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Rogers v. Mays

United States District Court, M.D. Tennessee, Nashville Division

May 31, 2019

TONY MAYS, Warden, Respondent.



         On March 25, 2019, the Court denied relief to Petitioner on all of his habeas claims and granted a Certificate of Appealability (COA) for five categories of claims. (Doc. No. 154 at 2.) Petitioner has filed a Motion to Alter or Amend Judgment under Rule 59(e) of the Federal Rules of Civil Procedure, in which he asks the Court to reconsider the denial of relief on his ineffective-assistance-of-trial-counsel claims regarding mitigation evidence (“IATC-mitigation claims”) or to grant a COA for those claims. (Doc. No. 155.) Respondent opposes the motion (Doc. No. 160), which is ripe for review.

         “A court may grant a Rule 59(e) motion to alter or amend if there is: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). “Rule 59(e) permits a court to alter or amend a judgment, but it ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (quoting 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2810.1, pp. 127-128 (2d ed.1995)).

         Petitioner argues that the Court erred in determining that his IATC-mitigation claims were procedurally defaulted outside the scope of Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. No. 155 at 2-5.) He refers specifically to Claims C.19-23 and E.1-5. (Id. at 1.)

         The Court explained in its previous memorandum that it construed Claim C.19 to assert an exhausted claim about trial counsel's handling of the testimony presented by defense expert Dr. Keith Caruso, and it reviewed the claim on its merits. (Doc. No. 153 at 54-61 and n.15.) And Claim E.1 was not an IATC-mitigation claim at all. Petitioner alleged in E.1 that counsel was ineffective in connection with jury selection, and the Court analyzed that claim on the merits as an exhausted claim. (Doc. No. 14 at 44; Doc. No. 153 at 62-78.) Accordingly, Petitioner's argument about the scope of Martinez simply does not apply to these claims.

         With regard to the rest of the claims at issue, the Court determined that those claims were defaulted on post-conviction appeal and not subject to further review. (Doc. No. 153 at 185-86.) The relevant portions of the Court's analysis were:

The Court has explained above that procedurally defaulted claims are generally subject to habeas review unless a petitioner establishes cause and prejudice to overcome the default. In the past it was firmly settled that ineffective assistance in state post-conviction proceedings could never establish such cause, because there is no constitutional right to effective assistance of counsel in such collateral proceedings. Coleman v. Thompson, 501 U.S. 722, 742-54; Ritchie v. Eberhart, 11 F.3d 587, 590 (6th Cir. 1993); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
But in 2012, the Supreme Court found it “necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). It held in Martinez that the ineffective assistance of post-conviction counsel may, under some circumstances, qualify as cause for the default of claims of ineffective assistance of counsel at trial. Id. at 9; see also Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (holding that Martinez applies in Tennessee). . . . [T]he Court emphasized the narrowness of its holding: “This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9.

Another significant limitation on the scope of Martinez is that it only applies to claims that were defaulted at the initial review stage of collateral proceedings:

The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. See 501 U.S., at 754; Carrier, 477 U.S., at 488. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.

         Martinez, 566 U.S. at 16. So Martinez does not apply to claims that were raised in a post-conviction petition but not raised on post-conviction appeal. West v. Carpenter, 790 F.3d 693, 698 (6th Cir. 2015). The Court must address one final limitation of Martinez in light of Petitioner's argument in his response and surreply that “Martinez and Trevino apply not only to the failure of post-conviction counsel to raise the claim, but to all situations where the court denied a petitioner's opportunity to vindicate an IATC claim because counsel poorly presented it.” (Doc. No. 111 at 346; Doc. No. 137 at 3-4.) In support of this position, he relies primarily on Justice Breyer's 2013 statement on the denial of certiorari, which acknowledges that no federal appellate court to that point had found Martinez to apply to a situation where post-conviction counsel raised a claim but failed to present evidence to support it. Gallow v. Cooper, 570 U.S. 933 (2013) (Breyer, J., statement respecting the denial of certiorari). Such a statement does not establish precedent in support of Petitioner's position, but rather illustrates the lack of it. Teague v. Lane, 489 U.S. 288, 296 (1989) (“[O]pinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits.”); Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 853 (6th Cir. 2017) (“This statement regarding certiorari has no precedential effect, and only serves to underscore the lack of clearly established Supreme Court law on precisely this point.”).

         Petitioner also cites a Fifth Circuit opinion that applied Martinez to review new evidence on a claim that was raised and rejected on its merits in state court. Newbury v. Stephens, 756 F.3d 850, 871 (5th Cir. 2014). But such an application of Martinez is contrary to AEDPA, to Cullen v. Pinholster, 563 U.S. 170 (2011), and to Sixth Circuit precedent. A federal habeas court's review of “any claim that was adjudicated on the merits in State court proceedings” is limited to the evidence presented in the state proceeding, 28 U.S.C. § 2254(d); Pinholster, 563 U.S. at 181- 82, and the Martinez exception to enable review of procedurally defaulted claims simply does not apply when a claim has been exhausted on its merits. Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir. 2013) (“Moore is not asking that we afford a Martinez-like review of a procedurally defaulted claim, but rather that we turn Martinez into a route to circumvent Pinholster. As explained above, though, Pinholster plainly bans such an attempt to obtain review of the merits of claims presented in state court in light of facts that were not presented in state court. Martinez does not alter that conclusion.”); West v. Carpenter, 790 F.3d 693, 699 (6th Cir. 2015) (“When the state court denies a petitioner's ineffective-assistance claim on the merits, Martinez does not apply.”) The sole purpose of Martinez is to permit habeas petitioners an opportunity to overcome the bar against federal review of claims that “no state court at any level” has heard because they were procedurally defaulted. Martinez, 566 U.S. at 10-11. Accordingly, Martinez does not apply to claims that were not actually defaulted, or were defaulted at some stage other than initial review, even when Petitioner claims they were presented poorly at initial-review proceedings.

         1. Claim C.20-C.23, E.2-E.5 - Mitigation Evidence

         Petitioner alleges that counsel “failed to investigate and develop an accurate mitigation narrative in advance of trial” (C.20), and that they “failed to develop and present an accurate mitigation narrative” (E.2). (Doc. No. 14 at 34, 44.) Those general claims appear simply to summarize the following more specific claims: counsel failed to investigate and present evidence that Petitioner had suffered permanent and significant brain damage in connection with his stepfather's torture of him (C.21 and E.3); counsel “failed to investigate that [Petitioner] experienced Complex Trauma throughout his developmental years” (C.22 and E.4); counsel failed to investigate and ...

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