLVENT CORPORATION, DIVISION I:
INSOLVENT MUNICI CIPAL [sic] CORPORATION, DIVISION II[,]
INSOLVENT MUNCIPAL CORPORATION, DIVISION III: INSOLVENT
MUNI CIPAL [sic] CORPORATION, DIVISION IV[,] INSOLVENT
MUNICIPAL CORPORA TION [sic], DIVISION V: INSOLVENT
MUNICIPAL CORPORATION, DIVISION VI: INSOLVENT MUNI CIPAL
[sic] CORPORATION, DIVISION IX[,] INSOLVENT MUNICIPAL
CORPORATION L.T. LAFFERTY:d/b/a JUDGE, B. WISERMAN: d/b/a
JUDGE, MR. DAILY: d/b/a JUDGE, MR. MECARTNY: d/b/a JUDGE, FRED
AXLEY: d/b/a JUDGE, JOE BROWN: d/b/a JUDGE, MOES, DOES AND
ROES, 1-1000 INDIVIDUALLY AND SEVERALLY, IN EACH THEIR
PRIVATE AND PUBLIC CAPACITY, THIRD PARTY LIBELEES[.]
(ECF No. 1-4 at PageID 29-30.) In that filing, Todd asked the parties “to perform full Setoff,
Settlement, Closure, Adjustment, Expungement, and Forever Unconditionally Discharge all
accounts of record, to include all derivatives, that I’ve been accused of and to eliminate all of the
records . . . .” (Id. at PageID 36.) Todd also sought money damages in the amount of $1 million
for each case, for a total of $26 million. (Id.)
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Federal, International Governments, all in accorded [sic] with the Public Policy in
Public Law 73-10 (31 U.S.C.-5118 ET. AL) invoking (28 U.S.C.-2201)
(Id. at PageID 5.)
On August 31, 2015, Todd filed a document, titled AMENDMENT SUPPLEMENTAL
PROOF OF RECORD TO SUPPORT PRIVATE ADMINISTRATIVE NOTICE AND
COUNTER CLAIM DEFAULT JUDGMENT SERVICE OF PROCESS—SUBSTITUTE OF
SERVICE, that purports to show that the Private Administrative Notice and Counter Claim
referred to in the original § 2241 Petition was properly served on the purported respondents.
(ECF No. 5.) Todd asks the Court to “perfect his Nil Dicit Default Judgment [and] order the
State of Tennessee to expunge state priors from there [sic] records” and to “[s]end a order to
Tennessee Department of Correction to release there [sic] detainer on the void priors.” (Id. at
PageID 130.)
On September 23, 2015, Todd filed a document, titled NOTICE OF JUDGMENT AND
ORDER OF NIL DICIT AFFIRMING JURISDICTION OF NIL DICIT DEFAULT
JUDGMENT

AND

NOTICE

OF

TORT

CLAIM

OBLIGATION

OF

PLEDGED

COLLATERAL, which argues that he is entitled to a default judgment on the Private
Administrative Notice and Counter Claim referred to in the original § 2241 Petition and that he is
entitled to unspecified money damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 2675 et seq. (ECF No. 6.)
On November 5, 2015, Todd filed a PETITION FOR SUMMARY JUDGMENT FRCP
56, which seeks summary judgment on the claims in the original § 2241 Petition. (ECF No. 8.)
In an order entered on September 2, 2016, the Court denied the summary judgment motion
without prejudice because “[t]his matter has not yet been screened pursuant to the Local Rules of
this Court.” (ECF No. 11.)
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On February 18, 2016, the Clerk docketed a set of documents submitted by Todd, titled
“Exempt from Levy,” consisting of a portion of a parole certificate from the Tennessee Board of
Probation and Parole, dated November 20, 2010 (ECF No. 9 at PageID 151); a portion of a
parole violation report, dated September 9, 2014 (id. at PageID 153); and two documents, titled
AFFIANT STATEMENT AND AFFIDAVIT, signed by Todd (id. at PageID 155, 157). These
documents, which have no legal force or effect, do not affect the validity of the revocation of
Todd’s Tennessee parole.
On October 4, 2016, Todd filed an AFFIANT STATEMENT AND AFFIDAVIT titled
“Certificate of Dishonor of Nunc Pro Tunc 1099 OID Request.” (ECF No. 12.) That document
has no legal force and effect and, therefore, the Court will disregard it.
On October 24, 2016, Todd filed a Motion to Compel. (ECF No. 13.)6
C.

The Motion to Compel (ECF No. 13)

In his Motion to Compel, Todd asks the Court “to perfect my Judgment by releasing the
Proceeds, Products, Accounts, Fixtures, the Credit and Orders of Judgment back to me” and “to
perform full set off, Settlement, Closure, Adjustment, Expungement of all accounts of record
with the State of Tennessee Department of Correction, NCIS, Interpol, and all other Local, State,
Federal, International Governments . . . .” (ECF No. 13 at PageID 170.)
The Motion to Compel asks the Court to award the relief sought in the original § 2241
Petition. See supra pp. 4-5. Because that Petition is meritless for the reasons stated below, the
Motion to Compel is DENIED.

6

On December 14, 2016, Todd filed a petition for a writ of mandamus with the Sixth
Circuit Court of Appeals. (ECF No. 17.) The Clerk is directed to modify the docket to reflect
that Todd’s mandamus petition is not a pending motion to be addressed by this Court.
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II.

ANALYSIS
This Court may issue a writ of habeas corpus with respect to Todd’s various Shelby

County judgments only if he “is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). The State of Tennessee provides a scheme for
prisoners to challenge their criminal convictions through direct appeals, see Tenn. R. App. P.
3(b), the filing of post-conviction petitions, see Tenn. Code Ann. §§ 40-30-101 to -122, habeas
petitions, Tenn. Code Ann. §§ 29-21-101 to -130, and petitions for a writ of error coram nobis,
see Tenn. Code Ann. §§ 27-7-101 to -108. There is no authority under Tennessee law to treat a
criminal conviction as a private commercial transaction and to impose on various state officials,
including court clerks and trial judges, an obligation to respond to documents such as the Private
Administrative Notice and Counterclaim mailed by Todd. The § 2241 Petition and the various
other filings submitted by Todd do not allege that the failure of various Tennessee officials to
respond to his Private Administrative Notice violated his rights under the United States
Constitution or federal law or that the United States Constitution or federal law requires that a
failure to respond voids a state conviction, even one that has expired years ago.
Moreover, “the essence of habeas corpus is an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure release from
illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also id. at 486 (habeas
corpus is the appropriate instrument for a prisoner who has been unlawfully subjected to physical
restraint to obtain release); Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)
(“Challenges to the validity of any confinement or to particulars affecting its duration are the
province of habeas corpus.”). Money damages are not available on a habeas petition. Preiser,

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411 U.S. at 494 (“In the case of a damages claim, habeas corpus is not an appropriate or
available federal remedy.”).
Because it appears from the application that Todd is not entitled to a writ of habeas
corpus on his challenges to his Tennessee convictions arising from the Private Administrative
Notice and Counterclaim, the Court will not issue an order for Respondents to show cause why
the writ should not be granted. See 28 U.S.C. § 2243. This aspect of the § 2241 Petition is
DENIED.
IT IS SO ORDERED this 7th day of March, 2017.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

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