United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE.
petitioner Author Ray Turner,  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.
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.
Allegations and Procedural History
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
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.
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.
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.)
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,
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.
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
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 ...