United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING IN PART AND DENYING IN PART RULE 60(B)
MOTION, GRANTING CERTIFICATE OF APPEAL ABILITY, AND
CERTIFYING LIMITED APPEAL WOULD BE TAKEN IN GOOD
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
April 25, 2017, the Court granted the motion of Respondent,
Shawn Phillips, to dismiss the § 2254 petition as
untimely. (Order, ECF No. 39 at 19.) The Court also denied a
certificate of appealability (“COA”), certified
that an appeal would not be taken in good faith, and denied
leave to appeal in forma pauperis. (Id. at
20.) Judgment was entered the same day. (Judgment, ECF No.
40.) Petitioner, through appointed counsel, has filed a Rule
60(b) motion “to set aside . . . portions of [the
Court's] Order of Dismissal.” (Mot., ECF No. 41 at
1.) Specifically, Petitioner asks the Court to reconsider its
decisions to deny a COA and leave to appeal in forma
pauperis. (Id.) Respondent opposes the motion.
(Resp. Br., ECF No. 42.) For the reasons that follow, the
motion is GRANTED in part and DENIED in part.
Court dismissed the petition as untimely after hearing
testimony from Aldridge and a prison unit manager and oral
argument from the parties' attorneys. (Order, ECF No. 39
at 19.) The Court first rejected Petitioner's argument
that the limitations period should be tolled due to prison
restrictions. (Id. at 14-15.) The Court's ruling
was based, in large part, on its determination that the unit
manager was more credible than Aldridge. The Court also held
that Petitioner had not established a gateway claim of actual
innocence to overcome his late filing. (Id. at
15-19.) Aldridge argued that had the jury heard certain
testimony (which had been excluded by the state trial court),
and considered it in light of vulnerabilities in the
state's evidence, it is more likely than not that no
rational juror would have convicted Petitioner. The Court made
the probability determination required by McQuiggin v.
Perkins, 133 S.Ct. 1924, 1933 (2013), and ruled against
Petitioner. (Order, ECF No. 39 at 18-19.) The Court concluded
that it was not more likely than not that no
reasonable juror would have found Aldridge guilty of first
degree murder. (Id. at 19.)
argues that the Court should have granted a COA as to both
the equitable tolling and actual innocence issues. A COA may
issue only if the petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. §
2253 (c) (2) & (3). A “substantial showing”
is made when the petitioner demonstrates that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed
further.'” Miller-El v. Cockrell, 537 U.S.
322, 336 (quoting Slack v. Daniel, 529 U.S. 473, 484
(2000)). If the district court rejects a claim on a
procedural ground, the petitioner must show “that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 478.
The Supreme Court has cautioned against undue limitations on
the issuance of a COA. See Miller-El, 537 U.S. at
337 (“It is consistent with § 2253 that a COA will
issue in some instances where there is no certainty of
reasonable jurists would not debate the correctness of the
Court's equitable tolling decision. Petitioner argues
that the decision is debatable because the unit manager's
testimony was inconsistent in one respect. The inconsistency,
however, was resolved by the Court in Petitioner's favor.
(See Order, ECF No. 39 at 13 n. 2.) Petitioner has
therefore failed to establish that he is entitled to a COA on
equitable tolling. In addition, any appeal on that ground
would not be in good faith.
Aldridge's actual innocence claim, the Court finds that
reasonable jurists could debate the correctness of the
Court's actual innocence probability determination.
Reasonable jurists could also debate whether Petitioner
states a valid constitutional claim based on the state
court's exclusion of the police officer's testimony.
Petitioner's motion is GRANTED in part and DENIED in
part. The Court GRANTS a certificate of appealability on the
issue of actual innocence to overcome the untimely filing of
the petition. The Court also CERTIFIES, pursuant to Fed. R.
App. P. 24 (a), that an appeal in this matter would be taken
in good faith to the extent the appeal addresses the gateway
actual innocence issue. An appeal that does not address that
issue is not certified as taken in good faith, and Petitioner
should, in that instance, follow the procedures of Rule 24
(a) (5) to obtain in forma pauperis status.
 Petitioner's underlying habeas
claim challenges the state court's exclusion of that
evidence. At an offer of proof, a police officer testified
that the victim had reported to police just days before his
murder that his girlfriend had threatened him ...