United States District Court, M.D. Tennessee, Nashville Division
RICKIE REED, No. 473449, Petitioner,
TENN. DEP'T OF CORR., Respondent.
A. Trauger United States District Judge
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.
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.
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
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.
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.
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).
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.)
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).
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
Standard of Review
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).
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
§ 2241, however, the district court may grant relief to
a petitioner challenging the ...