Ronald L. Davis v. Hershell D. Koger

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 14, 2000

RONALD L. DAVIS v. HERSHELL D. KOGER

Appeal from the Chancery Court for Maury County

No. 98-773 Stella L. Hargrove, Judge

No. M2000-01598-COA-R3-CV - Filed February 6, 2001

This appeal involves a dispute between a convicted felon and the lawyer appointed to represent him

in his efforts to reopen his post-conviction challenge to his conviction. After the efforts to set aside

his conviction proved unsuccessful, the prisoner sued the lawyer in the Chancery Court for Maury

County arguing that his civil rights had been violated because his lawyer had conspired with the

prosecutor and the trial judge to prevent him from obtaining the post-conviction relief to which he

believed he was entitled. The lawyer denied these allegations, and the prisoner moved for a

summary judgment. On June 15, 2000, the trial court summarily dismissed the prisoner’s complaint

on two grounds. First, the court concluded that it did not have subject matter jurisdiction to consider

claims regarding the denial of the prisoner’s request for post-judgment relief. Second, the trial court

concluded that the prisoner had failed to state a claim upon which relief can be granted. We affirm

the dismissal of the prisoner’s complaint.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and

PATRICIA J. COTTRELL, JJ., joined.

Ronald L. Davis, Henning, Tennessee, Pro Se.

Hershell D. Koger, Pulaski, Tennessee, Pro Se.

OPINION

Late one evening in May 1982, Ronald Davis and Tommy Lee King robbed the owner and

patrons of the Third Street Inn in Columbia. They ordered the owner and the patrons to lie on the

floor, and then Mr. King cold-bloodedly shot and killed the tavern owner. Mr. Davis and Mr. King

escaped in the slain man’s car but were later apprehended and prosecuted. Mr. King was convicted

of first degree murder and was sentenced to death. In November 1982, a Maury County jury

convicted Mr. Davis of aiding and abetting murder in the second degree, and he was sentenced to

serve ninety-nine years. Mr. Davis’s conviction was later upheld on direct appeal1 and in two post-

conviction proceedings2 and one habeas corpus proceeding.3

Mr. Davis has become quite familiar with the judicial system during his incarceration.4 In

mid-1996, he filed a motion in the Circuit Court for Maury County to reopen his post-conviction

challenge to his conviction. In August 1997, after Mr. Davis and his first appointed lawyer had an

irreconcilable disagreement, the circuit court appointed Hershell D. Koger, a lawyer from Pulaski,

to represent Mr. Davis.

Mr. Davis quickly began trying to dictate Mr. Koger’s trial strategy. In addition to the

grounds for post-conviction relief that Mr. Koger intended to raise on his behalf, Mr. Davis insisted

that Mr. Koger argue that his sentence was “void illegal” because it had been imposed by the jury

rather than the trial judge. To placate Mr. Davis, Mr. Koger included this ground in his motion, even

though it had little legal merit.5 The most significant argument Mr. Koger was advancing on Mr.

Davis’s behalf, in accordance with Tenn. Code Ann. § 40-30-217(a)(1) (1997), was based on the

Tennessee Supreme Court’s opinion in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), overruled in

part, State v. Doming, 6 S.W.3d 472, 475 (Tenn. 1999).

1

Davis v. State, No. 83-22-III (Tenn. Crim. App. Sept. 11, 198 4), perm. a pp. den ied conc urring in re sults only

(Tenn . Jan. 7, 198 5).

2

Davis v. State, No. 85-251-III, 1986 WL 5469 (Tenn. Crim. App. May 13, 1986) (No Tenn. R. App. P. 11

application filed) (affirm ing den ial of the first pe tition for po st-convic tion relief); Davis v. State, No. 89-77-III, 1989

W L 71039 (Tenn. Crim. A pp. June 29, 198 9), perm. app. denied (Tenn. Sept. 25, 1989) (affirming denial of the second

petition for post-conviction relief).

3

Davis v. Morgan, No. M 1999- 00965 -CCA -R3-PC , 1999 WL 1073 702 (Tenn. Crim. Ap p. Nov. 29, 1999),

perm. app. denied (Tenn. M ay 15, 2 000).

4

Mr. Da vis’s Ten n. Code Ann. § 41-21- 805 (19 97) affida vit reveals that since 1997, he has filed thirty-four

different lawsuits in state court alleg ing every thing from racial discrimination to conspiracy to “denial of copying

services.” He also serves as an “inmate legal adv isor” assisting other prisoners in preparing and filing their lawsuits.

Davis v. Holland, 31 S.W.3d 574, 574 (Tenn. Ct. App. 2000) (stating that Mr. Davis works as “an inm ate legal advisor”

for prisoners at the West Tennessee High Security Facility).

5

When Mr. Davis committed his crime in 1982, aiding and abetting second degree murder was punishable as

a Class X felony by a determinate life sentence or any num ber of years not less than ten. The sentence was imposed

by the jury. State v. Williams, 575 S.W.2d 948, 949 (Tenn. 1978). The Tennessee Criminal Sentencing Reform Act

of 1982 which replaced jury sentencing with judge sentencing did not apply to crimes committed prior to July 1, 1982.

Tenn. Code A nn. § 40-35-112(a) (repealed 1989). The Tennessee Court of Criminal Appeals has rejected an illegal

sentencing argument similar to the one M r. Davis m akes in this c ase. Taylor v. Morgan, M1999-01416-CCA-R3-PC,

2000 WL 1278373, at *3 (Tenn. Crim. App. Aug. 31, 2000) (Tenn. R. App. P. 11 application filed Nov. 2, 2000). The

Tennessee Court of Crim inal Appeals ha s also dismissed Mr. Davis’s habeas corpus petition based on this theory . Davis

v. Morgan, supra, no te 3.

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In March 1998, the circuit court heard Mr. Davis’s motion to reopen his petition for post-

conviction relief. During the hearing, the judge challenged Mr. Koger to set forth clearly which of

Mr. Davis’s multiple claims for relief he was advancing as meritorious. Mr. Koger candidly

responded that he believed that the State v. Trusty argument was his strongest argument. With

regard to the illegal sentencing issue that Mr. Davis had insisted on raising, Mr. Koger informed the

circuit court that

[O]ur final [issue] was that the defendant didn’t receive a sentencing

hearing and quite candidly I looked up the old law on that. This

offense was alleged to have occurred on May 27th, I believe, in 1982,

and the statute that took away jury sentencing and started judge

sentencing, and the comments applies only to offenses committed on

or after July 1, 1982. So candidly I don’t think we’ve got a valid

claim on that and I know of nothing of it being a retroactive

application.

In March 1998, after considering all of Mr. Davis’s arguments, the circuit court denied Mr. Davis’s

motion to re-open his post-conviction petition. The court noted:

All of those issues that you’ve just itemized have either been

adjudicated on the direct appeal in the first PCR or was waived,

except possibly those Trusty issues and this court has concluded that

one, that’s not a newly established right and that even if it was Mr.

Davis wouldn’t be able to fit his case under that holding because it’s

distinguishable in light of the indictment, the jury instructions, and

the verdict in the Davis case.

In December 1998, Mr. Davis filed this suit in the Chancery Court for Maury County

alleging that his civil rights have been violated during the March 1998 proceedings because Mr.

Koger had “intentionally with malice denied to make the court aware of [Mr. Davis’s] void illegal

sentence.” He also asserted that Mr. Koger “intentionally conspired with the assistant attorney

general to have [Mr. Davis] further confined [in prison] knowing that a grave error existed.”6 In his

answer to Mr. Davis’s complaint, Mr. Koger denied playing a role in any conspiracy to prevent Mr.

Davis from obtaining post-conviction relief and described the ethical constraints preventing him

from advancing Mr. Davis’s “illegal sentence” argument. He also denied that he was “acting under

6

Mr. Davis had previously filed another suit regarding his conspiracy theory. In that action, he had asserted

that the trial cour t, the prose cuting atto rney, an d the two lawyers a ppointe d to assist him w ith his first petition for post-

conviction relief had been partners in a conspir acy to pre vent him from o btaining p ost-conv iction relief. T his suit

proved to be with out me rit. Davis v. Wea therford, No. 01 A01-9 903-C V-001 59, 199 9 WL 96964 8 (Tenn . Ct. App. O ct.

26, 1999) perm. appeal denied (Tenn. Feb. 14, 200 0). As w e read M r. Davis’s c ompla int in this case, h e eviden tly

considers Mr. Koger to be a member of the same conspiracy.

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color of law” while he was representing Mr. Davis and asserted that Mr. Davis’s complaint failed

to state a claim upon which relief can be granted.

Thereafter, Mr. Davis filed a motion for summary judgment. In a supporting affidavit, he

argued that “attorney Koger did not represent me adequately due to my redress to Government

against state officials [sic] which he then became part of a conspiracy to help keep me confined

longer with a void illegal sentence [and] [t]hat attorney Koger also conspired with state officials by

poorly drafting of my motion to reopen [my] post conviction [petition] intentionally with malice.”

On June 15, 2000, the trial court dismissed Mr. Davis’s lawsuit on essentially two grounds. First,

the trial court concluded that it did not have subject matter jurisdiction to consider Mr. Davis’s

substantive claims regarding the denial of his petition for post-conviction relief. Second, the trial

court concluded that Mr. Davis’s complaint failed to state a claim under 42 U.S.C.A. §§ 1983,

1985(3) (West 1994) or any other cause of action. Mr. Davis has appealed from that decision.

I.

STANDARD OF REVIEW

Our role when reviewing summary judgments is well-settled. Summary judgments enjoy no

presumption of correctness on appeal. City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412

(Tenn. 1997); McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996).

Accordingly, reviewing courts must make a fresh determination concerning whether the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Staples v. CBL & Assocs., 15 S.W.3d 83,

88 (Tenn. 2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton, 942

S.W.2d 470, 472 (Tenn. 1997). Summary judgments are appropriate only when there are no genuine

factual disputes with regard to the claim or defense embodied in the motion and when the moving

party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04; Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995); Hart v. Tourte, 10

S.W.3d 263, 268 (Tenn. Ct. App. 1999).

Courts reviewing summary judgments must view the evidence in the light most favorable to

the nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor.

Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc., 937 S.W.2d 790, 792

(Tenn. 1996). Thus, a summary judgment should be granted only when the undisputed facts

reasonably support one conclusion -- that the moving party is entitled to a judgment as a matter of

law. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d at 26.

A party may obtain a summary judgment by demonstrating that the nonmoving party will be unable

to prove an essential element of its case, Byrd v. Hall, 847 S.W.2d 208, 212-13 (Tenn. 1993),

because the inability to prove an essential element of a claim necessarily renders all other facts

immaterial. Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993);

Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).

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II.

THE DENIAL OF MR. DAVIS ’S PETITION TO REOPEN HIS CLAIM

FOR POST -CONVICTION RELIEF

We turn first to the trial court’s conclusion that it was not the proper forum to entertain Mr.

Davis’s claims to the extent they involved the denial of his petition for post-conviction relief. We

need not tarry long because Tenn. Code Ann. §§ 40-30-204(a), -217(a) (1997) clearly require

petitions for post-conviction relief to be filed in the trial court where the petitioner was originally

convicted. Filing in the proper court is a “jurisdictional prerequisite” for any claim seeking post-

conviction relief. Oliphant v. State, 806 S.W.2d 215, 217 (Tenn. Crim. App. 1991). Mr. Davis was

convicted in the Circuit Court for Maury County, making it the place for any post-conviction

challenges. Accordingly, the trial court correctly concluded that the Chancery Court for Maury

County could not entertain Mr. Davis’s claims seeking post-conviction relief directly or indirectly.

III.

MR. DAVIS ’S CIVIL RIGHTS CLAIM

We turn next to Mr. Davis’s civil rights claim. To state a claim under 42 U.S.C.A. § 1983,

a plaintiff must allege facts showing (1) that he or she has been deprived of some identifiable right

secured by the Constitution and laws of the United States and (2) that the person who deprived him

or her of these rights was acting under color of state law. Mr. Davis’s claim against Mr. Koger

cannot satisfy the second requirement because court appointed counsel are not acting under color

of state law when they are representing a defendant in a state criminal proceeding. Polk County v.

Dodson, 454 U.S. 312, 324-25, 102 S. Ct. 445, 453 (1981); Driver v. Howard County Pub.

Defender’s Office, 575 N.E.2d 1001, 1005 (Ind. Ct. App. 1991). Because Mr. Koger was serving

as Mr. Davis’s court-appointed counsel with regard to reopening the post-conviction proceeding, he

was not acting under color of state law.

Private persons may, however, be found to be acting under color of state law if they are

engaged in a conspiracy with state officials to deprive another person of his or her federal rights.

Tower v. Glover, 467 U.S. 914, 920, 104 S. Ct. 2820, 2824 (1984); Humphreys v. Nager, 962 F.

Supp. 347, 352 (E.D.N.Y. 1997). To avoid tying up the resources of the parties and the courts in

wild goose chases, claims based on conspiracies to violate civil rights must be pled with factual

specificity. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990); Dolin ex rel. N.D.

v. West, 22 F. Supp. 2d 1343, 1350 (M.D. Fla. 1998). Instead of bald allegations that a conspiracy

existed, the plaintiff must plead enough operative facts to give rise to a reasonable inference that

a conspiracy existed, Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987); Arsenaux v.

Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982). Thus, civil rights plaintiffs relying on a conspiracy

theory must provide some details of the time, place, and alleged effect of the conspiracy. Fobbs v.

Holy Cross Health Sys. Corp., 29 F.3d 1439, 1449 (9th Cir. 1994); Humphreys v. Nager, 962 F.

Supp. at 352. Complaints lacking the required specificity are subject to dismissal. Swoboda v.

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Dubach, 992 F.2d 286, 290 (10th Cir. 1993); Lynch v. Cannatella, 810 F.2d at 1369-70; Martin v.

Delaware Law Sch., 625 F. Supp. 1288, 1297 (D.De. 1985).

These rules developed over the years by the federal courts dovetail with our general rules of

pleading. Tenn. R. Civ. P. 8.01(1) requires plaintiffs to provide plain statements in their complaints

demonstrating that they are entitled to the relief they seek. While pleaders are not required to recite

in minute detail all the facts giving rise to their claims, they must include in their complaint some

direct factual allegations on every material point that is relevant to their causes of action. Donaldson

v. Donaldson, 557 S.W.2d 60, 61-62 (Tenn. 1977); Jasper Engine & Transmission Exch. v. Mills,

911 S.W.2d 719, 720 (Tenn. Ct. App. 1995).

Mr. Davis is untrained in the law and is representing himself in this proceeding.

Accordingly, no matter how frequently he litigates on behalf of himself and others, we must hold

his pleadings to less stringent standards than pleadings drafted by lawyers. Winchester v. Little, 996

S.W.2d 818, 824 (Tenn. Ct. App. 1998); Fox v. Tennessee Bd. of Paroles, No. 01A01-9506-CH-

00263, 1995 WL 681135, at *3 (Tenn. Ct. App. Nov. 17, 1995) (No Tenn. R. App. P. 11 application

filed). However, we must be mindful of the boundary between fairness to a pro se prisoner and

unfairness to the State of Tennessee. Thus, we cannot excuse Mr. Davis from complying with the

same substantive and procedural rules that represented parties are expected to observe, Kaylor v.

Bradley, 912 S.W.2d 728, 733 n.4 (Tenn. Ct. App. 1995), and we cannot create claims from

pleadings where none exist. Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App.

1994); Brown v. City of Manchester, 722 S.W.2d 394, 397 (Tenn. Ct. App. 1986).

Mr. Davis’s claim rests on nothing more than his erroneous belief that he was entitled to be

sentenced under the Tennessee Criminal Sentencing Reform Act of 1982 and his dissatisfaction with

the emphasis his two appointed lawyers placed on his meritless argument that he was somehow

deprived of a sentencing hearing. No matter how liberally we view Mr. Davis’s complaint, we have

been unable to discover sufficiently precise factual allegations to give rise to a reasonable inference

that Mr. Koger conspired with a judge of the Circuit Court of Maury County and the Office of the

District Attorney General for the Twenty-Second Judicial District to deprive Mr. Davis of his

federally-protected civil rights. Nowhere does he show how Mr. Koger’s justified lack of

enthusiasm for his illegal sentence claim arose from any sort of collusion with the prosecution or the

judge presiding at the hearing. Accordingly, we concur with the trial court’s conclusion that Mr.

Davis’s complaint fails to state a claim for relief under 42 U.S.C.A. §§ 1983, 1985(3) or under any

other theory.

IV.

We affirm the judgment dismissing Mr. Davis’s “Complaint for Violation of Civil Rights”

and remand the case to the trial court for whatever further proceedings may be required. We tax the

costs of this appeal to Ronald L. Davis for which execution, if necessary, may issue.

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____________________________

WILLIAM C. KOCH, JR., JUDGE

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