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Reed v. Tenn. Dep't of Corr.

United States District Court, M.D. Tennessee, Nashville Division

May 24, 2018

RICKIE REED, No. 473449, Petitioner,
v.
TENN. DEP'T OF CORR., Respondent.

          MEMORANDUM

          Aleta A. Trauger United States District Judge

         The pro se petitioner is a state inmate housed at the Trousdale Turner Correctional Complex in Hartsville, Tennessee, serving a term of 35 years of imprisonment in the Tennessee Department of Correction (TDOC). (Docket No. 1, Attach. 1, Page ID# 72-75). He alleges that TDOC has miscalculated his sentence and seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2241.

         I. Introduction

         On June 18, 2001, a Shelby County jury convicted the petitioner of one count of attempted second-degree murder, one count of reckless aggravated assault, and one count of second-degree murder. (Docket No. 15, Attach. 1, Page ID# 115-17). The trial court merged the reckless aggravated assault conviction into the attempted second-degree murder conviction and sentenced the petitioner to 12 years of imprisonment for his attempted second-degree murder conviction and 23 years for his second-degree murder conviction. (Id.) The court ordered the petitioner to serve his sentences consecutively for an aggregate sentence of 35 years of imprisonment. (Id.)

         The Court of Criminal Appeals affirmed. (Id., Attach. 11, Page ID# 596). The Supreme Court of Tennessee denied discretionary review on March 17, 2003. (Id., Attach. 14). The petitioner did not petition the United States Supreme Court for certiorari. (Docket No. 1 at Page ID# 2).

         On February 4, 2004, the petitioner filed a timely pro se petition for a writ of habeas corpus in the Shelby County Criminal Court alleging, among other things, that he had been denied the effective assistance of counsel. (Docket No. 15, Attach. 15, Page ID# 630). The post-conviction court appointed counsel for the petitioner and filed an amended petition. (Id., Attach. 15, Page ID# 687, 691-95). The post-conviction court conducted an evidentiary hearing and denied relief in a written order. (Id., Attach. 15, Page ID# 697-702). The Court of Criminal Appeals affirmed on June 17, 2005. (Id., Attach. 19, Page ID# 822). The petitioner did not apply for discretionary review. (Id.)

         The petitioner subsequently filed several state actions. First, the petitioner moved to reopen his state post-conviction proceedings on January 29, 2008, alleging that he was illegally sentenced by the trial court's use of factors other than his prior convictions to enhance his sentence. (Docket No. 15, Attach. 20, Page ID# 839-46). He also alleged that he received ineffective assistance of trial and appellate counsel, that his indictment was defective because it failed to put him on notice of the elements of the offenses, and that he was mentally incompetent from the time of his arrest through the time of the filing of his motion to reopen his post-conviction petition. On June 16, 2008, the post-conviction court denied the petitioner's motion to reopen, finding that none of the petitioner's allegations satisfied the criteria of reopening a petition for post-conviction relief. (Docket No. 15, Attach. 20, Page ID# 887-88; Docket No. 15, Attach. 23, Page ID# 992). The Court of Criminal Appeals dismissed the petitioner's discretionary review application in March 2009. (Id.)

         On July 15, 2016, the petitioner filed a motion to correct illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging (1) his sentences violated the Fourteenth Amendment to the United States Constitution because he was sentenced as a standard offender rather than a mitigated offender; (2) he had no prior convictions, so he should have been sentenced as an especially mitigated offender; (3) alternatively, he should have received the maximum Range I sentence of eight years for attempted second degree murder; (4) alternatively, he should have received a sentence of fifteen years for second degree murder; (5) the trial court enhanced his sentences in violation of Tennessee Code Annotated section 40-35- 202(b)(1); and (6) his sentences should have run concurrently instead of consecutively. (Docket No. 15, Attach. 24, Page ID# 1008-10). The criminal court denied the motion, finding that the petitioner failed to state a colorable claim. (Id., Page ID# 1013-15). The Court of Criminal Appeals affirmed. (Docket No. 15, Attach. 28, Page ID# 1049).

         The petitioner moved TDOC for a declaratory order, claiming that TDOC should have ordered him to serve his 12-year sentence prior to his 23-year sentence and that TDOC had failed to award 777 days of pretrial detention credit. (Docket No. 15, Attach. 29, Page ID# 1081.) TDOC denied the petitioner a declaratory order on July 13, 2016. (Id., Page ID# 1081.) Regarding the alignment of the petitioner's consecutive sentences, TDOC stated that it “chose to calculate [petitioner's] thirty-five (35) year consecutive sentence with the twenty-three (23) year sentence first since [petitioner was] ordered to serve it at 100%[.]” (Id.) Regarding the petitioner's pretrial detention credit, TDOC stated that “[p]retrial jail credit (PTJC) that is awarded on a consecutive sentence can only be calculated once within [his] overall consecutive sentence of 35 years.” (Id.) TDOC further stated that the petitioner's sentence was properly credited with the at-issue 777 days. (Id.)

         The petitioner filed a timely petition for declaratory judgment against TDOC in the Davidson County Chancery Court on the same bases as his petition for a declaratory order. (Docket No. 15, Attach. 29, Page ID# 1058-60). The chancery court dismissed the petition, finding that the petitioner failed to comply with several procedural requisites related to inmate lawsuits including paying the filing fee or an affidavit of indigency. (Id., Page ID# 1065-66). The chancery court ordered the petitioner to comply with these prerequisites within 30 days or his petition would be dismissed. (Id., Page ID# 1066). When the petitioner failed to comply with these procedures, the chancery court dismissed the petition for failure to prosecute. (Id., Page ID# 1067). The petitioner then filed a “Motion to Vacate Order Dismissing Suit[, ]” which the chancery court construed as a motion to alter or amend the judgment. (Id., Page ID# 1069). The chancery court denied the petitioner's motion, finding that he still failed to comply with the court's previous order regarding procedural prerequisites. (Id., Page ID# 1086-89). The petitioner filed an untimely notice of appeal, which the Tennessee Court of Appeals dismissed without addressing the petitioner's issues. (Docket No. 15, Attach. 30).

         On April 10, 2017, the petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in this court. (Docket No. 1 at 14). The petition is the petitioner's first federal collateral attack on the underlying state judgments of conviction pursuant to Section 2241. On October 13, 2017, the court ordered the respondent to file an answer, plead, or otherwise respond to the petition in conformance with Rule 5, Rules Gov'g § 2254 Cases. (Docket No. 10). In response, the respondent filed an answer urging the court to dismiss the petition for untimeliness (Docket No. 17), to which the petitioner has not responded.

         II. Standard of Review

         The petitioner seeks relief pursuant to 28 U.S.C. § 2241, which provides in pertinent part that “[t]he writ of habeas corpus shall not extend to a prisoner unless . . . He is in custody in violation of the Constitution or laws or treaties of the United States.” § 2241(c)(3). The Rules Governing 2254 Cases (“Habeas Rules”) apply to habeas petitions under 28 U.S.C. § 2241. See Williams v. Holloway, No. 2:14-cv-02652-STA-tmp, 2016 WL 1058017, at *4 n.2 (W.D. Tenn. Mar. 14. 2016).

         Under 28 U.S.C. § 2241(c)(3), a writ of habeas corpus extends to a prisoner “in custody in violation of the Constitution or laws or treatises of the Unites States[.]” A petition for a writ pursuant to 28 U.S.C. § 2241 generally arises from “a challenge to the manner in which a sentence is executed, rather than the validity of the sentence itself.” Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998) (citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)). The authority to implement a federal sentence of imprisonment lies with the Attorney General through the Bureau of Prisons. United States v. Wilson, 503 U.S. 329, 331, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Under ยง 2241, however, the district court may grant relief to a petitioner challenging the ...


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