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Adams v. Genovese

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

June 4, 2018

M. BRANDON ADAMS, #379294, Petitioner,
v.
KEVIN GENOVESE, Warden, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         The pro se Petitioner is a state inmate housed at the Turney Center Industrial Prison in Only, Tennessee, serving an eighteen year term of imprisonment in the Tennessee Department of Correction (TDOC) arising from his 2004 conviction and sentence for aggravated child abuse. He challenges the TDOC decision not to declare him eligible for parole and the Tennessee Board of Parole (TBOP) refusal to send his application for sentence commutation to the Governor of Tennessee. He seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1).

         I. Introduction

         On July 29, 2004, in the Sumner County Criminal Court, the Petitioner pled guilty to a charge of aggravated child abuse with an agreed sentence of eighteen years to be served at one hundred percent. Adams v. State, No. M2007-00396-CCA-R3-PC, 2008 WL 544605, at *1 (Tenn. Crim. App. Feb. 1, 2008); (Doc. No. 9, Attach. 1).

         On March 28, 2005, the Petitioner filed a petition for post-conviction relief, which was denied. (Id. at **1, 3). The Tennessee Court of Criminal Appeals affirmed the denial of the post-conviction petition. (Id. at *6). The Tennessee Supreme Court denied permission to appeal. (Doc. No. 9, Attach. 2).

         The Petitioner then filed a petition for a writ of habeas corpus in state court alleging, among other things, that he had been denied the effective assistance of counsel. Adams v. Barbee, No. W2012-02074-CCA-R3-HC, 2013 WL 12182605, at *1 (Tenn. Crim. App. Aug. 16, 2013); (Doc. No. 9, Attach. 3). The post-conviction court denied the petition and the Court of Criminal Appeals affirmed. (Id.)

         The Petitioner subsequently filed several state actions. First, the petitioner moved to reopen his state post-conviction proceedings, followed by a second motion to reopen. (Doc. No. 9, Attach 4). Both petitions were denied. (Id.) With regard to the denial of the second motion, the Petitioner sought permission to appeal to the Tennessee Court of Criminal Appeals, but his request was denied by order entered on July 1, 2013. (Id.)

         The Petitioner filed a second petition for writ of habeas corpus on October 8, 2013. (Doc. No. 9, Attach. 5) The trial court dismissed the petition by order entered on January 15, 2014. (Id.) On August 11, 2014, the Tennessee Court of Criminal Appeals affirmed the denial of the habeas corpus petition. Adams v. Qualls, No. M2014-00174-CCA-R3-HC, 2014 WL 3895993, at *1 (Tenn. Crim. App. Aug. 11, 2014); (Doc. No. 9, Attach. 6).

         The Petitioner also filed a motion to correct an illegal sentence, which the state court denied by order entered on May 19, 2014. Adams v. State, No. M2014-01025-CCA-R3-CD, 2014 WL 7177943, at *1-2 (Tenn. Crim. App. Dec. 17, 2014);(Doc. No. 9-7). The Tennessee Court of Criminal Appeals affirmed the denial of the motion on December 17, 2014. Id.

         While the Petitioner's second habeas corpus petition and the motion to correct an illegal sentence were being litigated in state court, the Petitioner sought parole. On March 14, 2014, TDOC denied the Petitioner's petition for a declaratory order regarding TDOC's determination not to designate him as eligible for parole consideration. (Doc. No. 9, Attach. 9, PageID#60).

         On April 22, 2014, the Petitioner submitted to prison officials for mailing to this Court a petition for writ of habeas corpus under 28 U.S.C. § 2254. Adams v. Holloway, No. 3:14-cv-01055, 2015 WL 1275437 (M.D. Tenn. Mar. 19, 2015);(Doc. No. 9, Attach. 8). By order entered on March 19, 2015, this Court dismissed the petition as untimely. (Id.)

         On April 24, 2014, the Petitioner filed a petition for declaratory judgment in Davidson County Circuit Court, challenging TDOC's determination that he was ineligible for parole. (Doc. No. 9, Attach. 14). On July 11, 2014, the court dismissed the petition for failure to pay outstanding court fees, as required by the Tennessee Prison Litigation Reform Act (“TPLRA”), Tennessee Code Annotated § 41-21-812. (Doc. No. 9, Attach. 17).

         After the Court dismissed his federal habeas corpus petition, the Petitioner then filed an identical, second petition for declaratory judgment in Davidson County Circuit Court, on July 17, 2015, challenging TDOC's determination that he is ineligible for parole. (Doc. No. 9, Attach. 9). On December 11, 2015, the court also dismissed that petition for failure to pay court fees, as required by the TPLRA. (Doc. No. 9, Attach. 11). The Petitioner then sought appellate relief in the Tennessee Court of Appeals, but his appeal was dismissed on March 2, 2016, for the same reason. (Doc. No. 9, Attach. 13). The Petitioner did not file an application for permission to appeal to the Tennessee Supreme Court.

         At some point in 2014, the Petitioner submitted an application for sentence commutation, which was accepted by TBOP on October 7, 2014. (Doc. No. 1, PageID#5). TBOP denied the clemency application on January 6, 2015. (Id.) On February 5, 2016, the Petitioner filed a petition for writ of certiorari in Davidson County Circuit Court, challenging the denial of his clemency application. (Doc. No. 9, Attach. 18). On May 12, 2016, the court dismissed the petition for failure to file in the correct court and for failure to pay outstanding court fees. (Doc. No. 9, Attach. 21).

         On November 9, 2017, the Petitioner filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the denial of his request for parole and consideration of his application for clemency. (Doc. No. 1). By Order entered on December 29, 2017, the Court directed Respondent to file an answer, plead, or otherwise respond to the petition in conformance with Rule 5, Rules Gov'g § 2254 Cases. (Doc. No. 5). In response, the ...


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