Jones v. Perry
| Decision Date | 23 June 2020 |
| Docket Number | No. 3:16-cv-02631,3:16-cv-02631 |
| Parties | CEDRIC JONES, Petitioner, v. GRADY PERRY, Warden, Respondent. |
| Court | U.S. District Court — Middle District of Tennessee |
Pending before the Court are the following eight pro se motions filed by Petitioner: Motion for Discovery, to have Petitioner's Preliminary Hearing CD Transcribed, and a Petition for Proposed Interrogatories/Request for Admission to the Respondent (Doc. No. 186); Motion to Take Notice of Judicial Facts (Doc. No. 190); Motion to Take Notice of Judicial Facts as to Claims 3 and/or Doc. No. 161 (Doc. No. 195); Motion for an Order Directing the Respondent to Fully Comply with Habeas Rule 5 (Doc. No. 196); Motion for Relief from a Judgment or Order, Rule 60 (Doc. No. 205); Motion to Take Judicial Notice of Adjudicated Facts and Perjury Committed by the Respondent (Doc. No. 213); and Second Motion for an Order Directing the Respondent to Fully Comply with Habeas Rule 5 (Doc. No. 215). Also pending is a Motion to Substitute Counsel for Respondent Grady Perry filed by Respondent. (Doc. No. 218).
Petitioner has filed a "Motion for Relief from a Judgment or Order, Rule 60" (Doc. No. 205) in which he seeks relief from the Court's Order of April 1, 2020. (Doc. No. 200). By Order entered on that date, the Court adopted the Report and Recommendation ("R&R") of the Magistrate Judge to deny as moot Petitioner's motion for a temporary restraining order ("TRO"). (Id.)
Petitioner filed his TRO motion in early September 2019, alleging that his post-conviction counsel LeAnn Smith had threatened to destroy Petitioner's legal files if he did not arrange for a family member or friend to retrieve the files in person. (Doc. No. 150 at 1). In his TRO motion, Petitioner stated that he "ha[d] been unable to locate anyone in Nashville to pick up his legal boxes and that he ha[d] made a diligent effort to have [the files] given to him while in the court with Judge Blackburn and counsel Smith, but both refuse[d] to use State funding to send him his legal files." (Id. at 4). By Order entered on September 9, 2019, the Court referenced counsel's letter to Petitioner (attached to Doc. No. 151) which made clear that counsel had not refused to return Petitioner's legal file to him outright; instead, counsel had stated that "it is impossible to mail/deliver that size of legal documents." (Id., Attach. 1 at 2). The Court noted that there may be facility restrictions as to how many files/boxes Petitioner can possess in his cell; however, such restrictions do not make the mailing of Petitioner's file "impossible." (Doc. No. 152 at 2 n.2). The Court then referred Petitioner's TRO motion to the Magistrate Judge. (Id. at 2).
In an attempt to resolve the problem with Petitioner's legal files, the Magistrate Judge spoke with Ms. Smith and Respondent through counsel, who conveyed that the Warden had approved a procedure by which Ms. Smith could deliver the boxes of Petitioner's legal files to the Tennessee Department of Correction (TDOC) for transportation to Petitioner at his facility. (Doc. No. 188 at 2). After Ms. Smith advised the Magistrate Judge that she had delivered the files to TDOC for transportation to Petitioner, the Magistrate Judge recommended in his R&R that Petitioner's TRO motion be denied as moot because (Doc. No. 188 at 2). Petitioner did not file any objections to the R&R. The Court then adopted the R&R of the Magistrate Judge to deny the TRO motion as moot, finding that "[i]t appears that Petitioner is now in receipt of his legal file." (Doc. No. 200 at 2).
Federal Rule of Civil Procedure 60(b) allows a court to relieve a party from a final judgment for five enumerated reasons or "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(1)-(6). However, the Court's adoption of the R&R did not dispose of this action; Petitioner's petition for writ of habeas corpus and several other motions remain pending. Therefore, Petitioner's instant motion, though filed pursuant to Rule 60, does not seek relief from a final judgment as is contemplated by Rule 60(b).
Nevertheless, a district court has the authority to consider a motion for reconsideration under certain circumstances, both before and after the entry of final judgment. Before final judgment, "[d]istrict courts have authority both under [federal] common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case . . . ." Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App'x 949, 959 (6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). After final judgment, a motion for reconsideration "that is filed within 28 days [after judgment] can be construed as a motion to alter or amend the judgment under Rule 59(e), and one that is filed after 28 days can be construed as a motion for relief from judgment under Rule 60(b)." In re Greektown Holdings, LLC, 728 F.3d 567, 574 (6th Cir. 2013). Therefore, the Court will consider Petitioner's motion as a Rule 54(b) motion to reconsider an interlocutory order.
First, Petitioner alleges that, because the Court did not mail him a copy of the R&R prior to its adoption by the Court, he did not have an opportunity to timely file objections to the R&R.(Doc. No. 205). The Court has reviewed the docket, and it appears that Petitioner is correct about his lack of notice and opportunity to object. The Court adopted the R&R by Order entered on April 1, 2020. (Doc. No. 200). For unknown reasons, the R&R—which was entered on January 17, 2020—was not mailed to Petitioner until April 7, 2020.1
Petitioner makes clear that, had he been able to object to the R&R, he would have pointed out that he received four boxes of legal files from Ms. Smith but the boxes did not contain "his preliminary hearing transcript from General Session Court, case No. 481605 in Nashville, Tennessee's Court at Davidson County which was said to have been in his files at his Post-Conviction hearing on 06/05/2019." (Doc. No. 205 at 2). In fact, this missing transcript is the basis in part for his pending Motion for Discovery. (Doc. No. 186). Petitioner insists that he is entitled to a transcript of this hearing because it supports at least one claim raised in his federal habeas petition.
Petitioner concedes that he received four boxes "off the chain bus" on January 13, 2020, which contained the legal files Ms. Smith had been retaining for Petitioner. (Doc. No. 190 at 2). Therefore, the relief he sought in his TRO has, in fact, been obtained. Petitioner, however, is disappointed that the boxes provided by Ms. Smith did not contain the preliminary hearing transcript he seeks—the same preliminary hearing transcript to which Petitioner has insisted he is entitled for years and has not been able to obtain. But Petitioner is well aware that the post-conviction court addressed the transcript issue in open court during several status hearings as well as in written orders filed on October 12, 2018, December 4, 2018, and January 18, 2019, and determined that "[t]here was no indication in the record that a transcript of the preliminary hearingwas requested prior to trial." (Doc. No. 179, Attach. 1 at 16). Likewise, Petitioner is well aware that Ms. Smith had advised the Court in 2019 that she had been unable to locate a preliminary hearing transcript (Doc. No. 179, Attach. 1 at 16); that, during Petitioner's post-conviction hearing, trial counsel testified that he was "not sure" if he had obtained a transcript, could not locate the transcript, and he had provided Petitioner with all of the case materials in his possession at Petitioner's request, which would have included the transcript if it existed (Doc. No. 179. Attach. 1 at 39); and that the post-conviction court noted that, as of August 1, 2019, that "no transcript of the preliminary hearing has been located." (Doc. No. 179, Attach. 1 at 44). It is disingenuous for Petitioner to now complain that the legal files forwarded to him by Ms. Smith are missing the transcript that he knows no one has been able to produce for years.
The Court has carefully considered the objections Petitioner states that he would have made and finds that those objections would have been overruled. The Court further finds that, even though Petitioner was not given an opportunity to object to the R&R prior to its adoption by the Court, Petitioner is not entitled to relief from the Court's Order adopting the R&R. Petitioner has received the boxes of legal materials that were the subject of his TRO; therefore, he has obtained the relief he sought in his TRO. Consequently, Petitioner's motion (Doc. No. 205) will be denied.
Petitioner requests that the "CD" of his "preliminary hearing" be transcribed. (Doc. No. 186 at 1, 4). The only compact disc that appears in the state court record is Exhibit 9, which contains surveillance video footage from the storage unit where Petitioner raped the victim, his fourteen-year-old daughter. Respondent filed this disc on December 20, 2019. (Doc. No. 181).
After some initial confusion, Petitioner has clarified that he seeks "[a] transcript of his preliminary hearing from General Sessions Court case No. 481605 () be transcribe from General Session Court at Nashville, Tennessee[.]" (Doc. No. 199 at 10). This is the same preliminary hearing transcript that Petitioner had hoped to find in the legal materials provided to him by Ms. Smith.
To support his contention that the transcript exists, Petiti...
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