United States District Court, W.D. Tennessee, Western Division
ORDER DENYING IN PART RULE 60 MOTION, TRANSFERRING IN
PART RULE 60 MOTION TO COURT OF APPEALS AS A SECOND OR
SUCCESSIVE PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
the Court is Petitioner Issac Scott's Rule 60 motion for
relief from judgment and from the Court's order denying a
certificate of appealability (ECF No. 37). For the reasons
that follow, the motion is DENIED IN PART AND
TRANSFERRED IN PART to the Sixth Circuit as a second
or successive petition.
December 22, 2011, Scott filed his pro se habeas
corpus petition (the “Petition”) pursuant to 28
U.S.C. § 2254 (ECF No. 1). The Petition asserted the
1. The evidence was insufficient to convict Petitioner of
first degree murder (“Claim 1”). Pet. Under 28
§ U.S.C. 2254 for Writ of Habeas Corpus by a Person in
State Custody, at 5, Dec. 22, 2011, ECF No. 1 [hereinafter
2. “[T]he introduction of evidence by the State
relating [to] the victim being raped and/or sexually
assaulted constituted a variance from the indictment”
(“Claim 2”). Id. at 6.
3. Trial counsel was ineffective in three ways with regard to
the motion to suppress (“Claims 3(1), 3(2), and
3(3)”) and “fail[ed] to adequately prepare
petitioner for trial and to adequately communicate with
[him]” (“Claim 3(4)”). Id. at 8;
Mem. of Law in Supp. of Pet. Under 28 USC § 2254 for
Writ of Habeas Corpus by a Person in State Custody, at 14-19,
Dec. 22, 11, ECF No. 1-1.
4. Appellate counsel rendered ineffective assistance (Claim
4). Habeas Pet., at 10.
filed the record from Scott's state court proceedings
(ECF No. 20) and an Answer to the Petition (ECF No. 19).
Petitioner then filed a Reply (ECF No. 21). After reviewing
the state court record and considering the parties'
arguments, the Court denied the Petition. (ECF No. 24). It
held that Claim 1 and Claim 3(1) had been properly exhausted
but were without merit, Order Dismissing Case, at 23-29,
34-38, Sept. 23, 2015, ECF No. 24, and that the remaining
claims were procedurally defaulted. Id. at 29-32,
39. The Court also denied a certificate of appealability
(“COA”) and leave to appeal in forma
pauperis. Id. at 39-40.
was entered on September 24, 2015 (ECF No. 25). On October
26, 2015, Scott filed a Notice of Appeal (ECF No. 27), a
Motion for a COA (ECF No. 28), a Motion for Leave to Appeal
in forma pauperis (ECF No. 30), and a Motion for
Appointment of Counsel (ECF No. 29). But through its November
2, 2015 Order (ECF No. 32), the Court denied Petitioner's
request for counsel and again denied a COA and leave to
appeal in forma pauperis.
April 20, 2016, the Sixth Circuit denied Petitioner's
Motion for a COA, holding that reasonable jurists would not
debate this Court's decision to deny the Petition (ECF
No. 33). The Supreme Court thereafter denied his petition for
writ of certiorari (ECF No. 35).
5, 2017, the Sixth Circuit denied Petitioner's Motion for
Permission to File a Second or Successive Petition in the
District Court (ECF No. 36). The appellate court found that
Petitioner was seeking to pursue a new habeas claim that
“he was denied due process of law and his right to a
fair trial by the improper admission of evidence of uncharged
crimes of rape and sexual assault.” USCA Order, at 2,
June 5, 2017, ECF No. 36. The court held that Petitioner did
not meet his burden under 28 U.S.C. § 2244 to establish
entitlement to proceed on a second or successive petition.
Id. at 3.
weeks later, on June 30, 2017, Scott filed the instant Rule
60 Motion (ECF No. 37).