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Baxter v. Washburn

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

May 30, 2018

TIMOTHY AARON BAXTER, Petitioner,
v.
RUSTY WASHBURN, Respondent.

          ORDER ADDRESSING MOTIONS AND DIRECTING CLERK OF COURT TO MODIFY RESPONDENT

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         Before the Court is the November 16, 2017, motion of Respondent, Rusty Washburn, [1] to dismiss the pro se 28 U.S.C. § 2254 petition (the "Petition") filed by the Petitioner, Timothy Aaron Baxter, for failure to prosecute. (Docket Entry (“D.E.”) 59.) Also pending are the following pro se motions of the Petitioner: (1) motion to strike Respondent's supplemental answer (D.E. 70); (2) motion for partial summary judgment as to Claim 1 (D.E. 62); (3) two motions for “forfeiture” of defense (D.E. 69, 73); (4) motion for entry of default (D.E. 75) and motion for entry of default judgment (D.E. 76); (5) motion for an evidentiary hearing (D.E. 60) and supplemental motion for an evidentiary hearing (D.E. 78); and (7) motion for revision of interlocutory order for bail pending review (D.E. 79).

         For the reasons articulated herein, Petitioner's supplemental motion for an evidentiary hearing (D.E. 78) is TAKEN UNDER ADVISEMENT and his remaining motions, as well as Respondent's motion to dismiss, are DENIED.

         I. PROCEDURAL SUMMARY

         Baxter filed the Petition in November 2013 challenging his Tennessee conviction for aggravated assault. The Petition sets forth the following claims:

1. “Insufficient Evidence” (D.E. 1 at PageID 5);
2. “Unreasonable application to Petitioner of statute [Tennessee Code Annotated] § 39-11-106(a)(34)(C) procedural unfairness” (Id. at PageID 6);
3. “Whether the appellate court erred in it[]s opinion on the insufficiency of the evidence when citing the mandate from the [state] supreme court on the legal standard of proof necessary to satisfy all elements of the statute [Tennessee Code Annotated] § 39-11-106(a)(34)(C).” (Id. at PageID 7);
4. “Denial of counsel at the preliminary hearing and the denial of an indigency hearing all in violation of the Sixth Amendment right to counsel at the critical stages of prosecution.” (Id.)

         In February 2014, Respondent filed the state court record pertaining to Petitioner's trial and direct appeal, as well as an answer to the Petition.[2] (D.E. 12, 13.) The inmate subsequently filed a reply. (D.E. 18.)

         In November 2015, the Court stayed the case pending submission by Baxter of a statement disclosing all state-court challenges to his conviction that were then-pending or that he contemplated filing. (D.E. 27.) It appeared that Petitioner had filed collateral challenges to his conviction that had not been disclosed in the Petition. The stay remained in effect until January 2017, when the Court dismissed the case for Baxter's repeated failures to provide the required statement. (D.E. 44.) Entry of judgment followed. (D.E. 45.)

         In August 2017, for good cause shown, the Court granted Petitioner's motion to vacate the order of dismissal and judgment. (D.E. 53.) The Court also allowed him leave to file an amended petition within twenty-eight days. On September 11, 2017, the Court granted him an extension of time to file an amended petition. (D.E. 55.)

         II. PENDING MOTIONS

         A. Respondent's Motion to Dismiss and ...


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