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Vantrease v. Taylor

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

January 31, 2017

EARL VANTREASE, JR. # 289250, Petitioner,
v.
SHARON TAYLOR, Respondent.

          Sharp Judge

          REPORT AND RECOMMENDATION

          Joe B. Brown United States Magistrate Judge

         The Magistrate Judge RECOMMENDS for the reasons explained below that:

1) the requirement in the order of referral (Doc. 11) to conduct an evidentiary hearing be RESCINDED because an evidentiary hearing is unnecessary;
2) respondent's motion to dismiss (Doc. 6) be GRANTED;
3) petitioner's amended petition under 28 U.S.C. § 2254 (Doc. 70) be DENIED;
4) this action be DISMISSED WITH PREJUDICE;
5) acceptance and adoption of this R&R constitute the FINAL JUDGMENT in this action;
6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3);
7 should the petitioner file a timely notice of appeal, that such notice be docketed as both a notice of appeal and application for a certificate of appealability (COA), 28 U.S.C. § 2253(c); Rule 22(b), Fed. R. App. P.; see Slack v. McDaniel, 529 U.S. 473, 483 (2000), which SHOULD NOT ISSUE because jurists of reason would not debate whether the district court was correct in its procedural ruling, see Castro v. United States of America, 310 F.3d 900, 901-02 (6th Cir. 2002)(citing Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1072 (6th Cir. 1997));
8) any pending motions be TERMINATED AS MOOT.

         I. BACKGROUND

         A. Statement of the Case

         Petitioner, proceeding pro se and informa pauperis, was a prisoner at the Northeast Correctional Complex (NECX) in Mountain City, Tennessee when he brought this action on March 7, 2014 seeking federal habeas relief under 28 U.S.C. § 2254.[1] (Doc. 1) Petitioner named Warden Sharon Taylor as the respondent. (Doc. 1, p. 1 of 91)[2]

         Respondent filed a motion to dismiss, memorandum of law, and supporting documents on April 15, 2014. (Docs. 6-8) Respondent argued that the petition should be dismissed as time barred under 28 U.S.C. § 2244(d)(1). (Doc. 7) Petitioner filed a response on April 25, 2014 in opposition to respondent's motion to dismiss. (Doc. 9)

         The District Judge referred this matter to the Magistrate Judge on July 17, 2014 to conduct an evidentiary hearing to: 1) determine whether the petition was timely and, if not, to determine whether equitable tolling of the 1-year limitations period (the limitations period) under § 2254 would be appropriate; 2) recommend the proper disposition of respondent's motion to dismiss. (Doc. 11) The Magistrate Judge was further instructed “to hold any other proceedings that might be needed to ascertain the timeliness of the instant action.” (Doc. 11)

         The Magistrate Judge instructed the Federal Public Defender's Office to appoint counsel on July 30, 2014. (Doc. 16) Assistant Federal Public Defender (AFPD) Ronald Small filed a notice of appearance on petitioner's behalf on August 1, 2014. (Doc. 19)

         On October 8, 2014, the Magistrate Judge entered an order scheduling a telephone conference with the parties on October 21, 2014 regarding the instruction in the order of referral to conduct an evidentiary hearing. (Doc. 24) Petitioner moved on October 10, 2014 to continue the telephone conference. (Doc. 25) Petitioner's motion was granted on October 15, 2014, and the telephone conference was rescheduled to November 6, 2014. (Doc. 26) The telephone conference was held on November 6, 2014 as scheduled, and an order entered the same day scheduling the evidentiary hearing for “30 days after discovery [is] completed or denied.” (Doc. 27) On December 8, 2014, AFPD Small noticed the court of petitioner's “intent not to file any additional petition or other pleading and instead to proceed on [the] pro se petition and all claims related thereto.” (Doc. 28)

         The Magistrate Judge amended the November 6, 2014 scheduling order on January 8, 2015 following a telephone conference with the parties the day prior. (Docs. 29-30) Petitioner “advised” the Magistrate Judge during the January 7, 2015 telephone conference “that he would not be filing amended pleadings in this matter.” (Doc. 30) The evidentiary hearing was scheduled for April 21, 2015. (Doc. 30)

         A third telephone conference was held with the parties on April 9, 2015 (Doc. 31), pursuant to which the evidentiary hearing was reset to June 16, 2015 (Doc. 32), and a Rule 16 case management conference scheduled for the same day (Doc. 33). Thereafter, petitioner filed a 3-page motion to appointment new counsel on June 11, 2015 arguing, inter alia, that: 1) he and AFPD Small had been at odds regarding the authenticity of certain records that petitioner sought to introduce; 2) AFPD Small had threatened “to withdraw from further representation [i]f petitioner . . . testif[ied] [that] certain documents in the record [we]re authentic”; 3) AFPD Small had been bribed by the state to reject all witnesses and evidence. (Doc. 36)[3] On June 15, 2015, AFPD Small moved to continue the evidentiary hearing for sixty (60) days to give the court time to consider petitioner's motion. (Doc. 37)

         The scheduled June 16, 2015 evidentiary hearing gave way to an in camera review of plaintiff's motion to appoint new counsel. (Doc. 42) AFPD Small did not oppose the motion, arguing that he was ethically obligated not to introduce documentary evidence provided by petitioner that he thought to be fraudulent. The Magistrate Judge granted petitioner's motion for appointment of new counsel on June 17, 2015, and continued the evidentiary hearing until September 28, 2015. (Doc. 39) Attorneys Michael Terry and Stephanie Gore filed notices of appearance on petitioner's behalf on June 29, 2015. (Docs. 40-41)

         The Magistrate Judge entered an order on August 17, 2015 noting that “analysis of the record and opinions of the Tennessee Court of Criminal Appeals [CCA] is that the petition is untimely. Absent evidence to the contrary, the only question is whether the limitations period should be equitably tolled.” (Doc. 43) The Magistrate Judge directed respondent to file a written brief by September 9, 2015 to show “why equitable tolling is not appropriate in this case, including analysis of factual innocence versus legal insufficiency, ” and directed petitioner to respond not later than September 23, 2015. (Doc. 43)

         Petitioner filed a motion through counsel on September 1, 2015 to continue the evidentiary hearing and to amend the scheduling order. (Doc. 45) In that motion, new counsel made the following argument:

On December 8, 2014, petitioner's counsel (FPD) filed a notice of intent to proceed on petitioner's pro se petition alleging the petition ‘adequately sets forth his claims for relief' and that no other pleadings would be filed on petitioner's behalf (Docket No. 28). Petitioner did not agree, and filed a pro se motion for appointment of new counsel (Docket No. 36) Petitioner intends to file an amended petition.

         (Doc. 45, ¶ 4, pp. 1-2 of 4) In an order dated September 3, 2015, the Magistrate Judge noted:

It is now some 17 months since the original petition was filed and 16 months since the motion to dismiss was filed . . . [and] . . . [w]e still do not have a final petition. Rather than continuing the case indefinitely the Magistrate Judge may well administratively close this case until the Petitioner files a motion to reopen and attaches to that motion an actual amended petition. In view of the statement by the Petitioner that he intends to file an amended petition, it would appear that the Magistrate Judge would also terminate the current motion to dismiss without prejudice to being refiled once an actual amended petition is filed.

         (Doc. 47) Petitioner's September 1, 2015 motion was granted on September 14, 2015, and the case was ordered closed administratively. (Doc. 49)

         Petitioner filed a 9-page motion under seal on April 11, 2016 seeking appointment of new counsel, and an in camera hearing on his motion. (Doc. 54) The Magistrate Judge directed respondent to file a response within 14 days, and noted the following with respect to petitioner's repeated request for new counsel:

The Petitioner is cautioned that he is not advancing his case by continually finding fault with counsel appointed for him and accusing them of dishonest and bribery. If the Petitioner wishes to represent himself he may certainly do so, but he cannot have it both ways. The P[etitioner] stated in his motion he could have hired an attorney. If the P[etitioner] wants to hire his own attorney at his expense he may do so at any time.

         (Doc. 55) The Magistrate Judge granted petitioner's April 11, 2016 motion on May 9, 2016, and set a in camera hearing on petitioner's request to appoint new counsel for June 15, 2016, making the following related observations pertaining to petitioner's request:

The Petitioner has gone through a series of attorneys at the state level and is now attempting to go to a third attorney in this proceeding. Unfortunately, just as the Magistrate Judge predicted at the June 16, 2015[] hearing (Docket Entry 42) the Petitioner is back again with essentially the same complaint against Mr. Terry as he had against Mr. Small. Attorneys have ethical obligations in what they can and cannot do and no client can require an attorney to do something the attorney believes to be unethical.
. . .
Quite frankly, the Magistrate Judge has little confidence that the appointment of a third attorney in this case would produce a different result. The Petitioner does not have a right to unlimited attorneys and he does not have a right to require an attorney to do any particular act if the attorney has good reasons for not doing so.

(Doc. 59)

         The June 15, 2016 hearing was held as scheduled. Thereafter, on June 17, 2016, the Magistrate Judge ordered the case restored to the active docket, granted petitioner's motion to relieve counsel, denied petitioner's motion for appointment of new counsel, ordered petitioner to proceed pro se with assistance of appointed elbow counsel, and received petitioner's motion to amended his habeas petition.[4] (Doc. 64) Attorney G. Kerry Haymaker filed a notice of appearance on June 20, 2016 as petitioner's elbow counsel. (Doc. 66)

         Respondent filed a response to petitioner's motion to amend (Doc. 68), following which the Magistrate Judge granted petitioner's motion to amend on June 28, 2016 (Doc. 69). Petitioner's amended petition and supporting memorandum were filed that same day. (Docs. 70-71) Petitioner presented the following issues in his amended petition: 1) the vehicle stop that led to his arrest and conviction was not supported by probable cause (Doc. 71, pp. 13-20 of 56); 2) the identification procedure that led to his arrest and conviction was overly prejudicial (Doc. 71, pp. 21-28 of 56); 3) he was denied his right to present a defense at trial (Doc. 71, pp. 29-31 of 56); 4) ineffective assistance of trial counsel (Doc. 71, pp. 32-35 of 56); 5) his sentence was enhanced based on facts that were not before the jury; (Doc. 71, pp. 36-43 of 56); 6) the judgment of conviction (judgment) and order to issue capias were void (Doc. 71, pp. 44-50 of 56); 7) he was denied jail credits in violation of his due process rights (Doc. 71, pp. 51-54 of 56); 8) his sentence was miscalculated in violation of due process rights (Doc. 71, pp. 55-56 of 56). Petitioner also wrote the following in response to the query in the petition regarding the question of timeliness:

This petition is timely. However, if this court deems otherwise, it is due to state interference (the state courts failed to notify petition of the entry of its judgments). As such, petitioner would be entitled to equitable tolling of the statute of limitation (at least 274 days of AEDPA's 1-year deadline). Moreover, grounds 1 thru 4 are claims of actual innocence, while grounds 5, 6, and 8 have no statute of limitation in Tennessee. So although 274 days should be equitably tolled, the petition is timely (and would be timely) even if equitable tolling were not granted.

(Doc. 70, ¶ 18, p. 14)

         Respondent filed a response to the amended petition on July 15, 2016, in which she argued that the petition was not timely, and that petitioner had failed to exhaust his claims in state court prior to raising them in the instant action. (Doc. 74) Petitioner filed a traverse on August 18, 2016. (Doc. 75) This matter is now properly before the court.

         B. Statement of the Facts

         The Putnam County Grand Jury indicted petitioner on December 16, 2002 on one count of aggravated robbery in violation of Tenn. Code. Ann. § 39-13-402.[5] (Doc. 1-2, p. 22 of 138) Petitioner was tried and convicted by a jury on April 24, 2003 before Judge Leon Burns in the Criminal Court for Putnam County in Cookeville, Tennessee, criminal case no. 02-0666. (Docs. 1-2, pp. 30-86 of 138; 1-3, pp. 1-23 of 101; 8-6, pp. 83-145 of 145; 8-7, pp. 5-77 of 116)[6] A sentencing hearing was held on July 25, 2003. (Doc. 1-3, pp. 38-58 of 101) Judge Burns sentenced petitioner to 16 years in the Tennessee Department of Correction (TDOC) to be served at 35 percent as a range II, multiple offender. (Doc. 1-3, pp. 50-51 of 101) The sentence was ordered served consecutive to sentences for previous convictions for which petitioner was incarcerated in TDOC at the time of the sentencing hearing. (Doc. 1-3, pp. 50-51 of 101) Judge Burns informed petitioner of his appellate rights at the hearing. (Doc. 8-7, pp. 75-76 of 116)

         At the sentencing hearing, petitioner attempted to file a pro se motion for a judgment of acquittal or, in the alternative, a motion for a new trial. (Doc. 1-3, pp. 52-54 of 101) Petitioner then sought to “fire” his attorney because counsel would not file the aforementioned motion which was based on an alleged “recently discovered” witness who would corroborate petitioner's alibi defense. (Doc. 1-3, pp. 52-55 of 101) Defense counsel stated that he “did not see any grounds in there that I, as his attorney, would argue.” (Doc. 1-3, p. 52 of 101) The trail court permitted defense counsel to withdraw from his representation, filed petitioner's pro se motion as a one for a new trial, appointed new counsel, and agreed to schedule a hearing on the petitioner's motion for a new trial at a later date. (Doc. 1-3, pp. 55-57 of 101) Although the “Sentence-imposed date” on the judgment form was “07/25/2003, ” Judge Burns did not enter the order of judgment at the time.

         A hearing was held on April 2, 2004 on petitioner's motion for a new trial in case no. 02-0666, following which the motion was denied on April 6, 2004. (Doc. 8-1, p. 61 of 102) Thereafter, petitioner signed a written waiver on May 4, 2004 of his right to appeal his conviction and sentence. (Doc. 8-1, p. 62 of 102) Forty-eight days after he waived his right to appeal, petitioner was “released in error” from TDOC on June 21, 2004 based on time served in connection with other sentences that he was serving at the time. (Doc. 1-1, p. 8 of 55) The record suggests that petitioner was “released in error” because TDOC had not been provided a copy of the judgment in case no. 02-0666. (Doc. 1-1, p. 7 of 55)

         For reasons that are not clear, Judge Burns did not enter judgment in case 02-0666 until December 16, 2005, following which the clerk of court filed the order of judgment on December 20, 2005. (Doc. 1-3, p. 60 of 101) Judge Burns also entered an order for capias on December 16, 2005 to take petitioner back into custody to begin serving his sentence in case no. 02-0666. (Doc. 1-3, p. 62 of 101)

         Petitioner was returned to custody on December 30, 2005, and subsequently reincarcerated in TDOC. (Doc. 1-1, p. 5 of 55) Once back in custody, petitioner did not seek to appeal his conviction, having waived his right to do so more than 19 months earlier, nor did he seek to rescind that waiver. Instead, petitioner filed a pro se motion for a reduction of sentence on April 18, 2006 in case no. 02-0666. (Doc. 71-1, p. 10 of 57) Judge Burns denied the motion on May 3, 2006.[7](Doc. 71-1, p. 10 of 57)

         Petitioner filed a pro se application for state habeas relief pertaining to case no. 02-0666 on July 31, 2006 (the first state habe), Hickman County Circuit Court, case no. 06-5053C. (Docs. 1-1, p. 31 of 55; 1-3, p. 68 of 101; 8-1, pp. 7-39 of 102) Petitioner raised the following grounds for relief in his first state habe: 1) judgment and sentencing were void because he was denied the right to counsel prior to judgment entering; 2) he was never presented with an information or indictment as to the nature of the cause of action against him prior to judgment entering; 3) he was denied his right to trial prior to being convicted of an offense that had been reversed on post-conviction; 4) the proceedings surrounding the judgment and sentence violated his due process rights. (Doc. 8-1, pp. 19-34 of 102) On August 23, 2006, Judge Jeffery Bivins granted the State's motion to dismiss, ruling that petitioner “has failed to state a colorable claim for habeas corpus relief.” (Doc. 1-1, p. 13 of 55)

         On September 25, 2006, petitioner filed a motion to alter or amend judgment in case no. 06-5053C, as well as a notice of appeal. (Doc. 8-1, pp. 89-99 of 102) The first state habeas court took no action on petitioner's motion to alter or amend, and an appeal ensued. On October 9, 2007, the CCA initially affirmed the judgment of the first state habeas court. (Doc. 8-5, p. 2 of 7) Petitioner filed a pro se motion for a rehearing on October 18, 2007. (Doc. 8-4, pp. 2-5 of 22) The CCA granted petitioner's motion on December 14, 2007, subsequent to which it reversed the first state habeas court's decision, vacated its judgment, and remanded the matter for an evidentiary hearing on the merits.[8] (Doc. 8-5)

         On remand, Judge Robbie Beal entered an order on April 25, 2008 ruling that petitioner stated a colorable post-conviction claim of ineffective assistance of counsel, and directed counsel to file an amended petition if necessary. (Doc. 1-1, pp. 21-23 of 55) After a lengthy delay, an evidentiary hearing was held in case no. 06-5053C before Circuit Court Judge Timothy Easter on November 21, 2011. (Docs. 1-1, pp. 31-32 of 55, 1-4, pp. 1-38 of 38) In his December 6, 2011 order granting the state's motion to dismiss, Judge Easter wrote: “The petitioner has failed to demonstrate that on the face of the judgment or record the convicting court was without jurisdiction or authority to sentence the petitioner, or that the petitioner's sentence has expired.” (Doc. 1-1, pp. 34-35 of 55) Judge Easter specifically ruled at the hearing that Judge Burns “had jurisdiction” in petitioner's case, that any delay in entering judgment“constitute[d] . . . mere negligence, ”[9] and that petitioner's sentence had not expired. (Doc. 1-4, pp. 33-36 of 38) Judge Easter determined further that the remaining grounds raised were “not appropriate for habeas corpus relief.”[10] Petitioner did not appeal Judge Easter's ruling. (Doc. 1-4, p. 33 of 38)

         Petitioner filed an application for state habeas corpus relief in the Wilson County Criminal Court on July 3, 2012 (the second state habe). (Doc. 71-1, p. 34 of 57) Petitioner's application was dismissed on July 11, 2012 for want of jurisdiction. (Doc. 71-1, p. 34 of 57)

         Petitioner filed a third application for state habeas relief on July 26, 2012 in Hickman County Circuit, case no. 12-CV-43 (the third state habe). (Doc. 8-6, pp. 4-62 of 145) Petitioner raised the following grounds for relief: 1) the judgment was void due to an unlawful show-up identification; 2) the trial court denied him his right to present a witness in support of his defense; 3) Judge Burns acted without jurisdiction or authority to enter judgment in case no. 02-0666 on December 16, 2005 and the subsequent order of capias; 4) the trial court exceeded its authority by enhancing his sentence based on two factors not presented to the jury; 5) the judgment was void because he was not awarded pre-trial jail time; 6) he was denied due process because he was not permitted to raise his other claims in state habeas proceedings. (Doc. 8-10) Judge Beal granted the state's motion to dismiss on the grounds that petitioner “failed to meet the qualifications for relief under the habeas corpus statute.” (Doc. 8-8, pp. 34, 36-42 of 52)

         Petitioner filed a notice of appeal on October 11, 2012. (Docs. 1-1, p. 46 of 55; 8-8, pp. 2-52 of 52) Petitioner raised the same six grounds for relief on appeal that he did in the court below. (Doc. 8-10) The CCA determined that the third state habeas court did not err in dismissing his habeas application, and denied petitioner's request for appellate relief.[11] (Docs. 8-14, 8-15) Petitioner filed a motion to rehear on June 4, 2013, which the CCA denied the same day. (Doc. 1-1, p. 48 of 55) The Tennessee Supreme Court denied petitioner's application for permission to appeal on November 13, 2013. (Doc. 1-1, p. 49 of 55) Petitioner did not seek a writ of certiorari in the United States Supreme Court.

         Petitioner also took the following actions both during and after his third state habe. Petitioner filed an inmate information request on July 25, 2012 while incarcerated in NECX seeking to obtain credit for time served, in response to which the records office advised petitioner that his time was correct. (Doc. 71-1, pp. 41-42 of 57) Petitioner petitioned TDOC on March 13, 2013 to issue a declaratory order that he be awarded credit for time served. (Doc. 71-1, pp. 45-47 of 57) TDOC denied the petition on July 15, 2013, noting, in part: “you were not in custody[] from June 22, 2004 - December 29, 2005; a total of 556 days of dead time (unserved time).” (Doc 71-1, p. 48 of 57) Petitioner filed a pro se motion on April 24, 2012 seeking to have the Putnam County Criminal Court correct an alleged clerical error in connection with his sentence. (Doc. 71-1, pp. 29-31 of 57) The court dismissed petitioner's motion on May 11, 2016, explaining that “pre-trial jail credit issues . . . must be taken up thorough the Administrative Procedure Act, T.C.A. § 4-5-101 et sq.”[12] (Doc. 71-1, p. 32 of 57) Finally, petitioner filed a petition for declaratory judgment in the Davidson County Circuit Court on January 25, 2016 seeking credit for the time at issue. (Doc. 71-1, pp. 51-53 of 57) Petitioner was notified on February 24, 2016 that his petition was not filed because he had not paid his past fees, taxes, costs, and other expenses stemming from his prior litigation. (Doc. 71-1, p. 56-57 of 57)

         II. STANDARD OF REVIEW

         A. Motion to Dismiss Under Rule 12(b)(6)

         In assessing a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the court is required to construe the pleadings in the light most favorable to the plaintiff, accept the plaintiff's factual allegations as true, and determine whether the pleadings “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Heinrich v. Waiting Angels Adoption Services, Inc.,668 F.3d 393, 403 (6th Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)(internal quotation and citation omitted)). A motion to dismiss under Rule 12(b)(6) “should not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Dubay v. Wells, 506 F.3d 422, 427 (6th Cir. 2007)(quoting Ricco v. Potter, 377 F.3d 599, 602 (6th Cir. 2004)(internal citations omitted)). However, “the tenet that a court ...


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