United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
Parlo Berry, an inmate of the Riverbend Maximum Security
Institution in Nashville, Tennessee, has filed a pro
se petition under 28 U.S.C. § 2254 for a writ of
habeas corpus challenging his conviction and
sentence for two counts of first-degree premeditated murder,
two counts of first-degree felony murder, two counts of
especially aggravated kidnapping, and two counts of
especially aggravated robbery. (Doc. No. 1). The Respondent
has filed a motion to dismiss the petition (Doc. No. 11), to
which the Petitioner has responded in opposition. (Doc. Nos.
12 & 13). The Petitioner also has filed a motion to
reconsider the Court's Order denying the Petitioner's
motion for the appointment of counsel. (Doc. No. 15).
Petitioner was convicted of two counts of premeditated
murder, two counts of felony murder, two counts of especially
aggravated kidnapping, and two counts of especially
aggravated robbery in connection with the deaths of
D'angelo McKinley Lee and Gregory Lanier Ewing. State
v. Berry, 141 S.W.3d 549, 553 (Tenn. 2004). The
Petitioner received a death sentence on each of the
first-degree murder convictions, with an effective fifty-year
consecutive sentence on the remaining convictions.
Id. On direct appeal, his convictions and sentences
were affirmed. Id. at 554; State v. Berry,
No. M2001-02023-CCA-R3-DD, 2003 WL 1855099 (Tenn. Crim. App.
Apr. 10, 2013).
Petitioner then filed a petition for post-conviction relief.
The trial court reversed the Petitioner's death sentence
and granted him a new capital sentencing hearing. Berry
v. State, 366 S.W.3d 160, 165 (Tenn. Crim. App. 2011).
The trial court's decision was affirmed on
post-conviction appeal, and the Tennessee Supreme Court
denied discretionary review. Id. The Supreme Court
denied the Petitioner's petition for writ of certiorari.
Berry v. Tennessee, 568 U.S. 840 (2012).
Petitioner then filed a petition for writ of error coram
nobis, which the trial court denied. Berry v. State,
No. M2015-00052-CCA-R3-ECN, 2016 WL 1161216, at *1 (Tenn.
Crim. App. Mar. 23, 2016). The trial court stayed the
resentencing proceedings on remand until the Petitioner
completed his appeal of the denial of error coram nobis
relief. Id. The Court of Criminal Appeals affirmed
the lower court's decision, and the Tennessee Supreme
Court denied discretionary review. Id.
the trial court proceeded with the Petitioner's
resentencing on the capital offenses. The State withdrew its
notice of intent to seek the death penalty (Docket No. 11-2),
but moved the court for consecutive sentencing. (Docket No.
11-3). After a hearing, the trial court imposed consecutive
life sentences for the murder convictions. (Docket No. 11-4,
11-5). On April 27, 2017, the Petitioner filed a notice of
appeal. (Docket No. 11-6). The direct appeal proceedings are
currently pending before the Tennessee Court of Criminal
Appeals. (Docket No. 11-7).
23, 2017, the Petitioner filed a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 in
this Court. (Docket No. 1 at 24). By Order entered on
September 7, 2017, the Court directed the Respondent to file
a response to the petition. (Docket No. 7). The Respondent
filed a motion to dismiss the habeas corpus petition
without prejudice on the ground that the Petitioner's
state-court judgments are not yet final. (Docket No. 11). The
Petitioner filed a memorandum in opposition, arguing that he
need not exhaust his state court remedies with respect to his
double jeopardy claim. (Doc. Nos. 12 & 13).
Motion to Dismiss
motion to dismiss, the Respondent urges the Court to dismiss
the petition without prejudice while the Petitioner exhausts
his state remedies. (Doc. No. 11-1 at 1).
a federal court will review the merits of a claim brought
under § 2254, a petitioner must have “exhausted
the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A); Cohen v. Tate, 779 F.2d
1181, 1184 (6th Cir. 1985)(stating that the law is
well established that a petition for federal habeas
corpus relief will not be considered unless the
petitioner has first exhausted all available state court
remedies for each claim presented in his petition). This
exhaustion requirement springs from consideration of comity
between the states and the federal government and is designed
to give the state an initial opportunity to pass on and
correct alleged violations of its prisoners' federal
rights. Wilwording v. Swenson, 404 U.S. 249, 250
(1971). A claim must be “properly” exhausted,
meaning it must be “fairly presented” through
“one complete round of the State's established
appellate review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). The burden of
showing compliance with the exhaustion requirement rests with
the petitioner. Darr v. Burford, 339 U.S. 200,
218-19 (1950)(overruled in part on other grounds by Fay
v. Noia, 372 U.S. 391 (1963)); Prather v. Rees,
822 F.2d 1418, 1420 n. 3 (6th Cir. 1987).
Rose v. Lundy, 455 U.S. 509 (1982), the Supreme
Court held that a district court must dismiss a
“mixed” § 2254 petition containing both
exhausted and unexhausted claims, “leaving the prisoner
with the choice of returning to state court to exhaust his
claims or of amending or resubmitting the habeas petition to
present only exhausted claims to the district court.”
Id. at 510. Subsequently, in Rhines v.
Weber, 544 U.S. 269 (2005), the Supreme Court held that
a district court has discretion to stay a mixed habeas
petition to allow the prisoner to exhaust his unexhausted
claims. Id. at 277-78.
the Petitioner has not fully exhausted all of the claims in
state court that he wishes to pursue in this action. After
the Petitioner was resentenced on the capital offenses, the
Petitioner appealed. The Petitioner's direct appeal
proceedings are currently pending before the Tennessee Court
of Criminal Appeals. (Docket No. 11-7). Therefore, the
Petitioner's state court judgments are not yet final.
See Rashad v. Lafler, 675 F.3d 564, 569
(6th Cir. 2012)(holding that a petitioner whose
sentence has been vacated does not have a complete judgment
for federal habeas corpus purposes until “the
conclusion of direct review of the new sentence he received
at resentencing”); Burton v. Stewart, 549 U.S.
147, 798 (2007)(“Final judgment in a criminal case
means sentence. The sentence is the
judgment.”)(quotation omitted). Moreover, the
Petitioner may still seek post-conviction remedies in the
state court after direct review is finished. See
Doc. No. 1 at 22 (Petitioner indicated that he has filed, or
plans to file, a petition that challenges his state court
judgment or sentence to be served in the future).
the Petitioner contends that he is not required to exhaust
the state court process before pursuing his double jeopardy
claim in a federal habeas proceeding, he is mistaken.
“As a condition precedent to seeking federal habeas
corpus relief, each of the petitioner's
claim must have been fairly presented to the state
courts.” Rhines v. Weber, 544 U.S. 269, 275
(2005)(emphasis added). State court remedies are still
available to the Petitioner, and he is in fact pursuing them.
Once the Petitioner's federal claims have been presented
to the highest state court available, the exhaustion
requirement is satisfied, even if that court refuses to
consider the claims. O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999). In Tennessee, the ...