United States District Court, W.D. Tennessee, Eastern Division
OTIS L. TAYLOR, JR., Petitioner,
KENNETH D. HUTCHISON, Respondent.
ORDER GRANTING MOTION TO DISMISS PETITION, DISMISSING
PETITION WITHOUT PREJUDICE, DENYING CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
August 20, 2019, Petitioner, Otis L. Taylor, Jr., filed a
pro se habeas corpus petition (the
“Petition”), pursuant to 28 U.S.C. § 2254.
(ECF No. 1.) Respondent, Kenneth D. Hutchison, has filed a
motion to dismiss the Petition, arguing that Petitioner has
not yet exhausted his state court remedies. (ECF No. 7.)
Taylor has not opposed the motion. For the following reasons,
the motion is GRANTED, and the Petition is
a federal court will review the merits of a claim brought
under § 2254, the petitioner must have “exhausted
the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). To be properly exhausted, a
claim must be “fairly presented” through
“one complete round of the State's established
appellate review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 848 (1999). As a general
matter, a petition containing unexhausted claims should be
dismissed. Rose v. Lundy, 455 U.S. 509, 510 (1982).
judgment of conviction and sentence which are the subject of
the Petition, here, were entered in early 2019 in the Circuit
Court of Madison County, Tennessee. (ECF No. 1 at 1; ECF No.
7-2 at 1.) Taylor filed a notice of appeal on July 12, 2019.
(See ECF No. 7-2.) One month later, he filed his
federal Petition, admitting on the face of that document that
his state direct appeal is “pending.” (ECF No. 1
at 2.) That fact is confirmed by the Tennessee Appellate
Court Case Search website, which shows that the most recent
activity in that case is an order entered on October 15,
2019, denying as premature Taylor's motion to withdraw
the record and informing him that “the time for filing
[his] brief has not yet commenced.”
the claims presented in the Petition have not been exhausted,
the motion to dismiss is GRANTED. The
Petition is DISMISSED without prejudice.
§ 2254 petitioner may not proceed on appeal unless a
district or circuit judge issues a certificate of
appealability (“COA”). 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1). A COA may issue only if
the petitioner has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2)-(3). A
substantial showing is made when the petitioner demonstrates
that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were ‘adequate to deserve encouragement to proceed
further.'” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). “If the petition was denied on
procedural grounds, the petitioner must show, ‘at
least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.'” Dufresne v. Palmer,
876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting
Slack, 529 U.S. at 484).
case, reasonable jurists would not debate the correctness of
the Court's decision to dismiss the Petition. Because any
appeal by Petitioner does not deserve attention, the Court
DENIES a certificate of appealability.
to Federal Rule of Appellate Procedure 24(a), a party seeking
pauper status on appeal must first file a motion in the
district court, along with a supporting affidavit. Fed. R.
App. P. 24(a). However, Rule 24(a) also provides that if the
district court certifies that an appeal would not be taken in
good faith, the prisoner must file his motion to proceed
in forma pauperis in the appellate court.
case, for the same reason it denies a COA, the Court
CERTIFIES, pursuant to Rule 24(a), that any
appeal in this matter would not be taken in good faith. Leave
to appeal in forma pauperis is therefore
IS SO ORDERED.
See State v. Taylor, No.
W2019-01246-CCA-R3-CD (Tenn. Crim. App. Oct. 15, 2019),
Tennessee State Courts Appellate Case Search website (last
accessed Oct. 18, 2019),