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Turner v. Lindamood

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

November 29, 2017

AUTHOR RAY TURNER, Petitioner,
v.
CHERRY LINDAMOOD, Warden Respondent.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE.

         The petitioner Author Ray Turner, [1] a state prisoner incarcerated at the South Central Correctional Facility in Clifton, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas corpus. (Doc. No. 1.) The petitioner is proceeding in forma pauperis. (Doc. No. 3.)

         Presently before the court is the petitioner's motion to seek permission for leave to return to the trial court with sufficient notice to file and to preserve due process and double jeopardy claim which the court construes as a motion to amend the petition and to stay the proceedings pending exhaustion in the state court (hereinafter “Motion”). (Doc. No. 30.) The respondent asserts that the petitioner's Motion should be denied because the claims the petitioner seeks to add do not relate back and are time-barred, and because even if the petitioner were granted leave to amend, the claims are procedurally defaulted and meritless and amendment would be futile.

         Factual Allegations and Procedural History

         In 1995, the Petitioner, pursuant to a plea agreement, pleaded guilty to especially aggravated kidnapping, aggravated robbery and two counts of aggravated rape. He was sentenced to 20 years for each of the aggravated rape convictions and ten years for the especially aggravated kidnapping and aggravated robbery convictions. The trial court ordered the petitioner's sentences to run concurrent, except for the rape sentences which were to run consecutive for an effective sentence of 40 years. Over the course of the next several years, the petitioner unsuccessfully sought appellate and post-conviction relief.

         On December 9, 2008, the petitioner filed a petition for habeas corpus relief in the state court challenging the legality of his sentence, arguing that his sentences and corresponding judgment - which reflected a thirty percent release eligibility for each conviction - directly contradicted the statutory mandate of Tennessee Code Annotated § 39-13-523, which provides that any offender convicted of two counts of aggravated rape “shall be required to serve the entire sentence imposed by the court.” The habeas court dismissed the petition, but the Tennessee Court of Criminal Appeals (“TCCA”) reversed, concluding that the petitioner's sentences for aggravated rape were illegal on the face of the judgments because they contravened the state statute. The TCCA remanded the case to the habeas court for the appointment of counsel and an evidentiary hearing to determine whether the petitioner was entitled to withdraw his guilty plea. The TCCA directed the habeas court to determine, at the evidentiary hearing, whether the illegal sentence was a material element of the petitioner's plea agreement. If it was, then the TCCA directed the habeas court to allow the petitioner to withdraw his plea unless he reached an agreement with the state.

         After the evidentiary hearing, the habeas court found that the thirty percent release eligibility was a material bargained-for element of the plea agreement, granted the petition and transferred the case to the Davidson County Criminal Court for further proceedings, noting that the petitioner was entitled to withdraw his plea if he did not reach an agreement with the state. The state unsuccessfully appealed and the petitioner withdrew his guilty plea and proceeded to trial.

         After a jury trial the petitioner was convicted of four counts of aggravated rape, one count of attempted aggravated rape, one count of aggravated kidnapping and one count of aggravated robbery. (ECF No. 20-1 at Page ID# 287.) The petitioner was sentenced to 20 years for each of the aggravated rape convictions, 10 years for the attempted aggravated rape conviction, 20 years for the especially aggravated kidnapping conviction and 10 years for the especially aggravated robbery conviction. (Id. at Page ID## 288-94.) The trial court ordered that the two rape convictions, the attempted rape conviction and the kidnapping conviction be served consecutively for an effective sentence of 70 years' imprisonment. (Id. at Page ID# 288.)

         The TCCA affirmed the petitioner's conviction in an unpublished opinion issued on May 28, 2014. State v. Turner, No. M2013-00277-CCA-R3CD, 2014 WL 2442993, at *1 (Tenn. Crim. App. May 28, 2014) [Turner I]. The petitioner sought leave to appeal to the Tennessee Supreme Court (“TSC”), which was denied on October 22, 2014. Id.

         The petitioner sought post-conviction relief in the state trial court, which was denied on July 14, 2015. (ECF No. 20-26 at Page ID## 1840-47.) The petitioner appealed to the TCCA, which affirmed the judgment of the state post-conviction court on July 22, 2016. Turner v. State, No. M2015-01572-CCA-R3-PC, 2016 WL 4009559, at *1 (Tenn. Crim. App. July 22, 2016) [Turner II]. He did not seek leave to appeal to the TSC. Id.

         On September 23, 2016, the petitioner timely filed his original federal habeas petition alleging claims for (verbatim):

1. The trial court and the criminal court of appeals violated the petitioner's right to due process pursuant to Brady v. Maryland [when they] refused to dismiss[] criminal charges in [the petitioner's] case after it was discover[ed] that the state had destroyed all the DNA evidence in [the petitioner's] case.
2. The [TCCA] . . . fail[ed] to rule on issues raised by the petitioner[] on his appeal . . . .
a. That . . . Judge Steve R. Dozier violated the petitioner's right to due process by having the criminal court clerk's office[] remove [the petitioner's] case from his docket.
b. That the petitioner was not taken before a magistrate within 72 hour[s] of his arrest on 12-21-10 by [the] Davidson County Sheriff['s] Department.
c. That the petitioner was prosecuted outside of the statute of limitations.
d. That the petitioner[] . . . was denied due process when the Davidson County Sheriff's Department destroyed the rape kit in his case.
3. The trial court and the state attorney general violated the [petitioner's] . . . constitution[ally] protected right to due process [under the] Sixth Amendment and [the] Fourteenth Amendment . . . [and his right ...

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