McNish v. Bell

Filing 197

MEMORANDUM AND ORDER setting briefing scheduling upon remand from the Sixth Circuit. Signed by District Judge Pamela L Reeves on 12/11/14. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAVID McNISH,

Petitioner,
v.
WAYNE CARPENTER, Warden,

Respondent.

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No.: 2:00-CV-095-PLR-DHI

MEMORANDUM AND ORDER
This matter is before the Court on a petition for writ of habeas corpus brought by
death row inmate, Petitioner David McNish (“Petitioner”). The Court denied the Petition
finding that Petitioner had not made a substantial showing of the denial of a
constitutional right [R. 187, 188].

On motion of the Petitioner, the Sixth Circuit

remanded the matter to consider the impact of Martinez v. Ryan, 132 S. Ct. 1309
(2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), as applied to Tennessee
convictions by Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014), and with respect to
the Court’s prior rulings that Petitioner’s ineffective assistance of counsel claims were
procedurally defaulted.

Trevino stands for the proposition that the failure of post-

conviction counsel to properly litigate, in the state courts, a defendant’s claim of
ineffective assistance of trial counsel may excuse the defendant’s procedural default of
those claims for purposes of federal habeas corpus review.
The parties are hereby ORDERED to brief this issue. Petitioner’s brief SHALL
be filed within forty-five (45) days of this memorandum and order, and SHALL identify

the specific claims that Petitioner contends are impacted by Martinez and Trevino, and
why Petitioner is entitled to relief under Martinez and Trevino as to specific claims.
Respondent’s responsive brief SHALL be filed within forty-five (45) days after
Petitioner’s brief is filed.
IT IS SO ORDERED.

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UNITED STATES DISTRICT JUDGE

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