United States District Court, E.D. Tennessee, Knoxville Division
December 11, 2014
DAVID McNISH, Petitioner,
WAYNE CARPENTER, Warden, Respondent.
MEMORANDUM AND ORDER
PAMELA L. REEVES, District Judge.
This matter is before the Court on a petition for writ of habeas corpus brought by death row inmate, Petitioner David McNish ("Petitioner"). The Court denied the Petition finding that Petitioner had not made a substantial showing of the denial of a constitutional right [R. 187, 188]. On motion of the Petitioner, the Sixth Circuit remanded the matter to consider the impact of Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013), as applied to Tennessee convictions by Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014), and with respect to the Court's prior rulings that Petitioner's ineffective assistance of counsel claims were procedurally defaulted. Trevino stands for the proposition that the failure of post-conviction counsel to properly litigate, in the state courts, a defendant's claim of ineffective assistance of trial counsel may excuse the defendant's procedural default of those claims for purposes of federal habeas corpus review.
The parties are hereby ORDERED to brief this issue. Petitioner's brief SHALL be filed within forty-five (45) days of this memorandum and order, and SHALL identify the specific claims that Petitioner contends are impacted by Martinez and Trevino, and why Petitioner is entitled to relief under Martinez and Trevino as to specific claims. Respondent's responsive brief SHALL be filed within forty-five (45) days after Petitioner's brief is filed.
IT IS SO ORDERED.