Taylor v. Myers, 01-2685-M1/A.

• Decision Date: 30 April 2003
• Docket Number: No. 01-2685-M1/A.,01-2685-M1/A.
• Citation: 345 F.Supp.2d 855
• Parties: Sammie TAYLOR, Petitioner, v. Kevin MYERS, Respondent.
• Court: U.S. District Court — Western District of Tennessee

345 F.Supp.2d 855

Sammie TAYLOR, Petitioner, v. Kevin MYERS, Respondent.

No. 01-2685-M1/A.

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

April 30, 2003.

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Sammie Taylor, Clifton, TN, pro se.

ORDER DENYING MOTION TO AMEND ORDER DENYING MOTION TO STAY OR VOLUNTARILY DISMISS ORDER OF DISMISSAL ORDER DENYING CERTIFICATE OF APPEALABILITY AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

MCCALLA, District Judge.

I. INTRODUCTION

Petitioner, Sammie Taylor, Tennessee Department of Corrections (TDOC) inmate number 239182, an inmate at the South Central Correctional Facility (SCCF), in Clifton, Tennessee, filed a petition under 28 U.S.C. § 2254. By order entered March 28, 2002, United States District Judge James Todd denied petitioner's application to proceed in forma pauperis and directed him to pay the $5 filing fee. Petitioner paid the filing fee on April 18, 2002. When the petitioner filed his petition, he was incarcerated at the West Tennessee State Penitentiary and his custodian was Warden James Dukes. Thus, the respondent was recorded by the Clerk as James Dukes. Petitioner has now been transferred to SCCF and his custodian is Warden Kevin Myers. Accordingly, the Clerk shall delete any reference upon the docket to James Dukes and record Kevin Myers as the respondent, as the only proper respondent is the petitioner's current custodian.

II. PROCEDURAL HISTORY

Petitioner was convicted by a jury in the Shelby County Criminal Court in 1994 of felony murder, especially aggravated kidnapping, especially aggravated robbery, and aggravated sexual battery. The trial court imposed an effective sentence of life imprisonment without the possibility of parole, plus sixty-two years. Taylor appealed the conviction and the Tennessee Court of Criminal Appeals affirmed. State v. Taylor, No. 02C01-9501-CR-00029, 1996 WL 580997 (Tenn.Crim.App. Oct.10, 1996), perm. app. denied (Tenn. Mar. 3, 1997). Taylor then filed a post-conviction petition, which the Shelby County Criminal Court judge denied after an evidentiary hearing. Taylor appealed and the Tennessee Court of Criminal Appeals affirmed. Taylor v. State, No. W1999-00977-CCA-R3-PC, 2000 WL 714387 (Tenn.Crim.App. May 26, 2000), perm. app. denied (Tenn. Dec. 4, 2000).

Taylor deposited his original petition in the prison mail system on August 23, 2001. The petition was received and filed by the Clerk on August 29, 2001. The Court construes and summarizes the claims presented as follows:

1. the trial court improperly denied the petitioner's motion to suppress his statements to police;

2. the trial court improperly denied the petitioner's motion to suppress evidence obtained in the search conducted at his home;

3. the trial court erred by waiting until after three alternate jurors were chosen and sworn to excuse an empaneled juror for cause;

4. his attorney provided ineffective assistance of counsel by:

a) failing to meaningfully cross-examine the state's witnesses on his illegal arrest and statements;

b) failing to meaningfully cross-examine the state's witnesses on the search of his home;

c) failing to properly raise and argue the motion to remand his proceedings back to juvenile court; and

d) failing to present psychological expert testimony at the sentencing phase of the trial.

On April 5, 2002, petitioner signed an amended petition, which was postmarked April 8, 2002, and received and filed by the Clerk on April 10, 2002. Petitioner raises the following issues in the amended petition:

4. his case was improperly transferred from Shelby County Juvenile Court to Shelby County Criminal Court;

5. the appointed referee of the Shelby County Juvenile was biased and without authority to transfer his case to Shelby County Criminal Court because he was not an elected official; and

6. the evidence was insufficient to convict him of rape.

III. ANALYSIS

A. Statute of Limitations

The three issues presented in the amended motion filed on April 10, 2002, were not raised in the original petition. Taylor's conviction was final on December 4, 2000. His deadline for filing a § 2254 petition was, thus, December 4, 2001. The mandate of Fed.R.Civ.P. 15(a), that a court freely grant leave to amend when justice so requires, has been interpreted to allow supplementation and clarification of claims initially raised in a timely § 2255 motion. See Anderson v. United States, No. 01-2476, 2002 WL 857742 at *3 (6th Cir. May 3, 2002); Oleson v. United States, No. 00-1938, 2001 WL 1631828 (6th Cir. Dec.14, 2001). However, once the statute of limitations has expired, allowing amendment of a petition with additional grounds for relief would defeat the purpose of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (codified, inter alia, at 28 U.S.C. § 2244 et seq.)(AEDPA). Oleson, 2001 WL 1631828 at *3 (citing United States v. Thomas, 221 F.3d 430, 436 (3d Cir.2000)) ("[A] party cannot amend a § 2255 petition to add a completely new claim after the statute of limitations has expired."). See also United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir.2000) ("The fact that amended claims arise from the same trial and sentencing proceeding as the original motion does not mean that the amended claims relate back for purposes of Rule 15(c).... Such a broad view of `relation back' would undermine the limitations period set by Congress in the AEDPA") (citing United States v. Duffus, 174 F.3d 333, 337 (3d Cir.1999)). Thus, the motion to amend the petition to add additional claims is DENIED.

B. Motion to Voluntarily Dismiss Petition

On January 8, 2003, Taylor filed a motion to voluntarily dismiss his petition. Taylor alleges he "wishes to re-open his post-conviction relief to file post-conviction DNA Analysis Act of 2001." Taylor alleges that "this remedy was not available at the time [he] filed his original post-conviction petition." The motion to voluntarily dismiss the petition relates to Taylor's claim that the evidence was insufficient to convict him of rape.

The Sixth Circuit has approved dismissing only unexhausted claims presented in a habeas petition and staying the remaining claims pending exhaustion in a timely manner as a dismissal without prejudice could jeopardize the timeliness of a collateral attack. Hill v. Anderson, 300 F.3d 679, 683 (6th Cir.2002)(citing Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.2001)). Taylor's DNA claim is exhausted, however.¹ Taylor merely failed to raise the claim in this petition in a timely manner.

Furthermore, the state courts have determined this issue to be without merit both in the direct appeal and the post-conviction proceedings. Taylor was not charged with or convicted of rape. Taylor was convicted of aggravated sexual battery, along with especially aggravated kidnapping, especially aggravated robbery, and felony murder. Taylor, by his own statements² admitted his guilt as to the kidnapping and robbery charges, but denied responsibility for the victim's death, and along with his co-defendants, denied raping or any sexual activity with the victim. The issue was raised first on direct appeal as a sufficiency of the evidence claim. The Tennessee Court of Criminal Appeals held:

The evidence clearly shows that the appellant actively participated in the kidnapping and, as such, he became accountable for all consequences flowing from the kidnapping. Concerning his conviction for aggravated battery, the testimony of the medical examiner,³ the photographs of the victim's vaginal area, and the arrangement of her clothing⁴ establish the occurrence of sexual contact. Obviously, there is no dispute that serious bodily injury occurred. After viewing the evidence in the light most favorable to the State, we conclude that, based on the appellant's participation in the events leading up to and following the sexual battery of Ms. Wilburn, especially in view of the fact that it was the appellant who transported the victim to Plant Road, any rational trier of fact could have found that the appellant "acted with the intent to promote or assist in the commission" of aggravated sexual battery. See Tenn.Code Ann. § 39-11-402(2). Additionally, the requisite mental state may be proved by the acts and circumstances surrounding the appellant's conduct. Thus, even though he may not have had sexual contact with Ms. Wilburn, based upon his conduct and culpability, he is criminally responsible. Accordingly, we conclude that his convictions for felony murder and aggravated sexual battery are amply supported by the evidence.

Taylor, 1996 WL 580997 at *7-8.

Taylor then raised counsel's failure to pursue DNA testing during the post-conviction proceedings where counsel testified that "... as I recall there was nothing found on the victim that would have been there to test." Taylor, 2000 WL 714387 at *4. The Court of Criminal Appeals cited its holding on direct appeal and further held:

Accordingly, DNA testing was not necessary to prove or disprove the appellant's criminal liability for the aggravated sexual battery upon the victim. Moreover, as the post-conviction court properly found, "there was not any semen or any material to perform a serological DNA test." Thus, trial counsel was not deficient in failing to request independent DNA testing. We conclude that the appellant has failed to meet his burden of establishing this allegation of counsel's ineffectiveness by clear and convincing evidence. This issue is likewise, without merit.

Id.

Accordingly, the issue was exhausted and is time-barred. Taylor's misguided argument that he was wrongly convicted of rape presents no basis for this Court to conclude that state courts will waive Tennessee's post-conviction petition statute of limitations and one-petition rule to further address this clearly meritless issue. See Tenn.Code Ann. § 40-30-202(a), (c)(1997). Taylor seeks dismissal of the...