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Brooks v. Berrong

United States District Court, E.D. Tennessee, Knoxville

February 24, 2017

RUDOLPH M. BROOKS, JR., Petitioner,
v.
JAMES BERRONG, Respondent.

          MEMORANDUM AND ORDER

         This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Now before the Court is a motion to dismiss the response to the petition [Doc. 12] filed by Petitioner and a motion to dismiss for failure to exhaust state remedies [Doc. 11] filed by Respondent. Petitioner has filed a response to Respondent's motion to dismiss [Doc. 16]. For the reasons set forth below, Petitioner's motion to dismiss the response to the petition [Doc. 12] will be DENIED, Respondent's motion to dismiss [Doc. 11] will be GRANTED, and this action will be DISMISSED without prejudice. Accordingly, the remaining pending motion for extension [Doc. 10] filed by Petitioner will be DENIED as moot.

         In his § 2254 petition, Petitioner seeks habeas corpus relief based upon allegations of failure to prosecute and violation of his right to a speedy trial in his state court conviction [Doc. 1 p. 1]. Petitioner further sets forth allegations of ineffective assistance of counsel, for which he states he has now pursued post-conviction relief [Id. at 2]. In his motion to dismiss this habeas corpus petition, Respondent asserts in relevant part that:

(1) on May 5, 2011, Petitioner was arrested on three arrest warrants;
(2) on December 8, 2011, Petitioner filed a motion to dismiss counsel that the Court subsequently granted, at which time Petitioner appeared with retained counsel;
(3) on January 9, 2012, Petitioner was indicted and charged in a five count indictment;
(4) on February 12, 2012, Petitioner filed a pro se motion for speedy trial;
(5) on May 22, 2015, Petitioner entered into a guilty plea as to all charges on the indictment that the Court accepted;
(6) Petitioner did not file an appeal of his case;
(7) the trial court later entered an alternative sentencing order with conditions of supervision;
(8) on September 3, 2015, Petitioner's probation officer filed an affidavit regarding a violation and the trial court therefore issued a warrant and ordered that Petitioner be held without bond;
(9) soon after Petitioner was arrested, he filed a petition for post-conviction relief that he subsequently withdrew;
(10) on February 26, 2016, a new warrant with a “hold without bond” instruction was issued as to Petitioner;
(11) on March 8, 2016, Petitioner filed a motion to reopen his ...

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