Braswell v. Phillips

Decision Date08 March 2022
Docket Number2:19-cv-02362-TLP-tmp
CourtU.S. District Court — Western District of Tennessee
PartiesVERN BRASWELL, Petitioner, v. SHAWN PHILLIPS, Warden, Respondent.

VERN BRASWELL, Petitioner,
SHAWN PHILLIPS, Warden, Respondent.

No. 2:19-cv-02362-TLP-tmp

United States District Court, W.D. Tennessee, Western Division

March 8, 2022



Petitioner Vern Braswell petitions pro se under 28 U.S.C. § 2254 for a writ of habeas corpus.[1] (ECF No. 1.) Respondent Shawn Phillips has filed the record and responded to the petition. (ECF Nos. 14 & 15.) Petitioner has filed many motions since then. Petitioner moves to stay proceedings (ECF No. 24), for an evidentiary hearing or to expand the record (ECF No. 25), to appoint counsel (ECF No. 26), for this Court to release him on bond pending resolution of the habeas petition (ECF Nos. 26 & 43), and for discovery (ECF Nos. 27, 30 & 42). For the reasons below, the Court DENIES these motions.[2]


In December 2005, a jury in Shelby County Criminal Court convicted Petitioner of second-degree murder for killing his wife, Sheila Braswell, by manual strangulation. (ECF Nos.


1 at PageID 1; 15-15 at PageID 1604; 15-38 at PageID 4097-98.) At trial, Petitioner claimed that his wife died accidentally after the pair engaged in erotic asphyxiation. (ECF Nos. 15-15 at PageID 1616; 15-38 at PageID 4098.) The trial court sentenced Petitioner to a prison sentence of twenty-four years. (ECF Nos. 1 at PageID 1; 15-15 at PageID 1629; 15-38 at PageID 4098.)

On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed Petitioner's conviction and sentence. (ECF Nos. 15-15 at PageID 1629; 15-38 at PageID 4098; see also State v. Braswell, No. W2006-01081-CCA-R3-CD, 2008 WL 238014, at *1 (Tenn. Crim. App. Jan. 28, 2008), perm. app. denied (Tenn. Aug. 25, 2008).) Petitioner then sought post-conviction relief. And the TCCA denied his requests for that relief. (ECF No. 15-38 at PageID 4098; see also Braswell v. State, No. W2016-00912-CCA-R3-PC, 2018 WL 1719443, at *1 (Tenn. Crim. App. Apr. 9, 2018).) What is more, the Tennessee Supreme Court denied Petitioner's application to appeal the TCCA's decision denying post-conviction relief. (ECF No. 15-41 at PageID 4333.) Petitioner then filed a habeas petition with this Court in June 2019, alleging claims of insufficient evidence, ineffective assistance of counsel, and prosecutorial misconduct. (ECF No. 1 at PageID 7-15.) The Court now turns to Petitioner's pending motions here.


I. Motion to Stay Proceedings

Petitioner first moves to stay these proceedings. (ECF No. 24.) The motion refers to “extraordinary developments” in his state case, which Petitioner contends “may likely lead to the need to amend Petitioner's federal habeas corpus petition.” (Id. at PageID 4484.) Petitioner claims that he received documents in July 2020 that had gone missing from the case file after his conviction (before the TCCA took up Petitioner's direct appeal). (Id. at PageID 4485.)


Petitioner asserts that when the documents resurfaced, they included a letter, “which stated that during the investigative phase of Petitioner's case, information was received that backed up Petitioner's trial testimony, however it was suppressed.” (Id.) Lastly, Petitioner states that his physician diagnosed him with cancer in September 2020. (Id.)

Respondent counters that Petitioner has not shown good cause to stay proceedings. (ECF No. 34 at PageID 4631.) Respondent points out that Petitioner has not sought leave to amend his petition. (Id.) In reply, Petitioner identifies the missing documents as “character letters of support” and asks the Court to order more investigation into the letters' disappearance from the state court record after his conviction. (ECF No. 37 at PageID 4650-51.)

“Habeas petitioners must exhaust all available state court remedies before proceeding in federal court, and this usually requires that they appeal an adverse decision all the way to the state's court of last resort.” Phillips v. Court of Common Pleas, 668 F.3d 804, 810 (6th Cir. 2012) (citing Klein v. Leis, 548 F.3d 425, 429 n.2 (6th Cir. 2008)). When a petition contains both exhausted and unexhausted claims, a federal habeas court has authority to stay proceedings while the petitioner raises the unexhausted claims in state court. See Rhines v. Weber, 544 U.S. 269, 276-77 (2005). But this discretion is limited by the “twin purposes” of “encouraging finality” and “streamlining federal habeas proceedings.” Id. And as a result, “stay and abeyance should be available only in limited circumstances.” Id. “Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir. 2012) (quoting Rhines, 544 U.S. at 277); see also Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009) (“The [exhaustion] requirement is designed to give the States and the state courts a


first look at a habeas petitioner's claims.” (citing Rhines, 544 U.S. at 273)). Even if a petitioner shows good cause, federal habeas courts cannot grant stays based on “plainly meritless” claims. Rhines, 544 U.S. at 277 (citing 28 U.S.C. § 2254(b)(2)).

With all this in mind, the Court finds that Petitioner has not shown enough to warrant a stay of proceedings. For starters, Petitioner's motion is vague. Petitioner states that “extraordinary developments” might lead him to seek leave to amend his petition. (ECF No. 24 at PageID 4484.) But the motion does not explain what claims he seeks to add, and he has not sought leave to amend his petition. The Court will not stay proceedings here while Petitioner tries to exhaust habeas claims he has not bothered to plead in his petition.

Respondent also contends that if Petitioner seeks to assert new claims, he has no available state court remedies to exhaust such claims. (ECF No. 34 at PageID 4631.) And Respondent emphasizes that “Petitioner makes no argument that cause and prejudice exist to excuse the default of this claim.” (Id. at PageID 4633.) True enough, under Sixth Circuit precedent, “when a petitioner fails to present a claim in state court, but that remedy is no longer available to him, the claim is technically exhausted, yet procedurally defaulted.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones v. Bagley, 696 F.3d 475, 483-84 (6th Cir. 2012)). And “[t]o excuse such a procedural default, a petitioner must show ‘cause for the default and prejudice from the asserted error.'” Id. at 484 (quoting House v. Bell, 547 U.S. 518, 536 (2006)). But remember that Petitioner has not pleaded these claims. Petitioner has not shown that those claims-whether unexhausted or procedurally defaulted-provide a basis to stay proceedings.

At bottom, Petitioner has not shown that a stay is proper or warranted under these circumstances. What is more, the parties here have fully briefed the issues raised in the habeas


petition, and Petitioner then filed various motions since seeking to stay proceedings. Based on the above, the Court finds that a stay here is improper. The Court therefore DENIES the motion to stay proceedings.

II. Motion for Evidentiary Hearing or to Expand the Record

Petitioner next moves for an evidentiary hearing or, in the alternative, to expand the record. (ECF No. 25.) Respondent has responded to the motion. (ECF No. 34.) The Court will address each request in turn.

A. Motion for Evidentiary Hearing

Petitioner first asserts that he has proof of a new claim under Arizona v. Youngblood, 488 U.S. 51 (1988), which he asserts “would have changed the outcome of the rulings in [his] collateral attacks on his conviction” and “de facto changed the verdict in [his] trial.” (ECF No. 25 at PageID 4488.) Petitioner also states that he has proof of a new claim under Brady v. Maryland, 373 U.S. 83 (1963), which he asserts “would have changed the verdict in [his] trial.” (Id.) Petitioner asserts that the Court should excuse his failure to raise these issues in state court “due to the bad faith by someone's actions that benefited the state and resulted in several incomplete adjudications in state court.” (Id.) Petitioner acknowledges that “there is no vehicle or avenue in state court at this point to adjudicate this claim.” (Id.)

Citing Youngblood, Petitioner argues that “someone, to the benefit of the state, tampered with the court record of Petitioner by removing documents which crippled Petitioner's collateral attacks on his conviction in which he would have otherwise likely prevailed.” (Id. at PageID 4489.) And citing Brady, Petitioner argues that “he should be allowed to present newly discovered evidence . . . that the State withheld material evidence from Petitioner during discovery in state court.” (Id.)


Petitioner asserts that an unknown person mailed him an apology letter and “original documents which had been missing from the official court record since Petitioner was convicted” in 2005. (ECF Nos. 25 at PageID 4490; 25-1 at PageID 4510-11.) According to Petitioner, the anonymous letter states that someone removed the documents from the court record to sabotage Petitioner's chances on appeal. (ECF No. 25 at PageID 4490.) The “missing documents” are nine “character letters” submitted to the trial court judge in May 2005 to support Petitioner's request for release on bond.[3] (Id. at PageID 4496.) Petitioner states that the letters and “portions of Petitioner's sentencing files . . . vanished from Petitioner's court record” before his direct appeal to the TCCA. (Id.)

The anonymous letter also describes a “sealed envelope” discovered in the prosecution's file. The letter then implies the envelope contained the missing documents here. (Id.) Petitioner claims that in 2011, “a sealed envelope bearing the initials of Amy Weirich was...

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