United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING 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 under 28 U.S.C.A. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition") filed by Petitioner, Tracy Lynn Harris, Tennessee Department of Correction ("TDOC") prisoner number 317389, who is currently incarcerated at the West Tennessee State Penitentiary ("WTSP") in Henning, Tennessee. (Pet., Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1.) For the reasons stated below, the Petition is DENIED.
A. State Court Procedural History
On January 3, 2000, a grand jury in Carroll County, Tennessee returned a three-count indictment against Harris. (Indictment, State v. Harris, No. 20CR1470 (Carroll Cnty. Cir. Ct.), ECF No. 24-1 at PageID 175-78.) Count 1 charged Petitioner with the first-degree murder of Madelyn Ruth Bomar on or about October 30, 1998. Count 2 alleged Harris committed the first-degree murder of Bomar during the perpetration of a felony, namely, aggravated burglary and aggravated rape. Count 3 involved the especially aggravated burglary of the residence of Bomar by the inmate. Count 4 charged Harris with the aggravated rape of the victim. On January 14, 2000, the State filed notice of its intent to seek the death penalty. (Not. of Intent to Seek Death Penalty, id., ECF No. 24-1 at PageID 184.)
On March 2, 2000, pursuant to a written plea agreement, Petitioner pleaded guilty to Counts 2 and 4 of the indictment in exchange for a negotiated sentence of life imprisonment without the possibility of parole for the felony murder and a concurrent term of twenty years at 100 percent for the aggravated rape. (Request for Acceptance of Plea of Guilty & Pet. to Waive Trial by Jury & to Waive an Appeal, id., ECF No. 24-1 at PageID 187-88.) Judgments were entered on March 20, 2000. (J., id., ECF No. 24-1 at PageID 189 (Count 2); J., id., ECF No. 24-1 at PageID 190 (Count 4).) Harris did not take a direct appeal.
On November 17, 2000, the inmate filed a pro se petition in the Carroll County Circuit Court pursuant to the then-current version of the Tennessee Post-Conviction Procedure Act, Tennessee Code Annotated §§ 40-30-201 to -222. (Pet. for Relief from Conviction or Sentence, Harris v. State , No. 20CR1470PC (Carroll Cnty. Cir. Ct.), ECF No. 24-1 at PageID 192-98.) He checked the box on the form petition for "Conviction was based on unlawfully induced guilty plea or guilty plea involuntarily entered without understanding the nature and consequences of the plea, " "Denial of effective assistance of counsel" and "Other grounds" ( id. at PageID 196), but provided no factual support for his claims. On December 1, 2000, the post-conviction court summarily dismissed the petition for failure to assert a colorable claim. (Preliminary Order (No Colorable Claim), Harris v. State , No. 20CR1470PC (Carroll Cnty. Cir. Ct.), ECF No. 24-1 at PageID 204.) The court found that "[t]he petition simply makes bare allegations that constitutional rights have been violated without accompanying factual basis for the grounds alleged" and that "T.C.A. § 40-30-206(d) provides in part that failure to state a factual basis for the grounds alleged shall result in an immediate dismissal of the petition." ( Id. ) Harris did not appeal.
On July 13, 2006, Harris filed a pro se petition for a writ of habeas corpus in the Criminal Court for Morgan County, Tennessee, in which he argued that his sentence for aggravated rape was illegal and, consequently, that his guilty plea was invalid because the trial judge had failed to sentence him to community supervision for life upon release, as required by state law. (Pet. for Writ of Habeas Corpus, Harris v. Worthington, No. 9240 (Morgan Cnty. Crim. Ct.), ECF No. 24-21 at PageID 774-79.) The State responded to the petition on April 7, 2008. (Resp. in Opp'n to Habeas Corpus Pet., id., ECF No. 24-21 at PageID 793-801.) After counsel was appointed (Order Appointing Legal Counsel, id., ECF No. 24-21 at PageID 824; Order of Substitution & Withdrawal, id., ECF No. 24-21 at PageID 823), a hearing on the petition occurred on September 15, 2008. (Tr., id., ECF No. 24-22.) At that proceeding, Petitioner testified that community supervision was not addressed during the guilty plea hearing. ( Id. at 8.) He explained that an amendment to his aggravated rape judgment to impose a community supervision requirement would not be proper because "the community supervision statute on its face is defined as punishment. The judgment reflects 20 years, the State's trying to utilize the habeas corpus to secure additional punishment and that's a breach of the plea agreement." ( Id. ) On October 8, 2008, the court denied the habeas petition but remanded the case "to the Carroll County Circuit Court for entry of an amended judgment on the petitioner's aggravated rape conviction, No. 20CR1470, so as to direct a sentence of community supervision for life, pursuant to Tenn. Code Ann. § 39-13-524 and State v. Bronson, 172 S.W.3d 600 (Tenn. Crim. App. 2005)." (Order Denying Habeas Corpus Relief on the Pet'r's Convictions & Granting Limited Relief on the Pet'r's Aggravated Rape Sentence at 1-2, Harris v. Worthington, Case No. 9240 (Morgan Cnty. Crim. Ct.), ECF No. 24-1 at PageID 217-18.)
Harris appealed from the denial of habeas relief. (Not. of Appeal, id., ECF No. 24-21 at PageID 835.) The Tennessee Court of Criminal Appeals ("TCCA") affirmed, reasoning as follows:
Relevant to our analysis is Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006), wherein our supreme court held that when a judgment imposed pursuant to a negotiated plea agreement contains an illegal element, the Petitioner must show that the illegality was a bargained-for element of the plea agreement in order to set aside the conviction. Conversely, if the illegality is not proven to be a bargained-for element, then only the sentence is void and the habeas corpus court should remand the case to the convicting court for correction of judgment. Id. at 128-129; but see McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001) (where defendant bargains for and receives an illegal sentence, the result on habeas corpus review is an option to resentence or to withdraw the guilty plea and recommence prosecution). Thus, unless the Petitioner can prove that his guilty pleas and resulting convictions are "infected with the illegality" caused by the absence of the community supervision condition on the aggravated rape judgment, the only relief available is the correction of judgment upon remand to the convicting court. Smith, 202 S.W.3d at 129.
At the evidentiary hearing, the State conceded that the aggravated rape judgment was void on its face because the trial court failed to impose community supervision for life as a condition of release upon service of the sentence. However, the State argued that unless the Petitioner could prove that the condition was a material element of the plea bargain, the only appropriate relief would be correction of the judgment by the trial court. The Petitioner testified that there was no discussion regarding the community supervision for life condition during plea negotiations. The plea acceptance form does not include any reference to community supervision.
Our review of the record further reveals that the Petitioner was warned by counsel that if he were successful in obtaining a withdrawal of the plea agreement, he could potentially face the death penalty for the felony murder charge. The plea acceptance form also confirms that the possible sentence the Petitioner faced for the felony murder charge included the death penalty. The record indicates that the plea negotiations focused appropriately upon the Petitioner's avoidance of the death penalty and convictions for the additional offenses that were dismissed, rather than the conditions of release from the aggravated rape sentence. Furthermore, given that the sentence for the aggravated rape was ordered to be served concurrently with the life without parole sentence, we deem the Petitioner's argument that the community supervision for life condition was a bargained-for element of the plea agreement quite disingenuous. These considerations coupled with the Petitioner's testimony at the evidentiary hearing that there was no discussion of the community supervision condition during plea negotiations lead us to conclude that neither the presence nor the absence of the community supervision condition was a bargained-for element of this plea agreement. Accordingly, the habeas corpus court correctly denied relief and remanded the aggravated rape case to the trial court for correction of the judgment to include community supervision for life.
Harris v. Worthington, No. E2008-02363-CCA-R3-HC, 2010 WL 2595203, at *2 (Tenn. Crim. App. June 29, 2010). On January 20, 2011, the Carroll County Circuit Court entered an amended judgment on the aggravated rape count. (Am. J., State v. Harris, No. 20CR1470 (Carroll Cnty. Cir. Ct.) (Count 4), ECF No. 24-7 at PageID 477.)
In the meantime, on October 16, 2008, one week after entry of the Morgan County order directing the Carroll County Circuit Court to issue an amended judgment, Harris filed a motion in the Carroll County Circuit Court to withdraw his guilty pleas on the ground that the State had breached the plea agreement by adding additional conditions to the rape conviction, including community supervision for life and residential and work restrictions. (Mot. to Withdraw Pleas of Guilty, id., ECF No. 24-1 at PageID 205-09.) On October 22, 2008, the trial court summarily denied the motion, reasoning that
[t]he motion is not timely and is denied first on that basis. T.R.Cr.P. 32(f). Secondly, to the extent that the pending motion could be interpreted as a post conviction proceeding, it is also barred by time and by the fact that it is an impermissible second such petition. T.C.A. § 40-30-102(a) & (c).
(Order on Mot. to Withdraw Pleas of Guilty, id., ECF No. 24-1 at PageID 213.) On October 29, 2008, Petitioner filed a notice of appeal "from the final Judgment entered in this action on 22 Day of October, 2008." (Not. of Appeal, id., ECF No. 24-1 at PageID 232.)
On appeal, the TCCA held that Harris's motion to withdraw his guilty pleas was untimely:
The State interprets the petitioner's pro se notice of appeal as his attempt to appeal the Carroll County Circuit Court Clerk's October 23, 2008, entry of the copy of the Morgan County Criminal Court's order denying the petition for writ of habeas corpus. The State points out that the petitioner's appeal from the order denying habeas corpus relief is pending before this court in a separate case and argues that this current appeal should be dismissed because the petitioner has no right of appeal from the October 23, 2008, action of the Carroll County Circuit Court Clerk in entering a copy of that order. However, having the benefit of the petitioner's reply brief, we believe that he is actually appealing the Carroll County Circuit Court's denial on October 22, 2008 of his motion to withdraw his guilty pleas.
Tennessee Rule of Criminal Procedure 32(f) provides that a trial court may grant a motion to withdraw a guilty plea for any fair and just reason before the sentence has been imposed. Tenn. R. Crim. P. 32(f)(1). The rule further provides that after the sentence has been imposed but before a judgment becomes final, "the court may set aside the judgment of conviction and permit the defendant to withdraw the plea to correct manifest injustice." Tenn. R. Crim. P. 32(f)(2). "[A] judgment of conviction entered upon a guilty plea becomes final thirty days after acceptance of the plea agreement and imposition of sentence." State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003).
The petitioner argues that because the convicting court has not yet entered an amended or corrected judgment in his aggravated rape case, the sentence has not yet been imposed and his motion to withdraw his guilty pleas is therefore timely. He acknowledges that he currently has an appeal of the denial of his petition for writ of habeas corpus pending before the eastern section of this court, but maintains that the "Habeas Corpus Courts [sic] Final Judgment Appeal is a separate matter which is irrelevant in this action." We respectfully disagree. The petitioner relies on the judgment of the habeas corpus court for his argument as to the timeliness of his motion to withdraw his guilty pleas and is, in essence, attempting in his pro se motions to obtain the same relief he sought in his petition for writ of habeas corpus. In this case, the petitioner's conviction became final thirty days after the March 20, 2000, entry of his judgments of conviction. Thus, the Carroll County Circuit Court properly denied his motion to withdraw his guilty pleas as untimely. As the Morgan County Criminal Court noted in its order, this court has concluded that a trial court has jurisdiction to correct an illegal sentence at any time. See [ State v.] Bronson , 172 S.W.3d [600, ] 602 [(Tenn. Crim. App. 2005)] (holding that judgment that failed to include statutory requirement of community supervision for life resulted in illegal sentences, which trial court had jurisdiction to correct by amending judgments of conviction). Furthermore, our supreme court has concluded that "where the illegality infects only the sentence, only the sentence is rendered void and habeas corpus relief may be granted to the extent of the sentence only." Smith v. Lewis, 202 S.W.3d 124, 130 (Tenn. 2006).
Harris v. State, No. W2008-02507-CCA-R3-CD, 2009 WL 1362365, at *2 (Tenn. Crim. App. May 15, 2009).
On May 27, 2011, Petitioner presented a second pro se post-conviction petition in the Carroll County Circuit Court that sought to challenge the amended judgment. (Pet. for Relief from Conviction or Sentence, Harris v. State , No. 20CR1470 (Carroll Cnty. Cir. Ct.), ECF No. 24-7 at PageID 480-86.) On June 22, 2011, the post-conviction court summarily dismissed the petition. (Order of Summ. Dismissal, id., ECF No. 24-7 at PageID 498-501.) The court explained that the pleading was an impermissible second post-conviction petition ( id. at PageID 499) and that the issue presented had been previously litigated in the habeas petition and the appeal from the order denying the motion to withdraw the guilty plea ( id. at 499-500). The TCCA affirmed, Harris v. State, No. W2011-01578-CCA-R3-PC, 2011 WL 6747474 (Tenn. Crim. App. Dec. 21, 2011), appeal denied (Tenn. Apr. 12, 2012), and held:
Assuming, under the specific facts of this case, that a defendant may file for post[-]conviction relief from an amended judgment order even where he or she has previously filed for post-conviction relief from the original judgment,  post-conviction relief remains available only where the defendant alleges a constitutional violation and sets forth facts in support thereof. See Tenn. Code Ann. §§ 40-30-103 (2006); XX-XX-XXX(d) (2006); Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002). The Petitioner claims that, because the trial court never informed him of the lifetime community supervision requirement at the time he [pleaded] guilty, the amended judgment order adding that sentencing provision renders his plea constitutionally infirm, and he must be allowed to withdraw it.
Ward [ v. State, 315 S.W.3d 461 (Tenn. 2010)] established that a trial court commits constitutional error if it fails to ensure that a defendant pleading guilty to an applicable offense is aware that the sentence includes mandatory lifetime community supervision. Ward, 315 S.W.3d at 476. However, even accepting as true the Petitioner's allegation that the trial court did not inform him in March 2000 of the lifetime community supervision aspect of his sentence that was subsequently added in January 2011, Ward also held that he is not entitled to set aside his plea if the record demonstrates that the trial court's error is harmless beyond a reasonable doubt. See id. In this case, it is uncontroverted that the Petitioner's plea agreement included a sentence of life imprisonment with no possibility of parole. Given that the Petitioner is not eligible for parole, he, in actuality, will not ever be subject to the lifetime community supervision requirement. Therefore, any error by the trial court in failing to ensure that he was aware of the community supervision requirement for his aggravated rape conviction is harmless beyond a reasonable doubt. Thus, the Petitioner's argument establishes no claim for post[-]conviction relief. Accordingly, we affirm the post-conviction court's denial of the Petitioner's claim for post-conviction relief.
Id. at *2; see also id. at *2 n.2 ("Indeed, we question how a lifetime community supervision requirement could be a material component of any plea agreement that also contained a sentence of life imprisonment with no possibility of parole. ").
On December 10, 2012, Harris filed a pro se habeas petition, his second, in the Circuit Court for Lake County, Tennessee. (Pet. for Writ of Habeas Corpus, Harris v. Steward, No. 12-CR-9813 (Lake Cnty. Cir. Ct.), ECF No. 49-1 at PageID 1111-16.) Harris argued that his sentence of community supervision for life was illegal because it was imposed eleven years after he was found guilty ( id. at 1114) and that the trial court failed to award jail credit from September 7, 1999 until January 20, 2011, in violation of Tennessee law ( id. at PageID 1114-15). On January 3, 2013, the trial judge summarily denied the habeas petition. (Order Denying Pet. for Writ of Habeas Corpus, Harris v. Steward, No. 12-CR-9813 (Lake Cnty. Cir. Ct.), ECF No. 49-1 at PageID 1133-35.) The TCCA affirmed. Harris v. Steward, No. W2013-00207-CCA-R3-HC, 2013 WL 4011569 (Tenn. Crim. App. Aug. 6, 2013).
B. Procedural History of the Petition
On August 31, 2012, Harris filed the Petition, accompanied by motions seeking leave to proceed in forma pauperis and for the appointment of counsel. (Pet., Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 1; Appl. to Proceed in District Court without Prepaying Fees or Costs (Short Form), id., ECF No. 2; Mot. for Appointment of Counsel, id., ECF No. 3.) The Court granted leave to proceed in forma pauperis on September 10, 2012. (Order, id., ECF No. 4.) The Petition presented the following issues:
1. "Denial of Assistance of Appointed Counsel" (Pet. at PageID 5, id., ECF No. 1; see also id. at PageID 5-6);
2. "Breached Plea Agreement" ( id. at PageID 6; see also id. at PageID 6-8);
3. "Denial of a Full and Fair Hearing/sentence (sic) Hearing" ( id. at PageID 8; see also id. at PageID 8-9); and
4. "Illegal Arrest" ( id. at PageID 10; see also id. at PageID 10-11).
In an order issued on October 2, 2012, the Court denied the motion for appointment of counsel and directed Respondent, Roland Colson, the Warden of the Riverbend Maximum Security Institution in Nashville, Tennessee (the "Warden"), to file the complete state-court record and a response to the Petition. (Order, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 5.) The inmate was instructed that any reply should be filed within thirty days of service of the answer. ( Id. at 4.)
Before Colson had responded to the Petition, Harris filed a number of motions. On October 26, 2012, he moved to expand the record to include various documents in support of the fourth issue ("Claim 4") in the Petition. (Mot. to Expand the Record, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 12.) The Warden responded in opposition to the motion on October 30, 2012. (Resp't's Mem. in Opp'n to Pet'r's Mot. to Expand the Record, id., ECF No. 13.) On November 14, 2012, without seeking leave of Court, Petitioner submitted a reply in further support of his motion to expand the record. (Pet'r's Reply in Supp. of Mot. to Expand the Record, id., ECF No. 17.)
On November 2, 2012, Harris filed two motions seeking leave to conduct discovery. (Mot. for Leave of Court to Conduct Disc., id., ECF No. 14; Mot. for Disc., id., ECF No. 15.) Colson responded to the motions on October 9, 2012. (Resp't's Mem. in Opp'n to Pet'r's Mot. for Leave to Conduct Disc., id., ECF No. 16.) On November 15, 2012, without seeking leave of Court, he filed a reply in further support of his discovery motions. (Pet'r's Reply in Supp. of Mots. for Disc., id., ECF No. 18.)
On December 10, 2012, Harris filed a motion seeking to stay proceedings in this action because his second state habeas petition was pending in the Lake County Circuit Court. (Mot. to Stay Proceedings, id., ECF No. 22.) The Warden filed his response in opposition to the motion on December 18, 2012. (Resp't's Resp. in Opp'n to Pet'r's Mot. to Stay Proceedings, id., ECF No. 28.)
On December 14, 2012, Respondent filed most of the state-court record. (Resp't's Not. of Filing of Documents, id., ECF No. 24.) On December 17, 2012, he submitted a corrected filing of documents, (Resp't's Not. of Corrected Filing, id., ECF No. 26), and filed his answer on December 21, 2012. (Answer, id., ECF No. 28.)
On January 16, 2013, the prisoner filed a notice stating that he had not received the answer and the state-court record. (Compl. [of] Resp't's Refusal to Serve Pet'r, id., ECF No. 30.) On the same date, he filed motions seeking to have the Clerk of Court mail the answer and state-court record to him so that he could prepare his reply. (Pet'r's Mot. to Remove Record to Prepare Brief, id., ECF No. 31; Pet'r's Mot. to Remove Resp't's Answer, id., ECF No. 32; Pet'r's Mot. to Remove Docket Entry # 27, id., ECF No. 33.) On January 22, 2013, the Warden responded to Petitioner's motions, stating, inter alia, that copies of the documents had previously been served on Harris and that additional copies were being mailed to him. (Resp't's Resp. in Opp'n to Pet'r's Mot. to Remove Resp't's Answer, id., ECF No. 34; Resp't's Resp. in Opp'n to Pet'r's Mot. to Remove Record to Prepare Brief, id., ECF No. 35; Resp't's Resp. in Opp'n to Pet'r's Mot. to Remove Docket Entry # 27, id., ECF No. 36.)
On March 15, 2013, Harris filed a motion seeking enhanced access to the prison law library. (Mot. for Court Ordered Access to Prison Law Library, id., ECF No. 40.) Colson did not respond to this motion.
On May 10, 2013, the Court issued an order striking Harris' unauthorized reply brief and denying his motion to expand the record. (Order, id., ECF No. 41.) The order explained, inter alia, that, until the Court addresses whether Claim 4 is barred by procedural default, "no useful purpose will be served by burdening the record with extraneous material." ( Id. at 2.)
In an order issued on May 20, 2013, the Court denied as moot Harris' motions to withdraw Respondent's various filings because he had represented that he mailed additional copies of the filings at issue to the inmate. (Order, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 42.) On June 5, 2013, the Court issued an order striking Petitioner's unauthorized reply brief and denying his motions for discovery. (Order, id., ECF No. 43.) That order noted that
Respondent's answer states that any challenge to Petitioner's conviction for felony murder is time-barred and that most of his challenges to his conviction for aggravated rape are barred by procedural default. Any request for discovery is premature until the Court has determined the adequacy of those affirmative defenses and otherwise considered whether the petition asserts any facially plausible constitutional claim.
( Id. at 3.)
In an order issued on August 1, 2013, the Court denied the inmate's motion to stay proceedings because the Lake County habeas petition "does not present any of the issues raised in his § 2254 petition" and Harris "cannot obtain relief on those new claims in a federal habeas petition because they arise under Tennessee law." (Order at 3, Harris v. Holloway, No. 1:12-cv-01204-JDB-egb (W.D. Tenn.), ECF No. 44.) On August 19, 2013, the Court denied Harris' motion for court-ordered access to the prison law library. (Order, id., ECF No. 45.) The order also sua sponte extended his time to reply to the answer by thirty days, but explained that, "[b]ecause Petitioner has already had eight months in which to prepare his reply, no further extensions of time ...