United States District Court, W.D. Tennessee, Eastern Division
RANDY L. MILLER, Petitioner,
BRUCE WESTBROOKS, Respondent.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND
APPOINTMENT OF COUNSEL, GRANTING MOTION TO DISMISS, DENYING
CERTIFICATE OF APPEAL ABILITY, AND DENYING LEAVE TO APPEAL IN
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
Randy L. Miller, a Tennessee state prisoner, has filed a
pro se petition under 28 U.S.C. § 2254 seeking
habeas corpus relief (“Petition”). (ECF No. 1.)
Currently before the Court are Petitioner's motion for
summary judgment and appointment of counsel (ECF No. 19) and
the motion of Respondent, Bruce Westbrooks, to dismiss the
Petition as untimely (ECF No. 17). For the reasons that
follow, Petitioner's motion is DENIED
and the motion to dismiss is GRANTED.
March 2010, the Madison County, Tennessee, grand jury
indicted Miller and two others with one count of attempted
first degree murder, one count of aggravated assault, one
count of especially aggravated kidnapping, and one count of
aggravated arson. (ECF No. 16-1 at 21-25.) A jury found him
guilty of all four counts and the sentencing court merged the
aggravated assault conviction into the attempted first degree
murder conviction. State v. Brawner, No.
W2010-02591-CCA-R3-CD, 2012 WL 1572212, at *1 (Tenn. Crim.
App. May 3, 2012), perm. app. denied (Tenn. Sept.
18, 2012). On May 3, 2012, the Tennessee Court of Criminal
Appeals (“TCCA”) affirmed the convictions.
Id. On September 18, 2012, the Tennessee Supreme
Court denied permission to appeal. Id.
one and one-half years later, on January 31, 2014, Petitioner
placed his pro se petition for state post-conviction
relief into the prison mail system. (ECF No. 16-15 at 13.)
The post-conviction court dismissed the petition on May 6,
2014, finding that it was time barred and that “there
[wa]s no legal factual or equitable basis for tolling”
the one-year limitations period under the Tennessee
Post-Conviction Act. (ECF No. 16-17 at 2.) Miller
subsequently filed an untimely notice of appeal with the TCCA
and a request for relief from the post-conviction court's
order. (ECF No. 16-18; ECF No. 16-19.) On October 9, 2015,
the TCCA denied his request to file an untimely appeal. (ECF
No. 16-20 at 1-2.)
his case was pending before the TCCA, Petitioner moved to
reopen his request for post-conviction relief. (ECF No.
16-21.) He also filed a notice of appeal on September 18,
2015, challenging the post-conviction court's denial of
his recusal motion. (ECF No. 16-22.) The TCCA denied relief
on October 9, 2015. (ECF No. 16-23 at 1-2.) Petitioner
subsequently filed an amended motion to reopen his request
for post-conviction relief (ECF No. 16-24), which the
post-conviction court dismissed on November 9, 2015 (ECF No.
16-26 at 1-3.)
signed and placed his federal habeas Petition in the prison
mail system on November 15, 2016. (ECF No. 1 at 16.) He
asserts four grounds for relief: (1) the evidence was
insufficient to support his convictions for aggravated arson
and especially aggravated kidnapping (id. at 6); (2)
his “dual convictions for attempted first degree murder
and aggravated arson violate principles of double
jeopardy” (id. at 8); (3) “the [S]tate
should have been required to make an election for the
aggravated assault charge” (id. at 9); and (4)
“the trial court erred by ordering consecutive
sentencing” (id. at 11.)
order dated April 18, 2017, the Court denied Petitioner's
motion for the appointment of counsel and directed Respondent
to file the state court record and respond to the Petition.
(ECF No. 10 at 1-2.) Respondent filed a motion for extension
of time to comply (ECF No. 14), which the Court granted (ECF
No. 15.) The extended due date was set for June 30, 2017.
(Id.) Respondent filed the state court record and
its motion to dismiss the Petition as untimely on June 21 and
June 30, 2017, respectively. (ECF Nos. 16 and 17.) Petitioner
did not submit a reply to the motion, although allowed to do
so. (See ECF No. 10 at 2.) Instead, he filed a
motion for summary judgment, which also contains his second
request for appointment of counsel. (ECF No. 19 at 1.)
Motion for Summary Judgment and Request for Appointment of
second request for appointment of counsel, Petitioner does
not assert any reasons for appointment different from those
which the Court rejected in denying his first motion for
counsel. (ECF No. 19 at 1.) The request is therefore
request for summary judgment, Petitioner asserts that
judgment should be entered in his favor on the ground that
Respondent did not respond to the Petition within the time
prescribed by the Court's April 18, 2017, order.
(Id.) He argues that Respondent has “waived
t[he] right” to object to habeas corpus relief.
did, in fact, file his motion to dismiss by the due date of
June 30, 2017, (see ECF No. 17), but service of the
motion on Petitioner was not made at that time. In his
response to the summary judgment motion, Respondent conceded
that he mistakenly sent a copy of the motion to dismiss to
Petitioner at his previous place of incarceration. (ECF No.
20-1 at 5.) Respondent also stated that he would be resending
the motion to the correct address. (Id.) There is no
reason to believe that Petitioner did not subsequently
receive the motion to dismiss. Indeed, he has not inquired
further as to Respondent's response, including, notably,
after he was sent a copy of the docket sheet in December 2017
showing that the motion to dismiss had been filed.
(Clerk's notation to ECF No. 21.)
the motion to dismiss was not served on Petitioner by the due
date, that fact is not grounds to award habeas relief.
Miller's motion for summary judgment is tantamount to a
motion for default judgment, and “a default judgment is
generally unavailable in a habeas-corpus proceeding on the
ground that government officials failed to file a timely
response to the petition.” Hilton v.
Prelesnik, No. 07-cv-14415, 2009 WL 365389, at *1 (E.D.
Mich. Feb. 10, 2009) (rejecting petitioner's argument
that he was entitled ...