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Sullivan v. Perry

United States District Court, M.D. Tennessee, Nashville Division

January 3, 2017

JAMES C. SULLIVAN, No. 454328, Petitioner,
v.
GRADY PERRY, Respondent.

          MEMORANDUM

          Kevin H. Sharp Chief United States District Judge.

         James C. Sullivan, an inmate of the Hardeman County Correctional Facility in Whiteville, Tennessee, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the legality of his confinement under a May 11, 2010 judgment entered against him by the Williamson County Criminal Court in Williamson County, Tennessee, for aggravated assault with a deadly weapon, vandalism, retaliation for past action, and reckless endangerment.[1] (Docket No. 21 at p. 1).

         The petitioner originally filed his petition in the Western District of Tennessee. (Docket No. 1). By order entered on November 7, 2016, recognizing that it is the practice of the federal district courts in Tennessee that all § 2254 petitions are to be heard in the district in which the conviction was obtained, the Honorable Samuel H. Mays, Jr. transferred the petitioner's action to this court. (Docket No. 13 at p. 2).

         By order entered on November 14, 2016, the court conducted a preliminary review of the petition and was unable to determine from the face of the petition and from the record at that time whether Sullivan's petition was timely and exhausted. (Docket No. 15). Therefore, the court ordered the respondent to respond and specifically to address whether the petition was timely and whether the petitioner had exhausted his state court remedies. (Id.) Presently pending before the court is the respondent's response to the court's order and to the petition. (Docket No. 20).

         I. Introduction

         In his motion to dismiss, the respondent asserts that the petitioner has not fully exhausted his state court remedies and therefore this action should be dismissed without prejudice for failure to exhaust. (Docket No. 20). The petitioner has not responded to the motion to dismiss.

         II. Exhaustion of Administrative Remedies

         It is axiomatic that one may not seek federal habeas corpus relief until he has exhausted all available state remedies or demonstrated their inadequacies. 28 U.S.C. § 2254(B); Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995). Any alleged constitutional deprivation must be asserted through the state appellate process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, [the Supreme Court] conclude[s] that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Id. The burden is on the petitioner to demonstrate compliance with the exhaustion requirement or that the state procedure would be futile. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

         Section 2254(b)(1) states in pertinent part:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509 (1982). The rules pertaining to 28 U.S.C. § 2254 cases are applicable to requests for habeas corpus relief brought pursuant to 28 U.S.C. ยง ...


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