Petition for Writ of Certiorari — Houston v. Finnell

supreme Uuurt, u.s.

‘eee 2

962020 JAN 17 1997

OFFICE OF THE CLERK

NO.

IN THE SUPREME COURT

FOR THE UNITED STATES OF AMERICA

October Term, 1997

CLIFFORD LEON HOUSTON,

Petitioner.

Vv.

CONRAD FINNELL; JOHN DUFFY: GARY HUMPHRIES; DALE

BROWN; BRYAN MULLINS; TONY GWINN: JIMMY

WASIIAM; RANDY SCARBROUGIL.

Respondents.

Petition For A Writ of Certiorari

To The United States Court Of

Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Clifford Leon Houston

412 Barnard Narrow Road

Ten Mile, Tennessee 37880

(423) 376-7839

Petitioner - Pro Se

¥.

QUESTIONS PRESENTED

Whether attorney Conrad Finnell properly

advised Petitioner of his Constitutional rights

to an appeal and other legal options.

Whether attorney Conrad Finnell acted

effectively as counsel for the Petitioner when

false and/or misleading testimony and evidence

was allowed to be introduced to the jury trial

phase. (marijuana evidence).

Whether attorney Conrad Finnell effectively

represented Petitioner by not objecting to the

introduction of false evidence and testimony

(marijuana) which Mr. Finnell brought to the

trial court's attention and then allowed it to be

introduced by an agreed order.

Whether attorney Conrad Finnell acted

ellectively and in petitioner's best interests

when he told Petitioner he would counter the

entry of the introduction of the alleged

evidence (marijuana) at the initial trial of this

action.

Whether attorney Conrad Finnell acted

cllectively when he abandoned Petitioner

without explaining all options available in this

action and whether Mr. Finnell advised

Petitioner of his Constitutional due process

rights which Mr. Finnell was hired to protect.

VI Whether the Kingston Police Ollicers and

attorney John Dully allowed false and

misleading testimony and evidence to be

introduced to the jury when they knew the

samme to be false and misleading

Vil. Whether the lower courts acted properly by

statute of limitation regarding the due process

violation and when Petitioner was not advised

of all ns legal options when counsel

discharged his duties.

TT

TABLE OF CONTENTS

Questions Presented

Table of Contents

Appendix

Table of Authorities

Jurisdiction

Constitutional Provisions Provided.

Statement of the Case

Arguments

Conclusion

iV

APPENDIX

Micmorandum Opinion and Order of United States

Court for the Eastern District of Tennessee

al Knoxville, dated January 4, 1996

Order of United States Court of Appeals for

the Sixth Circuit, dated October 29, 1996

Letter from Angela Randolph dated 10/13/95...........

letter from Conrad Finnell dated April 7, 1993.

Letter from Conrad Finnell dated November 19, 1993

excerpts from Plaintil¥s' Pleading...........................

Stipulation for Release of Lixhibits, dated 7/6/95

Page

App. |

App. 6

App 10

App 1]

App 12

App 15

App 25

Vv

TABLE OF AUTIIORITIES

CASES

Bridgford v. United States, 550 F.2d 978

(CA4 id | CC ar re

Bruiley v, California, 564 F.2d 849

Exmcious_v. United States, 563 F.2d 418

(CAIO ot: eee ae

Jordan v, United States, 503 F.2d 620

(CAG 1974)

744 S.W.2d 574 (Tenn. Ct. App. 1987).

Ockerman v, May Zima & Co, 785 F Supp. 695,

remanded 27 F.3d 115d...

Volunteer Medical Clinic y.

Operation Rescue, 948 F.2d 218

RULES

Supreme Court Rule 13.1

STATUTES

42 U.S.C. § 1983

Pape

aaa

6

vi

CONSTITUTIONAL PROVISIONS

lourth Amendment

hitth Amendment

Sixth Amendment

laighth Amendment

Fourteenth Amendment

tr

Nm

No. _

In The

SUPREME COURT of the UNITED STATES

October Term, 1997

CLIFFORD LEON HOUSTON

Petitioner,

Vv.

CONRAD FINNELL: JOHN DUFFY; GARY HUMPHRIES: DALE

BROWN; BRYAN MULLINS: TONY GWINN: JIMMY

WASHAM; RANDY SCARBROUGH,

Respondents.

Petition For A Writ Of Certiorari

To The United States Sixth Circuit

Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

Petitioner, Clifford Leon Houston, respecttully prays that a

writ Of certiorari issue to review the judgment and opinion from the

United States District Court for the Eastern District of Tennessee,

entered January 4, 1996. and the Order of the United States Court of

Appeals for the Sixth Circuit aftirming the district court's dismissal of

petitioner's complaint for tailing to state a claim.

2

JURISDICTION

The judgment and opinion of the United States District Court

for the Eastern District was entered on January 4, 1996. The Order

from the United States Court of Appeals for the Sixth Circuit was

entered on October 29, 1996. Petitioner would respecttully submit

that this Petition for Writ of Certiorari is timely filed within the ninety

day time period permitted by Supreme Court Rule 13.1.

CONSTITUTIONAL PROVISIONS INVOLVED

FOURTH AMENDMENT

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall

not be violated; and Warrants shall not issue but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger, nor

shall any person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private property be

taken for public use, without just compensation.

SIXTH AMENDMENT

In al) criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which district

shall have been previously ascertained by law, and to be informed of

3

the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defense.

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

FOURTEENTH AMENDMENT

Section |. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof. are citizens of the

United States and the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or immunities of

citizens of the United States: nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.

iia A

———————

4

STATEMENT OF THE CASE

Petitioner brought this pro se action pursuant to 42 U.S.C. §

1983. In particular, petitioner contends that his civil nyhts as

guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendments of the United States Constitution have been violated by

the respondents and thus, petitioner is entitled to damages. Petitioner

contends that the respondents conspired with each other which

adversely affected the outcome of the civil rights trial in which

petitioner and another individual had sued the City of Kingston,

Tennessee, the Kingston Police Department, and certain individual

police officers, including Police Chief Gary Humphries. Petitioner

contends that some of the respondents conspired to commit perjury

and manufactured certain evidence - a Crown Koyal bag containing

marijuana - into his civil nights trial.

BE CS

a

5

ARGUMENTS

Petitioner submits that respondents filed a Pretrial Order

showing that neither of the Plaintiffs in the original cause of action

were charged with or in possession of drugs. (See Exhibit A).

Petitioner will show this Honorable Court that there was no

indictment in the original cause of action as to criminal charges. (See

Exhibits B and B-1). In addition, petitioner submits a letter from

respondent Conrad Finnell to Petitioner regarding no evidence of any

wrongdoing on the part of the Plaintiffs. (See Exhibit B-2). Dennis

Humphries, the Attorney General for Roane County, Tennessee

stated to Petitioner that he never received any evidence (marijuana)

during the prosecution of Petitioner's case, therefore, Attorney

General Humphries did not seek an indictment for possession of

drugs.

Petitioner can show this Honorable Court that Mr Finnell did

not counter the introduction of the alleged evidence in this cause and

allowed the alleged evidence and testimony to be admitted and

introduced to the jury by signing an Agreed Order. (See Exhibit C).

Mr. Finnell told Petitioner that the alleged evidence was green and

fresh and thus, could not have been the evidence seized at petitioner's

residence because three (3) years had elapsed. Officer Dale Brown,

of the Kingston City Police Department, testified at trial that he had

kept this evidence in his safe at his personal residence for over a year.

Mr. Brown did not offer an explanation as to why he had kept the

evidence at his home instead of an evidence room at the police

department. Mr. Finnell never objected to the alleged evidence or the

testimony surrounding the evidence. Nor was there a

contemporancous objection made for the purpose of an appeal in this

matter.

Petitioner further submits to this Honorable Court that

attorney John Duffy and the other respondents came to the United

States Federal District Court for the Eastern District of Tennessee

and produced the alleged evidence (a bag of marijuana) that was in no

way related to the prosecution of the Plaintiffs and used a chain of

ee

6

custody to show it was taken from the Plaintiffs’ residence when the

Attorney General had no knowledge of this alleged evidence and did

not seek an indictment for possession of drugs. If the Attorney

Gencral never possessed the alleged evidence for indictment, a chain

of custody cannot be established. (See Exhibit D).

Petitioner submits that the above stated reasons demonstrate

conspiracy for the purpose of depriving petitioner, either directly or

indirectly, equal protection of the laws or of equal privileges and

immunities under the laws as a United States citizen. Volunteer

Medical Clinic, Inc., v. Operation Rescue, 948 F.2d 218.

In the Sixth Circuit, a finding of an agreement to accomplish a

wrongful purpose is required in order to find a conspiracy...

Ockerman y, May Zima & Co., 785 F. Supp. 695, remanded 27 F.3d

11S1.

Additionally, petitioner submits that the statute of limitations

did not begin to run until he became aware of this wrongful act on

July-6, 1995. (See Exhibit B-1). Petitioner was told by Attorney

General Humphnes that Mr. Humphries had never been given the

alleged evidence during the Plaintiffs’ prosecution. Therefore,

Petitioner submits that the actual injury occurred on July 6, 1995

when he obtained a certified copy of the Stipulation of Release of

Exhibits. (Exhibit C). This action is within the statute of limitations.

In Briley y. California, 564 F.2d 849, federal law determines when the

statute begins to run under 42 U.S.C. § 1983. The established rule is

that where the plaintiff has been injured by fraud or concealment and

remains in ignorance of it without fault or want of diligence on his

part, the statutory period does not begin to run until discovery of the

injury. In the instant case, petitioner will show that he diligently

sought the truth. Petitioner was left to think he had overlooked

something in his criminal dismissal. It was petitioner's understanding

that Mr. Finnell had not fully informed petitioner of all legal options

available. Petitioner submits the true dates regarding the falsified

evidence and testimony to this Honorable Court. The statute of

limitations did not begin to run until the attorney's negligence had

TT TT A NS

resulted in injury to the petitioner. There was no proof of such injury

at the time petitioner was notified of the Agreed Order. See,

National Mtg. Co. v. Washington, 744 S.W.2d $74 (Tenn. Ct. App.

1987). A right of action will not accrue to start the running of the

statute cf limitations, until there is a person or persons capable of

suing or being sued. This action is within the statute of limitations.

Generally speaking, time begins to run under such statutes when, and

only when, the cause or right of action has accrued Or arisen. The

Statute of limitations begins to run immediately upon the accrual of

the cause of action. Petitioner contends that this lawsuit was filed on

November 20, 1995 because Mr. Finnell suppressed this action by not

releasing the petitioner's file or records: thus, still presenting himself

as the attorney of record.

The Court of Appeals relied on three federal cases that held or

indicated or mandated that a malpractice plaintiff under the federal

Act must know the legal implications of the facts, as well as the facts

themselves, before the limitations period will begin to run. See,

Exnicious v United States, 563 F.2d 418 (CA10 1977). Bridgford y,

United States, 550 F.2d 978 (CA4 1977); and Jordan v. United

States, 503 F.2d 620 (CA6 1974).

Although petitioner received a jury verdict and damayves in the

amount of $150.00, it is petitioner's contention that had the alleged

evidence not been admitted, the jury would have viewed petitioner's

case in a more favorable light and would have increased his Original

damages award.

8

CONCLUSION

Petitioner respectfully requests this Court to grant the Petition

for Writ of Certiorari, reverse the Tennessee Appellate Court Order,

and direct this case back to the District Court for a new hearing. For

the foregoing reasons stated above, petitioner requests that this cause

of action be directed back to the District Court for a hearing on the

statute of limitations.

Respectfully submitted,

CLIFFORD LEON HOUSTON

412 Barnard Narrow Road

Ten Mile, Tennessee 37880

(423) 376-7839

Petitioner - Pro Se

a

App. |

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

CLIFFORD LEON HOUSTON ) ;

Plaintiff )

V. ) No. 3:95-cv-645

KINGSTON, TENNESSEE, et al., )

Defendants )

MEMORANDUM OPINION

The pro se plaintiff brings this action pursuant to 42 U.S.C.

1983. In particular, plaintiff claims that his civil rights as guaranteed

by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the

United States Constitution have been violated by these defendants,

and that he is therefore entitled to $10 million in compensatory

damages and $10 million in punitive damages. Essentially, the basis

tor plaintiff's claim is that the defendants conspired with each other to

adversely affect the outcome of the trial of a civil nghts action in

which plaintiff and another individual had sued the City of Kingston,

Tennessee, its police department, and certain of its police officers,

including its police chief, Gary Humphreys. Among plaintif!'s more

specilic allegations are that some of the defendants conspired to

commit perjury and to introduce certain evidence -- a Crown Royal

bag containing marijuana -- into his civil nghts trail, which was heard

by the Honorable Thomas G. Hull, a United States judge of this

District. This matter is presently before the court on the motion to

App. 2

dismiss [Doc. 2] filed by Judge Hull, who is also proceeding pro se in

this matter. Plaintiff has failed to timely respond to this motion, see

LR 7.1(a), E.D.TN., and is therefore deemed to have waived any

response thereto. See LR 7.2, E.D.TN. For the reasons that follow,

Judge Hull's motion will be granted, and this case will be dismissed

In his motion, Judge Hull first contends plaintitl's # 1983

action is barred by the applicable one-year statute of limitations. The

court agrees. With respect to actions brought pursuant to # 1983, the

law is well settled that federal courts must refer to state statutes and

state law to determine the statute of limitations and any applicable

tolling rules. Board of Regents, Etc. v. Tomanio, 446 U.S. 478, i

484-85, 100 S.Ct. 1790, 1794-95, L.Ed.2d 440 (1980). Tennessee

law sets a one-year statute of limitations for violations of # 1983.

See Tenn Code Ann. # 28-3-104(a)(Supp. 1995).? See also Redd v.

' The court also notes for the record that defendants City

of Kingston, Tennessee, Roane County Sherit!’s Department,

Kandy Scarbrough, Gary Humphreys, Dale Brown, Bryan

Mullins, Tony Gwinn, Jimmy Washam, John C. Duffy, and the

law olflice of Watson, Hollow & Reeves, field a motion to

dismiss on December 18, 1995 [see Doc. 23]. Likewise,

defendants Conrad Finnell, P.C., and Associates, and Conrad

Finnell, Individually, filed a motion to dismiss on January 2,

: 1996 [see Doc. 26]. Obviously, the time for plaintiff to

respond to these two motions to dismiss has not yet expired.

See LR 7.1(a), E.D.TN. Nevertheless, these motions

will be denied as moot, in view of the fact that Judge Hull's

motion will be granted based on plaintiff's failure to file within

the applicable statute of limitations period, which is one of the

very same grounds upon which all other defendants base their

pending motions to dismiss.

* 28-3-104. Personal tort actions. - (a) The following

actions shall be commenced within one (1) year after the

cause of action accrued:

APP 3

Giless, 857 F'. Supp. 601, 605 (W.D. Tenn. 1994)("the time limit for

filing a section 1983 action is not set by this court, but is determined by

Statute."),

Here, plaintiff contends that the defendants conspired to violate

his civil rights: during the trial of a civil rights action which occurred

December 8 and 9, 1993. The last alleged overt act in the purported

conspiracy was the authorization by the Honorable Thomas W. Phillips, a

United States magistrate judge of this District, for the release of

contraband to the law enforcement agency which introduced it at trial.’

This act also occurred on December 9, 1993. This action was not filed

until November 20, 1995. nearly two years after plaintiff's cause of action

accrued. Thus, the complaint indicates on its face that it is barred by the

applicable one-year statute of limitations. Judge Hull's motion must

theretore be granted.

Order accordingly, January 4, 1996

/s/ JAMES H. JARVIS

UNITED STATES DISTRICT JUDGE

(3) civil actions for compensatory or punitive

damages, or both, brought under the federal civil rights

Statutes;

3 Judge Phillips is also named as a defendant in this case.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

CLIFFORD LEON HOUSTON )

Plaintiff )

V. ) No. 3:95-cv-645

KINGSTON, TENNESSEE, et al, )

Defendants )

ORDER

For the reasons set forth in the Memorandum Opinion this day

passed to the Clerk for filing, it is hereby ORDERED that the motion

to dismiss [Doc. 2] filed by the Honorable Thomas G. Hull, United

States District Judge, be, and the same hereby is, GRANTED

whereby this case is DISMISSED WITH PREJUDICE as to all

defendants. See Rule 12(b)(6), Federal Rules of Civil Procedure. It

is further ORDERED that the following motions be, and the same

hereby are, DENIED AS MOOT:

(1) Motion to dismiss [Doc. 23]

filed by defendants City of Kingston,

Tennessee, Roane County Sheriff's

Department, Randy Scarbrough, Gary

APP 5

Humphreys, Dale Brown, Bryan Mullins,

Tony Gwinn, Jimmy Washam, John C.

Dufly, and the law office of Watson,

Hollow & Reeves: and

(2) Motion to dismiss | Doc. 26] filed

by defendants Conrad Finnell, P.C. &

Associates, and Conrad Finnell,

individually.

ENTER: January 4, 1996

/s/ JAMES H. JARVIS

UNITED STATES DISTRICT JUDGE

App. ©

No. 96-5201

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CLIFFORD L. HOUSTON,

Plaintifl-Appellant,

KINGSTON, TENNESSEE, ROANE

COUNTY SHERIFF'S DEPARTMENT,

KINGSTON POLICE DEPARTMENT,

RANDY SCARBROUGH, individually

and in his official capacity as

investigator at the Roane County

Sheriff's Department; GARY

IIUMPHREYS, individually and in

his oflicial capacity as Chief

of the City of Kingston Police

Department; DALE BROWN,

individually and in hts official

capacily; BRYAN MULLINS,

individually and in his official

capacity; TONY GWINN, individually

and in his official capacity;

JIMMY WASHAM, individually and in

his official capacity, THOMAS G.

IIULL, individually and in his

ollicial capacity, ADMINISTRATIVE

OFFICE OF THE UNITED STATES

COURTS, JANET RENO, in her official

capacity; KARL K. KIRKPATRICK, in

his official capacity, CONRAD

FINNELL, P.C. and Associates;

JOUIN C. DUFFY, individually and

we? Net Ne ee Se Nee Se Se Se See Se Se Ne “Se Se We’ Se Net Ne ee Se ee ee ee ee ee ee eee ee ees Se”

App. 7

in his official capacity; Law Office of

WATSON, HOLLOW & REEVES;

LOUIS FREEH, Director of the

l‘ederal Bureau of Investigation,

in his official capacity, BING

BRIDGES, individually and in his

oflicial capacity, HARRY FRANZ,

individually and in his official

capacity, THOMAS W. PHILLIPS,

individually and in his official

capacity,

—— — a oe — oO — ae a — — oo —

Detendants-Appellees.

Before: MARTIN, Chief Judge; WELLFORD and MOORE,

Circuit Judges.

Clifford L. Houston, proceeding pro se, appeals a district

court order granting the defendants’ motion to dismiss his complaint

for failure to state a claim under Fed. R. Civ. P. 12(b)(6). This case

has been referred to a panel of the court pursuant to Rule 9(a), Rules

of the Sixth Circuit. Upon examination, this panel unanimously

aurees that oral argument is not needed. Fed. R. App. P. 34(a).

Bringing this suit under 42 U.S.C. # 1983, Houston sued the

City of Kingston, Tennessee, several municipal employees, and

several federal defendants, including Janet Reno and the Director of

the FBI. Houston sued some of the defendants in their individual and

official capacities, and some only in their official capacities.

Specifically, Houston alleged that these defendants violated

his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth

Amendments, and also violated state law, when they conspired to

commit perjury and ‘to introduce fabricated evidence into his civil

rights trial that took place in December 1993.

Ee

App. 8

After considering defendant Hull's motion to dismiss under

Rule 12(b)(6), the district court determined that motion should be

yranted, because the action was barred by the applicable one-year

statute of limitations set forth in Tenn. Code Ann. # 28-3-104(a)

(Supp. 1995). On appeal, Houston argues that his complaint ts not

barred because the statute of limitations should be measured from

July 6, 1995, rather than from December of 1993.

While the district court did not expressly dispose of Houston's 3

supplemental state law claims, dismissal of these claims was implicit

within the court's judgment. Ford Motor Co, y, Transport Indem, (,

Co,, 795 F.2d 538, 543 (6th Cir. 1986). However, Houston has

abandoned his state law claims, on appeal. Boyd v, Ford Motor Co.,

948 F.2d 283, 284 (6th Cir. 1991), cert, denied, 503 U.S. 939 (1992).

The district court properly dismissed this suit pursuant to Fed.

R. Civ. P. 12(b)(6) because, even when Houston's complaint is

construed in a light most favorable to the plaintiff and even when

Houston's factual allegations are accepted as true, Houston

undoubtedly can prove no set of facts in support of his claim that

would entitle him to relief. LRL Properties vy, Portage Metro Hou,

Auth., 55 F.3d 1097, 1103 (6th Cir. 1995). Houston's compliant is

clearly barred, for the reasons stated by the district court. Sevier v.

‘Turner, 742, F.2d 262, 272 (6th Cir. 1984). Houston's cause of

action accrued at the time of the trial in December of 1993, when

Houston knew or had reason to know of the injury that is the basis of

his action. Friedman y, Estate of Presser, 929 F.2d 1151, 1159 (6th

Cir. 1991). The one-year statute of limitations also applies to

Houston's claims that were filed against the federal defendants

pursuant to Bivens vy, Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 390-97 (1971). See Butz v. Economou,

438 U.S. 478, 503-04 (1978); McSurely v. Hutchison, 823 F.2d

1002, 1005 (6th Cir. 1987), cert. denied, 485 U.S. 934 (1988).

APP 9

Accordingly, the district court's order dismissing this complaint

for failure to state a claim is affirmed. Rule 9(b)(3), Rules of the Sixth

Circuit.

ENTERED BY ORDER OF THE COURT: October 29, 1996

Is) LEONARD GREEN, JR.

| CLERK

APP 10

Ollice of

ANGELA RANDOLPH

Circuit & Criminal Court Clerk

Roane County

P.O. Box 73

Kingston, Tennessee 37763

Ifon. Russell E. Simmons, Jr. Hion E. Eugene Eblen

Circuit Judge Criminal Judge

October 13, 1995

lO WILOM IT MAY CONCERN:

| have checked our Grand Jury docket from June 1990

through June 1992 and did not find any cases against Clifford Leon

{touston. | also checked our computer from 1991 to present and

found no cases on Mr. Houston.

lf 1 can be of further assistance, please feel free to contact me

at (423)376-2390.

Yours truly,

/s/

4S Wave mber GF

Anycte Kenoledih

H ly fase

Barbara Scalf, Chief Deputy

Pyhihl -E

Exhibl PS 8 A-l

APP 11

Law Offices

CONRAD FINNELL, P.C. AND ASSOCIATES

P.O. Box 1476

217 Broad Street, NW

CLEVELAND, TENNESSEE 37364-1476

(615) 472-339]

(615) 472-0961 (OFFICE NIGHT)

FACSIMILE NUMBER (615) 479-5597

LAWRENCE TL. PUCKETT Ol COUNSEL,

ASSOCIATE COUNSEL ALVIN Y. BELL

SUITE 1217, FIRST TENNESSEE BANK BLDG.

OF COUNSEL CHATTANOOGA, TENNESSE 37402

BILL B. MOSS (G15) 266-6461

April7, 1993 ween nnn

RALPH LARWELL

2131 PLAZA TOWER

KNOXVILLE, TENNESSEE 37929

(615) 637-8900

John C. Duffy

WATSON, HOLLOW & REEVES

P.O. Box 131

Knoxville, TN 37901-0131

RE: Houston vs. City of Kingston, ct al.

U.S.D.C. #3-91-402

Dear John:

Plcase tind enclosed two agreed orders which you sent to me which |

have approved together with a proposed agreed order amending the

complaint and also supplementing the original pretrial order. I trust that

you will see that all of these three agreed orders are properly entered.

Very truly yours,

/s/ CONRAD FINNELL

CI/mje

L-nclosures (Pleadings)

c: Leon Houston

Conley Brown

Dictated but not read.

APP 12

Law Offices

CONRAD FINNELL, P.C. AND ASSOCIATES

P.O. Box 1476

217 Broad Street, NW

CLEVELAND, TENNESSEE 37364-1476

(615) 472-3391

(615) 472-0961 (OFFICE NIGHT)

FACSIMILE NUMBER (615) 479-5597

LAWRENCE H. PUCKETT OF COUNSEL

ASSOCIATE COUNSEL ALVIN Y. BELL

SUITE 1217, FIRST TENNESSEE BANK BLDG.

OF COUNSEL CHATTANOOGA, TENNESSEE 37402

BHI. B. MOSS (615) 266-6461

November 19,1993 j= = = qna------

RALPILTARWELIL,

2131 PLAZA TOWER

KNOXVILLE, TENNESSE: 37929

(615) 637-8900

Leon Flouston

Route 2, Box 179

Ten Mile, TN 37880

Conley Brown

Route 1, Box 179

Kingston, TN 37763

Dear Leon and Conley:

{ had a long talk with Attorney John Duffy and he has told me

some things about his insurance coverage in this case that | need to

discuss with you.

First of all, he says there is no liability insurance coverage for any

award of punitive (as distinguished from compensatory) damages. He

also tells me that if the jury finds a verdict based on “outrageous

conduct" that this will void any insurance coverage in the case for all

damayes

{SS

APP 13

page two

RE: Houston & Brown

November 19, 1993

| do not really think we need a punitive damages claim or an

outrageous conduct claim in this case when we go to the jury. We still

have the false arrest, false imprisonment, malicious prosecution, illegal

seizure, and excessive force claims for the jury to decide. For this

reason, I do not really feel that we have to have the punitive damages and

the outrageous conduct claim submitted to the jury in order to receive

what the jury would otherwise award in damages in this case. In other

words, I think the jury will award the same damages regardless of what

legal theories are presented to them.

| just wanted to tell you this possible coverage question and |

want you to give me complete liberty in the course of this trial to dismiss

the outrageous and punitive damages claims if I feel that at the close of

all the proof that it would be unwise on our part to have those particular

issues submitted to the jury because of the insurance coverage questions.

We listened to this tape again and got one of the recording

studios to get us a clear audible tape. Mr. Lynn definitely says that Brian_

Mullins was there. Now we are having trouble finding Mr. Lynnto serve,

~ with a witness subpoena. Any help that you can give David Poteet in

locating this witness would be greatly appreciated. [ want to talk to him

personally before trial if possible.

Now let me talk to you confidentially for a moment about your

court appearance and the dress that you should wear.

First of all, it would be better if you had your hair trimmed and

cut short, all mustaches and beards shaved away, and that you wear,

during each day of the trial solid color shirt (preferably light blue or light

tan; and very conservative slacks. I don't want you in bluc jeans, boots,

wearing any jewelry or appearing flashy in any way whatsoever. A

simple solid color button-down long sleeve shirt and some very

conservative trousers (no bright greens, pinks, reds, blacks, etc.).

ee 5-2 -

APP 14

Preferably, you need to get some light tan or light gray or dark blue

trousers. You should plan on having clothes for three days of court. In

other words, | want you need and trim and dressed very conservatively.

If you have any questions about this, we can discuss it more in detail.

This jury that tries your case will not know you from Adam and

thus your personal appearance in the courtroom is very important in

attempting to create a favorable impression with the jury.

1 will be back in touch with you as the trial date approaches.

Very truly yours,

/s/

CONRAD FINNELL

C/mje

Dictated but not read.

APP 15

friends and relatives to their apartment to socialize, cook steaks, and

drink some beer. Plaintiff Brown secured a carton of cokes, a carton of

beer, and some potato chips, and Plaintiff Houston secured a charcoal

grill, some steaks, and other items. The gathering began some time

before dark and four (4) guests along with the two plaintifis were

cooking steaks on an outside grill on the balcony of the apartment when

Defendants Washam and Gwinn, police officers of the City of Kingston

(apparently in response to a disturbance call) arrived at the apartment.

After the two Defendants told the Plaintiffs and their guests to turn down

the music and put out the charcoal fire this visit by the police officers

passed without incident and the two officers left the scene. A short time

later the party broke up and Plaintiff Brown went to the back bedroom

and fell asleep on a mattress which was on the floor, and Plaintitf

Houston fully clothed went to sleep on the couch in the living room with

a firearm in his belt. Houston says that he kept a firearm within reach at

all times since the traumatic fire bombing of a family home several years

before. Houston had suffered a minor accident earlier in the evening;

there was some dried blood on his left cheek and apparently a small knife,

used to cut the steak earlier and then left nearby somewhere in the living

room. There is one entrance to this apartment, only a wooden entrance

door on the front balcony with a wide sliding glass door immediately

adjacent.

At this point, certain very material facts are not in dispute. When

all four of the Defendants (along with ambulance attendants and police

officers from other agencies) arrived back at the apartment sometime

around or shortly after midnight, both of the Plaintiffs were sound aslecp;

Houston on the couch and Brown in the back bedroom. The Defendants

were acting without an arrest warrant or a search warrant.

Apparently the officers claimed that they could see Houston on

the couch with the blood on his cheekbone and the weapon in his belt

from a vantage point on the balcony outside the apartment.

When the Officers entered the apartment, Houston was awakened

first and was told he was under arrest for public drunkenness and

carrying a weapon. When he verbally protested his arrest without a

APP 16

warrant, he says that he was handcuffed behind his back and told to get |

down on his knees. When he told the officers that he had not done

anything to get down on his knees for, Houston claims that he was struck

with billy sticks on the back of his legs and on his elbows. Houston will

testify that the officers kept insisting that he tell them where the drugs

were, and that he, Houston, kept telling them there were no drugs in the

apartment. Houston will further say that the Defendant Mullins held a

zun to his head and threatened him if he did not tell him where the drugs

were.

Brown was awakened next, and he says he was aroused from a

deep sleep (perhaps partially alcohol induced) and that he had become

sick after lying down in his back bedroom. He, too, verbally protested

this warrantless intrusion into the privacy of his bedroom, and he will

testify that one of the Defendants rammed his arm up behind his back

with such force that it caused permanent injury to his shoulder joint.

There will be medical proof to substantiate this claim. Brown also says

that he was threatened and physically abused by these officers while they

were insisting that he tell them where the drugs were.

Both Plaintiffs will testify that they had no drugs in their

apartment or in Brown's car outside in the parking lot and that they

repeatedly told the officers that there were no drugs there to their

knowledge.

In any event, after a while, both Plaintiffs Brown and Houston

were handcuffed behind their back by the Defendants and taken

downstairs to waiting patrol cars. Plaintiff Houston will claim that his

trousers were undone and that he was partly naked in full view of several

onlookers as he was being transported to the patrol car.

Both plaintitfs will testify that they were locked up in the drunk

tank at the Roane County Jail by the Defendants while still handcutted,

and Plaintiff Houston (somewhat corroborated by one of the Defendants)

says that he was struck forcibly and savagely about the head by another

prisoner in the drunk tank while he was handcuffed and helpless to

detend himself.

APP 17

While Plaintiffs were in custody, Defendant Brown secured a

drug dog and later, without benefit of any legal process or search

warrant, seized Plaintiff Brown's automobile from the apartment parking

lot and had it towed to a garage in Kingston.

Plaintiffs secured the services of Attorney Cooley of Rockwood

to represent them after Brown had unsuccessfully tried to retrieve his car

after he was released from custody on the morning of July 21st. Plaintiff

Brown was told by Defendant Brown that he could get his car back by

paying $250.00 into the drug fund, an offer which Brown refused.

After some delay and several court appearances and with the

assistance of their attorney, the State dropped all criminal charges against

Houston and Brown growing out of this incident without ever going

through a probable cause hearing. Brown's automobile was eventually

returned to him without charge and Houston's gun was likewise returned

to him, all prior to the filing of this civil rights suit.

PLAINTIFEFS' BRIEF

Unlawful Arrest

It is abundantly clear that both Plaintiffs were quietly asleep at

their place of residence when the Officers arrived and thus neither could

be guilty of the offense of public intoxication.

The offense of public intoxication is defined in 'T.C.A. 39-17-310

as follows:

39-17-310. Public intoxication. -- (a) A

person commits the offense of public

intoxication ina public plac

under the influence of a controlled

substance or any other intoxicating

substances to the degree that:

(1) The offender may be endangered:

(2) There is endangerment to the persons

APP 18

Or property; or

(3) The offender unreasonably annoys

people in the vicinity.

(b) A violation of this section is a Class c

misdemeanor. (emphasis supplied).

The law is equally well settled that even if there had been a

disturbance sometime earlier in the evening, this would not provide the

basis for a legal arrest by these Defendants on a misdemeanor charge.

... However, an officer's power to arrest

without warrant for a misdemeanor

committed in his presence does not extend

to past offenses. Thus, an officer cannot

arrest without warrant for a breach of

peace that has been fully consummated..."

5S Am. :2d 724, §33, citing numerous

Cases.

By the same token, Plaintiff Houston was not committing any

criminal offense when he possessed a firearm inside his place of

residence.

The Second Amendment of the United States Constitution and

Article One, Section 26 of the Tennessee Constitution guarantees to the

Plaintiff the right to keep and bear arms. There is no claim here that

Plaintiff Houston was a convicted felon and/or that the weapon possessed

by him was otherwise illegal. The Tennessee statutes relating to the

ownership and possession of firearms are set forth in T.C.A. 39-17-1301

thru 1318, and Plaintiff Houston was not violating any of these code

sections at the time of his arrest.

It thus follows that the arrest of both Plaintiffs on a charge of

public drunkenness was unlawful and violated rights protected by the

Fourth Amendment of the United States Constitution. Likewise, the

arrest of Houston on the weapons charge was also patently illegal. The

APP 19

right of a citizen to possess an otherwise legal loaded weapon at his place

of residence is so fundamental and so well established that it is difficult to

find any case citation on point.

Assuming that the proof will be undisputed that both Plaintiffs

were asleep at the time the officers entered their apartment, and assuming

further that the officers were not possessed of a valid arrest and/or search

warrant, the only possible way the Defendants in this case could justify

the warrantless entry into the Plaintiffs’ private living quarters would be

upon a claim that they honestly believed that Plaintiff Houston was in

need of immediate emergency treatment. Upon learning that neither

Plaintiff needed, requested, or required medical care, and upon being

confronted by objections of the Plaintiffs as to the intrusion into their

private quarters, the "reasonableness" provision of the Fourth

Amendment required that the Defendants should have immediately

withdrawn from the premises. The conclusion that no medical attention

was required or needed by either Plaintiff is best evidenced by the

undisputed fact that no medical attention was ever provided by

ambulance personnel on the scene, and by the further uncontradicted

evidence that both Plaintiffs were taken directly to jail and incarcerated

without medical care.

Although the facts of Chimel v. California, 395 U.S. 752, 23

L.Ed.2d 685, 89 S.Ct. 2034, are clearly distinguishable from the present

case, it is respectfully submitted that the rationale of the case is relevant

and analogous to the case at bar, and some of the language of other cases

cited by our Supreme Court in Chimel is directly on point.

In Chimel, unlike the case at bar, the Officers had entered the

accused residence by virtue of a valid arrest warrant, but were not in the

possession of a valid search warrant for the premises. A warrantless

search of desk drawers and other places outside the immediate control of

the accused yielded evidence of stolen property later used to convict the

homeowner of a crime. In holding this warrantless seizure unreasonable

and in violation of the Fourth Amendment, the Court, quoting with

approval from prior cases, among other things, said:

Chimel v, Calitornia, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.

The following language used by the Court supports Plaintiffs’

contention that these officers should have withdrawn immediately upon

learning that neither of the Plaintiffs needed or requested medical

attention.

APP 20

lt is a cardinal rule that, in seizing goods

and articles, law enforcement agents must

secure and use search warrants wherever

reasonably practicable... This rule rests

upon the desirability of having magistrates

rather than police officers determine when

searches and seizures are permissible and

what limitations should be placed upon

such activities...To provide the necessary

security against unreasonable intrusions

upon the private lives of individuais, the

tramers of the Fourth Amendment required

adherefice to judicial processes wherever

possible, And subsequent history has

contirmed the wisdom of that requirement.

Only last term in Terry v. Ohio, 392 U.S.

1, 20-L.Ed.2d 889, 88 S.Ct. 1858, we

emphasized that "the police must,

whenever practicable, obtain advance

judicial approval of searches and seizures

through the warrant procedure," and that

"the scope of [a] search must be 'strictly

tied to and justified by' the circumstances

which rendered its initiation permissible.

Chimel, Supra, 395 U.S. at 762.

APP 21

The only possible legal reason that these officers had fer entering

this apartment was to determine if Plaintiff Houston required prompt

medical care. Once it was clearly determined that no such treatment was

required or needed, the law would require that the Defendants withdraw

without further arrest, mistreatment, or imprisonment of the Plaintiffs.

Any conduct of the Defendants inside the Plaintiffs’ living quarters after

the Officers determined that Houston was not in need of medical

treatment should be regarded as unlawful.

Warrantless Seizure of Brown's Automobile

It is respectfully submitted that there is absolutely no legal basis

tor the warrantless seizure of Brown's automobile. There is no eviderice

that the Officers had legal reason to believe that this vehicle had ever

been used to facilitate a drug transaction. The search and seizure of this

vehicle was certainly not incident to any lawful arrest contemporaneous

in time and place with said arrest. There is no claim than any contraband

or illegal substance was in plain view. In short, there is simply no legal

theory upon which to justify the warrantless seizure of Mr. Brown's

automobile and said seizure constitutes a classic Fourth Amendment

violation.

Summary

The fact that the Officers summoned a "drug sniffing dog" to the

scene of the arrest indicates more clearly than anything else the real

motive of these Officers in entering the Plaintiffs’ apartment without a

warrant and arresting the Plaintiffs. The Officers were acting on mere

suspicion that there was marijuana or other drugs either in the apartment

or in Brown's car. Their threats and the physical abuse of the Plaintiffs

while cemanding that the Plaintiffs reveal the location of the supposed

illegal drugs provides another clear indication that the officers were

acting On mere suspicion.

Plaintiffs have always denied any knowledge of any marijuana or )

other drugs either in their apartment or in Brown's vehicle and to this \

APP 22

date neither the Plaintiffs nor their counsel have been provided any

physical evidence to the contrary.

The Defendants will in all probability, by hindsight, try to justify

their conduct based upon a claim that the Plaintiffs or their guests stole or

borrowed some patio chairs from outside the apartment building. At this

point, the evidence relating to these patio chairs is very unclear and

confusing. It is not clear as to whether some of Plaintiffs’ guests

temporarily borrowed these chairs believing the chairs belonged to the

apartment house, whether permission was obtained for the use of the

chairs, where the chairs were located, and exactly what the situation was

in reference to the chairs.

T.C.A. 39-14-103 states:

39-14-103. Thett of services. -- A person

commits thett of property if, with intent to

deprive the owner of property, the person

knowingly obtains or exercises control

over the property without the ownei's

ettective consent.

In Tennessee, the theft of property valued at $500.00 or less is a

misdemeanor. T.C.A. 39-14-105.

Even if it could be argued that the temporary borrowing of the

chairs under the circumstances constituted a theft in violation of T.C.A.

39-14-103, this conduct did not occur in the presence of the Defendants

to justify an arrest based upon a misdemeanor committed in their

presence. The evidence is also not clear as to what role, if any, the

Plaintiffs played in reference to the patio chairs in that both Plaintiffs

deny that they ever stole, borrowed or participated in taking or

borrowing the patio chairs.

-In any event, it would clearly appear from the conduct of the

Defendants during the course of and after the arrest of the Plaintiffs that

the patio chairs really had nothing to do with the Plaintiffs’ arrest,

APP 23

mistreatment, or the search and/or seizure of Plaintiffs' property. It is

obvious that the Defendants suspected the Plaintiffs had illegal marijuana

in their apartment or in Plaintiff Brown's car. There is no other

reasonable explanation as to why the Defendants would have threatened

and physically abused the Plaintiffs and/or why the Defendants

summoned a "drug snifting dog" to the scene.

The reasonableness requirements of the Fourth Amendment

would mandate that these Defendants back off the minute they were

aware that neither Plaintiff was in need of medical attention. The

Defendants realized that they did not have an arrest warrant nor did they

have a search warrant. Defendants also knew the Plaintiffs could not be

guilty of public intoxication when both Plaintiffs had to be awakened

from sleep inside their own residence. Defendants also knew that

Plaintiff Houston enjoyed a very basic Second Amendment right to

possess an otherwise legal weapon inside his place of residence. Yet,

with all this knowledge, the Defendants continued to arrest, imprison,

search, seize and prosecute the Plaintiffs, knowing the gross illegality of

their conduct.

For all of these reasons,. Plaintiffs respectfully submit that their

arrest, imprisonment, prosecution, and the seizure of their property

constituted a violation of their civil rights as a matter of law. Plaintiffs

therefore respectfully ask the Court to grant the requested preemptory

instructions.

It is the Plaintifts' theory that the Defendants acted together and

in concert in effecting their arrest, imprisonment, and prosecution and

that the Defendants are thus jointly and severally liable for any damages.

contemporaneous with the filing of this Brief, Plaintiffs, through

counsel, without waiving their request for preemptory instructions, have

tiled Suggested Issues to be Submitted to the Jury." Should the Court

see fit to grant all or part of Plaintiffs’ preemptory instructions, some of

these issues would become moot.

Defense counsel may maintain that there are other issues in this

APP 24

case including whether Defendant Brown acted independently and

separate in reference to the seizure of Plaintiff Brown's vehicle.

Defendant Mullins claims that he was not present and did not participate

in any way of the arrest, imprisonment, or prosecution of the Plaintiffs.

Defense counsel will no doubt submit what he deems to be appropriate

issues relating to these claims.

Respectfully submitted,

/s/

CONRAD FINNELL

Attorney for Plaintitts

P.O. Box 1476

Cleveland, TN 37364-1476

615/472-3391

~s> eb ~ . r ~

- ‘

| hereby certify that a true and exact copy of this pleading has

been furnished to the person/s whose name/s and addresses are listed

below by depositing a copy of the same in the US mail with sufficient

postage attached thereto to carry the same to its destination, or by hand

delivery.

This 29th day of November, 1993.

/s/

CONRAD FINNELL, Attorney

4 JOHN C. DUFFY

WATSON, HOLLOW & REEVES

Plaza Tower, Suite 2100 :

P.O. Box 131

Knoxville, TN 37901-0131

APP 25

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

Clifford Houston, et al.,

Filed Dec23 4:51PM ‘93

Plaintiffs,

Vv.

No. Civ. 3-91-402

City of Kingston, Tennessee, et al.,

)

)

)

)

)

)

)

Defendants. )

STIPULATION FOR RELEASE OF EXLUIBITS

It is hereby stipulated by and between the parties, through their

respective attorneys, that the following exhibits be released to the care,

custody, and control of _ Dale Brown/John Dufly _ until final judgment

is entered, or time for appeal or motion for new trial has passed.

It is further stipulated that _ Dale Brown/John Dully_ be

designated as custodian of the below-described exhibits and that upon

request of the Clerk of this Court said exhibits shall be delivered to the

Clerk forthwith.

No, Description

0-7 _Crown Royal Bag w/drugs

0-8 _Ash tray w/drugs

APP 26

AGREED

ls} CONRAD FINNELL

Attorney for plaintit?

it IS SO ORDERED

s/ Thomas W. Phillips, U.S.M.J.

United States District Judge (or magistrate)

EXHIBIT REL

=

’ 4 shibi = f

Attorney for defendant

12/9/1993

ATTEST A True Copy

Certified this 7/6/95

R. Murry Hawkins, Clerk

by C. Sayles _ Dep. Clerk

——

CERTIFICATE OF SERVICE

| certify that a true and exact copy of the foregoing Pctition for

Vrit of Certiorari to the United States Sixth Circuit Court of Appeals has

ween placed in the U.S. Mail for delivery to:

Robert Hl. Watson

WATSON, HOLLOW & REEVES

Suite 1700 First Tennessee Plaza

800 S. Gay Street

Knoxville, TN 37929

(423) 522-3803

W. Mitchell Cramer

WIMBERLY, LAWSON, NORTON & LUHN

Suite 900 Nationsbank Center

550 Main Avenue

Knoxville, TN 37902

(423) 971-4600

Conrad Finnell

CONRAD FINNELL, P.C. & ASSOCIATES

P.O. Box 1476

217 Broad Street, NW

Cleveland, TN 37364-1476

on this @ /7 day of | 4 we , 1997

CUE FORD LE ON HOUSTON