Turner v. Lindamood

Filing 34

MEMORANDUM signed by District Judge Aleta A. Trauger on 11/29/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
AUTHOR RAY TURNER,
Petitioner,
v.
CHERRY LINDAMOOD, Warden
Respondent.

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No. 3:16-cv-2593
Judge Aleta A. Trauger

MEMORANDUM
The petitioner Author Ray Turner, 1 a state prisoner incarcerated at the South Central
Correctional Facility in Clifton, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for the
writ of habeas corpus. (Doc. No. 1.) The petitioner is proceeding in forma pauperis. (Doc. No.
3.)
Presently before the court is the petitioner’s motion to seek permission for leave to return
to the trial court with sufficient notice to file and to preserve due process and double jeopardy
claim which the court construes as a motion to amend the petition and to stay the proceedings
pending exhaustion in the state court (hereinafter “Motion”). (Doc. No. 30.) The respondent
asserts that the petitioner’s Motion should be denied because the claims the petitioner seeks to
add do not relate back and are time-barred, and because even if the petitioner were granted leave
to amend, the claims are procedurally defaulted and meritless and amendment would be futile.
Factual Allegations and Procedural History

1

Although the state court referred to the petitioner as Arthur Ray Turner, the petitioner uses the
name Author Ray Turner in this court. The court will refer to the petitioner by the name he uses
in these proceedings.

In 1995, the Petitioner, pursuant to a plea agreement, pleaded guilty to especially
aggravated kidnapping, aggravated robbery and two counts of aggravated rape.

He was

sentenced to 20 years for each of the aggravated rape convictions and ten years for the especially
aggravated kidnapping and aggravated robbery convictions.

The trial court ordered the

petitioner’s sentences to run concurrent, except for the rape sentences which were to run
consecutive for an effective sentence of 40 years. Over the course of the next several years, the
petitioner unsuccessfully sought appellate and post-conviction relief.
On December 9, 2008, the petitioner filed a petition for habeas corpus relief in the state
court challenging the legality of his sentence, arguing that his sentences and corresponding
judgment — which reflected a thirty percent release eligibility for each conviction — directly
contradicted the statutory mandate of Tennessee Code Annotated § 39-13-523, which provides
that any offender convicted of two counts of aggravated rape “shall be required to serve the
entire sentence imposed by the court.”

The habeas court dismissed the petition, but the

Tennessee Court of Criminal Appeals (“TCCA”) reversed, concluding that the petitioner’s
sentences for aggravated rape were illegal on the face of the judgments because they contravened
the state statute. The TCCA remanded the case to the habeas court for the appointment of
counsel and an evidentiary hearing to determine whether the petitioner was entitled to withdraw
his guilty plea. The TCCA directed the habeas court to determine, at the evidentiary hearing,
whether the illegal sentence was a material element of the petitioner’s plea agreement. If it was,
then the TCCA directed the habeas court to allow the petitioner to withdraw his plea unless he
reached an agreement with the state.
After the evidentiary hearing, the habeas court found that the thirty percent release
eligibility was a material bargained-for element of the plea agreement, granted the petition and

2

transferred the case to the Davidson County Criminal Court for further proceedings, noting that
the petitioner was entitled to withdraw his plea if he did not reach an agreement with the state.
The state unsuccessfully appealed and the petitioner withdrew his guilty plea and proceeded to
trial.
After a jury trial the petitioner was convicted of four counts of aggravated rape, one count
of attempted aggravated rape, one count of aggravated kidnapping and one count of aggravated
robbery. (ECF No. 20-1 at Page ID# 287.) The petitioner was sentenced to 20 years for each of
the aggravated rape convictions, 10 years for the attempted aggravated rape conviction, 20 years
for the especially aggravated kidnapping conviction and 10 years for the especially aggravated
robbery conviction. (Id. at Page ID## 288-94.) The trial court ordered that the two rape
convictions, the attempted rape conviction and the kidnapping conviction be served
consecutively for an effective sentence of 70 years’ imprisonment. (Id. at Page ID# 288.)
The TCCA affirmed the petitioner’s conviction in an unpublished opinion issued on May
28, 2014. State v. Turner, No. M2013-00277-CCA-R3CD, 2014 WL 2442993, at *1 (Tenn.
Crim. App. May 28, 2014) [Turner I]. The petitioner sought leave to appeal to the Tennessee
Supreme Court (“TSC”), which was denied on October 22, 2014. Id.
The petitioner sought post-conviction relief in the state trial court, which was denied on
July 14, 2015. (ECF No. 20-26 at Page ID## 1840-47.) The petitioner appealed to the TCCA,
which affirmed the judgment of the state post-conviction court on July 22, 2016. Turner v. State,
No. M2015-01572-CCA-R3-PC, 2016 WL 4009559, at *1 (Tenn. Crim. App. July 22, 2016)
[Turner II]. He did not seek leave to appeal to the TSC. Id.
On September 23, 2016, the petitioner timely filed his original federal habeas petition
alleging claims for (verbatim):

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1. The trial court and the criminal court of appeals violated the petitioner’s right
to due process pursuant to Brady v. Maryland [when they] refused to dismiss[]
criminal charges in [the petitioner’s] case after it was discover[ed] that the
state had destroyed all the DNA evidence in [the petitioner’s] case.
2. The [TCCA] . . . fail[ed] to rule on issues raised by the petitioner[] on his
appeal . . . .
a. That . . . Judge Steve R. Dozier violated the petitioner’s right to due
process by having the criminal court clerk’s office[] remove [the
petitioner’s] case from his docket.
b. That the petitioner was not taken before a magistrate within 72 hour[s]
of his arrest on 12-21-10 by [the] Davidson County Sheriff[’s]
Department.
c. That the petitioner was prosecuted outside of the statute of limitations.
d. That the petitioner[] . . . was denied due process when the Davidson
County Sheriff’s Department destroyed the rape kit in his case.
3. The trial court and the state attorney general violated the [petitioner’s] . . .
constitution[ally] protected right to due process [under the] Sixth Amendment
and [the] Fourteenth Amendment . . . [and his right to] equal protection [under
the Fourteenth Amendment]
4. The petition[er’s] trial counsel, appe[llate] . . . counsel [and] post-conviction
counsel [provided ineffective assistance.]
(Doc. No. 1 at Page ID## 9-56.) The respondent filed an answer, arguing that the petitioner’s
claims are procedurally defaulted or fail on the merits. (Doc. No. 21.) The petitioner filed a
reply to the respondent’s arguments. (ECF No. 28.)
On October 2, 2017, the petitioner filed the instant Motion, seeking to amend the petition
to add claims for violation of the petitioner’s “substantive due process” rights and double
jeopardy (hereinafter collectively “the new claims”). (ECF No. 30.) The petitioner also requests
that the court stay these proceedings so that he may return to the state court to exhaust these new
claims. (Id.) On October 17, 2017, the respondent filed an opposition, arguing that the new

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claims are time-barred, procedurally defaulted, and without merit, and, thus, amendment would
be futile. (ECF No. 32.)
Discussion
I.

Statute of Limitations

The respondent argues that the new claims are barred by the statute of limitations because
they were not raised until September 27, 2017. 2
Here, as in most cases, § 2244(d)(1)(A) provides the operative date from which the oneyear limitations period is measured. Under that provision, the one-year limitations period runs
from “the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A).

After the

Tennessee Court of Criminal Appeals issued an opinion affirming the trial court’s judgment, the
petitioner applied for permission to appeal to the Tennessee Supreme Court, which was denied
on October 22, 2014. Turner I, 2014 WL 2442993, at *1. The petitioner did not file a petition
for certiorari to the United States Supreme Court. The one-year limitations period, however, did
not begin to run until the ninety-day period in which the petitioner could have sought review in
the United States Supreme Court had expired. See Lawrence v. Florida, 549 U.S. 327, 332-33
(2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on
January 21, 2015. Under § 2244(d)(1)(A), the petitioner had one year from that date within
which to file an amended petition. The petitioner did not file the Motion in this court until
2

The respondent states that the Motion was not filed until October 3, 2017, but the document
itself is stamped received on October 2, 2017. Regardless however, under Sixth Circuit
precedent, a document is deemed filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). The petitioner declares that he
mailed the Motion on September 27, 2017. Accordingly, it shall be deemed filed as of that date.
See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs
the document is deemed under Sixth Circuit law to be the date of handing to officials).
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September 27, 2017. Thus, absent tolling, his application to amend the petition to include the
new claims is time-barred.
Although 28 U.S.C. § 2244(d)(2) provides that the one-year statute of limitation is tolled
while a duly filed petition for state collateral review is pending, the tolling provision does not
“revive” the limitations period (i.e., restart the clock); it can only serve to pause a clock that has
not yet fully run. Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001). Once the limitations
period has expired, collateral petitions can no longer serve to avoid a statute of limitations. Id.;
McClendon v. Sherman, 329 F.3d 490, 493 (6th Cir. 2003). On December 23, 2014, 3 when the
petitioner filed his petition for state post-conviction relief, the limitations period was statutorily
tolled. See 28 U.S.C. § 2244(d)(2). Because the petitioner filed his pro se petition for state postconviction relief before the running of the 90-day period for filing a petition for writ of certiorari
had expired, the one-year statute of limitations for filing a federal habeas petition did not begin
to run until all levels of state appellate review of the petitioner’s post-conviction petition were
complete or abandoned.
On July 22, 2016, the TCCA affirmed the denial of state post-conviction relief. See
Turner II, 2016 WL 4009559, at *1. The petitioner did not file an application for permission to
appeal to the TSC. Thus, on July 23, 2016, the day after the TCCA affirmed the denial of postconviction relief, the limitations period began to run. See Lawrence, 549 U.S at 332. At that
point, the petitioner had one year within which to file his federal habeas petition, or until July 23,
2017. The petitioner timely filed the original petition on September 23, 2016. The petitioner,
however, did not file the instant Motion until September 27, 2017, more than two months after

3

The petitioner declared that he placed the petition in the prison mail system on December 23,
2014. See Note 1, supra.
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the statute of limitations had expired. Thus, any amendment to the petition would be timebarred.
II.

Relation Back

Although the new claims are time-barred, the petitioner may still be permitted to amend
the petition if the new claims “relate back” to claims raised in the original petition. The
respondent argues that the new claims do not relate back because they do not arise out of the
same conduct, transaction or occurrence; nor are they tied to a common core of operative facts.
Fed.R.Civ.P. 15, which governs pleading amendments in civil cases, is applicable to
federal habeas corpus proceedings. Mayle v. Felix, 545 U.S. 644, 655 (2005).

Under

Fed.R.Civ.P. 15(c), an otherwise time-barred amendment to a pleading is permitted if it “relates
back to the date of the original [timely] pleading.” Relation back occurs when “the claim or
defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). The Supreme
Court has clarified that, in the context of federal habeas proceedings governed by the AEDPA’s
one-year statute of limitations, an amendment to the petition to add untimely claims is permitted
under Fed.R.Civ.P. 15(c)(2) only when the proposed claims “arise from the same core facts as
the timely filed claims, and not when the new claims depend upon events separate in ‘both time
and type’ from the originally raised episodes.” Mayle, 545 U.S. at 657. In other words, “[a]n
amended petition . . . does not relate back (and thereby escape the AEDPA’s one-year time limit)
when it asserts a new ground for relief supported by facts that differ in both time and type from
those the original pleading set forth.” Id. at 650.
In the Motion, the petitioner alleges that the plea agreement he signed was a “product of
fraud” because it violated Tennessee law, which thereby “divested the Tennessee courts” of

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jurisdiction to seek a new prosecution. (ECF No. 30 at Page ID # 2031.) However, the
petitioner was subject to a “new prosecution” which, he contends, violated double jeopardy and
his right to substantive due process. (Id.) The new claims related to the petitioner’s original
guilty plea and the consequences, if any, of that plea. The claims in the original petition relate to
conduct at trial, post-trial and on appeal and do not relate to the petitioner’s guilty plea.
Although the petitioner argues in the original petition that he should not have been re-prosecuted
because the statute of limitations had expired, he bases this argument on the passage of time and
not on the effects of the allegedly fraudulent plea agreement. The new claims do not rely on the
same set of facts as the claims raised in the original petition, and the new claims differ in time
and type from the claims in the original petition. Accordingly, the new claims do not relate back
to the original petition and are time-barred.
III.

Futility

Even if the new claims were not time-barred, the petitioner would still not be permitted to
amend the petition because doing so would be futile. In determining whether to grant leave to
amend, the court considers, among other things, whether there has been “[u]ndue delay in filing,
lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure
deficiencies by previous amendments, undue prejudice to the opposing party, and futility of
amendment.” Coe v. Bell, 161 F.3d 320, 341 (6th Cir.1998) (quoting Brooks v. Celeste, 39 F.3d
125, 130 (6th Cir.1994). Where Petitioner raises a procedurally defaulted claim, amendment
would be futile and the motion to amend may be denied. Wiedbrauk v. Lavigne, 174 F.App’x
993, 1001 (6th Cir. 2006).
The petitioner did not raise the new claims on direct appeal or in his state post-conviction
proceedings. As such, these claims are unexhausted. However, because he completed available

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post-conviction remedies in state court, the petitioner has exhausted his state remedies; there is
no other procedure under Tennessee law that would allow him to present the new claims to the
state courts. See Tenn. Code Ann. 40-30-102(a). As a result, the new claims are considered
exhausted but procedurally barred. See Cone v. Bell, 243 F.3d 961, 967 (6th Cir. 2001) (citing
Coleman, 501 U.S. at 752-53), rev’d on other grounds, 535 U.S. 635 (2002). (concluding that,
“[i]f the claims presented in the federal court were never actually presented in the state courts,
but a state procedural rule now prohibits the state court from considering them, the claims are
considered exhausted, but are procedurally barred.”)
Where, as here, the petitioner failed to comply with state procedural rules requiring the
timely presentation of constitutional claims, he waived the right to federal habeas corpus review
of those claims, “absent a showing of cause for the non-compliance and some showing of actual
prejudice resulting from the alleged constitutional violation.” Wainwright v. Sykes, 433 U.S. 72,
84 (1977); accord Engle v. Isaac, 456 U.S. 107, 129 (1982) (recognizing that “any prisoner
bringing a constitutional claim to the federal courthouse after a state procedural default must
demonstrate cause and actual prejudice before obtaining relief.”)
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
procedural default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Ylst v. Nunnemaker, 501 U.S. 797,
801 (1991) (concluding that, “[w]hen a state-law default prevents the state court from reaching
the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”)
Therefore, to excuse his procedural default of the new claims, the petitioner must first
demonstrate cause for his failure to present them to the state courts. “[T]he existence of cause for
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a procedural default must ordinarily turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel’s efforts to comply with the State’s procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
The petitioner does not allege any cause for his failure to raise the new claims in the state
court. Even if the petitioner were to allege that his appellate or state post-conviction counsel is
to blame for his failure to raise the new claims in the state court on direct or collateral review, he
still could not show cause sufficient to overcome the procedural default.

“[A] petitioner

[ordinarily] cannot claim constitutionally ineffective assistance of counsel” at “state postconviction proceedings” because “[t]here is no constitutional right to an attorney” at those
proceedings. Coleman v. Thompson, 501 U.S. at 752. As such, attorney error in state postconviction proceedings “cannot constitute cause to excuse [a] default in federal habeas.” Id. at
757.
In Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), , the Supreme Court “qualified” the
general rule set forth in Coleman, holding that:
[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.
Martinez, 132 S.Ct. at 1320. 4

4

In Trevino v. Thaler, 133 S.Ct. 1911 (2013) the Supreme Court narrowly expanded the holding
in Martinez to cases in which “state procedural law does not expressly prohibit a defendant from
raising an ineffective-assistance claim on direct appeal, [but] the state’s ‘procedural framework,
by reason of its design and operation, makes it highly unlikely in a typical case that a defendant
will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal’.” West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015), cert. denied sub nom.
West v. Westbrooks, 136 S. Ct. 1456, 194 L. Ed. 2d 557 (2016) (quoting Trevino, 133 S.Ct. at
1921).
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Thus, “[i]nadequate 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. Id.
at 1315 (emphasis added). The Sixth Circuit has strictly enforced the limitation on the scope of
Martinez, explaining that “[w]e will assume that the Supreme Court meant exactly what it
wrote.” Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (holding that ineffective assistance
of post-conviction counsel did not excuse default of substantive mental-competence claim or of
ineffective-assistance-of-appellate-counsel claim). 5 The petitioner seeks to amend the petition to
add the new claims, neither of which is a claim for ineffective assistance of trial counsel. Thus,
Martinez cannot save these claims.
The petitioner would fare no better, even if he argued that ineffective assistance of his
appellate counsel was the “cause” for his procedural default of the new claims. As noted above,
to show cause sufficient to excuse a failure to raise the new claims in state court, the petitioner
must point to “some objective factor external to the defense” that prevented him from raising the
issue in the state court. Murray, 477 U.S. at 488. Factors that may establish cause include
interference by officials, attorney error rising to the level of ineffective assistance of counsel, and
a showing that the factual or legal basis for a claim was not reasonably available. Cvijetinovic v.
Eberlin, 617 F.3d 833, 837 (6th Cir. 2010) (citing Hargrave-Thomas v. Yukins, 374 F.3d 383,
388 (6th Cir. 2004) (quoting McClesky, 499 U.S. at 493-94 (quotations omitted)). However, to
serve as cause to excuse the default, a claim of ineffective assistance of appellate counsel must
be properly exhausted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). The petitioner has not
5

Very recently, the Supreme Court confirmed its hesitance to expand the scope of Martinez. See
Davila v. Davis¸137 S.Ct. 2058, 2065 (2017) (stating the “[p]etitioner asks us to extend Martinez
to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective
assistance of appellate counsel when a prisoner’s state postconviction counsel provides
ineffective assistance by failing to raise that claim. We decline to do so.”)
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raised a claim for ineffective assistance of appellate counsel in the state courts in connection with
his convictions at trial. Thus, even if he tried to establish “cause” by arguing ineffective
assistance of appellate counsel, he could not prevail because he cannot now exhaust this claim in
state court. As explained above, such a claim would be considered exhausted, but procedurally
defaulted. See Cone, 243 F.3d at 967. As a result, for the petitioner to use a claim for ineffective
assistance of appellate counsel as “cause” for his failure to exhaust the new claims, he would
first need to meet the “cause” and “prejudice” standard for the claim of ineffective assistance of
appellate counsel itself. See Edwards, 529 U.S. at 451-53 (holding that “ineffective assistance
adequate to establish cause for the procedural default of some other constitutional claim is itself
an independent constitutional claim. And we held in [Murray v. Carrier, 477 U.S. at 488-89]
that the principles of comity and federalism that underlie our longstanding exhaustion doctrine—
then as now codified in the federal habeas statute, see 28 U.S.C. §§ 2254(b), (c)—require that
constitutional claim, like others, to be first raised in state court.” (emphasis in original).)
Because the new claims were never raised in the state court and the petitioner has no
avenue by which to raise them in state court and because the petitioner has failed to allege, not to
mention establish, cause for his failure to raise the new claims in state court, the new claims are
procedurally defaulted and amendment would be futile.
Finally, even if the new claims were not procedurally defaulted, amendment would still
be futile because the new claims are meritless.
It has long been settled . . ., that the Double Jeopardy Clause’s general prohibition
against successive prosecutions does not prevent the government from retrying a
defendant who succeeds in getting his first conviction set aside, through direct
appeal or collateral attack, because of some error in the proceedings leading to
conviction.

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Lockhart v. Nelson, 488 U.S. 33, 38 (1988) (citing United States v. Ball, 163 U.S. 662, 16 S.Ct.
1192, 41 L.Ed. 300 (1896) (retrial permissible following reversal of conviction on direct appeal);
United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (retrial permissible
when conviction declared invalid on collateral attack.) Likewise, the Double Jeopardy Clause
does not prevent retrial, where, as here, a criminal defendant is successful in challenging a
conviction based upon a guilty plea. See United States v. Moulder, 141 F.3d 568, 571 (5th Cir.
1998) (recognizing that, “‘[w]hen a defendant repudiates the plea bargain, either by withdrawing
the plea or by successfully challenging his conviction on appeal, there is no double jeopardy (or
other) obstacle to restoring the relationship between the defendant and state as it existed prior to
the defunct bargain’”); United States v. Dyer, 136 F.3d 417, 429 n.29 (5th Cir. 1998) (noting
that, “[i]f a plea of guilty is withdrawn, or a plea agreement is abrogated, double jeopardy
principles do not proscribe the imposition of a harsher punishment if the defendant is reconvicted”); United States v. Podde, 105 F.3d 813, 816-17 (2nd Cir. 1997) (recognizing that
“[t]he numerous cases that consider this issue [of whether the double jeopardy clause applies
when a defendant has withdrawn or successfully challenged his plea of guilty] ‘hold with
apparent unanimity that when [the] defendant repudiates the plea bargain, either by withdrawing
the plea or by successfully challenging his conviction on appeal, there is no double jeopardy . . .
obstacle to restoring the relationship between defendant and the state as it existed prior to the
defunct bargain.’”); see also, United States v. Whitely, 759 F.2d 327, 332 (4th Cir. 1985), cert.
denied, 474 U.S. 873, 106 S.Ct. 196, 88 L.Ed.2d 164 (1985) (“After a guilty plea has been set
aside, neither retrial nor an increased sentence infringes the rights protected by the double
jeopardy clause.”) (citing North Carolina v. Pearce, 395 U.S. 711, 719-21, 89 S.Ct. 2072, 23
L.Ed.2d 656 (1969)).

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Here, the TCCA determined, on appeal from the denial of the petitioner’s petition for
habeas corpus relief, that the petitioner would be entitled to withdraw his guilty plea if the illegal
sentence was a material element of the petitioner’s plea agreement. On remand, the habeas court
concluded that the illegal sentence was a material element of the plea agreement and the
petitioner was permitted to withdraw his plea. The Double Jeopardy clause was not violated
when the State subsequently prosecuted the petitioner. See Delgado v. Florida Dep’t of Corr.,
659 F.3d 1311, 1324–25 (11th Cir. 2011) (explaining that “[j]eopardy is said to ‘attach’ when a
defendant is ‘put to trial.’ But the protection of the Double Jeopardy Clause by its terms applies
only if there has been some event, such as an acquittal, which terminates the original jeopardy
. . . . [T]he Supreme Court has determined that most appellate reversals of convictions do not
qualify as such terminating events because the criminal proceedings against [the] accused have
not run their full course. In other words—and particularly in light of the fact that the defendant
was theretofore under a verdict of guilt—in a very real sense, the defendant was never out of
jeopardy. Since it stands to reason that a defendant cannot be put in jeopardy a second time
when his original jeopardy has yet to end, [retrying a defendant who succeeds in having his
conviction set aside on appeal or collateral attack] does not offend the Double Jeopardy Clause.”
(internal citations and quotation marks omitted).) Thus, the petitioner’s double jeopardy claim is
meritless and amendment to add this claim would be futile.
The petitioner’s claim that his substantive due process rights were violated by his reprosecution, is likewise without merit. “Substantive due process prevents the government from
engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of

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ordered liberty.”

Prater v. City of Burnside, Ky., 289 F.3d 417, 431 (6th Cir. 2002).

“Substantive due process serves the goal of preventing governmental power from being used for
purposes of oppression, regardless of the fairness of the procedures used.” Pittman v. Cuyahoga
Cnty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th Cir. 2011) (quoting Howard v.
Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)).
“Where a particular [a]mendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that [a]mendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing such a claim.”
Albright v. Oliver, 510 U.S. 266, 266 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)) (holding that the Fourth Amendment, not substantive due process, provides the standard
for analyzing claims involving unreasonable search or seizure of free citizens, and the Eighth
Amendment provides the standard for such searches of prisoners)). If such an amendment exists,
the substantive due process claim is properly dismissed. Heike v. Guevara, 519 F. App’x 911,
923 (6th Cir. 2013).
The petitioner alleges that his rights under the Fifth Amendment’s double-jeopardy
prohibition were violated, thus, the Fifth Amendment provides an explicit source of
constitutional protection to the petitioner concerning his claim that re-prosecution violated his
constitutional rights. Accordingly, the petitioner’s substantive due process claim is coterminous
with his double jeopardy claim and is, likewise, meritless. Consequently, amendment to add the
new claims would be futile.

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Conclusion
Based on the foregoing, the petitioner’s motion to amend the petition (ECF No. 30) will
be denied. The petitioner’s motion to ascertain status of motion will be denied as moot. (ECF
No. 33.) This matter is now fully briefed. The court will issue a decision as soon as practicable.
ENTER this 29th day of November 2017.

____________________________________
ALETA A. TRAUGER
LUNITED STATES DISTRICT JUDGE

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