Patton v. Bonner

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

VERNON CHARLES PATTON, )

)

Petitioner, )

) No. 2:19-cv-02344-TLP-tmp

v. )

)

FLOYD BONNER, Shelby County Sheriff, )

)

Respondent. )

ORDER GRANTING MOTION TO DISMISS,

DISMISSING § 2241 PETITION WITHOUT PREJUDICE,

DENYING PENDING MOTIONS AS MOOT,

DENYING CERTIFICATE OF APPEALABILITY,

CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Vernon Charles Patton1 petitioned pro se for writ of habeas corpus under 28

U.S.C. § 2241. (ECF No. 1.) Respondent Shelby County Sheriff Floyd Bonner then moved to

dismiss. (ECF No. 18.) Petitioner timely responded (ECF No. 19) and filed an addendum to that

response (ECF No. 20). Respondent timely replied (ECF No. 21), and Petitioner filed a sur-reply

(ECF No. 22). For the reasons stated below, the Court GRANTS Respondent’s motion to

dismiss and DISMISSES the petition without prejudice. As the Court is dismissing the petition,

the Court DENIES AS MOOT all other pending motions. (ECF Nos. 6, 13, 23, 26, 32, 36, 39,

40, 43, 44, 47 & 57.)

1 Patton is a state pretrial detainee, booking number 17156195, at the Shelby County Criminal

Justice Complex (“the Jail”) in Memphis, Tennessee.

THE HABEAS PETITION

Petitioner moved for habeas relief pro se under § 2241 about his Shelby County Criminal

Court Indictment, No. 18-01030.2 (See ECF No. 1 at PageID 1; see also, ECF No. 18-1.)3

Petitioner alleges the following:

1. A Second Amendment violation of his individual right to possess a firearm and

use it in traditionally lawful purposes (id. at PageID 2–3);

2. Fourth Amendment violations because:

a. there was no physical evidence, including DNA evidence, to show that a

rape or sexual contact occurred on June 20, 2017 (id. at PageID 3);

b. the alleged victim changed her story, at first stating that there was no

sexual contact of any kind; then that Petitioner raped her and she was not a

virgin then; then that Petitioner raped her at gunpoint and took her

virginity; and finally that he threatened to kill her and her family if she

told anyone (id.);

c. Petitioner has a handgun license, but the search warrant and affidavit state

that he possessed a firearm illegally (id. at PageID 3–4);

d. there was no probable cause for his arrest and the charges of aggravated

rape were based on false allegations (id. at PageID 4);

e. there was active malicious suppression of the victim’s statement

exculpating Petitioner and false assertions that his possession of a firearm

was illegal (id. at PageID 5–6); and

f. the State has no inherent and inalienable right to arrest, charge, indict, and

convict Petitioner in spite of exculpatory evidence, valid determinations of

probable cause, or proof that a crime has been committed (id. at PageID

6–9);

3. Lack of subject matter jurisdiction (id. at PageID 9);

2 In 2018, a Shelby County Grand Jury indicted Petitioner, charging him with aggravated rape.

See https://cjs.shelbycountytn.gov/CJS/Home/ (Case No. C1708454, C1801397) (last accessed

Apr. 27, 2020). He has a trial date set for September 8, 2020. Id.

3 This Court had denied Petitioner habeas relief for failure to exhaust available state remedies.

(See ECF No.1-2; see also Civ. No. 2:18-cv-02377-TLP-tmp, ECF No. 8.)

4. Undue trial delay in violation of the Sixth Amendment right to a speedy trial (id. at

PageID 9–13).

Petitioner seems to want this Court to dismiss his indictment as the remedy for the alleged

constitutional violations. (Id. at PageID 14.) As explained below, this Court cannot grant him

that relief.

ANALYSIS OF PETITIONER’S CLAIMS

Respondent correctly points out that federal interference in state proceedings is only

warranted in extraordinary circumstances where the petitioner has exhausted his available state

court remedies. (ECF No. 18 at PageID 119.) Respondent contends that Petitioner has failed to

exhaust his claim and that he must first resolve these issues at a trial on the merits. (Id.; see ECF

No. 21 at PageID 187.) And Respondent notes that Petitioner’s petition is an effort to abort the

state proceedings and disrupt the orderly functioning of the state judicial process, so this Court

should dismiss it. (ECF No. 18 at PageID 120–21.)

Federal courts have authority under 28 U.S.C. § 2241(c)(3) to issue writs of habeas

corpus for a prisoner who “is in custody in violation of the Constitution or laws or treaties of the

United States[.]” But a federal court may not issue a writ of habeas corpus about a pending state

criminal prosecution except in extraordinary circumstances. See, e.g., Younger v. Harris, 401,

U.S. 37 (1971) (declining to enjoin prosecution under an unconstitutional statute); Fenner v.

Boykin, 271 U.S. 240 (1926); Ex parte Royall, 117 U.S. 241 (1884); Ballard v. Stanton, 833 F.2d

593 (6th Cir. 1987); Zalman v. Armstrong, 802 F.2d 199 (6th Cir. 1986). “‘Extraordinary

circumstances’ [must] render the state court incapable of fairly and fully adjudicating the federal

issues before it[.]” Kugler v. Helfant, 421 U.S. 117, 124 (1975).

For example, the Sixth Circuit has recognized a state prisoner’s attempts to seek a speedy

trial as one of those exceptional circumstances allowing for relief under § 2241. Atkins v. People

of State of Mich., 644 F.2d 543, 546 n.1 (6th Cir. 1981); see Kanerva v. Zyburt, No. 2:19-CV-

225, 2019 WL 6974736, at *2 (W.D. Mich. Dec. 20, 2019). Still, a federal court should abstain

from exercising jurisdiction over a speedy trial claim unless the prisoner has first exhausted the

claim in state court. Atkins, 644 F.2d at 546–48; Anglin v. Breckenridge Circuit Court, No.

3:11CV-P220-H, 2011 WL 1750787, at *1 (W.D. Ky. May 6, 2011). The petitioner must “fairly

present” each claim to all levels of state court review, including the state’s highest court on

discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), unless the state has explicitly

disavowed state supreme court review as an available state remedy, O’Sullivan v. Boerckel, 526

U.S. 838, 847–48 (1999).

The petitioner bears the burden of showing that he has exhausted his state remedies. See

Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Exhaustion of state court remedies is “especially

forceful” with a right to a speedy trial violation, given that the relief granted—dismissal of the

case—“could not be more disruptive of pending state actions.” Smith v. Burt, No. 19-1488, 2019

WL 5608064, at *2 (6th Cir. Oct. 28, 2019).

If a federal court finds that a state has violated a pretrial detainee’s right to a speedy trial,

the most common relief is an order forcing the State to bring him to trial rather than dismissal.

Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489–90 (1973) (“Petitioner

does not, however, seek at this time to litigate a federal defense to a criminal charge, but only to

demand enforcement of the Commonwealth’s affirmative constitutional obligation to bring him

promptly to trial.”); Atkins, 644 F.2d at 547–48; see Smith, 2019 WL 5608064, at *2 (“[T]he

district court properly denied relief to the extent that Smith sought to dismiss the state charges

outright.”).

What is more, criminal defendants in Tennessee have no right to take interlocutory

appeals on speedy trial motions. State v. Hawk, 170 S.W.3d 547, 548 (Tenn. 2005) (“We also

hold that the defendant is not entitled to seek interlocutory review of the trial court’s order

rejecting her alleged Sixth Amendment speedy trial violation.”). “The merits of a defendant’s

speedy trial claim can be best evaluated if raised on direct appeal following a conviction.” Id. at

555. When a defendant has no right to appeal a pretrial order denying his claim of a right to

speedy trial, the denial of that motion does not constitute a ruling that would show exhaustion of

his constitutional claim. See Moore v. DeYoung, 515 F.2d 437, 444–45 (3d Cir. 1975) (“This

issue is still available to Moore as an affirmative defense at trial and thereafter, on appellate

review.”).

Although Petitioner has complained to the Tennessee Board of Professional

Responsibility and tried to appeal to the Tennessee Court of Criminal Appeals and the Tennessee

Supreme Court, he has not shown that he exhausted all state remedies and state corrective

processes to protect his constitutional rights. (See ECF No. 21 at PageID 187–88.) This is

mainly because he must first confront these accusations at trial. The Tennessee Court of

Criminal Appeals noted that Petitioner has not gone to trial for this offense so there is no

available judgment for him to challenge. (ECF No. 1-4 at PageID 25.) And that court noted that

“Habeas Corpus is not available as a substitute for trial.” (Id.) This shows that Petitioner failed

to exhaust his remedies in the state’s judicial process.

Petitioner’s case is set for trial. So he can resolve the issues he presents in this federal

habeas petition at trial. And so he has failed to exhaust available state remedies. What is more,

Patton does not seek an order forcing the State to bring him to trial. Instead, he seeks dismissal

of his indictment, a form of relief which this Court cannot grant.

For these reasons, the Court GRANTS Respondent’s motion to dismiss and DISMISSES

WITHOUT PREJUDICE Petitioner’s § 2241 petition. This Court will enter Judgment for

Respondent.

APPELLATE ISSUES

A district court has to evaluate the appealability of its decision denying a habeas petition

and to issue a certificate of appealability (“COA”). 28 U.S.C. § 2253(a) and (c)(2); see Fed. R.

App. P. 22(b). Under 28 U.S.C. § 2253(c)(1)(A), unless this Court issues a COA, Petitioner may

not appeal here. Greene v. Tennessee Dep’t of Corr., 265 F.3d 369 (6th Cir. 2001).

Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x

771, 773 (6th Cir. 2005). The Court may only issue a COA if the petitioner makes a substantial

showing of the denial of a constitutional right, and the COA must reflect the specific issue or

issues that satisfy the required showing. 28 U.S.C. §§ 2253(c)(2) & (3). The petitioner makes a

“substantial showing” when he shows 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); see Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per curiam)

(same). A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at

337; Caldwell v. Lewis, 414 F. App’x 809, 814–15 (6th Cir. 2011).

Here, there can be no question that Petitioner has failed to exhaust his state remedies. So

any appeal here is baseless. Because any appeal on the issues raised in this § 2241 Petition do

not deserve attention, the Court DENIES a COA.

Federal Rule of Appellate Procedure 24(a)(1) provides that a party seeking pauper status

on appeal must first move in the district court, along with a supporting affidavit. That said, if the

district court certifies that an appeal would not be taken in good faith or otherwise denies leave

to appeal in forma pauperis, the prisoner must file the motion to proceed in forma pauperis in the

appellate court. See Fed. R. App. P. 24(a)(4)–(5). For the same reasons this Court denies a

COA, the Court holds that an appeal here would not be taken in good faith. The Court

CERTIFIES that an appeal would not be taken in good faith and DENIES leave to appeal in

forma pauperis.4

CONCLUSION

For the reasons above, the Court GRANTS Respondent’s motion to dismiss and

DISMISSES the petition without prejudice. And as the Court is dismissing the petition, the

Court DENIES AS MOOT all other pending motions. (ECF Nos. 6, 13, 23, 26, 32, 36, 39, 40,

43, 44, 47 & 57.) And the Court DENIES a COA, CERTIFIES that an appeal would not be

taken in good faith, and DENIES leave to appeal in forma pauperis.

SO ORDERED, this 28th day of April, 2020.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE

4 If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or move to

proceed in forma pauperis along with a supporting affidavit in the Sixth Circuit within 30 days of

the date of entry of this order. See Fed. R. App. P. 24(a)(5).