United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, U.S. DISTRICT JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Before the court is the respondent's
Motion to Dismiss the Petition for Failure to Exhaust State
Remedies (“Motion to Dismiss). (ECF No. 10), to which
the petitioner has responded (ECF No. 11). For the reasons
set forth herein, the court will deny the respondent's
Motion to Dismiss and stay the case pending the completion of
the state court proceedings.
August 18, 2016, the petitioner was convicted in the Circuit
Court of Wayne County pursuant to a plea agreement. The
petitioner pleaded guilty to one count of criminal
responsibility for aggravated arson, amended to arson, and
one count of criminal responsibility for the manufacture of
methamphetamine. (ECF No. 15-1 at Page ID#
78-83.) The petitioner was sentenced to an
effective term of 10 years in prison. (Id.) There is
no evidence to suggest that the petitioner filed a
post-conviction petition or any other state court challenge
to his plea or sentence.
petitioner states that, on October 8, 2016, he received a
copy of his TOMIS Offender Sentence Letter
(“OSL”) from the Tennessee Department of
Corrections (“TDOC”) and noticed that the letter
did not accurately reflect his convictions. (ECF No. 1 at
Page ID# 8-9.) Indeed, while the TOMIS OSL accurately
reflects the petitioner's 10-year sentence and his
conviction for initiation of process to manufacture
methamphetamine, it reflects a conviction for arson of a
place of worship, an offense to which the petitioner did not
plead guilty. (Id.) Many months later, on May 11,
2017, the petitioner went before the parole board and was
denied parole. (Id. at Page ID# 4.) The petitioner
asserts that he was denied parole because the “parol[e]
board did not have the correct charges.” (Id.)
11, 2017, the petitioner filed the instant habeas
petition. At the same time, the petitioner filed a
petition for declaratory order with the TDOC in compliance
with the Uniform Administrative Procedure Act
(“UAPA”). (ECF No. 11 at PageID## 50-52.) On June
23, 2017, the TDOC denied the petition, explaining that it
“is required to obey the judgment orders as they are
received from the court of jurisdiction, and we have. Any
issue you may have with your judgment orders must be
addressed with the court of jurisdiction.”
(Id. at PageI D# 48.) The TDOC went on to explain
that “the judgment order that you provided shows the
conviction offense[s]” are “arson” and
“criminal responsibility for initiation of process to
receiving the TDOC letter denying his petition for
declaratory order, the petitioner has apparently been
contacting District Attorney Beverly White, the Clerk of
Court and a Circuit Court Judge in an attempt to exhaust his
state remedies and to obtain assistance in having his TOMIS
information accurately reflect his convictions. (ECF No. 11
at Page ID# 44-45.)
October 25, 2017, the respondent filed an affidavit from DA
White, in which she explains that there was an error in the
original plea agreement because the convictions to which the
petitioner pleaded did not support a 10-year sentence to be
served at 30%, the sentence to which the petitioner agreed.
(ECF No. 15-1 at Page ID# 76-77.) On October 21, 2016, DA
White learned that an error had been made when she received a
letter from the TDOC stating “conviction class is
invalid for conviction offense.” (Id.)
According to DA White, arson is a class C felony rather than
a Class B felony and, as such, the arson conviction did not
support the petitioner's agreed-upon 10-year sentence.
(Id.) DA White stated that she and the
petitioner's trial attorney attempted numerous times to
bring the petitioner before the trial court to amend the
judgment so that the convictions would match the sentence but
that the petitioner was, apparently, quite reluctant to do
so. (Id.) DA White notes that the petitioner was
scheduled to appear in state court on November 9, 2017. As
such, this action may still be before the state court.
Failure to exhaust available state-court remedies
the court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts.
28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires
a petitioner to “fairly present” federal claims
so that state courts have a “fair opportunity” to
apply controlling legal principles to the facts bearing upon
a petitioner's constitutional claim. See
O'Sullivan, 526 U.S. at 842; Picard v.
Connor, 404 U.S. 270, 275-77 (1971), cited in Duncan
v. Henry, 513 U.S. 364, 365 (1995), and Anderson v.
Harless, 459 U.S. 4, 6 (1982). “[S]tate prisoners
must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of
the State's established appellate review process.”
O'Sullivan, 526 U.S. at 845. Petitioner bears
the burden of showing exhaustion. See Rust v. Zent,
17 F.3d 155, 160 (6th Cir. 1994).
the petitioner appears to have an action in the state court
related to the issues regarding his judgment of conviction,
it may be that petitioner has failed to exhaust his claims.
However, although the parties do not address this issue, in
addition to determining whether the petition is exhausted,
the court may sua sponte consider whether the
petition is time-barred. See Day v. McDonough, 547
U.S. 198, 209 (2006).
the parties have not addressed the statute of limitations
issue, the court cannot, and does not at this point,
determine when petitioner's statute of limitations began
to run. However, in an abundance of caution, rather than
dismiss the petition and potentially bar future federal
habeas review of the petitioner's claims, the court will
deny the respondent's Motion to Dismiss (ECF No. 10) and
stay the petition pending exhaustion of state-court remedies.
The petitioner's “Motion for Petition for Writ of
Habeas Corpus to not be Dismissed, ” which the court
has construed as a response to the respondent's Motion to
Dismiss, will be denied as moot. (ECF No. 10.) The Clerk will
be directed to administratively close the case.
the respondent will be ordered to notify the court in writing
within 30 days after any pending state court proceedings have
concluded. The court cautions the petitioner that, if he does
not move to reopen this matter in a timely fashion once his
state court proceedings ...