Wilson v. Donahue, 10-2796-STA-cgc

• Decision Date: 10 September 2013
• Docket Number: No. 10-2796-STA-cgc,10-2796-STA-cgc
• Parties: PAUL WILSON, Petitioner, v. MICHAEL DONAHUE, Respondent.
• Court: U.S. District Court — Western District of Tennessee

PAUL WILSON, Petitioner, v. MICHAEL DONAHUE, Respondent.

No. 10-2796-STA-cgc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Dated: September 10, 2013

ORDER TO MODIFY THE DOCKET

ORDER ON PENDING MOTIONS

ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254

ORDER DENYING CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

AND

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the pro se Petition Under 28 U.S.C. 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition") filed by Petitioner Paul Wilson, Tennessee Department of Correction prisoner number 109993, who is currently an inmate at the Hardeman County Correctional Facility ("HCCF") in Whiteville, Tennessee (ECF No. 1),¹ Petitioner's Request to Determine Disposition of Case and Appointment of Counsel (ECF No. 22), and Respondent's Motion to Construe Answer as Motion for Summary Judgment (ECF No. 23). For the reasons stated below, the CourtGRANTS the Request for Disposition of Case and DENIES the motion for appointment of counsel, the Motion to Construe Answer as Motion for Summary Judgment, and the Petition.

I. BACKGROUND

A. State Court Procedural History

On March 18, 2004, a grand jury in Shelby County, Tennessee, returned a single-count indicting charging Wilson with the aggravated robbery of William Koening on June 12, 2003.² On July 12, 2004, the State made a plea offer of fifteen (15) years to settle the instant case and another matter that Wilson had pending, but the trial judge ultimately declined to accept a guilty plea because of Wilson's conduct at the hearing.³ A jury trial commenced in the Shelby County Criminal Court on December 6, 2004, and, on December 8, 2004, the jury returned a guilty verdict on the sole count of the indictment.⁴ At a sentencing hearing on January 3, 2005, Wilson was sentenced to a term of imprisonment of thirty (30) years as a career offender at 60%.⁵ A hearing on Petitioner's motion for a new trial occurred on January 15, 2005.⁶ The TennesseeCourt of Criminal Appeals affirmed. State v. Wilson, No. W2005-00307-CCA-R3-CD, 2005 WL 3533339 (Tenn. Crim. App. Dec. 22, 2005), appeal denied (Tenn. Apr. 24, 2006).

On August 4, 2005, Wilson filed a petition for a writ of habeas corpus pursuant to Tennessee Code Annotated §§ 29-21-101 et seq., in the Circuit Court for Hardeman County, Tennessee, which challenged certain judgments that were used to enhance his sentence.⁷ On September 19, 2005, the Warden filed a motion to dismiss the petition.⁸ In an order issued on September 19, 2008, the trial court denied the petition.⁹ The Tennessee Court of Criminal Appeals affirmed. Wilson v. Dotson, No. W2005-02317-CCA-R3-HC, 2006 WL 1205636 (Tenn. Crim. App. May 4, 2006), appeal denied (Tenn. Sept. 25, 2006).

On November 9, 2006, Wilson filed a pro se petition in the Shelby County Criminal Court pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 through - 122.¹⁰ Counsel was appointed to represent Wilson,¹¹ and an amendedpetition was filed on August 31, 2007.¹² The State answered the amended petition on or about September 19, 2007.¹³ On August 7, 2008, post-conviction counsel filed a second amended petition.¹⁴ The post-conviction court conducted hearings on July 17, 2008;¹⁵ August 1, 2008;¹⁶ and August 29, 2008.¹⁷ The post-conviction court denied the petition on December 16, 2008,¹⁸ and the Tennessee Court of Criminal Appeals affirmed, Wilson v. State, No. W2009-00173-CCA-R3-PC, 2010 WL 2384895 (Tenn. Crim. App. June 14, 2010), appeal denied (Tenn. Sept. 23, 2010).

The Tennessee Court of Criminal Appeals summarized the evidence introduced at trial and the relevant procedural issues:

The evidence presented at trial showed that the defendant entered a Circle K convenience store on the evening of June 12, 2003, and requested two quarters in exchange for fifty pennies from the store clerk, William Koenig. Koenig, the victim, complied and the defendant left the store. Approximately fifteen minutes later, the defendant returned to the store and requested change for one of the quarters previously given to him. As the victim prepared to give the defendant change for the quarter, the defendant pulled an object out from under his shirt that appeared to be a gun, wrapped in a cloth. The defendant told him, "[D]on't make me shoot you" and "Give me all the money." The victim gave the defendant all the money in the drawer, but the defendant inquired about "20's under the drawer." When the victim told the defendant "there aren't any [,]" the defendant reached over the counter, lifted the drawer, and checked for himself. The defendant ordered the victim to the ground and left the store. After waiting to make sure the defendant was gone, the victim called 911.

The victim gave the 911 operator a detailed description of both the defendant and his vehicle. He described the defendant as a black male wearing a white cap, a blue shirt and driving a Cadillac with heavy damage to the side. Later that evening, Memphis police officers spotted a car and driver matching the description given by the victim and stopped the vehicle. Right before the officers stopped the vehicle, one of the officers saw the defendant toss an object out of the car window. However, the object was never found. The officers arrested the defendant and found a white towel and hat in his car, as well as twenty four dollars on the defendant's person. The officers returned to the scene of the robbery with the defendant, and the victim identified the defendant as the individual who robbed him.

A public defender was assigned to the defendant as his counsel and immediately began working on a plea bargain for the defendant. As a result, the defendant was offered a plea bargain of fifteen years. However, over the course of the guilty plea hearing, the defendant told the trial court that he would not be taking the plea if he could afford a lawyer of his own choosing. The defendant also repeatedly interrupted, talked over, and argued with the trial court. Because of the defendant's rude behavior, the trial court held the defendant in contempt. The trial court also refused to accept the defendant's plea, finding that he had told several untruths and was only pleading guilty so he could "file a post[-] conviction [petition] saying the judge forced me to plead guilty because my lawyer wasn't any good."

The case went to trial. During the state's closing argument, the defendant began to comment on theprosecutor's reference to a gun barrel seen by the victim. The defendant repeatedly stated "I did not have a gun" and "You [sic] going to charge me with aggravated robbery, give me 30 years and I didn't have a gun." After the defendant's disruptive behavior, the trial court removed the defendant from the courtroom and gave the jury a curative instruction. The trial court instructed the jury that it must disregard the defendant's unsworn statements in deciding the case. The trial court also questioned each juror with regard to whether he or she could decide the case on the proof without regard to the defendant's outburst. Each juror answered in the affirmative, and both parties proceeded with closing arguments. The jury found the defendant guilty of aggravated robbery.

State v. Wilson, 2005 WL 353339, at *1-2.

B. Procedural History of Wilson's § 2254 Petition

On November 4, 2010, Wilson filed his pro se Petition, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued on November 8, 2010, the Court denied leave to proceed in forma pauperis (ECF No. 3), and Petitioner paid the habeas filing fee on December 1, 2010 (ECF No. 4). The Court issued an order on January 4, 2011, directing Petitioner to sign his petitions under penalty of perjury within thirty (30) days. (ECF No. 5.) On February 3, 2011, Petitioner filed a response to the Court's order that attached a Perjury Oath and Notary swearing to the truth of the information contained in the Petition. (ECF No. 7.) The Court issued an order on May 24, 2011, directing Respondent to file the state-court record and a response to the Petition. (ECF No. 8.)

On August 30, 2011, Respondent filed his Answer to Petition for Writ of Habeas Corpus (ECF No. 17) and the state-court record (ECF No. 18). On September 7, 2011, Respondent filed a notice that two recordings "shall be" manually filed. (ECF No. 19.)¹⁹ On September 15, 2011, Wilson filed his Reply Memorandum of Law in Support of Writ of Habeas Corpus ("Reply"). (ECF No. 20.)

On November 5, 2012, Wilson filed a Request to Determine Disposition of Case and Appointment of Counsel. (ECF No. 22.) For good cause shown, the motion for the status of the case is GRANTED. The status of the matter is stated in this order.

"The constitutional right to counsel in criminal proceedings provided by the Sixth Amendment does not apply to an application for writ of habeas corpus, which is a civil proceeding." Staple v. Lafler, No. 07-cv-12452, 2010 WL 3341530, at *2 (E.D. Mich. Aug. 24, 2010) (citing Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)); see also Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994) (same, collecting cases). There is no constitutional right to the appointment of counsel in civil cases, and the Court has broad discretion in determining whether counsel should be appointed. Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). "The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due process so require." Mira v. Marshall,806 F.2d 636, 638 (6th Cir. 1986); see also 18 U.S.C. § 3006A(a)(2)(B) (counsel may be appointed for persons seeking relief under 28 U.S.C. § 2254 who are financially eligible whenever the court determines "that the interests of justice so require"). The appointment of counsel is mandatory only when an...