United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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).
October 3, 2016,  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).
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.
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).
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
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).
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).
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).
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.
Motion to Reopen Case (Doc. No. 31)
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).
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 ...