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Jones v. Lindamood

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

February 2, 2018

CEDRIC JONES, # 519021, Petitioner,
CHERRY LINDAMOOD, et al., Respondent.



         Presently pending before the Court are the following motions by the Petitioner: Motion to Reopen Case and Replace Respondent (Doc. No. 31); Motion to Transcribe Preliminary Hearing CD (Doc. No. 49); Motion to Obtain Documents (Doc. No. 50); Motion for an Evidentiary Hearing (Doc. No. 51); Request for Docket Status Sheet and Pleading Form (Doc. No. 56); Motion to be Released and Response to Docket # 39 (Doc. No. 62); and Motion to Amend Petition to Present Only Exhausted Claims to the Federal District Court or Grant a Continuance (Doc. No. 76). The Respondent has not responded to any of these motions. The Respondent has filed a Motion to Dismiss (Doc. No. 52), to which the Petitioner has responded in opposition (Doc. No. 74).

         I. Background

         On October 3, 2016, [1] Cedric Jones, an inmate of the Riverbend Maximum Security Institution in Nashville, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for writ of habeas corpus challenging his March 6, 2013 convictions for three counts of aggravated rape, one count of aggravated sexual battery, and one count of aggravated kidnapping for which the Petitioner received a total effective sentence of thirty-seven years in prison. (Doc. No. 1); State v. Jones, No. M2015-00720-CCA-R3-CD, 2016 WL 3621513 (Tenn. Crim. App. June 29, 2016), perm. app. denied (Tenn. Sept. 22, 2016).

         The Petitioner appealed, and the Tennessee Court of Criminal Appeals affirmed his conviction and sentence on June 29, 2016. Id. The Tennessee Supreme Court denied his application for permission to appeal on September 22, 2016. Id.

         On October 28, 2016, the Petitioner filed an amended petition for writ of habeas corpus. (Doc. No. 11). On February 14, 2017, the Petitioner filed a supplemental petition for writ of habeas corpus. (Doc. No. 22).

         On February 28, 2017, the Petitioner filed a Notice of Voluntary Dismissal (Doc. No. 26), which the Court granted by Order entered on March 8, 2017, dismissing the Petitioner's claims without prejudice. (Doc. No. 27). In that same Order, the Court granted the Petitioner's application to proceed in forma pauperis and denied any pending motions as moot. (Id.)

         The Petitioner then filed a “Motion to Reopen Case” (Docket No. 31) and several letters, notices, and supplements. (Doc. Nos. 33, 34, 36, 37). By Order entered on April 14, 2017, the Court ordered the Respondent to file an answer, plead or otherwise respond to the petition in conformance with Rule 5, Rules - § 2254 Cases. (Doc. No. 39). The Court instructed: “Should the Respondent's position be that the Petitioner has not fully exhausted the state court process, that the original petition was untimely filed, or that the Petitioner may not reopen his case in this matter at this time, the Respondent shall so advise the Court and may do so without answering the petition on its merits.” (Id. at 2). In the meantime, the Petitioner filed more letters, notices, and supplements (Doc. No. 41, 42, 43, 46, 47, 48) as well as motions to transcribe preliminary hearing CD (Doc. No. 49), to obtain documents (Doc. No. 50), and for an evidentiary hearing (Doc. No. 51).

         After the Petitioner's many filings, the Respondent filed a motion to dismiss on May 8, 2017. (Doc. No. 52). The Petitioner then filed more notices (Doc. Nos. 54, 55, 57, 61, 63, 64, 67, 69, 70, 73, 75), a request for a docket status sheet and a pleading form (Doc. No. 56), letters (Doc. Nos. 59, 65, 66, 68, 71, 77, 78), and a motion to be released and response to Docket # 39 Order (Doc. No. 62).

         Because the Petitioner had not responded to the Respondent's pending motion to dismiss, the Court ordered the Petitioner to file a response, if desired, by December 28, 2017. (Doc. No. 72). The Court instructed the Petitioner to specifically address whether he was in the process of exhausting his available state court remedies or whether he intended to proceed only on the exhausted claims in the petition. (Id. at 1). The Petitioner responded by filing a “motion to amend petition to present only exhausted claims to the Federal District Court or grant a continuance.” (Doc. No. 76).

         The Petitioner also informed the Court that he had filed a petition for post-conviction relief on September 12, 2017, in the Criminal Court of Davidson County, Tennessee. (Doc. No. 75 at 4). The state court entered a preliminary order on October 20, 2017 “to appoint post-conviction counsel and advise Petitioner of the parameters of post-conviction relief pursuant to the Post-Conviction Procedure Act and Tennessee case law.” (Id. at 10, 11). The Court takes judicial notice that the Petitioner is scheduled to appear before the Criminal Court of Davidson County, Tennessee, in February 2018; the Petitioner's post-conviction relief efforts remain underway.

         II. Motion to Reopen Case (Doc. No. 31)

         The Court will begin with the Petitioner's motion “to reopen case and replace respondent.” (Doc. No. 31). In the motion, the Petitioner asks the Court to replace Elaine Heard as the only named respondent to this action. Heard is the Petitioner's former attorney. (Id. at 5). The Petitioner asserts that Heard “has not returned to him his legal files he sent to her to hold on to while she was his counsel on direct appeal.” (Id. at 6). He further asserts that Heard also has in her possession and has refused to return to the Petitioner “[b]oxes of files that his family dropped off at her office, a diskett [sic], a copy of the Jurors (the Judge's list), his tax records, a picture his son drew for him and other legal files and items of sentimental value.” (Id. at 8). In the “Remedy Sought” section of the Petitioner's motion to reopen, the Petitioner asks the Court to order Heard to return all of the Petitioner's files to him, require her to respond to the Petitioner's “suit, ” order Heard to pay restitution to the Petitioner, and report Heard to the Tennessee Board of Professional Responsibility. (Id. at 15).

         The Petitioner's motion to reopen focuses solely on the Petitioner's complaint that his former attorney failed to return the Petitioner's file and some personal property to him. The memorandum filed by the Petitioner in support of his motion to reopen appears to be a courtesy copy to the Court of a complaint the Petitioner filed against The Honorable Aleta A. Trauger; the memorandum does not, in any way, support the motion to reopen the current case. Neither the motion to reopen nor the memorandum filed in support of the motion to reopen refer to, reference, or incorporate the Petitioner's original petition for ...

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