Burley v. State of Tennessee, The

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

IVAN ANTJUAN BURLEY #315059, )

)

Petitioner, )

)

v. ) No. 3:22-cv-00679

) Judge Trauger

STATE OF TENNESSEE, )

)

Respondent. )

MEMORANDUM AND ORDER

Ivan Antjuan Burley, a pro se pretrial detainee, filed original and amended petitions for a

writ of habeas corpus under 28 U.S.C. § 2241. (Doc. Nos. 1, 5.) He has now paid the filing fee

(Doc. No. 6), so the petitions are before the court for preliminary review to determine “[i]f it plainly

appears from the petition[s] and any attached exhibits that the petitioner is not entitled to relief.”

Habeas Rule 4; Habeas Rule 1(b) (allowing application of Habeas Rules to Section 2241 petitions).

And for the following reasons, this case will be dismissed without prejudice.

I. Background

The petitioner is challenging his ongoing Sumner County prosecution for attempting to

possess narcotics.1 (Doc. No. 1 at 2.) That criminal case has been pending since June 2016,2 and

the course of proceedings includes an August 2019 mistrial. (See id. at 2–4, 7.) The petitioner

maintains that Judge David Dee Gay is biased against him for several reasons, including that: in

1 The petitioner also mentions an allegedly related Davidson County prosecution (Doc. No. 1 at 8 (“The

relat[ed] pending Sumner and Davidson County charges should not proceed”), but as explained below, the

substance of the claims asserted in the petition relate to the Sumner County proceedings.

2 The court takes judicial notice of this date from the Sumner County Criminal Court online records system.

See https://sumner.tncrtinfo.com/crCaseForm.aspx?id=1FFE0EF9-604F-4B8A-8E35-2DEEB821C070

(last visited Nov. 3, 2022); Fed. R. Evid. 201(b) (allowing judicial notice of facts that “can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned”).

December 2016, Judge Gay denied the petitioner’s motion for a speedy trial; in January 2017, the

petitioner filed a complaint against Judge Gay with the Board of Judicial Conduct; in February

2019, the petitioner named Judge Gay as a defendant in a civil case filed in this court;3 at the

petitioner’s first trial in August 2019, Judge Gay improperly removed an African-American juror

and prevented the petitioner from presenting exculpatory impeachment testimony to the jury; and

in July 2022, Judge Gay held a hearing on the petitioner’s motion to suppress, did not allow

litigation on the facts or law, and did not state any findings on the record. (Id.)

Following the July 2022 denial of his motion to suppress, the petitioner asked his counsel

to request an order setting out Judge Gay’s findings, but counsel refused. (Doc. No. 5 at 1–2.)

Counsel also refused to request an emergency interlocutory appeal of Judge Gay’s decision. (Id.

at 3.) Counsel “instructed the petitioner not to worry about the order and to focus on trial which is

quickly approaching” (id. at 2)—currently scheduled for January 2023. (Doc. No. 1 at 7.)

The petitioner also alleges that police and prosecutors suppressed evidence prior to his first

trial—namely, that the State’s key witness cooperated with law enforcement in exchange for

leniency in a separate criminal matter. (Id. at 5.) The petitioner maintains that, during an interview

in April 2019, this witness told his investigator a version of the events underlying his criminal case

that was inconsistent with the police’s account. (Id.) After the interview, police told the witness

not to sign any affidavits or speak further with the petitioner’s representatives. (Id. at 6.) The

3 There, the petitioner sued Judge Gay, Sumner County, a drug task force, and Officer Jason Arnold. Burley

v. Sumner Cnty. 18th Jud. Dist. Task Force, No. 3:19-cv-00118. He alleged that the drug task force seized

his property in February 2016, obtained civil forfeiture warrants for the property, and disregarded a state

court order to hold the property in safekeeping before a state court ruled that the forfeiture warrants lacked

legal authority. See id., Doc. No. 58 at 1–2 (M.D. Tenn. Feb. 17, 2021) (summarizing allegations). In March

2021, the court granted Officer Arnold’s motion to dismiss and Judge Gay’s motion for summary judgment.

Id., Doc. No. 59 (M.D. Tenn. Mar. 5, 2021.) In doing so, the court adopted the Magistrate Judge’s finding

that Gay provided “appropriate evidence that he was not the judge who issued the warrants upon which

Burley’s claims [were] based.” Id., Doc. No. 58 at 6–7. That case is currently pending against Sumner

County and the drug task force.

witness then “changed her account as told to the investigator to match that of the account given by

the” police. (Id.) Some time after the April 2019 interview (but presumably before his first trial in

August 2019), the petitioner filed a motion for a Franks hearing, and Judge Gay denied it. (Id.)

Based on these allegations, the petitioner asserts the following seven claims (six in the

original petition, and one in the amended petition):

1. Judge Gay did not allow a full and fair opportunity to litigate his Fourth Amendment

claims prior to denial of his motion to suppress in July 2022. (Id. at 2.)

2. Judge Gay is biased against him. (Id. at 3.)

3. Judge Gay violated his right to present a defense at his first trial. (Id. at 4.)

4. The state withheld impeachment evidence prior to his first trial. (Id. at 5.)

5. The state is violating his due process rights by continuing to rely on false and misleading

evidence in his prosecution. (Id.)

6. The state is denying his right to a speedy trial. (Id. at 6.)

7. Counsel was ineffective regarding Judge Gay’s July 2022 denial of his motion to suppress.

(Doc. No. 5 at 1–3.)

The petitioner requests immediate release, dismissal of the pending Sumner County charge

with prejudice to re-prosecution, quashing of his indictment, and any other relief the court finds

appropriate. (Id. at 7–8.) Alternatively, he requests transfer of his state criminal prosecution to a

jurisdiction outside Sumner County (id. at 8) and asks this court to hold a hearing on the merits of

the motion to suppress denied by Judge Gay in July 2022. (Doc. No. 5 at 3.)

II. Analysis

There is a “longstanding public policy against federal court interference with state court

proceedings.” Younger v. Harris, 401 U.S. 37, 43 (1971). To that end, federal courts should abstain

from considering a pretrial habeas corpus petition “if the issues raised in the petition may be

resolved either by trial on the merits in the state courts or by other state procedures available to the

petitioner.” Atkins v. People of State of Mich., 644 F.2d 543, 546 (6th Cir. 1981) (collecting cases).

In extraordinary circumstances, however, state pretrial detainees may seek federal habeas relief

from pending state prosecutions under 28 U.S.C. § 2241. See Christian v. Wellington, 739 F.3d

294, 297 (6th Cir. 2014). The few recognized circumstances that may justify federal review

include: (1) speedy-trial claims where a petitioner is seeking a prompt trial (rather than dismissal

of charges), Atkins, 644 F.2d at 546–47; (2) double jeopardy claims, Christian, 739 F.3d at 297;

(3) excessive bail claims, Atkins, 644 F.2d at 549; and (4) claims “to bar a state’s attempted retrial

rather than permitting a defendant to accept an initial plea offer originally rejected because of

ineffective assistance of counsel.” Fleming v. Hamilton Cnty. Just. Ctr., No. 1:19-cv-1006, 2020

WL 1872351, at *3 (S.D. Ohio Apr. 15, 2020) (citing Turner v. Tennessee, 858 F.2d 1201, 1204

(6th Cir. 1988), vacated on other grounds, 492 U.S. 902 (1989)).

Even if a claim may be considered as a general matter, however, a habeas petitioner still

“must exhaust all available state court remedies before proceeding in federal court.” Phillips v. Ct.

of Common Pleas, Hamilton Cnty., Ohio, 668 F.3d 804, 810 (6th Cir. 2012) (citation and footnote

omitted). “[E]xhaustion requires that the same claim under the same theory be presented to the

state courts before raising it in a federal habeas petition.” Smith v. Coleman, 521 F. App’x 444,

450 (6th Cir. 2013) (quoting Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009)). This exhaustion

requirement “protect[s] the state courts’ opportunity to confront initially and resolve constitutional

issues arising within their jurisdictions and to limit federal judicial interference in state

adjudicatory processes.” Atkins, 644 F.2d at 546 (citations omitted).

Of the petitioner’s seven claims, six are not suitable for consideration in a pretrial Section

2241 habeas petition, and one—his speedy-trial claim—is potentially cognizable but subject to

dismissal for failure to request an available remedy and failure to exhaust. The court will address

each category of claims in turn.

A. Claims Not Suitable for Consideration

Claims 1, 2, 3, 4, 5, and 7 are not among the recognized exceptions to the abstention

doctrine discussed above. This includes the petitioner’s challenges to the resolution of his motion

to suppress in July 2022 (Claim 1), counsel’s handling of Judge Gay’s ruling on this motion4

(Claim 7), and Judge Gay’s impartiality (Claim 2). See Patton v. Bonner, No. 20-5531, 2021 WL

2026933, at *2 (6th Cir. Apr. 7, 2021) (denying certificate of appealability on pretrial detainee’s

Fourth Amendment claims brought under Section 2241 because he did not make “a substantial

showing that he would be irreparably injured by having to litigate those claims in his state criminal

case”); Laird v. Pinkney, No. 1:17 CV 0059, 2017 WL 1854736, at *3 (N.D. Ohio May 5, 2017)

(finding that a claim challenging a state court’s denial of a motion to suppress “is not one of the

exceptions to abstention”); Labadie v. Bitner, No. 2:18-cv-41, 2018 WL 4090557, at *2 (W.D.

Mich. Aug. 28, 2018) (noting that claim of ineffective assistance during preliminary examination

was premature in Section 2241 petition); Laury v. Picaell, No. 08-CV-11391, 2008 WL 1456033,

at *1 (E.D. Mich. Apr. 10, 2008) (rejecting claim of judicial bias raised in Section 2241 petition

because the petitioner had “yet to be convicted of any criminal charges”).

4 The court notes the petitioner’s concern that he will be barred from appellate review of the July 2022

denial of his motion to suppress because counsel has allegedly refused to request an order stating Judge

Gay’s findings on the record. (Doc. No. 5 at 2.) But that concern—in addition to not being an extraordinary

circumstance justifying federal intervention in a state proceeding—appears to be unfounded. When a

convicted defendant challenges the denial of a motion to suppress on direct appeal, and the trial court did

not state its essential findings of fact on the record, the Tennessee Court of Criminal Appeals can remand

the case to the trial court to remedy that failure, if doing so is necessary to review the suppression issue.

See State v. Norton, No. M2009-01359-CCA-R3-CD, 2010 WL 4812852, at *5 (Tenn. Crim. App. Nov.

24, 2010) (remanding case for trial court to state on the record the factual findings and conclusions of law

supporting the denial of a motion to suppress).

This also includes the petitioner’s claim that the state is violating his due process rights by

continuing to rely on false and misleading evidence in his prosecution (Claim 5). This is a type of

Brady claim. See Brooks v. Tennessee, 626 F.3d 878, 894 (6th Cir. 2010) (“[A] false-testimony

claim falls under the Brady disclosure doctrine.”). And it is true that a Brady claim falls under the

umbrella of prosecutorial misconduct, prosecutorial misconduct “sometimes intersect[s]” with

“double jeopardy,” United States v. Paulus, No. 20-6017, 2021 WL 3620445, at *4 (6th Cir. Aug.

16, 2021) (citing Oregon v. Kennedy, 456 U.S. 667, 676 (1982)), and double jeopardy claims can

sometimes be considered in a pretrial habeas petition. See Christian, 739 F.3d at 297. But “the

type of intentional prosecutorial misconduct that implicates the Double Jeopardy Clause has not

been extended to Brady.” United States v. Paulus, No. 20-6017, 2021 WL 3620445, at *3 (6th Cir.

Aug. 16, 2021) (citing Oregon v. Kennedy, 456 U.S. 667, 676 (1982)). That is because these two

concepts have “different underpinnings. Double jeopardy ‘places a premium upon the defendant’s

right to one prosecution’ while ‘due process [(Brady)] simply requires that the defendant be treated

fairly.’” Id. at *5 (citing United States v. Coleman, 862 F.2d 455, 458 (3d Cir. 1988)). Accordingly,

the due process claim asserted in Claim 5 does not present one of the rare circumstances that may

provide a basis for pretrial habeas relief. See Lowe v. Prindle, No. 2:14-104-KKC, 2014 WL

3695386, at *1, 4 (E.D. Ky. July 24, 2014) (holding that pretrial habeas claims asserting a state’s

failure to disclose exculpatory materials is not an exception to the abstention rule).

Finally, it is not appropriate for this court to exercise jurisdiction over the petitioner’s

claims of error at his first trial stemming from Judge Gay’s asserted violation of his right to present

a defense (Claim 3) and the state’s asserted suppression of impeachment evidence (Claim 4). See

Hairston v. Franklin Cnty. Ct. of Common Pleas, No. 2:17-CV-00353, 2017 WL 2972151, at *1–

2 (S.D. Ohio July 12, 2017) (quoting Atkins, 644 F.2d at 546) (holding that claimed violations of

a defendant’s right to confront witnesses are among the claims that “may be resolved either by

trial on the merits in the state courts or by other state procedures available to the petitioner”); Lowe,

2014 WL 3695386, at *1, 4 (rejecting Section 2241 petitioner’s Brady claim). And because these

two claims relate to proceedings that ended in a mistrial, they are also moot. See Winburn v. Nagy,

No. 20-13045, 2021 WL 130966, at *5 (E.D. Mich. Jan. 14, 2021) (citations omitted) (holding that

claims concerning a prior proceeding that ended in a mistrial were moot because “a claim for

habeas relief becomes moot when the controversy between the parties is no longer alive because

the party seeking relief has obtained the relief requested”).

For all of these reasons, Claims 1, 2, 3, 4, 5, and 7 will be denied.

B. Speedy-Trial Claim

In Claim 6, the petitioner asserts that the state is denying his right to a speedy trial. As an

initial matter, the petitioner requests immediate release and dismissal of the pending state charge,

and that relief is not available for a Section 2241 speedy-trial claim. See Atkins, 644 F.2d at 549.

This claim is subject to dismissal for that reason alone. See Smith v. Burt, No. 19-1488, 2019 WL

5608064, at *2 (6th Cir. Oct. 28, 2019) (quoting Atkins, 644 F.2d at 546) (“Exhaustion of state

court remedies is ‘especially forceful’ if the claim involves the right to a speedy trial, given that

the relief granted—dismissal of the case—‘could not be more disruptive of pending state actions.’

Thus, relief is typically limited to forcing the State to bring the petitioner to trial, not to dismiss

the underlying charges outright.”).

Moreover, even liberally construing the petitioner’s open-ended request for “such other

relief as may be appropriate” (Doc. No. 1 at 8) to include a request to bring him to trial, he still has

not exhausted state court remedies. The petitioner filed a “demand for a speedy trial” in December

2016, Judge Gay denied relief, and the petitioner went to trial in August 2019. (Doc. No. 1 at 7.)

That proceeding ended in a mistrial, and the petitioner does not allege that he has filed any speedy-

trial motions in the trial court since that time. (See id.) The petitioner does make a passing reference

to “the state court’s inaction on [his] speedy trial motions” (id. at 9), but he does not provide any

context for this statement whatsoever, such as what motion (or motions) he is referring to, when

he filed them, what they argue, and what he means by the state court’s “inaction.” The petitioner,

moreover, seemingly concedes that the petition includes “unexhausted claims” by asking the court

to look past this deficiency based on the “special circumstances” of this case. (Id. at 8.)

Accordingly, the petitioner has not established that he “has availed himself fully of the state

machinery in attempting to have the state commence trial on the charges pending against him,” as

required to exhaust a speedy-trial claim. Atkins, 644 F.2d at 547.

The court recognizes that the exhaustion requirement applicable to Section 2241 habeas

petitions “may be excused . . . ‘where pursuing such remedies would be futile or unable to afford

the petitioner the relief he seeks.’” Smith v. Jackson, No. 20-2264, 2021 WL 2555478, at *2 (6th

Cir. June 3, 2021) (quoting Fazzini v. N.E. Ohio Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006)).

Here, the petitioner’s argument for excusing the exhaustion requirement is effectively the same as

his argument in support of the speedy-trial claim. (See Doc. No. 1 at 8 (“Petitioner asks that the

Court [accept] his unexhausted claims due to the special circumstances created by the nearly six

(6) year pending state criminal proceedings.”).) That the petitioner perceives this claim to have

merit, however, does not allow him to avoid making his speedy-trial argument to the state trial

court in the first instance, rather than petitioning this court for extraordinary federal intervention.

Finally, the petitioner seemingly argues that pursuing exhaustion would be futile because

he is represented by counsel in state court, and represented parties cannot file pro se motions. (Doc.

No. 5 at 3.) He is right that “Tennessee courts have consistently restricted defendants from

‘representing themselves while simultaneously being represented by counsel.’” Hill v. Carlton,

399 F. App’x 38, 43 (6th Cir. 2010) (quoting Williams v. State, 44 S.W.3d 464, 469 (Tenn. 2001)).

But Tennessee’s default rule against hybrid representation does not provide a free pass to forego

Section 2241’s well-established exhaustion requirement. See Wallace v. Sexton, 570 F. App’x 443,

451 (6th Cir. 2014) (holding that represented petitioner’s claims were not properly raised through

a pro se brief that was ignored by the state court). The petitioner does not attempt to explain how

this rule has prevented him from raising his speedy-trial argument in the trial court following the

August 2019 mistrial. Accordingly, the petitioner’s speedy-trial claim will be dismissed without

prejudice.

III. Conclusion

For these reasons, the petitioner is not entitled to federal habeas relief from his state

prosecution under Section 2241. Accordingly, this case is DISMISSED without prejudice.

The court takes judicial notice that the state trial court currently has a hearing scheduled

on an unspecified motion (or motions) on December 2, 2022, with trial set for January 18, 2023.5

The state court, therefore, appears to be acting to bring the petitioner’s case to trial in relatively

short order. If the petitioner remains dissatisfied with the pace of proceedings, however, he is free

to refile a fresh federal Section 2241 petition raising a speedy-trial claim in the future, provided he

seeks a prompt trial rather than dismissal of his state charge, and provided that he exhausts the

available state-court remedies before doing so.

The petitioner cannot appeal this adverse ruling without a certificate of appealability

(COA). See Habeas Rule 11(a). A COA requires “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, a habeas petition is “denied on

5 See https://sumner.tncrtinfo.com/crCaseForm.aspx?id=1FFE0EF9-604F-4B8A-8E35-2DEEB821C070

(last visited Nov. 3, 2022).

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, 253 (6th Cir. 2017) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)).

The petitioner has not satisfied this standard, so the court DENIES a COA. If the petitioner

files a notice of appeal in this court, however, he may request a COA directly from the Sixth Circuit

Court of Appeals. Fed. R. App. P. 22(b)(1).

It is so ORDERED.

United States District Judge

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