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Scott v. Perry

United States District Court, W.D. Tennessee, Western Division

April 9, 2018

ISSAC SCOTT, Petitioner,
v.
GRADY PERRY, Respondent.

          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

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         On 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 following claims:

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 “Habeas Pet.”].
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.

         Respondent 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.

         Judgment 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.

         On 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).

         On June 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.

         Three weeks later, on June 30, 2017, Scott filed the instant Rule 60 Motion (ECF No. 37).

         II. ...


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