United States District Court, W.D. Tennessee, Eastern Division
GEORGE W. MATTHEWS, Petitioner,
RUSTY WASHBURN,  Respondent.
ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING
MOTION TO DISMISS, AND STAYING PROCEEDINGS AND
ADMINISTRATIVELY CLOSING CASE
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.
October 16, 2017, Petitioner George W. Matthews filed a
pro se habeas corpus petition pursuant to 28 U.S.C.
§ 2254 (ECF No. 1). In compliance with the Court's
October 27, 2017 Order (ECF No. 7), Petitioner then filed an
Amended Petition on the Court's form (the “Amended
Petition”) (ECF No. 8). Before the Court is Respondent
Rusty Washburn's Motion to Dismiss for Failure to Exhaust
State Remedies (ECF No. 13). And for the reasons that follow,
the Motion is DENIED, and the case is
STAYED and ADMINISTRATIVELY
of Lake County, Tennessee, convicted Petitioner of one count
of possession with intent to sell and deliver over half an
ounce of marijuana and two counts of attempt to introduce
contraband into a penal facility. Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody, at 1, Nov. 8, 2017, ECF No. 8 [hereinafter
“Am. Pet.”]. The criminal court sentenced him to
twelve years of imprisonment. Id. The Tennessee
Court of Criminal Appeals (the “TCCA”) affirmed
the judgments of conviction, and the Supreme Court of
Tennessee denied discretionary review. See State v.
Matthews, 2017 Tenn. Crim. App. LEXIS 49, at *2 (Tenn.
Crim. App. Jan. 24, 2017), perm. appeal denied (Apr.
filed a state pro se petition for a writ of habeas
corpus in the Trousdale County Circuit Court, which was
denied. Am. Pet., at 2. On appeal, the TCCA affirmed, and the
Supreme Court of Tennessee again denied discretionary review.
See Matthews v. State, No. 2017 Tenn. Crim. App.
LEXIS 493, at *1 (Tenn. Crim. App. June 8, 2017), perm.
appeal denied (Sept. 21, 2017).
2017, Petitioner initiated this federal habeas proceeding, in
which he raises the following claims: (1) the indictment
“fail[ed] to charge attempt by statute”
(“Claim 1”); (2) there is no
“attempt” under Tenn. Code Ann. § 39-16-201
(“Claim 2”); and (3) the trial judge erred by
“construct[ivel]y amend[ing] the indictment to the
jury” (“Claim 3”). Am. Pet., at 5.
November 28, 2017, the Court entered an Order (ECF No. 9)
directing Respondent to file the state court record and
respond to the Amended Petition. Respondent subsequently
filed the instant Motion to Dismiss (ECF No. 13) but did not
file the state court record.
Motion, Respondent argues that the Amended Petition should be
dismissed without prejudice because it contains only
unexhausted claims and because Petitioner is currently
pursuing state post-conviction relief. In support, Respondent
submits the affidavit of Assistant District Attorney General
Lance E. Webb. Aff. of Lance E. Webb, Dec. 6, 2017, ECF No.
13-2. Webb avers that he is representing the State of
Tennessee in Petitioner's post-conviction proceeding,
which remains pending at the trial level. Id. at 2.
Petitioner has not responded to the Motion, although he was
allowed to do so.
general matter, a federal court may not grant relief on an
unexhausted claim. 28 U.S.C. § 2254(b)(1)(A). A claim is
unexhausted if the petitioner “has the right under the
law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c). A
petition which contains only unexhausted claims is properly
dismissed without prejudice to allow the petitioner to return
to state court to exhaust his claims. See e.g.,
Mckay v. Kennedy, 2016 U.S. Dist. LEXIS 84140, at *5
(W.D. Tenn. June 29, 2016) (dismissing petition without
prejudice where the “claims [were] plainly
petitioner files a “mixed” § 2254 petition
containing both exhausted and unexhausted claims, the
district court has some discretion to stay the petition to
allow the prisoner to exhaust his unexhausted claims. Cf.
Rhines v. Weber, 544 U.S. 269, 276-77 (2005). A stay of
proceedings may also be warranted where all claims in the
petition are exhausted but the petitioner is still pursuing
state post-conviction relief. See Watkins v. Smith,
2018 U.S. Dist. LEXIS 5765, at *7 (E.D. Mich. Jan. 12, 2018)
(“A federal district court is authorized to stay fully
exhausted federal habeas petitions pending the exhaustion of
other claims in the state courts.”) (citing Bowling
v. Haeberline, 246 F. App'x. 303, 306 (6th Cir.
2007); Nowaczyk v. Warden, 299 F.3d 69, 77-79 (1st
Cir. 2002); Anthony v. Cambra, 236 F.3d 568, 575
(9th Cir. 2000); Thomas v. Stoddard, 89 F.Supp.3d
937, 943 (E.D. Mich. 2015)).
assertion, here, that the Amended Petition contains only
unexhausted claims, and therefore must be dismissed, is
without merit. Claim 1 was raised on direct appeal but
denied. See Matthews, 2017 Tenn. Crim. App. LEXIS
49, at *28 (“While Count Two and Count Three do not
reference the attempt statute, the indictment satisfies the
requirements of the United States Constitution . . .
.”). The claim is therefore exhausted.
Claims 2 and 3, it does not appear from the published state
court decisions that Petitioner raised these issues on direct
appeal or in his state habeas proceeding. But there is no way
for the Court to know that with certainty without having
first reviewed the state appellate briefs, which Respondent
has not filed. Even if Petitioner did not raise these
issues, he probably no longer has an available state court
avenue to assert them. Respondent, however, has not addressed
bottom, then, the Amended Petition is either a fully
exhausted petition or a mixed petition containing a
combination of exhausted and unexhausted claims. In either
event, the Court concludes that, in the interests of comity
and judicial economy, the most appropriate procedure is to
stay and administratively close this case until the state
post-conviction proceedings are finished. See
Rhines, 544 U.S. at 276-77 (permitting the stay
procedure for mixed petitions); Bowling, 246 F.
App'x. at 306 (quoting Nowaczyk, 299 F.3d at 83)
(holding a habeas court may ...