Carter, et al v. Rone, et al

Filing 118

MEMORANDUM AND ORDER: The petitioner's Rule 60(b)(6) motion (Doc. No. 113 ) is DENIED. In light of this denial, the petitioner's motions to proceed as a pauper (Doc. No. 112 ) and to reappoint counsel (Doc. No. 115 ) are DENIED as mo ot. Because an appeal from this order would not be taken in good faith, the petitioner is NOT certified to pursue an appeal in forma pauperis. 28 U.S.C. § 1915(a)(3). Signed by District Judge Aleta A. Trauger on 8/5/2020. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JOHN E. CARTER,
Petitioner,
v.
NEIL RONE, Warden,
Respondent.

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Case No. 3:90-cv-00780
Judge Trauger

MEMORANDUM AND ORDER
Pending before the court in this habeas corpus action is petitioner John E. Carter’s motion
for relief from judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure (Doc. No.
113), which he filed along with an application to proceed as a pauper (Doc. No. 112), a supporting
memorandum (Doc. No. 114), and a motion to reappoint counsel (Doc. No. 115). The respondent
has filed a response in opposition to the Rule 60(b)(6) motion. (Doc. No. 117.)
I. PROCEDURAL HISTORY
The petitioner has attempted in a variety of ways over the last 27 years to win recognition
that, as a matter of federal due process, he is entitled to have the Tennessee Supreme Court’s 1992
clarification of the deliberation element of first-degree murder in State v. Brown, 836 S. W. 2d 530
(Tenn. 1992), applied to his 1983 conviction for the murder of his grandparents. He has insisted
that there was no evidence that he deliberated over the killings he committed with the “cool
purpose” that is necessary to establish that statutory element of first-degree murder as interpreted

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in Brown, and that the state therefore failed to prove deliberation beyond a reasonable doubt. 1 He
apparently first asserted this argument in a motion to supplement his brief before the Sixth Circuit
on appeal from this court’s February 1993 denial of his petition in this action under 28 U.S.C.
§ 2254. (See Doc. No. 113 at 8–9.) The Sixth Circuit denied his motion to supplement and, in
December 1993, affirmed the denial of his habeas petition without mentioning Brown. Carter v.
Rone, 12 F.3d 211, 1993 WL 498200 (6th Cir. Dec. 2, 1993).
The petitioner filed his first Rule 60(b)(6) motion in this case on March 28, 2005. (Doc.
No. 45.) The court construed that motion as a request to file a second or successive petition under
Section 2254 and forwarded it to the Sixth Circuit. (Doc. No. 49.) The Sixth Circuit denied the
request (Doc. No. 61), dismissing the petitioner’s argument that “his convictions were based on
prior erroneous interpretations of state law by the Tennessee Supreme Court” and “now violate the
Due Process Clause.” (Id. at 2.) The petitioner’s second Rule 60(b)(6) motion (Doc. No. 63, filed
on January 30, 2006) was noted by this court to cite the same authority and raise the same claims
using the same arguments as his first motion, and was therefore denied as untimely, as was his

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At the time of the petitioner’s conviction and until 1995, the Tennessee Code defined firstdegree murder to include, e.g., a killing that is “willful, deliberate, malicious, and premeditated.”
Tenn. Code Ann. § 39-2402 (1982). As the Brown court stated,
It is consistent with the murder statute and with case law in Tennessee to instruct
the jury in a first-degree murder case that no specific period of time need elapse
between the defendant’s formulation of the design to kill and the execution of that
plan, but we conclude that it is prudent to abandon an instruction that tells the jury
that “premeditation may be formed in an instant.” Such an instruction can only
result in confusion, given the fact that the jury must also be charged on the law of
deliberation. If it was not clear from the opinions emanating from this Court within
the last half-century, it is now abundantly clear that the deliberation necessary to
establish first-degree murder cannot be formed in an instant.
836 S.W.2d at 543.
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third Rule 60(b)(6) motion (Doc. No. 69, filed on July 12, 2006). (See Doc. Nos. 67 & 72.) The
court deemed it unnecessary to forward the petitioner’s second and third motions, raising the same
or similar arguments as his first, to the Sixth Circuit for consideration as second or successive
habeas petitions. (See id.) The Sixth Circuit affirmed this court’s denial of relief on timeliness
grounds. (See Doc. No. 85 at 2.)
On the same day that he filed his second Rule 60(b)(6) motion in this case, January 30,
2006, the petitioner also filed a second petition under Section 2254 in this court. See Carter v.
Carlton, No. 2:06-cv-00012 (M.D. Tenn.) (Haynes, J.). Counsel was appointed for the petitioner,
though the court ultimately transferred the matter to the Sixth Circuit, which denied authorization
to file a second or successive habeas petition. (Case No. 2:06-cv-00012, Doc. No. 24.) The
petitioner subsequently filed his third and final habeas petition in Carter v. Sexton, No. 2:12-cv00029 (M.D. Tenn.) (Sharp, J.). The petitioner proceeded pro se and achieved the familiar result
of having his case transferred to the Sixth Circuit, which denied authorization to file the second or
successive petition. (Case No. 2:12-cv-00029, Doc. No. 28.)
In this, the fourth Rule 60(b)(6) motion in his original habeas proceeding under 28 U.S.C.
§ 2254, the petitioner bases his argument for the application of Brown upon the U.S. Supreme
Court’s decisions in Bousley v. United States, 523 U.S. 614 (1998), Fiore v. White, 531 U.S. 225
(2001), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). (See Doc. No. 113 at 22–25.) He
states that, “[s]ince Brown, [he] has attempted to have Brown applied to his case in at least 13
separate . . . proceedings that were denied on procedural rulings inconsistent with Montgomery,
Fiore, and the Federal Due Process Clause,” 2 showing that he “has been especially diligent in

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It bears noting that the rulings against the petitioner have not been entirely based on
procedural blocks to his claims. The Sixth Circuit recently noted that the petitioner had “raised a
Brown-based challenge to his convictions in state court, which was rejected on its merits” almost
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seeking application of the Brown clarification to his pre-Brown final convictions.” (Id. at 2.) In an
affidavit supporting his motion, the petitioner describes the prelude to this most recent attempt to
reopen his habeas case:
After repeatedly being told by state and federal courts that there is no judicial
process that allows me to obtain a Brown based reevaluation of my convictions
(including two prior motions under Rule 60(b)(6)), I reluctantly began to believe it
--- despite my belief that federal due process requires reevaluation. And this was
my belief and mental state at the time the Sixth Circuit issued its opinion in John
E. Carter v. Herbert Slatery III, Attorney General, No. 3:17-cv-01118, 2018 WL
4254631 (M.D.Tenn., September 6, 2018), affirmed, No. 18-6013, 2019 WL
1421064 (6th Cir., January 14, 2019), rehearing denied (6th Cir., February 27,
2019).
This Carter v. Slatery opinion infuriated me, because it pointed to this (my original)
Carter v. Rone habeas proceeding, and told me that this proceeding was the only
federal proceeding available for me to receive the Brown based reevaluation --- a
reevaluation the Sixth Circuit has conceded is required under Fiore v. White, 531
U.S. 225, 226-29 (2001) (per curiam), and the Federal Due Process Clause.
Immediately after receiving this Carter v. Slatery opinion, I began searching the
institution’s WestLaw computer looking (for one last time) if there is any possible
way to have my convictions reevaluated under Brown --- through either this Carter
v. Rone proceeding, or any other state or federal proceeding.

two decades ago. Carter v. Slatery, No. 18-6013, 2019 WL 1421064, at *3 (6th Cir. Jan. 14, 2019)
(citing Carter v. Carlton, No. E2000-00406-CCA-R3-PC, 2001 WL 170878, at *3 (Tenn. Crim.
App. Feb. 22, 2001)). In Carlton, the Tennessee Court of Criminal Appeals affirmed the denial of
state habeas relief to the petitioner, holding that Brown did not impact the sufficiency of the notice
provided by his indictment on first-degree murder charges. 2001 WL 170878, at *3. The court
emphasized that it had “held time and again” that the clarification in Brown does not render the
“former ambiguity” in defining premeditation and deliberation of constitutional concern, such that
“an individual convicted of first degree murder pre-Brown is laboring under a void conviction.”
Id. In addition, the Sixth Circuit itself briefly addressed the merits of the petitioner’s Brown
argument in 2007, denying him leave to file a second or successive habeas petition based in part
on the trial testimony of his girlfriend “that he had told her how easy it would be to kill his
grandparents and receive his inheritance.” (Doc. No. 86 at 4.) Although the petitioner derides
reliance upon a “single sentence” of testimony from his girlfriend (see Doc. No. 113 at 14), the
Sixth Circuit found this testimony to be “evidence of cool purpose” supporting the conclusion that
he was not improperly convicted under Brown’s clarification of the deliberation element, at least
not for purposes of showing the extraordinary circumstances required to revive this federal habeas
case. (Id.)
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(Doc. No. 113-7 at 2–3.) The petitioner claims that his research in the wake of the Sixth Circuit’s
decision in Carter v. Slatery eventually led him to the realization, on September 6, 2019, that “he
might have a Rule 60(b)(6) claim under Montgomery.” (Doc. No. 113 at 30 (emphasis in original).)
He filed the instant motion on December 12, 2019.
II. ANALYSIS
To begin with, the court must determine whether it has jurisdiction to consider the
petitioner’s Rule 60(b)(6) motion, or whether that motion should be treated as a second or
successive habeas application that the Sixth Circuit must first authorize under 28 U.S.C. § 2244(b).
Tyler v. Anderson, 749 F.3d 499, 506 (6th Cir. 2014) (“A motion under Rule 60(b) may be treated
as a second or successive habeas petition if necessary to enforce the requirements of the
AEDPA.”). “For purposes of § 2244(b), an ‘application’ for habeas relief is a filing that contains
one or more ‘claims.’ A motion contains a ‘claim,’ and is thus a successive habeas petition, if it
asserts a ‘federal basis for relief from the state court’s judgment of conviction,’ by ‘seek[ing] to
add a new ground for relief’ or ‘attack[ing] the federal court’s previous resolution of a claim on
the merits.’” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 530, 532 (2005)).
The instant motion does not assert any ground for relief that could be characterized as new,
nor does it attack this court’s previous resolution of the underlying Section 2254 petition. Rather,
the petitioner continues to assert the same, due process-based argument under Fiore, et al., that he
asserted in his previous Rule 60 motions. (Cf. Doc. No. 113 at 22–24 (relying on Bousley and Fiore
and stating “Carter’s case is controlled by Fiore”) with Doc. No. 63 at 15 (relying on “the
Bousley/Fiore doctrine”) and Doc. No. 69 at 22 (“Petitioner’s case is controlled by the due process
principles in Fiore v. White.”).) Although he updates his argument to include Montgomery v.
Louisiana and its holding “that when a new substantive rule of constitutional law controls the

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outcome of a case, the Constitution requires state collateral review courts to give retroactive effect
to that rule,” 136 S. Ct. at 729, his central contention continues to be that Brown announced a new
substantive rule of law and that it would be “inconsistent with the doctrinal underpinnings of
habeas review” to preclude him from relying on Brown in seeking to reopen his case. (Doc. No.
113 at 23–25.) The Sixth Circuit has already declined to authorize a second or successive habeas
petition based on the petitioner’s claim that he was unconstitutionally convicted under the “prior
erroneous interpretations of state law by the Tennessee Supreme Court” that gave way to Brown.
(Doc. No. 61 at 2.) Accordingly, as before, this court finds it proper to consider the petitioner’s
Rule 60(b)(6) motion.
Rule 60(b)(6)––the catchall provision governing relief from a final judgment for “any other
reason that justifies relief”––applies only in “exceptional or extraordinary circumstances where
principles of equity mandate relief,” which “rarely occur in the habeas context.” Miller v. Mays,
879 F.3d 691, 698 (6th Cir. 2018) (citations and internal quotation marks omitted). Even if such
circumstances arguably exist, to be considered, a motion under this subsection must be filed
“within a reasonable time.” Fed. R. Civ. P. 60(c)(1). “A reasonable time depends on the factual
circumstances of each case, and a moving party must articulate a reasonable basis for delay.” Tyler,
749 F.3d at 510 (internal citations omitted).
While the reasonableness determination considers diligence in seeking relief, Miller, 879
F.3d at 699, the petitioner’s diligence over the decades in seeking relief based on Brown does not
provide any basis for finding his Rule 60(b)(6) motion timely, as it has been definitively
established as the law of this case that his efforts to secure relief from this court’s 1993 judgment
based on Bousley and Fiore are untimely. (See Doc. Nos. 67, 72, 85.) The only effort the petitioner
makes to distinguish the timing of this particular motion is his claim that his research led him to

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realize, on September 6, 2019, that Montgomery could be the basis of a Rule 60(b)(6) argument,
and that he moved diligently to file the instant motion shortly thereafter. (Doc. No. 113 at 30.) He
argues that Montgomery––in holding “that when a new substantive rule of constitutional law
controls the outcome of a case, the Constitution requires state collateral review courts to give
retroactive effect to that rule,” 136 S. Ct. at 729––“placed new constitutional obligations on the
states.” (Doc. No. 113 at 25.)
Although “[c]hanges in decisional law are usually not an extraordinary circumstance”
justifying Rule 60(b)(6) relief, Wright v. Warden, Riverbend Maximum Sec. Inst., 793 F.3d 670,
672 (6th Cir. 2015), for purposes of the threshold timeliness determination, the court must
“examine the time between the date of the decision constituting a change in the law and the date
that the Rule 60(b)(6) motion was filed.” Miller, 879 F.3d at 699. Montgomery was decided on
January 25, 2016. The petitioner’s failure to discover it as a potential avenue of Rule 60(b)(6) relief
until nearly four years later, despite his diligence in otherwise litigating the Brown issue in this
and other courts through other causes of action, clearly cannot justify a finding that the instant
motion was filed “within a reasonable time.” Cf. Gonzalez, 545 U.S. at 536–37 (finding an 8month delay was not diligent); Wright, 793 F.3d at 672 (recognizing Rule 60(b) movant’s diligence
in filing within 12 months of Supreme Court decision but denying motion because “diligence
alone, while a factor to be considered, is not enough to demonstrate extraordinary circumstances
in light of the other factors that counsel against Rule 60(b)(6) relief, most notably the public policy
favoring finality of judgments and termination of litigation”). This is particularly true because the
petitioner was aware of the decision in Montgomery (if not its potential to support a Rule 60
motion) since at least March 2018, when he identified it as support for his complaint in this court

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under 42 U.S.C. § 1983. See Carter v. Slatery, No. 3:17-cv-00118, Doc. No. 8 (M.D. Tenn. Mar.
22, 2018).
Finally, even if the petitioner’s motion could somehow be deemed timely vis-à-vis
Montgomery, that decision cannot bear the weight required to justify Rule 60(b)(6) relief in this
case, as it speaks to the states’ obligation to retroactively apply outcome-determinative, substantive
rules of federal constitutional law––in that case, the Eighth Amendment prohibition on mandatory
life without parole sentences for juvenile offenders announced by the Supreme Court in 2012. As
the Court explained,
If a State may not constitutionally insist that a prisoner remain in jail on federal
habeas review, it may not constitutionally insist on the same result in its own
postconviction proceedings. Under the Supremacy Clause of the Constitution, state
collateral review courts have no greater power than federal habeas courts to
mandate that a prisoner continue to suffer punishment barred by the Constitution.
If a state collateral proceeding is open to a claim controlled by federal law, the state
court “has a duty to grant the relief that federal law requires.” Yates [v. Aiken], 484
U.S., at 218, 108 S. Ct. 534. Where state collateral review proceedings permit
prisoners to challenge the lawfulness of their confinement, States cannot refuse to
give retroactive effect to a substantive constitutional right that determines the
outcome of that challenge.
Montgomery, 136 S. Ct. at 731–32.
The case at bar, by contrast, revolves around a state supreme court’s corrective to the
confusing way in which a state statute’s elements were being described to juries, Brown, 836
S.W.2d at 543, which the courts of the state have emphatically held “did not announce a new state
constitutional rule, did not implicate any constitutional right, is not retroactive, and may not serve
as the basis for post-conviction relief.” Swiggett v. State, No. E2002-00174-CCA-R3-PC, 2002
WL 31309174, at *2 (Tenn. Crim. App. Oct. 15, 2002) (rejecting argument under Fiore and
quoting Miller v. State, 54 S. W. 3d 743, 744, 747 (Tenn. 2001), which joined “every other
appellate court decision addressing the issue” in concluding “that Brown did not announce a new

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state constitutional rule” and “is not to be given retroactive application”)); see also Miller v. Bell,
No. 3:01-cv-487, 2005 WL 8155162, at *50 (E.D. Tenn. Mar. 25, 2005) (holding Fiore inapposite
to challenge based on Brown, because Fiore involved state’s interpretation of conduct proscribed
by statute, while Brown “made mere prospective changes in jury instructions” on elements
unambiguously required to sustain first-degree murder conviction). Montgomery simply does not
apply in these circumstances.
III. CONCLUSION
As in Wright, 793 F.3d at 673, the petitioner here has had his day in court, as his chief
contention “has been thoroughly litigated in the state and federal courts” over nearly thirty years.
His latest Rule 60(b)(6) motion was not filed within a reasonable time, Fed. R. Civ. P. 60(c)(1),
and it does not present an extraordinary circumstance justifying the equitable reopening of a
judgment long since final.
For these reasons, the petitioner’s Rule 60(b)(6) motion (Doc. No. 113) is DENIED. In
light of this denial, the petitioner’s motions to proceed as a pauper (Doc. No. 112) and to reappoint
counsel (Doc. No. 115) are DENIED as moot. Because an appeal from this order would not be
taken in good faith, the petitioner is NOT certified to pursue an appeal in forma pauperis. 28
U.S.C. § 1915(a)(3).
It is so ORDERED.

____________________________________
Aleta A. Trauger
United States District Judge

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