United States District Court, W.D. Tennessee, Eastern Division
ORDER TO MODIFY THE DOCKET, ADDRESSING PENDING MOTIONS, DISMISSING PETITION PURSUANT TO 28 U.S.C. § 2254, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
J. DANIEL BREEN, Chief District Judge.
Before the Court is the Petition for Writ of Habeas Corpus (the "Habeas Petition") filed by Petitioner, Mike Settle, Tennessee Department of Correction prisoner number 207584, an inmate at the Riverbend Maximum Security Institution ("RMSI") in Nashville, Tennessee (Habeas Pet., Settle v. Westbrooks, No. 1:15-cv-01022-JDB-egb (W.D. Tenn.), ECF No. 1), and Petitioner's in forma pauperis affidavit and Motion for Factual Finding (Appl. to Proceed Without Prepayment of Fees and Aff., id., ECF No. 12; Mot. for Factual Finding, id., ECF No. 14). For the reasons stated below, the Court DENIES the pending motions and DISMISSES the Habeas Petition.
A. State Court Procedural History
This is the most recent in a series of habeas petitions filed by Settle in state and federal court challenging sentences imposed in 2001 in Madison County, Tennessee. The relevant state procedural history has been summarized in an order dismissing a petition pursuant to 28 U.S.C. § 2254 challenging the judgments at issue in this action:
On January 5, 2001, Settle entered a guilty plea in the Circuit Court for Madison County, Tennessee, to one count of especially aggravated kidnapping, one count of felony escape, one count of aggravated robbery, and two counts of aggravated assault. Pursuant to a negotiated plea agreement, Settle was sentenced to concurrent terms of 25 years for the especially aggravated kidnapping conviction, 6 years for the felony escape conviction, 25 years for the aggravated robbery conviction, and 15 years for each aggravated assault conviction. The plea agreement provided that these sentences would be served concurrent with unexecuted federal sentences, but consecutive to unexecuted sentences arising from numerous convictions obtained in Shelby County, Tennessee. Judgments were entered on January 10, 2001. Settle did not take a direct appeal.
On September 24, 2001, Settle filed a petition for a writ of habeas corpus, pursuant to Tenn. Code Ann. § 29-21-101 et seq., in the Circuit Court for Morgan County, Tennessee, in which he alleged a violation of the plea agreement because the TDOC refused to run his Madison County sentence concurrent to his federal sentence.... On April 4, 2003, the Morgan County Circuit Court entered an order that the action should be treated as a petition for a writ of certiorari to the Circuit Court for Madison County and transferred to the Madison County Circuit Court.
On April 21, 2003, the State filed a response to the petition, entitled "State's Response and Motion to Appoint Counsel and Convert the Petition to a Petition for Post Conviction Relief, " that stated, in pertinent part:
The relief sought by the petitioner is relief that should be sought under post conviction. Therefore the State will enter a general denial and ask that counsel be appointed to file the proper pleadings in the matter.
Further the State will attempt to Honor its agreement to the extent possible or will solicit a proffer to dispose of the matter in fairness to the petitioner under the circumstances.
On April 24, 2004, the Madison County Circuit Court issued an order treating the petition as seeking postconviction relief and dismissing it without prejudice because it failed to assert a colorable claim. That order provided, in pertinent part:
After examination of the petition for post-conviction relief, together with the files, records, and correspondence relating to the judgment under attack, this Court finds as follows:
(1) The petition shall be dismissed without prejudice,
(2) The petition shall be dismissed for failure to assert a colorable claim based upon the following findings of fact and conclusions of law:
In his petition for post-conviction relief, Petitioner complains that his twenty-five year sentence in case no. 99-906 should be concurrent with all federal sentences but that the Tennessee Department of Corrections [sic] has refused to run the sentence imposed by this Court concurrent with his federal sentences. The record in case no. 99-906 indicates that the guilty plea form and the judgment set forth that the twenty-five year sentence in case no. 99-906 was deemed concurrent with the federal sentences. Petitioner may have a complaint concerning the calculation of his sentence by the Tennessee Department of Corrections [sic]... for which he has other remedies. However, there was no misunderstanding of the guilty plea agreement or the sentence of this Court. Post-Conviction relief is not appropriate where the rights involved are not constitutional in nature. Accordingly, the Petition for Post-Conviction Relief is denied.
In his pro se appeal, Settle reiterated his previous arguments and argued for the first time that his sentence, as imposed, was unlawful under Tennessee law, which required that convictions for escape run consecutive to the federal sentence. In its appellate brief, the State noted that this argument had not been presented to the postconviction court.
The Tennessee Court of Criminal Appeals affirmed. Settle v. State, No. W2003-01261-CCA-R3-PC, 2004 WL 1656481 (Tenn. Crim. App. July 23, 2004).... Settle did not seek permission to appeal to the Tennessee Supreme Court.
On December 16, 2004, Settle filed a petition for state habeas relief, pursuant to Tenn. Code Ann. § 29-21-101 et seq., in the Davidson County Circuit Court. In that petition, Settle raised claims that (i) his convictions, sentences, and judgments are illegal because the sentence for escape was ordered to be served concurrently with his unexecuted federal sentence and because the judgments do not state that the sentence should be served in federal custody; (ii) his guilty pleas were involuntary because he was not informed that his state sentences would not, in fact, run concurrently with his federal sentence because the Bureau of Prisons could not be compelled to take him into federal custody to permit service of his federal sentence; and (iii) his trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, by inducing him to accept a plea agreement that could not be performed. On January 12, 2005, Settle was ordered to pay a partial filing fee within twenty days. On January 21, 2005, Petitioner filed a "Motion for Review of Petition" in which he explained that he is indigent and not required to pay an initial partial filing fee. On February 3, 2005, Settle's petition was dismissed because he failed ...