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Transou v. Crowell

United States District Court, E.D. Tennessee, Greeneville

November 8, 2019

MACK TRANSOU, Petitioner,
v.
GEORGIA CROWELL, Respondent.

          MEMORANDUM OPINION

         Petitioner, a prisoner of the Tennessee Department of Correction, filed a petition for a writ of habeas corpus challenging the calculation of his pretrial jail credits for a 1999 habitual motor vehicle offender (“HMVO”) criminal conviction against him in the Madison County Criminal Court and seeking a new trial for “unrelated convictions” with the United States District Court for the Western District of Tennessee (“Western District”), who then transferred the petition to this Court because it interpreted the petition to set forth claims relating to the execution of Petitioner's sentence which fell under § 2241, rather than § 2254 [Doc. 1 p. 1; Doc. 1-1; Doc. 9]. Now before the Court is Respondent's motion to dismiss and to transfer the petition in which she requests that the Court dismiss Petitioner's request for habeas corpus relief arising out of his HMVO conviction for lack of jurisdiction and transfer the remainder of the petition to the United States Court of Appeals for the Sixth Circuit as second or successive [Doc. 17]. Petitioner has not responded to this motion, and the time for doing so has passed. E.D. Tenn. L.R. 7.1. As such, Petitioner waived any opposition thereto. Elmore v. Evans, 449 F.Supp. 2, 3 (E.D. Tenn. 1976), aff'd mem. 577 F.2d 740 (6th Cir. 1978); E.D. Tenn. LR 7.2.

         For the reasons set forth below, Respondent's motion to dismiss the petition to the extent it seeks habeas corpus relief based upon the miscalculation of Petitioner's pretrial jail credits for his HMVO conviction [Doc. 17] will be GRANTED and the remainder of this action will be TRANSFERRED back to the Western District of Tennessee.

         I. AMENDED PETITION

         First, while Petitioner did not file a response to Respondent's motion to dismiss, Petitioner did file an amended petition [Doc. 21] more than twenty-one days after Respondent filed her motion to dismiss. However, as it is apparent from the fact that Respondent filed a response in opposition to this petition [Doc. 22] that she did not consent to Petitioner filing an amended petition, Petitioner was required to seek leave of the Court prior to filing this amended petition under Rule 15(a)(2) of the Federal Rules of Civil Procedure. Regardless, as the amended petition presents Petitioner's claims in a more concise and clear manner and “[t]he court should freely give leave [to amend pleadings] when justice so requires, ” id., the Court will GRANT Petitioner leave to amend his petition such that his amended petition [Doc. 21] is the operative petition in this case.

         In his amended petition, Petitioner seeks habeas corpus relief based on his allegation that counsel for the State of Tennessee falsified the sentencing records for his HMVO conviction in a manner that resulted in Petitioner being illegally detained for two hundred and thirty-two days and submitting his DNA [Doc. 21 p. 1-4]. As relief, Petitioner requests that the DNA evidence against him and his resulting convictions for four charges be “dropped, ” his record expunged, and that the State of Tennessee not be allowed to further prosecute him for these charges [Id. at 4].

         In other words, Petitioner alleges that due to the miscalculation of his pretrial jail credits, he was taken into custody for his HMVO conviction after his community corrections sentence was revoked, when he should, in fact, not have been subject to any further punishment for that conviction. Once in custody, Petitioner submitted to a blood draw, which police then used to match his DNA to other unsolved cases. Petitioner therefore asserts that the resulting convictions are invalid because they were obtained due to the miscalculation of his HMVO sentence, an argument that Petitioner has exhaustively litigated under various theories for many years [Doc. 17 p. 2-5 (citing Petitioner's numerous state and federal court cases in which he has attempted to invalidate the convictions that resulted from his DNA submission)].

         II. MOTION TO DISMISS

         A. HMVO Conviction

         In her motion to dismiss, Respondent first asserts that as Petitioner is no longer in custody for his HMVO conviction, the Court does not have subject matter jurisdiction over any claims for habeas corpus relief based on this conviction [Doc. 17 p. 8-9].

         Federal courts only have jurisdiction to entertain petitions for habeas corpus relief from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a). The Supreme Court has clarified “that the habeas petitioner must be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S.234, 238 (1968)); Lackawanna County, 532 U.S. 394, 403 (2001) (holding that “once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because defendant did so unsuccessfully), ” the prisoner cannot collaterally attack that prior conviction in a federal petition for a writ of habeas corpus).

         It is undisputed that Petitioner's HMVO sentence expired in 2000 [Doc. 1-1 p. 4; Doc. 1-6 p. 1; Doc. 1-7 p. 1], long before he filed his petition in this action on December 5, 2018 [Doc. 1- 1 p. 11]. Further, nothing in the record suggests that the Court may review this conviction under any exceptions to this jurisdictional rule. Abdus-Samad v. Bell, 420 F.3d 614, 630 (6th Cir. 2005) (holding that a federal court may review a state conviction with a fully expired sentence where the petitioner did not have counsel for that conviction, where a state court refuses to rule on a properly-presented constitutional claim without justification, or where the petitioner has subsequently obtained compelling evidence demonstrating his actual innocence).

         Thus, the Court lacks subject matter jurisdiction over Petitioner's claims for habeas corpus relief arising out of the miscalculation of pretrial jail credits in his sentence for his HMVO conviction and those claims will be DISMISSED.

         B. REMAINING CLAIMS

         Respondent also asserts that the Court should transfer Petitioner's requests for habeas corpus relief arising out of his subsequent convictions based upon the alleged improper calculation of his HMVO sentence and his resulting DNA submission to the United States Court of Appeals for the Sixth Circuit as a second or successive petition, as Petitioner previously filed a § 2254 petition regarding these convictions that the Western District denied on the merits. [Doc. 17 p. 9- 10[1]; Transou v. Brandon, No. 06-1245, Doc. 37 (W.D. Tenn. March 17, 2008). The Sixth Circuit denied Petitioner a certificate of appealability in that case, Transou v. Brandon, No. 08-5358, Doc. 26-1 (6th Cir. Oct. 1, 2008), and denied Petitioner's later request to file a second or successive petition regarding these convictions. In re: Transou, No. 15-5475, Doc. 11 (6th Cir. Nov. 24, 2015). While Respondent only filed documents relating to Petitioner's HMVO conviction in the state court record she filed in this action [Doc. 16], it appears from the amended ...


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