United States District Court, W.D. Tennessee, Western Division
ORDER DENYING PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT
JON PHIPPS McCALLA, District Judge.
Before the Court is the Motion for Relief from Judgment Under Rule 60(b)6 and/or 60(d)(1), filed by Petitioner, Derrick McClure, Tennessee Department of Correction prisoner number 270409, who is currently incarcerated at the Turney Center Industrial Complex in Only, Tennessee. (Mot. for Relief from J., ECF No. 56.) For the reasons stated below, the Motion for Relief from Judgment is DENIED.
McClure was convicted of first degree murder, attempted first degree murder, and two counts of especially aggravated robbery. He was sentenced to life imprisonment with the possibility of parole for the murder and to twenty-five years for the remaining counts, with those sentences to run concurrently with each other but consecutively to the murder sentence.
On June 17, 2010, McClure filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("§ 2254 Petition"), accompanied by motions seeking leave to proceed in forma pauperis and appointment of counsel. (§ 2254 Pet., ECF No. 1; In Forma Pauperis Decl., ECF No. 2; Mot. for Appointment of Counsel, ECF No. 3.) The § 2254 Petition presented the following claims:
1. Whether counsel rendered ineffective assistance, in violation of the Sixth Amendment, at trial and on direct appeal (§ 2254 Pet. at PageID 5-7, 16-17, ECF No. 1);
2. Whether Petitioner was given a "full and fair" evidentiary hearing on his post-conviction petition ( id. at PageID 7-8);
3. Whether the post-conviction court erred by failing to find that due process tolled the running of the statute of limitations, as admitted by the State ( id. at PageID 8-10);
4. Whether the trial court erred in failing to suppress Petitioner's illegal oral and written statements ( id. at PageID 10-11, 18-21);
5. Whether the instructions to the jury were constitutionally deficient (id. at PageID 22-25);
6. Whether the indictment was fatally defective ( id. at PageID 26-28); and
7. Whether trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, by failing to confer and consult with Petitioner and by failing to discover his mental health problems and that he was not competent to stand trial ( id. at PageID 29-32).
In an order issued on June 21, 2010, the Court granted leave to proceed in forma pauperis. (Order, ECF No. 4.) On July 8, 2010, the Court denied the motion for appointment of counsel and directed Respondent to file the state-court record and a response to the § 2254 Petition. (Order, ECF No. 5.)
On August 2, 2010, Respondent filed a Motion to Dismiss the § 2254 Petition as time barred. (Resp't's Mot. to Dismiss, ECF No. 7.) Respondent did not file the state-court record, claiming that the trial record had been damaged in a flood. ( Id. at 2.) McClure did not respond to the Motion. In an order issued on November 8, 2010, the Court directed Respondent to file a supplemental brief addressing whether McClure might be entitled to equitable tolling because of misconduct by his trial counsel. (Order at 9-10, ECF No. 9.) Respondent was also directed to file the entire record for the post-conviction petition. ( Id. at 10.) On December 8, 2010, Respondent filed the trial-court record for the criminal case and the record for the post-conviction proceeding. (Resp't's Not. of Filing, ECF No. 12; Resp't's Not. of Filing, ECF No. 13.) On January 7, 2011, Respondent filed the requested Brief of Respondent Regarding Equitable Tolling of Statute of Limitations, which stated that, "[g]iven the State's concession in petitioner's post-conviction proceedings, respondent has determined that it is appropriate to withdraw the motion to dismiss in this instance and seeks leave of this Court to do so." ...