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Miller v. Westbrooks

United States District Court, W.D. Tennessee, Eastern Division

April 9, 2018

RANDY L. MILLER, Petitioner,
v.
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 FORMA PAUPERIS

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         BACKGROUND

         In 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.

         Nearly 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.)

         While 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.)

         Petitioner 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.)

         DISCUSSION

         By 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.)

         1. Motion for Summary Judgment and Request for Appointment of Counsel

         In his 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 DENIED.

         In his 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. (Id.)

         Respondent 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.)

         Although 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 ...


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