Opinion
No. 04-2713-T/An.
January 25, 2006
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND ORDER DIRECTING PETITIONER TO AMEND PETITION
Petitioner, Eddie Gordon, Tennessee Department of Correction (TDOC) inmate number 101189, an inmate at the West Tennessee State Prison (WTSP), in Henning, Tennessee, filed a petition under 28 U.S.C. § 2254 and an application to proceed in forma pauperis. Gordon's trust fund account balance was certified as over fifty dollars ($50.00). Inmates with at least twenty-five dollars must pay the five dollar habeas filing fee. The motion to proceed in forma pauperis is DENIED. Gordon must submit the five dollar ($5.00) filing fee within thirty (30) days of the entry of this order. The Clerk of Court shall record the respondent as David Mills.
In 1983, Gordon pled guilty to first degree murder in the Circuit Court for Gibson County and was sentenced to life imprisonment. Gordon filed a pro se petition for post-conviction relief in 1984. Twice the trial court dismissed the post-conviction petition, and twice the Tennessee Court of Appeals reversed the trial court and remanded the petition for an evidentiary hearing. The last remand occurred on May 7, 2004.See Gordon v. State, 2004 WL 1047606 (Tenn.Crim.App. May 7, 2004).
Gordon filed this petition on September 14, 2004, attaching a copy of the decision of the Court of Criminal Appeals and alleging that, although the appellate court ruled in his favor, the trial judge "continues to sit on case." Twenty-eight U.S.C. § 2254(b) states, in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
Thus, a habeas petitioner must first exhaust available state remedies before requesting relief under § 2254. See, e.g., Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509, 519 (1982). See also Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. A petitioner has failed to exhaust his available state remedies if he has the opportunity to raise his claim by any available state procedure. Preiser v. Rodriguez, 411 U.S. 475, 477, 489-90 (1973).
Moreover, the state court must address the merits of those claims. Coleman v. Thompson, 501 U.S. 722, 734-35 (1991). If the state court decides those claims on an adequate and independent state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, the petitioner is barred by this procedural default from seeking federal habeas review, unless he can show cause and prejudice for that default. See Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977).
When a petitioner's claim has never been actually presented to the state courts but a state procedural rule prohibits the state court from extending further consideration to them, the claims are deemed exhausted, but procedurally barred. Coleman, 501 U.S. at 752-53; Teague v. Lane, 489 U.S. 288, 297-99 (1989);Wainwright, 433 U.S. at 87-88; Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
A petitioner confronted with either variety of procedural default must show cause and prejudice for the default in order to obtain federal court review of his claim. Teague, 489 U.S. at 297-99; Wainwright, 433 U.S. at 87-88. Cause for a procedural default depends on some "objective factor external to the defense" that interfered with the petitioner's efforts to comply with the procedural rule. Coleman, 501 U.S. at 752-53; Murray v. Carrier, 477 U.S. 478, 488 (1986).
A petitioner may avoid the procedural bar, and the necessity of showing cause and prejudice, by demonstrating "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent of the crime." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray, 477 U.S. at 496). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence."Id.
It is clear from the face of the petition that Gordon did not exhaust his state remedies before filing this petition. Furthermore, he has existing available state corrective process because his post-conviction petition was remanded for an evidentiary hearing. A four month delay in scheduling his evidentiary hearing is insufficient to demonstrate that circumstances exist that render such process ineffective to protect the rights of the applicant. To date Gordon has not related any further state proceedings or the history of any appeal and he has failed to demonstrate that he has exhausted the claims presented in this petition.
Accordingly, Gordon is ORDERED to file an amended petition within thirty days of the docketing of this order by advising the Court if his post-conviction remains pending before the trial court or if a decision has been rendered. If the trial court has rendered a decision, Gordon is directed to relate whether that decision is now on appeal to the Tennessee Court of Criminal Appeals or if he has received any appellate decision. Gordon is directed to attach a copy of any and all orders entered by the Tennessee Courts after the May 7, 2004 remand if available.
Failure to comply with these requirements, or any other order of the court, may result in the dismissal of the case without further notice.
IT IS SO ORDERED.