United States District Court, M.D. Tennessee, Nashville Division
MARK A. SCHIEFELBEIN,
JOHN S. BRYANT, Magistrate Judge.
To: The Honorable Kevin Sharp, Chief Judge.
This habeas corpus case has been referred to the undersigned Magistrate Judge for further proceedings, by Order entered September 29, 2011. (Docket Entry No. 38) On April 7, 2014, petitioner Mark A. Schiefelbein filed a motion for summary judgment. (Docket Entry No. 49) That motion is the subject of this Report and Recommendation. For the reasons given below, the undersigned recommends that petitioner's motion for summary judgment be DENIED.
I. STATEMENT OF THE CASE
Petitioner was convicted by a Williamson County jury of seven counts of aggravated sexual battery and one count of aggravated sexual exploitation of a minor. The Tennessee Court of Criminal Appeals affirmed the judgment on direct appeal. State v. Schiefelbein, 230 S.W.3d 88 (Tenn. Ct. Crim. App. 2007). On June 18, 2007, the Tennessee Supreme Court denied petitioner's application for permission to appeal. Petitioner did not seek review in the United States Supreme Court.
On March 25, 2008, the petitioner filed a petition for post-conviction relief in the trial court. Following a hearing, the trial court denied relief. That decision was affirmed on appeal. Schiefelbein v. State, 2010 WL 1998744 (Tenn. Ct. Crim. App. May 19, 2010). The Tennessee Supreme Court denied petitioner's application for permission to appeal on November 10, 2010. Petitioner did not seek review in the United States Supreme Court. On January 21, 2011, petitioner filed his original, pro se habeas corpus petition for relief under 28 U.S.C. § 2254. (Docket Entry No. 1) Following the state's response to that petition (Docket Entry No. 18) and after securing counsel, petitioner filed an amended petition on January 2, 2012. (Docket Entry No. 39) The amended petition seeks the issuance of the writ on grounds of judicial bias, ineffective assistance of counsel, and denial of a public trial.
Petitioner now seeks summary judgment on his claim of judicial bias. He has submitted a comprehensive statement of material facts not in dispute (Docket Entry No. 50), which support his motion but which respondent has not been required to respond to. (Docket Entry No. 71) In response to the motion, respondent has asserted arguments related to the timeliness of the amended petition, the failure to properly exhaust the judicial bias claim, and the procedural default of petitioner's judicial bias claim. Respondent has not addressed the merits of the judicial bias claim. In reply to respondent's response, petitioner has argued that the amended petition is timely, that respondent waived his affirmative defenses by failing to respond to the amended petition, that claims of judicial bias cannot be procedurally defaulted, and that the finding of trial court bias by the Tennessee Court of Criminal Appeals required reversal of his conviction and a new trial under clearly established federal law.
The facts informing the instant motion for summary judgment may be gleaned from the decision on direct appeal of the Tennessee Court of Criminal Appeals. State v. Schiefelbein, 230 S.W.3d 88 (Tenn. Ct. Crim. App. 2007), the petitioner's statement of material facts (Docket Entry No. 50), and further from the discussion below.
II. CONCLUSIONS OF LAW
1. Timeliness of the Amended Petition
Respondent first argues that the amended petition was not filed timely, inasmuch as it was filed after the expiration of the one-year limitations period applicable to habeas petitions and does not relate back to the filing of the original, pro se petition. This argument is without merit. The undersigned is not persuaded that the amended petition "asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650 (2005). Rather, the amended petition was clearly submitted (1) to supplement and streamline the arguments advanced in the original petition in support of the same broad grounds for relief, i.e., judicial bias, ineffective assistance of counsel, and denial of a public trial, and (2) in reply to the state's contentions in their response to the original petition, as contemplated and invited by this Court's order of July 1, 2011 (Docket Entry No. 26 at 1, 3). Respondent objects to the amended petition recasting the freestanding claims of the original petition as allegations and arguments in support of the judicial bias claim, and further objects that "[t]he amended petition adds facts that were not presented in the original petition." (Docket Entry No. 66 at 31) However, the amended petition does not add new claims as such,  and the new factual allegations of the amended petition cannot be said to stray from the "common core of operative facts" giving rise to the claims originally pled. Mayle v. Felix, 544 U.S. at 664 & n.7. Accordingly, to the extent that the amended petition's timeliness is properly subject to challenge, the undersigned would find that relation back is in order.
2. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), the availability of federal habeas corpus relief is limited with respect to claims that have been previously adjudicated on the merits in state court. Harrington v. Richter, 131 S.Ct. 770, 780 (2011). When a claim has been adjudicated on the merits in state court, the state court adjudication will not be disturbed unless it resulted in a decision contrary to clearly established federal law or involved an unreasonable application of federal law in light of the evidence. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362 (2000). Claims reviewed by the state courts for plain error are deemed to have been adjudicated on the merits for the purpose of receiving deference under AEDPA. Fleming v. Metrish, 556 F.3d 520, 530-32 (6th Cir. 2009).
In order for a state adjudication to run "contrary to" clearly established federal law, the state court must arrive at a conclusion opposite to that reached by the United States Supreme Court on a question of law or decide a case differently than the United States Supreme Court on a set of materially indistinguishable facts. For the writ to issue due to an "unreasonable application" of federal law, the petitioner must show that the state court identified the correct governing legal principle involved but unreasonably applied that principle to the facts of the case. Id. at 412-13. In short, state court judgments must be ...