Dellinger v. Bell
MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 8/28/18. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
TONY MAYS, Warden,
This case is before the Court upon a second amended petition for habeas corpus
under 28 U.S.C. § 2254 brought by James Dellinger, a Tennessee death row inmate
(“Petitioner”). Presently at issue is Petitioner’s renewed motion for partial summary
judgment [Doc. 143], Respondent’s response in opposition to that motion [Doc. 170], and
Petitioner’s reply [Doc. 173]. Also at issue is Petitioner’s motion to reconsider, clarify, or
supplement a prior order of the Court [Doc. 160]. Respondent filed a response in
opposition to that motion as well [Doc. 166].
The Court previously entered an order denying Petitioner’s motion for partial
summary judgment and denying without prejudice Petitioner’s motion to reconsider,
clarify, or supplement [Doc. 180]. This supporting opinion now follows.
Petitioner, along with codefendant Gary Wayne Sutton, was convicted by a Blount
County jury of premeditated first-degree murder in the death of Tommy Griffin. At the
penalty stage, the state presented evidence that Petitioner and Sutton previously had been
convicted of premeditated first-degree murder in the death of Connie Branam in Sevier
County.1 Finding that the aggravating circumstance of their previous first-degree murder
convictions in Sevier Count outweighed any mitigating circumstances, the Blount County
jury sentenced both Petitioner and Sutton to death for Griffin’s murder. Petitioner’s
conviction and death sentence were affirmed by the Tennessee Court of Criminal Appeals
(“TCCA”) and the Tennessee Supreme Court on direct review. State v. Dellinger, 79
S.W.3d 458 (Tenn. 2002). Petitioner’s petition for writ of certiorari was denied by the
United States Supreme Court. Dellinger v. Tennessee, 537 U.S. 1090 (2002).
The trial court subsequently denied Petitioner’s petition for post-conviction relief
and the TCCA affirmed. Dellinger v. State, No. E2005-01485-CCA-R3-PD, 2007 WL
2428049 (Tenn. Crim. App. Aug. 28, 2007). The Tennessee Supreme Court granted
permission to appeal and affirmed the denial of post-conviction relief. Dellinger v. State,
279 S.W.3d 282 (Tenn. 2009).
On February 25, 2009, Petitioner filed an initial capital habeas petition pro se [Doc.
3]. After counsel was appointed, an amended habeas petition was filed on November 30,
2009 [Doc. 26]. Respondent filed an answer [Doc. 34] which, with Respondent’s consent,
was deemed a dispositive motion “because a large component” of it was “seemingly
Connie Branam was the sister of Tommy Griffin. Petitioner and Sutton both were
convicted and sentenced to life imprisonment in Sevier County for Branam’s murder. Petitioner’s
challenge to his conviction and sentence for that offense is the subject of pending federal habeas
proceedings before this Court at Dellinger v. Mays, No. 3:09-CV-404.
designed to function as a motion for summary judgment or motion to dismiss” [Doc. 54].
Petitioner filed a response to Respondent’s answer/motion for summary judgment in
conformity with Federal Rule of Civil Procedure 56 [Doc. 63], then a “reorganized”
response in compliance with a Court order [Doc. 73].
On the same day Petitioner filed his reorganized response, the United States
Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012), which recognized a limited
exception to the general rule set forth in Coleman v. Thompson, 501 U.S. 722, 732 (1991),
that attorney error in state post-conviction proceedings cannot constitute cause to excuse a
procedural default in federal habeas proceedings.2 As a result, an amended scheduling
order was entered on October 15, 2012, permitting Petitioner to file an amended habeas
petition but “only . . . to the extent Petitioner may add his Martinez arguments to his
ineffective assistance of counsel claims” [Doc. 94 p. 2].
Pursuant to that order, Petitioner filed a second amended habeas petition [Doc. 95]
and Respondent filed an amended “answer/motion for summary judgment” [Doc. 97]. The
parties then filed the following: Petitioner’s response to Respondent’s answer/motion for
summary judgment [Doc. 107]; Respondent’s reply [Doc. 108]; Petitioner’s sur-reply
[Doc. 112]; and Respondent’s response to the sur-reply [Doc. 113].
Specifically, Martinez held: “[w]here, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not
bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.” 566 U.S. at 17.
On September 27, 2014, the Court granted Petitioner’s motion to stay this case
pending exhaustion of an Atkins claim3 in state court [Doc. 116]. On June 27, 2016,
Petitioner filed several motions including the pending renewed motion for partial summary
judgment [Doc. 143], a motion to vacate the stay [Doc. 144], and a motion asking the Court
to take judicial notice of certain filings in the federal habeas proceedings arising from
Petitioner’s first-degree murder conviction in Sevier County [Doc. 145]. The Court entered
an order lifting the stay and indicating that it would take judicial notice of the fact that
Document Numbers 77, 78, and 94 were filed in Dellinger v. Mays, No. 3:09-CV-404 [Doc.
152]. The Court emphasized, however, that it was taking “judicial notice of these filings
and their contents, but not as to the truth of the contents of those documents,” in order to
“preserve Respondent’s opportunity to present contrary argument as to any factual disputes
that may arise with respect to those documents” [Id. p. 3].
Petitioner subsequently filed a motion to “reconsider, clarify or supplement” the
Court’s order primarily as it relates to judicial notice [Doc. 160] and Respondent filed a
motion in opposition [Doc. 166]. Respondent also filed a response in opposition to
Petitioner’s renewed motion for summary judgment [Doc. 170] to which Petitioner replied
In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the
execution of a mentally disabled criminal constitutes cruel and unusual punishment in violation of
the Eighth Amendment.
Petitioner’s Motion to Amend, Clarify, or Supplement Court Order
The Court first will address Petitioner’s motion to amend, clarify, or supplement the
Court’s order dated October 6, 2016. In that order, the Court explicitly indicated that it
would take “judicial notice of [Document Numbers 77, 78 and 94 filed in Dellinger v.
Mays, No. 3:09-CV-404] and their contents, but not as to the truth of the contents of those
documents,” in order to “preserve Respondent’s opportunity to present contrary argument
as to any factual disputes that may arise with respect to those documents” [Doc. 152 p. 3].
Petitioner seeks “reconsideration, clarification or supplementation” of the Court’s prior
order as it relates to judicial notice. In addition, Petitioner also asks the Court to direct
Respondent to file a specific response to Petitioner’s statement of undisputed material facts
[Doc. 160 p. 1]. This motion has been denied without prejudice, the Court having found,
for the following reasons, “no need to reconsider or clarify its previous order” [Doc. 180
Petitioner first asks that the Court clarify the order so as to reserve a decision as to
“whether and how” the findings in Dellinger v. Mays, No. 3:09-CV-404, will be given
preclusive effect until after Respondent has filed a reply to Petitioner’s motion for partial
summary judgment [Doc. 160 p. 2]. As Respondent since has filed a response in opposition
to Petitioner’s partial summary judgment motion [Doc. 170], this request is moot.
In any event, the Court’s prior order as it relates to judicial notice requires no
additional clarification. The order plainly states that the Court will take judicial notice of
the fact that certain documents were filed in the companion case of Dellinger v. Mays, No.
3:09-CV-404, and of their contents, but not as to the truth of the facts contained in those
documents [Doc. 152 p. 3]. The Court’s ruling in this regard is in full accordance with
case law in this circuit. See Jergens v. Ohio Dep’t of Rehab. & Corr. Adult Parole Auth.,
492 F. App’x. 567, 569 (6th Cir. 2012); United Pet Supply, Inc. v. City of Chattanooga,
921 F. Supp. 2d 835, 844 (E.D. Tenn. 2013) (taking judicial notice of the existence of
previous filings and their contents but declining to consider the contents as resolving
factual disputes) (citation omitted).
In addition, as will be discussed in more detail below, collateral estoppel does not
apply in this case to preclude further litigation of Petitioner’s claims of ineffective
assistance of post-conviction counsel. Accordingly, the findings in the related habeas case
are not entitled to any preclusive effect in this proceeding, and thus any issues relating to
the scope of judicial notice of the filings in that case, and the facts contained therein, are
Finally, Petitioner requests an order from the Court requiring Respondent to file a
separate response specifically addressing Petitioner’s statement of undisputed material
facts [Doc. 143-1] in adherence with the provisions of Federal Rule of Civil Procedure
56(c)(1)(B) [Doc. 160 p. 3]. Respondent in turn has asked the Court to waive any
requirement arising under Rule 56 to file a specific response to Petitioner’s statement of
As a result, Petitioner’s request to supplement the record in this case through the filing of
an additional 46 documents from the companion case of Dellinger v. Mays, No. 3:09-CV-404, as
identified in Petitioner’s notice of designation [Doc. 161], is unnecessary and is denied.
undisputed material facts, as such a response “would not be helpful” in resolving
Petitioner’s motion for partial summary judgment in light of the deference due to state
court findings of fact under the review standards set forth in § 2254(e) [Doc. 166 p. 2].
The Court agrees with Respondent that a specific response to Petitioner’s statement
of undisputed material facts is unnecessary to the Court’s resolution of Petitioner’s motion
for partial summary judgment, as will be discussed further below, and will not require
Respondent to provide such a statement in this case.
Petitioner’s Motion for Partial Summary Judgment [Doc. 143]
Petitioner’s second amended § 2254 petition alleges, inter alia, that he was denied
his right to effective assistance of counsel at every stage of the state court criminal
proceedings, from pre-trial (¶¶ 3.7.1–2), through trial (¶ 3.7.3), sentencing (¶ 3.7.4), direct
appeal (¶ 3.7.5), and post-conviction relief (¶ 3.7.8) [Doc. 95 pp. 26–44]. Petitioner has
moved for partial summary judgment on his claims of ineffective assistance of sentencing
counsel (“IASC”) set forth in ¶¶ 22.214.171.124–4 of the second amended petition and ineffective
assistance of post-conviction counsel (“IAPC”) set forth in ¶¶ 126.96.36.199–6. Specifically, he
asserts that there is no genuine issue of material fact that trial counsel’s performance at
sentencing was objectively unreasonable or that the deficient performance of counsel in his
state post-conviction proceedings constitutes cause to excuse the procedural default of
substantial unexhausted claims of ineffective assistance of trial counsel that postconviction counsel failed to present in state court [Doc. 143–2 p. 2].
Petitioner advances three reasons in support of partial summary judgment in his
favor on his IASC and IAPC claims: (1) Respondent’s answer/motion for summary
judgment fails to comply with either the Court’s third amended scheduling order or Federal
Rule of Civil Procedure 56, resulting in a waiver of Respondent’s ability to challenge
Petitioner’s allegations of IASC and IAPC as set forth in the second amended habeas
petition; (2) Respondent’s failure to address the factual bases for Petitioner’s IAPC claims
in the answer/motion for summary judgment should be deemed an admission of
Petitioner’s allegations relating to those claims under Federal Rule of Civil Procedure
8(b)(6); and (3) Respondent is collaterally estopped from re-litigating a number of issues
determined by the Court in an order entered in the related case of Dellinger v. Mays, No.
3:09-CV-404 [Docs. 83; 94]. For the following reasons, Petitioner’s motion for partial
summary judgment has been denied [Doc. 180 p. 1].
Third Amended Scheduling Order and Rule 56
Petitioner’s first argument for partial summary judgment is that Respondent’s
amended answer and motion for summary judgment [Doc. 97] “is a nullity and has no force
or effect” because it complies with neither the Court’s third amended scheduling order
[Doc. 94] nor Federal Rule of Civil Procedure 56 [Doc. 143–2 p. 3]. The Court finds no
basis to grant partial summary judgment to Petitioner on this ground.
Third Amended Scheduling Order
In light of the Supreme Court’s decision in Martinez, supra, the Court’s third
amended scheduling order permitted Petitioner to amend his habeas petition to “add his
Martinez arguments to his ineffective assistance of counsel claims” [Doc. 94 p. 2]. The
order further directed Respondent to file an amended answer and motion for summary
judgment, but again limited to additional “arguments responding to Petitioner’s Martinez
claims” [Id. p. 3].
Petitioner then filed a second amended habeas petition setting forth at ¶ 1.93 his
position with regard to the Martinez exception and adding his “Martinez-based claims” at
¶ 3.78 [Doc. 95 pp. 6–8, 41–44]. In sum, Petitioner alleges that his state-court postconviction attorneys “were ineffective in failing to investigate, research, prepare and
present each and every substantive and related ineffective assistance of counsel claim
raised in this Second Amended Petition as well as to properly support those claims with
evidence, argument and record materials” [Id. p. 6]. He further alleges that those same
counsel were ineffective “because lead counsel was seriously mentally ill and unable to
perform, and did not perform her duty in this case” [Id. p. 7]. Because the ineffectiveassistance-of- counsel claims that post-conviction counsel failed to present are substantial,
the failure of post-conviction counsel “to investigate, research, prepare and present the
facts and legal arguments in support of the substantial claims in this Second Amended
Petition constitutes ‘cause’ for excusing the default of such claims” under Martinez. [Id.
Respondent then filed an amended answer and motion for summary judgment [Doc.
97]. Contrary to Petitioner’s assertion, the amended answer explicitly addresses Martinez,
arguing that (1) Martinez does not apply in Tennessee,5 and (2) even if it does, Petitioner
is not entitled to relief because Martinez does not apply to excuse the default of any claims
resulting from the ineffectiveness of post-conviction appellate counsel and because
Petitioner’s other asserted claims are not substantial [Id. pp. 30–37]. Respondent’s answer
fully complies with the directive of the Court in the third amended scheduling order to file
an amended answer limited to additional “arguments responding to Petitioner’s Martinez
Petitioner also contends that Respondent’s answer and motion for summary
judgment does not comply with the provisions of Rule 56 requiring a showing of material
facts that cannot be genuinely disputed because it does not address Petitioner’s IAPC
allegations [Doc. 143-2 p. 4]. As a result, Petitioner asserts, Respondent’s “procedural
default defense is trumped by the undisputed IAPC allegations” [Id. p. 5]. Because review
in this case is governed by the standards set forth in § 2254, the Court will not grant
summary judgment in Petitioner’s favor due to an asserted lack of compliance with the
dictates of Rule 56.
Although habeas corpus proceedings are characterized as civil in nature, see, e.g.,
Fisher v. Baker, 203 U.S. 174, 181 (1906), a discrete set of Rules governs federal habeas
The Sixth Circuit subsequently rejected this argument and explicitly held that the
Martinez-Trevino exception to Coleman does apply in Tennessee cases because Tennessee’s
procedural framework directs defendants to file ineffective-assistance claims in post-conviction
proceedings rather than on direct appeal. Sutton v. Carpenter, 745 F.3d 787, 795–96 (6th Cir.
proceedings initiated by state prisoners. See Rules Governing Section 2254 Cases in the
United States District Courts (“habeas rules”). Rule 12 of the habeas rules permits
application of the Federal Rules of Civil Procedure in habeas cases only “to the extent that
[the civil rules] are not inconsistent with any statutory provisions or [the habeas] rules.”
As the Supreme Court has recognized, Rule 12 “permits application of the civil rules only
when it would be appropriate to do so,” and would not be “inconsistent or inequitable in
the overall framework of habeas corpus.” Mayle v. Felix, 545 U.S. 644, 654 (2005) (citing
Advisory Committee’s Note on Habeas Corpus Rule 11, later renumbered as Rule 12); see
also Fed. R. Civ. P. 81(a)(4)(A) (Federal Rules of Civil Procedure apply to habeas corpus
proceedings only to the extent that the practice in such proceedings “is not specified” in a
federal statute or the habeas rules and “has previously conformed to the practice in civil
Courts have recognized that while Rule 56 of the Federal Rules of Civil Procedure
regarding summary judgment applies generally “with equal force in the context of habeas
corpus cases,” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), it applies only to the
extent that it does not conflict with § 2254 or the habeas rules, Smith v. Cockrell, 311 F.3d
661, 668 (5th Cir. 2002), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274
(2004). Accordingly, where the standards of Rule 56 conflict with the standards applicable
under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, AEDPA
trumps Rule 56. Gentry v. Sinclair, 576 F. Supp. 2d 1130 (W.D. Wash. 2008) (Rule 56
doctrine that all evidence must be construed in the light most favorable to the party
opposing summary judgment conflicts with, and is trumped by, § 2254(e)(1), which
mandates that findings of fact made by a state court are ‘presumed to be correct’).
The standard of review under the AEDPA is clear. When a state court adjudicates
a claim on the merits, habeas relief is available only if the adjudication of that claim “(1)
resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Pursuant to § 2254(e)(1) “a determination of a factual issue made by a State court shall be
presumed to be correct” and the “applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
Moreover, before a federal court may review a federal claim raised in a habeas
petition, it first must determine whether the petitioner has exhausted the remedies available
in state court. See 28 U.S.C. § 2254(b)(1). If a federal habeas claim has not been presented
to a state court for adjudication, then it is unexhausted and may not properly serve as the
basis of a federal habeas petition. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A
petitioner who fails to raise a federal claim in the state courts and who is now barred by a
state procedural rule from returning with the claim to those courts has committed a
procedural default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). A procedural
default forecloses federal habeas review, unless the petitioner can show cause to excuse
the failure to comply with the state procedural rule and actual prejudice resulting from the
alleged constitutional violation. Id. at 750.
Here, Respondent argues in his answer/motion for summary judgment that all but
one of Petitioner’s IASC claims has been procedurally defaulted and that the other claim
was addressed by the Tennessee Court of Criminal Appeals. Respondent’s answer is
sufficient for the Court to consider the IASC claims under the appropriate standards of
AEDPA, and the Court will not apply Rule 56 standards to grant Petitioner summary
judgment on these claims.
As to Petitioner’s IAPC claims, Respondent did, in fact, set forth its position in
regard to these claims. Specifically, Respondent argues that Petitioner is not entitled to
relief because Martinez does not apply to excuse the default of any claims resulting from
the ineffectiveness of post-conviction appellate counsel, and because Petitioner’s other
asserted claims are not substantial [Id. pp. 30–37]. Pursuant to Martinez and Trevino,
ineffective assistance of post-conviction counsel can establish cause to excuse the
procedural default of an ineffective-assistance-of-trial-counsel claim only that claim is
“substantial.” Martinez, 566 U.S. at 14; Trevino, 133 S. Ct. at 1918, 1921. A substantial
claim of ineffective assistance is a claim that “has some merit.” Martinez, 566 U.S. at 14.
To establish ineffective assistance of counsel, a defendant must show deficient
performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Respondent’s answer is sufficient for the Court to consider whether Petitioner is
entitled to pursue his IAPC claims under the foregoing standards. If the Court determines
that a hearing is necessary, it will do so under the standards set forth in Rule 8 of the habeas
rules. Because habeas corpus cases are governed by the standards set forth in AEDPA and
the habeas rules, the Court finds no basis for granting summary judgment in favor of
Petitioner based on a lack of strict adherence to the provisions of Rule 56.
In a similar vein, Petitioner argues that Respondent failed to respond to the factual
bases raised in regard to Petitioner’s IAPC claims under Martinez and thereby should be
deemed to have admitted those allegations under Federal Rule of Civil Procedure 8(b)(6).
Under the federal rules, in responding to a pleading, a party is required to admit or
deny the allegations asserted against it, and a denial must fairly respond to the substance
of the allegation. Fed. R. Civ. P. 8(b)(1)(B), (b)(2). Pursuant to Rule 8(b)(6), an allegation
is admitted if a responsive pleading is required and the allegation is not denied. Under the
habeas rule 5(b), however, an “answer must address the allegations in the petition” and
“must state whether any claim in the petition is barred by a failure to exhaust state remedies,
a procedural bar, non-retroactivity, or a statute of limitations.”
Here, Respondent’s answer sets forth the position that Petitioner’s IATC claims are
procedurally barred and that the Martinez-Trevino exception regarding IAPC does not
apply to lift that bar. Nothing further is required under Rule 5(b) of the habeas rules. To
the extent that Federal Rule of Civil Procedure 8(b)(6) may require more, it is inconsistent
with Rule 5(b), and the Court will not grant summary judgment in Petitioner’s favor based
on Respondent’s asserted non-compliance with Rule 8(b)(6).
Petitioner’s final argument in support of partial summary judgment is that
Respondent is collaterally estopped from re-litigating certain issues determined by the
Court in the related case of Dellinger v. Mays, No. 3:09-CV-404 [Docs. 83; 94], which
challenges his murder conviction in Sevier County. Specifically, Petitioner contends that
certain findings of fact and mixed findings of fact and conclusions of law made by the
Court following an adversarial hearing on the issue of equitable tolling in Case No. 3:09CV-404 are “virtually identical” to material facts relating to Petitioner’s IAPC claims in
this case, precluding Respondent from re-litigating those issues here. Respondent counters
by arguing that the Court’s prior finding that post-conviction counsel abandoned him in
the Sevier County case is separate and distinct from the issue of whether post-conviction
counsel was ineffective for failing to raise a number of IATC claims in the Blount County
proceedings at issue in this case. The Court agrees with Respondent.
Petitioner’s § 2254 petition at Case No. 3:09-CV-404 was filed nearly two years
beyond the applicable one-year statute of limitations period. Petitioner sought equitable
tolling of the statute of limitations on the ground that his post-conviction counsel
abandoned him in the Sevier County case. The Court referred the matter to Magistrate
Judge C. Clifford Shirley to conduct an evidentiary hearing on the following issues: (1)
whether an attorney-client relationship existed between Petitioner and the Post-Conviction
Defender’s Office (“PCDO”) in relation to the filing of a federal habeas petition in the
Sevier County case; (2) whether post-conviction counsel’s mental illness or abandonment
of Petitioner in Sevier County constitutes an extraordinary circumstance; and (3) whether
Petitioner diligently pursued his federal habeas remedies in the Sevier County case [Doc.
83 p. 2].
Following the hearing, Magistrate Judge Shirley prepared a Report and
Recommendation (“R&R”) finding that an attorney-client relationship did exist between
Petitioner and the PCDO in relation to the filing of a federal habeas petition in the Sevier
County case, that Petitioner was abandoned by the PCDO in the Sevier County case, and
that Petitioner had pursued his rights to the extent reasonable under the circumstances
[Doc. 83 pp. 24–25, 27]. Accordingly, Magistrate Judge Shirley recommended that
equitable tolling be applied [Id. at 33]. The Court subsequently accepted the R&R and
granted Petitioner’s motion for equitable tolling [Doc. 94].
Collateral estoppel, otherwise termed issue preclusion, bars “successive litigation
of an issue of fact or law actually litigated and resolved in a valid court determination
essential to the prior judgment, even if the issue recurs in the context of a different claim.”
Arkansas Coals, Inc. v. Lawson, 739 F.3d 309, 320 (6th Cir. 2014) (quoting Taylor v.
Sturgell, 553 U.S. 880, 891 (2008) (internal citation and quotation marks omitted).
Four specific requirements must be met before collateral estoppel may be applied
to bar litigation of an issue: (1) the precise issue must have been raised and actually litigated
in the prior proceedings; (2) the determination of the issue must have been necessary to the
outcome of the prior proceedings; (3) the prior proceedings must have resulted in a final
judgment on the merits; and (4) the party against whom estoppel is sought must have had
a full and fair opportunity to litigate the issue in the prior proceeding. Cobbins v. Tennessee
Dep’t of Transp., 566 F.3d 582, 589–90 (6th Cir. 2009). In determining whether the
defensive use of collateral estoppel is appropriate, a court must also consider whether the
party against whom the judgment is pleaded had a full and fair opportunity to litigate the
issue, and whether it would be otherwise unfair under the circumstances to permit the use
of collateral estoppel. Id. at 590.
The Court need not go beyond the first requirement to conclude that collateral
estoppel does not apply here, as the issues raised and actually litigated in the related habeas
proceeding are not identical to the issues relating to IAPC to be determined in this case.
At issue in the Sevier County case was whether Petitioner was abandoned by his postconviction counsel in the Sevier County proceedings as to justify equitable tolling of the
one-year limitations period to permit the out-of-time filing of a federal habeas petition
challenging his Sevier County conviction. Conversely, the issue here is whether postconviction counsel was ineffective in the Blount County case in failing to raise a number
of claims of IATC as to excuse Petitioner’s procedural default of those claims. Claim
abandonment through ineffectiveness is not the same as client abandonment. Young v.
Westbrooks, 702 F. App’x 255, 262 (6th Cir. 2017).
As the Sixth Circuit Court of Appeals has observed, the United States Supreme
Court has drawn a line between claims of attorney error on the one hand and claims of
attorney abandonment on the other. Young, 702 F. App’x at 260–61. Claims raising
ineffective assistance of post-conviction counsel as an excuse for a procedural default are
governed by the Martinez-Trevino line of cases and require a determination of whether
post-conviction counsel was ineffective, under the Strickland standard, in failing to raise
IATC claims, as well as a determination as to whether the waived IATC claims are
substantial, that is, have “some merit.” Martinez, 566 U.S. at 14. Claims of attorney
abandonment, however, are governed by Maples v. Thomas, 565 U.S. 266, 281–82 (2012),
in which the Court held that a petitioner had shown cause to excuse a procedural default
when his attorneys abandoned him without warning—causing him to miss a deadline to
file a post-conviction appeal. Under Maples, when an attorney ceases to operate as a
petitioner’s agent “in any meaningful sense of that word,” the petitioner has been
abandoned and extraordinary circumstances thereby exist justifying the lifting of a
procedural bar to federal habeas review. Id.
Thus, the Court’s finding that Petitioner was abandoned by his post-conviction
counsel in the Sevier County case under the Maples standard at Case No. 3:09-CV-404
does not preclude Respondent from contesting the issue of whether post-conviction counsel
was ineffective in failing to raise substantial issues of IATC in the Blount County case
under the Martinez-Trevino standard in this case. As the Supreme Court has noted, for
purposes of issue preclusion, issues are not identical if the second action involves
application of a different legal standard, even if the factual setting of both suits may be the
same. See B & B Hardware, Inc., v. Hargis Indus., Inc., 135 S. Ct. 1393, 1306 (2015)
(citing 18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4417, p. 449
(2d ed. 2002)).
Because a different legal standard applies to the analysis of Petitioner’s Martinez
claims of IAPC than the standard the Court applied in determining client abandonment for
equitable tolling purposes under Maples, the issues are not identical for purposes of issue
preclusion. See Maples, 565 U.S. at 281–82 (as opposed to attorney negligence, a
“markedly different situation is presented . . . when an attorney abandons his client without
notice”). Accordingly, the Court finds that Respondent is not precluded by collateral
estoppel from litigating the Martinez issues raised by Petitioner in this case.
Pursuant to this Court’s prior order [Doc. 180], for the reasons set forth herein,
Petitioner’s motion for partial summary judgment [Doc. 143] has been DENIED and
Petitioner’s motion to reconsider, clarify, or supplement a prior order of the Court [Doc.
160] has been DENIED without prejudice.
Should the Court subsequently determine under the standards set forth in Rule 8 of
the Rules Governing Section 2254 Cases in the United States District Court that an
evidentiary hearing is required on any of Petitioner’s habeas claims, such a hearing will be
scheduled by separate order.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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