Vantrease v. Taylor

• Decision Date: 31 January 2017
• Docket Number: No. 3:14-00728,3:14-00728
• Parties: EARL VANTREASE, JR. # 289250, Petitioner, v. SHARON TAYLOR, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

EARL VANTREASE, JR. # 289250, Petitioner, v. SHARON TAYLOR, Respondent.

No. 3:14-00728

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

January 31, 2017

Judge Sharp/Brown

REPORT AND RECOMMENDATION

The Magistrate Judge RECOMMENDS for the reasons explained below that:

1) the requirement in the order of referral (Doc. 11) to conduct an evidentiary hearing be RESCINDED because an evidentiary hearing is unnecessary;

2) respondent's motion to dismiss (Doc. 6) be GRANTED;

3) petitioner's amended petition under 28 U.S.C. § 2254 (Doc. 70) be DENIED;

4) this action be DISMISSED WITH PREJUDICE;

5) acceptance and adoption of this R&R constitute the FINAL JUDGMENT in this action;

6) any appeal NOT BE CERTIFIED as taken in good faith pursuant to 28 U.S.C. § 1915(a)(3);

7 should the petitioner file a timely notice of appeal, that such notice be docketed as both a notice of appeal and application for a certificate of appealability (COA), 28 U.S.C. § 2253(c); Rule 22(b), Fed. R. App. P.; see Slack v. McDaniel, 529 U.S. 473, 483 (2000), which SHOULD NOT ISSUE because jurists of reason would not debate whether the district court was correct in its procedural ruling, see Castro v. United States of America, 310 F.3d 900, 901-02 (6^th Cir. 2002)(citing Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1072 (6^th Cir. 1997));

8) any pending motions be TERMINATED AS MOOT.

I. BACKGROUND

A. Statement of the Case

Petitioner, proceeding pro se and informa pauperis, was a prisoner at the Northeast Correctional Complex (NECX) in Mountain City, Tennessee when he brought this action on March 7, 2014 seeking federal habeas relief under 28 U.S.C. § 2254.¹ (Doc. 1) Petitioner named Warden Sharon Taylor as the respondent. (Doc. 1, p. 1 of 91)²

Respondent filed a motion to dismiss, memorandum of law, and supporting documents on April 15, 2014. (Docs. 6-8) Respondent argued that the petition should be dismissed as time barred under 28 U.S.C. § 2244(d)(1). (Doc. 7) Petitioner filed a response on April 25, 2014 in opposition to respondent's motion to dismiss. (Doc. 9)

The District Judge referred this matter to the Magistrate Judge on July 17, 2014 to conduct an evidentiary hearing to: 1) determine whether the petition was timely and, if not, to determine whether equitable tolling of the 1-year limitations period (the limitations period) under § 2254 would be appropriate; 2) recommend the proper disposition of respondent's motion to dismiss. (Doc. 11) The Magistrate Judge was further instructed "to hold any other proceedings that might be needed to ascertain the timeliness of the instant action." (Doc. 11)

The Magistrate Judge instructed the Federal Public Defender's Office to appoint counsel on July 30, 2014. (Doc. 16) Assistant Federal Public Defender (AFPD) Ronald Small filed a noticeof appearance on petitioner's behalf on August 1, 2014. (Doc. 19)

On October 8, 2014, the Magistrate Judge entered an order scheduling a telephone conference with the parties on October 21, 2014 regarding the instruction in the order of referral to conduct an evidentiary hearing. (Doc. 24) Petitioner moved on October 10, 2014 to continue the telephone conference. (Doc. 25) Petitioner's motion was granted on October 15, 2014, and the telephone conference was rescheduled to November 6, 2014. (Doc. 26) The telephone conference was held on November 6, 2014 as scheduled, and an order entered the same day scheduling the evidentiary hearing for "30 days after discovery [is] completed or denied." (Doc. 27) On December 8, 2014, AFPD Small noticed the court of petitioner's "intent not to file any additional petition or other pleading and instead to proceed on [the] pro se petition and all claims related thereto." (Doc. 28)

The Magistrate Judge amended the November 6, 2014 scheduling order on January 8, 2015 following a telephone conference with the parties the day prior. (Docs. 29-30) Petitioner "advised" the Magistrate Judge during the January 7, 2015 telephone conference "that he would not be filing amended pleadings in this matter." (Doc. 30) The evidentiary hearing was scheduled for April 21, 2015. (Doc. 30)

A third telephone conference was held with the parties on April 9, 2015 (Doc. 31), pursuant to which the evidentiary hearing was reset to June 16, 2015 (Doc. 32), and a Rule 16 case management conference scheduled for the same day (Doc. 33). Thereafter, petitioner filed a 3-page motion to appointment new counsel on June 11, 2015 arguing, inter alia, that: 1) he and AFPD Small had been at odds regarding the authenticity of certain records that petitioner sought to introduce; 2) AFPD Small had threatened "to withdraw from further representation [i]f petitioner . . . testif[ied] [that] certain documents in the record [we]re authentic"; 3) AFPD Small had beenbribed by the state to reject all witnesses and evidence. (Doc. 36)³ On June 15, 2015, AFPD Small moved to continue the evidentiary hearing for sixty (60) days to give the court time to consider petitioner's motion. (Doc. 37)

The scheduled June 16, 2015 evidentiary hearing gave way to an in camera review of plaintiff's motion to appoint new counsel. (Doc. 42) AFPD Small did not oppose the motion, arguing that he was ethically obligated not to introduce documentary evidence provided by petitioner that he thought to be fraudulent. The Magistrate Judge granted petitioner's motion for appointment of new counsel on June 17, 2015, and continued the evidentiary hearing until September 28, 2015. (Doc. 39) Attorneys Michael Terry and Stephanie Gore filed notices of appearance on petitioner's behalf on June 29, 2015. (Docs. 40-41)

The Magistrate Judge entered an order on August 17, 2015 noting that "analysis of the record and opinions of the Tennessee Court of Criminal Appeals [CCA] is that the petition is untimely. Absent evidence to the contrary, the only question is whether the limitations period should be equitably tolled." (Doc. 43) The Magistrate Judge directed respondent to file a written brief by September 9, 2015 to show "why equitable tolling is not appropriate in this case, including analysis of factual innocence versus legal insufficiency," and directed petitioner to respond not later than September 23, 2015. (Doc. 43)

Petitioner filed a motion through counsel on September 1, 2015 to continue the evidentiary hearing and to amend the scheduling order. (Doc. 45) In that motion, new counsel made the following argument:

On December 8, 2014, petitioner's counsel (FPD) filed a notice of intent to proceed on petitioner's pro se petition alleging the petition 'adequately sets forth his claims for relief' and that no otherpleadings would be filed on petitioner's behalf (Docket No. 28). Petitioner did not agree, and filed a pro se motion for appointment of new counsel (Docket No. 36) Petitioner intends to file an amended petition.

(Doc. 45, ¶ 4, pp. 1-2 of 4) In an order dated September 3, 2015, the Magistrate Judge noted:

It is now some 17 months since the original petition was filed and 16 months since the motion to dismiss was filed . . . [and] . . . [w]e still do not have a final petition. Rather than continuing the case indefinitely the Magistrate Judge may well administratively close this case until the Petitioner files a motion to reopen and attaches to that motion an actual amended petition. In view of the statement by the Petitioner that he intends to file an amended petition, it would appear that the Magistrate Judge would also terminate the current motion to dismiss without prejudice to being refiled once an actual amended petition is filed.

(Doc. 47) Petitioner's September 1, 2015 motion was granted on September 14, 2015, and the case was ordered closed administratively. (Doc. 49)

Petitioner filed a 9-page motion under seal on April 11, 2016 seeking appointment of new counsel, and an in camera hearing on his motion. (Doc. 54) The Magistrate Judge directed respondent to file a response within 14 days, and noted the following with respect to petitioner's repeated request for new counsel:

The Petitioner is cautioned that he is not advancing his case by continually finding fault with counsel appointed for him and accusing them of dishonest and bribery. If the Petitioner wishes to represent himself he may certainly do so, but he cannot have it both ways. The P[etitioner] stated in his motion he could have hired an attorney. If the P[etitioner] wants to hire his own attorney at his expense he may do so at any time.

(Doc. 55) The Magistrate Judge granted petitioner's April 11, 2016 motion on May 9, 2016, and set a in camera hearing on petitioner's request to appoint new counsel for June 15, 2016, making the following related observations pertaining to petitioner's request:

The Petitioner has gone through a series of attorneys at the state leveland is now attempting to go to a third attorney in this proceeding. Unfortunately, just as the Magistrate Judge predicted at the June 16, 2015[] hearing (Docket Entry 42) the Petitioner is back again with essentially the same complaint against Mr. Terry as he had against Mr. Small. Attorneys have ethical obligations in what they can and cannot do and no client can require an attorney to do something the attorney believes to be unethical.

. . .

Quite frankly, the Magistrate Judge has little confidence that the appointment of a third attorney in this case would produce a different result. The Petitioner does not have a right to unlimited attorneys and he does not have a right to require an attorney to do any particular act if the attorney has good reasons for not doing so.

(Doc. 59)

The June 15, 2016 hearing was held as scheduled. Thereafter, on June 17, 2016, the Magistrate Judge ordered the case restored to the active docket, granted petitioner's motion to relieve counsel, denied petitioner's motion for appointment of new counsel, ordered petitioner to proceed pro se with assistance of appointed elbow counsel, and received petitioner's motion to amended his habeas petition.⁴...