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Baxter v. Ach

United States District Court, W.D. Tennessee, Eastern Division

June 23, 2017

BLAIR LEIB ACH, Respondent.



         On November 15, 2013, Petitioner, Timothy Aaron Baxter, filed apro se habeas corpus petition under 28 U.S.C. § 2254 (the "Petition"). (Docket Entry ("D.E.") 1.) In May 2016, Attorney A. Russell Larson filed a notice of appearance on his behalf. (DE. 35.) On January 25, 2017, the Court dismissed the Petition for lack of prosecution and Baxter's failure to comply with the Court's orders. (DE. 44.) Judgment was entered on January 27, 2017. (DE. 45.) Before the Court are Petitioner's pro se motions for removal of counsel and relief from the January 25, 2017, order. (DE. 46-3, 46.)


         On November 25, 2015, for good cause, the Court stayed this matter pending submission by Baxter of a statement disclosing "all state-court challenges to his conviction for aggravated assault, or the sentence imposed, that are presently pending or that he contemplates filing." (DE. 27 at PagelD 1000.) Petitioner failed to comply fully with the Court's order. (See DE. 34 at PagelD 1640-41.) On April 18, 2016, the Court therefore again ordered him to file the required disclosure statement. (Id. at PagelD 1641.) The Court specified that the statement must:

(i) list[] every state-court collateral challenge to [Petitioner's] conviction or sentence that has been filed and the resolution of that challenge, including any appeals, applications for permission to appeal, and petitions for writs of certiorari; (ii) state[] whether any collateral challenge is pending in state court or any petition for writ of certiorari has been filed with the United States Supreme Court; and (iii) state[] whether [Petitioner] plans to file any future collateral challenges to his conviction or sentence.

(Id. (internal footnote omitted).) The Court added that "[t]he stay imposed on November 25, 2015, will continue until Baxter has submitted his statement and the Court has reviewed it." (Id.)

         On May 24, 2016, Larson moved for an extension of time "to file any responsive pleadings." (D.E. 36.) The Court granted the motion and subsequently granted two additional motions for extensions. (See D.E. 37 through 41.)

         On September 19, 2016, Petitioner's attorney filed a 180-page "Supplemental Brief in support of the Petition. (D.E. 42.) The brief, which was oversized and filed without leave of the Court, did not contain the information regarding collateral state-court proceedings Baxter was required to file pursuant to the Court's orders of November 25, 2015, and April 18, 2016. On November 29, 2016, the Court struck the oversized brief and directed Petitioner to submit within twenty-eight days a disclosure statement that complied with the requirements set forth in the Court's April 18, 2016, order. (D.E. 43.) The Court warned Petitioner that his failure to comply with the directive would result in dismissal of the case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The inmate did not file a disclosure statement and did not respond to the Court's November 29, 2016, order, giving rise to the Court's dismissal of the Petition. As noted above, the instant motions were filed following the entry of judgment.[1]


         Larson has advised the Court that he does not oppose Baxter's motion for the withdrawal of his representation. (D.E. 47.) The motion is therefore GRANTED.

         In his motion for relief from judgment, Petitioner asserts that he did not receive the Court's November 2016 order directing that he file a disclosure statement because his attorney was receiving the docket notifications through the Court's electronic filing system. He alleges that Larson is to blame for failing to follow the Court's directive. In support, he attaches letters from Larson suggesting counsel was unaware of the Court's November 2016 order as late as January 5, 2017, [2] and chose not to move for reconsideration of the Court's January 2017 dismissal order on the ground of inadvertence or mistake.[3]

         Federal Rule of Civil Procedure 60(b) provides that a court "may relieve a party or its legal representative from a final judgment" for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new ...

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