United States District Court, M.D. Tennessee, Nashville Division
EARL VANTREASE, JR.
SHARON TAYLOR, Warden
H. SHARP UNITED STATES DISTRICT JUDGE.
before the Court is a Report and Recommendation issued by the
Magistrate Judge (Docket No. 79), and the Petitioner's
objections thereto (Docket No. 83). Through the Report and
Recommendation, the Magistrate Judge recommends the
following: (1) that the requirement in the order of referral
to hold an evidentiary hearing be rescinded because an
evidentiary hearing is unnecessary; (2) that Respondent's
Motion To Dismiss (Docket No. 6) be granted; (3) that
Petitioner's Amended Petition (Docket No. 70) be denied,
and this action be dismissed with prejudice; (4) that any
appeal not be certified as taken in good faith; and (5) that
all other pending motions be terminated as moot.
Report and Recommendation concludes that the Petitioner's
Amended Petition should be dismissed because it was not filed
within the one-year statute of limitations set forth in 28
U.S.C. § 2244(d)(1)(A), and equitable tolling is
unwarranted. Alternatively, the Report and Recommendation
concludes that Petitioner's eight claims should be
dismissed on various procedural grounds. The Petitioner has
filed objections to both determinations.
Court concludes that Petitioner's claims, with the
exception of Claims 6 and 8 discussed below, should be
dismissed on the procedural (non-statute-of-limitations)
grounds discussed in the Report and Recommendation, and
ADOPTS AND APPROVES the Report and Recommendation in that
regard. Accordingly, the Court finds it unnecessary to
consider Petitioner's objections to the Magistrate
Judge's statute of limitations analysis.
the Petitioner's other objections, the Petitioner
challenges the Magistrate Judge's determination that
Claim 6 should be dismissed on procedural grounds. Through
Claim 6, the Petitioner argues that the state court issued
its judgment imposing sentence on him without providing him
with notice or counsel for his defense. (Docket No. 71, at
44-50). As the Magistrate Judge explained, and the record
indicates, the Petitioner was sentenced to 16 years for
aggravated robbery by Judge Leon Burns in the Criminal Court
for Putnam County at a hearing held on July 25, 2003. (Docket
No. 79, at 7-8). Although the “Sentence-imposed
date” on the judgment form was July 25, 2003, the
judgment was not entered on that date. (Id.) After
sentencing, the Petitioner filed a motion for new trial,
which was denied on April 6, 2004. (Id.) On May 4,
2004, the Petitioner signed a written waiver of his right to
appeal his conviction and sentence. (Id., at 8-9).
On June 21, 2004, the Petitioner was released from prison in
error. (Id., at 9).
December 20, 2005, the Petitioner's July 25, 2003
judgment was filed by the Putnam County clerk of court.
(Id.) Judge Burns entered an order to issue
capias on December 16, 2005, which was filed on
December 20, 2005, directing that the Petitioner be taken
into custody to serve his sentence. (Id.) It is this
order that Petitioner claims was issued in violation of his
due process rights and right to counsel. None of the case law
cited by the Petitioner, however, supports the claim that a
criminal defendant who is provided with counsel and due
process rights at sentencing is entitled to a separate
hearing and right to counsel when the sentencing judgment is
entered. This conclusion is especially true in the case of a
defendant, like the Petitioner here, who has already waived
his right to appeal when the judgment is entered.
Accordingly, the Court concludes that Petitioner's Claim
6 should be dismissed on the merits.
Petitioner challenges the Magistrate Judge's
determination that Claim 8 should be dismissed on procedural
grounds. Through Claim 8, the Petitioner argues that his
state sentence has been miscalculated by the Tennessee
Department of Correction (“TDOC”) in violation of
due process. (Docket No. 71, at 55-56). Petitioner contends
that the calculation is inaccurate because his 16-year
sentence in Case No. 02-0666 was to begin on June 21, 2004
when his prior sentences expired, and therefore, his release
eligibility date should be June 18, 2020.
documentation filed by the Petitioner in support of his
claim, however, indicates that the TDOC provided the
Petitioner with the following written explanation of its
calculations on August 6, 2012:
. . . when dealing with consecutive sentences, the full
expiration date of the consecutive sentence is calculated by
adding the time of that sentence to the full expiration date
of the first sentence. In your case, the lead sentence was
case #980085, which had a full expiration date of 12/31/2005.
(With credits, you flattened your time on that sentence on
6/21/2004, but the full expiration date remains the same).
So, when we add the second sentence (case #020666) of 16
years to that, we come up with a date of 12/31/2021. Then we
must add the 556 days of dead time which was added to case
#020666. So, adding 556 days to 12/31/2021 gives you
7/10/2023, which is your full expiration date for case
#020666. In addition, you have another consecutive sentence -
case #2008A384, which is a 4 year sentence. Again looking at
full expiration dates, when we add 4 years to 7/10/2023, we
have a full expiration date of 7/10/2027. When we add up all
the credits you have earned on all consecutive cases (558
days on case #98085 234 on case #020666) we have a total of
792 total days. Subtract 792 days from 7/10/2027 and you end
up with a current expiration date of 5/09/2025. This date
will continue to move as you earn additional credits.
No. 71-1, at 43, 48).
Petitioner has not established that the TDOC calculations
violate his due process rights, or otherwise are in error.
Thus, the Court concludes that Petitioner's Claim 8
should be dismissed on the merits.
general objection, the Petitioner complains that the
Magistrate Judge is biased against him. That allegation is
not borne out by the record, as the Magistrate Judge's
rulings clearly appear to be based on the law and
summary, the Court holds that the requirement in the order of
referral to hold an evidentiary hearing is rescinded because
an evidentiary hearing is unnecessary; Respondent's
Motion To Dismiss (Docket No. 6) is granted as set forth
herein; and Petitioner's Amended ...