United States District Court, W.D. Tennessee, Eastern Division
ORDER DIRECTING CLERK TO MODIFY DOCKET AND TERMINATE
MOTION, GRANTING MOTION TO STAY PROCEEDINGS, AND
ADMINISTRATIVELY CLOSING CASE
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Edward Hood, Jr.'s motion to stay
the proceedings in this case pending the resolution of his
state court motion to correct the record. (ECF No. 20.) For
the following reasons, the motion is
2009, Hood was convicted following a jury trial of rape of a
child and incest involving one of his daughters. State v.
Hood, No. W2009-02501-CCA-R3-CD, 2010 WL 5054422, at *1
(Tenn. Crim. App. Dec. 6, 2010), perm. appeal denied
(Tenn. Apr. 14, 2011). He filed his 28 U.S.C. § 2254
petition (the “Petition”) in August 2017,
asserting the ineffective assistance of counsel and his
actual innocence. (ECF No. 1 at 5-6.) The Court ordered him
to file an amended petition on the Court's form (ECF No.
6), which he did (the “First Amended Petition”)
(ECF No. 7). On January 17, 2018, the Court denied the motion
of Respondent, Grady Perry, to dismiss the First Amended
Petition without prejudice for Petitioner's failure to
exhaust his claims. (ECF No. 12.) The Court found that the
ineffective assistance claim had been exhausted, but that
considerations of comity and judicial economy warranted a
stay pending the resolution of the actual innocence claim in
Petitioner's then-pending state coram nobis
proceeding. (Id. at 2-3.) The case was, therefore,
stayed and administratively closed. (Id. at 3.)
August 16, 2018, Petitioner filed a third petition (the
“Second Amended Petition”), in which he reasserts
his two claims, and also alleges that the state appellate
court, in his coram nobis proceeding, “erred
when it denied [his] newly discovered evidence.” (ECF
No. 13 at 9.) Because the Second Amended Petition indicated
that the coram nobis proceeding had concluded, the
Court lifted the stay and ordered Respondent to file the
state court record and respond to the Second Amended
Petition. (ECF No. 14.) Respondent thereafter filed the state
court record (ECF No. 18), and a motion to dismiss the Second
Amended Petition (ECF No. 19). He argues that the original
Petition was not timely filed and that Petitioner has not
established entitlement to equitable tolling of the
limitations period, or a gateway claim of actual innocence to
overcome the limitations bar. (Id. at 1; ECF No.
19-1 at 2-8.) Petitioner did not respond to the motion,
although allowed to do so. (See ECF No. 8 at 2.) He
did, however, file a motion to stay the case pending
resolution of his state court motion to correct the record.
(ECF No. 20.) Respondent has not opposed the request for a
admits that his claims are untimely, but he asserts a gateway
claim of actual innocence in an attempt to overcome the
limitations bar. (ECF No. 7 at 13.) See McQuiggin v.
Perkins, 569 U.S. 383, 392 (2013) (a credible showing of
actual innocence will allow a petitioner to
“overcome” the statute of limitations, rather
than provide him an excuse for the late filing). In support,
he has submitted signed letters from one of his daughters and
his niece stating that the victim confessed on several
occasions that she lied about his conduct. (ECF No. 15-1.)
The daughter's letter references one occasion after the
trial, “[o]nce when DCS set up a visit at the park,
” and once when “[t]he consalor [sic] at Quinco
brought her to our house.” (Id. at 1.)
Petitioner now seeks a stay of proceedings pending the
resolution of a motion he has filed in state court to correct
the record in this case. He avers in a sworn affidavit that,
upon receipt of the state court record from Respondent, he
discovered what he believes are omissions in the trial
transcript. (ECF No. 20-1.) Specifically, he maintains that
the transcript does not contain the “vital”
testimony (ECF No. 20 at 2) of three witnesses: an employee
of the “Department of Children[S]ervices, ” a
“Carl Perkins Center Employee, ” and a
“Quinco Professional Counseling Services Employee,
” all of whom, he asserts, testified at his trial. (ECF
No. 20-1 at 1.)
reviewing a gateway claim of actual innocence must
“survey ‘all the evidence, old and new,
incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility
that would govern at trial.'” Eberle v. Warden,
Mansfield Corr. Inst., 532 Fed.Appx. 605 613 (6th Cir.
2013) (quoting House v. Bell, 547 U.S. 518, 538
(2006) (internal quotation marks omitted)). Because
Petitioner has asserted that portions of the trial transcript
were not included in the state record filed by Respondent,
and because he now has a proceeding in state court seeking to
correct the record, a stay of the present case is warranted.
the motion to stay is GRANTED, and the
proceedings in this case are STAYED pending
the outcome of Petitioner's state court proceeding to
correct the record. Petitioner shall notify the Court of the
resolution of the state court proceeding within thirty (30)
days of that event.
Clerk is DIRECTED to terminate the motion to
dismiss at ECF No. 19. Respondent may refile the motion, and
any additional state court records, at the time the case is
reopened. The Clerk is FURTHER DIRECTED to
administratively CLOSE the case.
IS SO ORDERED.
 The Clerk is DIRECTED
to modify Petitioner's address to reflect that he is now
incarcerated at the South Central Correctional Facility in
Clifton, Tennessee, and to substitute Grady Perry for Tammy
Ford as Respondent. See Fed. R. Civ. P.
 The Second Amended Petition does not
assert equitable tolling. Respondent has, nevertheless,
addressed equitable tolling in his motion to dismiss
(see ECF No. 19-1 at 4-8) because the First Amended
Petition did raise the issue (see ECF No. 7 at 13).
The Court concurs that the Second Amended ...