Arnold v. Dutton

602 F. Supp. 115, 1984 U.S. Dist. LEXIS 17975

• Court: District Court, M.D. Tennessee
• Decided: April 3, 1984
• Docket: Civ. A. No. 3:84-0203
• Status: Published

Opinions

MEMORANDUM AND ORDER

NEESE, Senior District Judge, Sitting by Designation.

The petitioner Mr. Joe T. Arnold applied pro se for the federal writ of habeas corpus, claiming inter alia that he is in the custody of the respondent-warden pursuant to the judgment of November 12, 1981 of the Criminal Court of Davidson County, Tennessee, in violation of the Constitution, Fourth, Fifth and Sixth Amendments. 28 U.S.C. § 2254(a). It is unclear from such application whether the applicant claims his exhaustion of remedies available to him in the appellate courts of Tennessee. 28 U.S.C. § 2254(b).

The applicant alleged that he took an appeal from his aforementioned judgment of conviction to the Court of Criminal Appeals of Tennessee, which affirmed that judgment on June 2, 1983 in State of Tennessee, appellee, v. Joe T. Arnold, appellant, no. 81 — 313—III in said Court. He exhibited also his application of July 5, 1983 to the Supreme Court of Tennessee for permission to appeal therein; however, he makes no allegation concerning any action thereon.

Ordinarily, a habeas corpus application by one detained under the judgment of a court of a state will be entertained only after all state-remedies available, including all appellate remedies in the state-courts, have been exhausted. Ex parte Hawk, 321 U.S. 114, 116-117, 64 S.Ct. 448, 450[5], 88 L.Ed. 572 (1944). This Court will withhold further examination of the petitioner’s application on preliminary consideration of his federal claims for 10 days, Rule 4, 28 U.S.C. fol. § 2254, to accord him an opportunity to amend his application so as to demonstrate whether his state-remedies have indeed been exhausted.

All other matters hereby are RESERVED.

On Appointment of Counsel

ORDER

It appearing on additional preliminary consideration thereof, Rule 4, 28 U.S.C. fol. § 2254, from an amendment of the application herein that permission for the petitioner to appeal the judgment of affirmance of June 2, 1983 in State of Tennessee, appellee, v. Joe T. Arnold, appellant, no. 81-313-III in the Court of Criminal Appeals of Tennessee, was denied September 6,1983 by the Supreme Court of Tennessee, establishing a prima facie case of the petitioner’s exhaustion of his available state remedies, 28 U.S.C. §§ 2254(b), (c); and, it appearing furthermore that the applicant herein has stated a substantial claim, that he was deprived in his prosecution by the State of Tennessee of his federally-guaranteed right to a speedy trial, Constitution, Sixth Amendment, Speedy Trial Clause; see Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967):

It hereby is

DETERMINED that the interests of justice require that the applicant be furnished representation pursuant to the pertinent Plan of this Court, he having been determined on February 3, 1984 unable financially to obtain representation, and Larry D. Woods, Esq., 121 17th Avenue, South, Nashville, Tennessee 37203 (telephone no.: (615)/259-4366), hereby is appointed to furnish such representation. 18 U.S.C. § 3006A(g).