United States District Court, E.D. Tennessee, Greeneville
JORDAN, UNITED STATES DISTRICT JUDGE.
Combs (“Petitioner”) filed this pro se
application for a writ of habeas corpus under 28 U.S.C.
§ 2254 [Doc. 1], and a supporting brief [Doc. 2],
challenging the constitutionality of his confinement under a
state court judgment convicting him of eighteen counts of
forgery and one count of theft [Id.]. Respondent
submitted a motion to dismiss, a supporting brief, and
relevant parts of the state court record [Docs. 5, 5-1, 5-2].
Respondent argues that the case should be dismissed because
Petitioner has failed to exhaust his state court remedies.
Petitioner did not file a reply, and the time for doing so
has passed. See E.D. Tenn. L.R. 7.1(a). The lack of
a response to Respondent's motion to dismiss is deemed a
waiver of any objection to the motion. See E.D.
Tenn. L.R. 7.2. For the reasons that follow, the motion will
be GRANTED and the petition will be
DISMISSED without prejudice.
February 26, 2014, after conviction by a jury in the Criminal
Court for Sullivan County, Petitioner was sentenced to 12
year's imprisonment [Doc. 1 pp. 1-2]. Petitioner filed an
appeal to the Tennessee Court of Criminal Appeals
[Id. at 2]. The appeal was denied by the state
appellate court and, thereafter, the Tennessee Supreme Court
denied Petitioner permission for further appeal. State v.
Combs, No. E2014-01175-CCA-R3-CD, 2015 WL 2400793, at *1
(Tenn. Crim. App. May 20, 2015), perm. app. denied
(Tenn. Sept. 17, 2015). Petitioner then filed an amended
petition for post-conviction relief on July 21, 2016, which
is awaiting an evidentiary hearing and ultimate disposition
by the trial court [Doc. 1 at 4].
30, 2017 (under the prison mailbox rule), Petitioner
filed this federal habeas corpus petition, charging that his
state post-conviction proceedings had been unreasonably and
unnecessarily delayed [Id.]. The Court infers that
Petitioner is alleging that the delay in holding an
evidentiary hearing and resolving his state collateral
petition constitutes a circumstance that renders his
post-conviction remedy “ineffective” to protect
his rights and, thus, excuses him from the requirement that
he exhaust all available state remedies before he files a
§ 2254 petition. See 28 U.S.C. §§
2254(b)(1)(A) and (b)(1)(B)(ii).
rule that governs this issue is clear: A petitioner who seeks
habeas relief from an alleged unconstitutional conviction
must first exhaust his available state court remedies by
fairly presenting all his claims to the state courts. 28
U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509
(1982). A claim is exhausted if it has been pursued at each
level of state court review. Baldwin v. Reese, 541
U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526
U.S. 838, 845-47 (1999). A federal district court must
dismiss a mixed habeas petition-one that contains both
exhausted and unexhausted claims. Pliler v. Ford,
542 U.S. 225, 230 (2004)). However, an inordinate delay on
the part of the state in adjudicating state court claims can
qualify for an exception to the exhaustion requirement.
See Phillips v. White, 851 F.3d 567, 576 (6th Cir.
2017) (citing Workman v. Tate, 957 F.2d 1339, 1344
(6th Cir. 1992), for its holding that a four-year delay
qualifies for the exception); see also Turner v.
Bagley, 401 F.3d 718, 725-26 (6th Cir. 2005) (excusing
exhaustion where an appeal was pending in state court almost
eleven years without “meaningful attention”
despite prisoner's frequent requests to process his
appeal). On the other hand, federal courts have been
reluctant to waive exhaustion because of short delays in
state court proceedings. Wright v. Dutton, No.
92-6001, 1993 WL 69503, at *2 (6th Cir. Mar. 12, 1993)
(finding that an 11-month delay was insufficient for a waiver
of exhaustion) (listing cases).
§ 2254 petition offers two general grounds for relief,
insufficient evidence and ineffective assistance of counsel
[Doc. 1 at 5-6]. The first ground was raised in
Petitioner's direct appeal and the second in his
post-conviction petition, which remains pending in the state
trial court [Id. at 2-3, 7].
motion to dismiss, Respondent has attached copies of
documents filed in Petitioner's post-conviction case that
were obtained from Sullivan County's Online Court Records
System [Docs. 5-2 and 5-3]. Those documents show that an
evidentiary hearing was scheduled in Petitioner's
post-conviction proceedings on December 14, 2017
[Id.]. The setting of the evidentiary hearing, that
the Court assumes has been held, absent any information to
the contrary, convinces the Court that the Petitioner has
secured “meaningful attention” to his
post-conviction case and that the delay in setting such a
hearing does not and did not render his resort to the state
corrective process futile. 28 U.S.C. §
an exception, which has not be shown to apply in this case, a
federal court cannot grant a state prisoner's petition
for a writ of habeas corpus, unless the petitioner has
exhausted his available state court remedies. 28 U.S.C.
§ 2254(b)(1). Indeed, the state “shall not be
deemed to have waived the exhaustion requirement or be
estopped from reliance upon the requirement unless the
[s]tate, through counsel, expressly waives the
requirement.” 2 8 U.S.C. § § 2254((b)(3).
Here, Respondent has not waived the exhaustion requirement,
but, instead, has moved the Court to dismiss the petition and
expressly has asserted a failure-to-exhaust defense. Under
these circumstances, Petitioner does not present a valid case
for waiving the exhaustion requirement.
above reasons, Respondent's motion to dismiss will be
GRANTED [Doc. 5], and this petition for a writ of habeas
corpus [Doc. 1] will be DISMISSED without prejudice for
Petitioner's failure to exhaust his state court remedies.
CERTIFICATE OF APPEALABILITY
the Court must consider whether to issue a certificate of
appealability (COA). A petitioner may appeal a final order in
a § 2254 case only if he is issued a COA, and a COA will
be issued only where the applicant has made a substantial
showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c). A petitioner whose claims have been
denied on a procedural basis must demonstrate that reasonable
jurists would debate the correctness of a court's
procedural rulings. Slack v. McDaniel, 529 U.S. 473,
484 (2000); Porterfield v. Bell, 258 F.3d 484,
485-86 (6th Cir. 2001). ...