Pinchon v. Lindamood

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATIONS AND DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS: The Court ADOPTS Magistrate Judge Newberns report andrecommendation (ECF No. 41 ), overrules Pinchon's objections (ECF No. 43 ), and overrules W arden Washburn's objections (ECF No. 42 ). For the reasons provided in her report, and for the reasons set out in this opinion, Pinchon's petition for a writ of habeas corpus is DENIED. The Court believes that reasonable jurists could d ebate whether 28 U.S.C. § 2254(d) bars Pinchon's petition for a writ of habeas corpus. See Slack v. McDaniel, 529 U.S. 473, 48384 (2000). And reasonable jurists could debate whether Millers holding extends to Pinchon's sentence. So t he Court GRANTS Pinchon a certificate of appealability. And if Pinchon chooses to appeal, he may proceed in forma pauperis. Signed by District Judge Laurie J. Michelson on 3/31/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
EDWARD PINCHON,
Petitioner,
v.

Case No. 3:16-cv-03031
Honorable Laurie J. Michelson
Magistrate Judge Alistair E. Newbern

RUSSELL WASHBURN,
Respondent.
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[41] AND DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
[25]
In 1998, a Tennessee jury found Edward Pinchon guilty of murder. Pinchon was only
17 years old when the murder took place. Without accounting for how the mitigating qualities
of Pinchon’s youth might affect his prison term, Pinchon was sentenced to “imprisonment for
life.” Under Tennessee law, “imprisonment for life” is, at a minimum, 51 years in prison. Thus,
Pinchon’s earliest release will come at age 68. Worst case, he will be 77 before he is released.
Over a decade after Pinchon’s conviction, the Supreme Court decided Miller v.
Alabama, 567 U.S. 460 (2012). There, the Supreme Court held that the Eighth Amendment
prohibits automatically sentencing juvenile offenders—even murderers—to life in prison
without the possibility of parole. Id. at 465. “Mandatory life without parole for a juvenile
precludes consideration of his chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences,” the Court
explained. Id. at 477. “It prevents taking into account the family and home environment that
surrounds him—and from which he cannot usually extricate himself—no matter how brutal or

dysfunctional.” Id. “It neglects the circumstances of the homicide offense, including the extent
of his participation in the conduct and the way familial and peer pressures may have affected
him.” Id. And mandatory life without parole “disregards the possibility of rehabilitation even
when the circumstances most suggest it.” Id.
Based on Miller, Pinchon asked the Tennessee courts to grant him relief. The Tennessee
Court of Criminal Appeals reasoned that Miller prohibited mandatory life-without-parole
sentences for juvenile offenders and while Pinchon was a juvenile offender, his sentence was
not life without parole. So the Tennessee Court of Criminal Appeals denied Pinchon’s Miller
claim.
Pinchon then turned to federal court, seeking a writ of habeas corpus. This Court
referred all pretrial matters to Magistrate Judge Alistair E. Newbern. Although there are strong
arguments that Miller’s holding extends to Pinchon’s lengthy sentence, 28 U.S.C. § 2254(d)
greatly restricts a federal court’s ability to second guess state court decisions. Magistrate Judge
Newbern recognized this, and in a thorough and well-reasoned report, she recommends that
Pinchon’s petition be denied under § 2254(d).
Both Pinchon and Warden Russell Washburn have filed objections to the Magistrate
Judge’s report and recommendation. For the reasons that follow, the Court will overrule these
objections and adopt the Magistrate Judge’s report.
I.
A.

Pinchon faced challenges growing up. He came from a poor family and school records
indicate that his home was “extremely inadequate.” (See Doc. 25, PageID.88.) Pinchon
attended a special-needs school and his formal education ended in the 10th grade. Pinchon v.
2

State, No. M2003-00816-CCA-R3PC, 2004 WL 193055, at *1 (Tenn. Crim. App. Jan. 28,
2004). And according to one psychological examiner, Pinchon’s IQ was (and is) in the upper
60s, which corresponds to mild mental retardation. Id. at *2.
When Pinchon was 17 years old, he somehow got involved in a sexual relationship with
a man in his 40s, Leslie Handy. State v. Pinchon, No. M1999-00994-CCA-R3CD, 2000 WL
284071, at *1 (Tenn. Crim. App. Mar. 17, 2000). Handy occasionally bought clothes for
Pinchon, and Pinchon would stay at Handy’s place about five nights a week. Id. Although it is
not clear how much of this evidence was presented at trial, Pinchon says that Handy took
advantage of his “many vulnerabilities, i.e., youth, poverty, and intellectual disability” and
“essentially paid Pinchon for sex by buying him clothes and giving him food and a place to
sleep.” (Doc. 25, PageID.88.)
On April 21, 1997, Handy was killed. That day, Pinchon and three other boys arrived
at Handy’s place. Pinchon, 2000 WL 284071, at *1. According to a neighbor who was over at
Handy’s at the time, after Pinchon and Handy wrestled playfully, Pinchon went and retrieved
a shotgun. Id. Handy told Pinchon to stop acting foolish, and Pinchon said he would “bust
[Handy’s] head to the fat.” Id. But ultimately, Pinchon put the shotgun away and he and the
three other boys left. Id. A few minutes later, Handy’s phone rang and the neighbor who was
still over at Handy’s answered. Id. Pinchon was on the line. Id. He told the neighbor that he
wanted to speak to Handy and that he was “going to kill that bitch.” Id. About 15 minutes later,
Pinchon and his three companions returned to Handy’s; the neighbor was still there, and,
according to her, Pinchon said, “How much you bet I won’t kill that g-d_____ bitch?” Id.
Pinchon pulled out a .22 pistol, which prompted the neighbor to leave. Id. About 10 seconds
later, she heard a gunshot; shortly after that, she heard more gunshots. Id. Pinchon and two of
3

the companions would later say that the fourth person with them, Josh Graham, argued with
Handy and that they saw Graham run to the car with the .22 pistol. Id. at *2.
Over a year after Handy’s death, the State of Tennessee arrested Pinchon. Pinchon,
2000 WL 284071, at *3. At trial, the neighbor testified as described above, and Pinchon and
two of the companions implicated Graham. Id. at *2. It appears that Graham did not testify
because he had since been murdered. Id. at *2. In September 1998, a Tennessee jury convicted
Pinchon of first-degree murder. (Doc. 27-2, PageID.279.)
Pinchon was sentenced to “imprisonment for life.” Under Tennessee law, a person
convicted of first-degree murder can receive one of three sentences: death, life in prison
without the possibility of parole, and imprisonment for life. Tenn. Code 39-13-202(b) (1997).
Because Pinchon was a juvenile at the time of Handy’s death, he was not eligible for the death
penalty. Tenn. Code § 37-1-134(a)(1) (1997). And the State of Tennessee did not seek life in
prison without the possibility of parole. Pinchon, 2000 WL 284071, at *4. So, by default,
Pinchon was sentenced to “imprisonment for life,” which is sometimes more simply referred
to as “life.” As such, the mitigating qualities of Pinchon’s youth were not factored into his
sentence. And while it may not have been completely settled at the time, it is now clear that a
Tennessee life sentence is 60 years in prison, with the possibility of credits reducing the time
to 51 years. See Brown v. Jordan, 563 S.W.3d 196, 200–01 (Tenn. 2018); see also Vaughn v.
State, 202 S.W.3d 106, 118–19 (Tenn. 2006) (discussing amendments to “life” statute). Thus,
at the earliest, Pinchon will be released when he is 68 years old; at the latest, he will be released
when he is 77.
In the years that followed, Pinchon made several attempts to challenge his conviction.
He appealed without success. See Pinchon v. State, No. M2003-00816-CCA-R3PC, 2004 WL
4

193055, at *1 (Tenn. Crim. App. Jan. 28, 2004) (summarizing direct appeal). And he sought
post-conviction relief in state court without success. See Pinchon v. Myers, 615 F.3d 631, 637–
38 (6th Cir. 2010) (summarizing procedural history). He also filed two petitions for a writ of
habeas corpus in federal court, also without success. See id.
B.

Over a decade after Pinchon was sentenced, a pair of Supreme Court cases opened the
door for Pinchon to challenge his sentence. In 2012, the U.S. Supreme Court decided Miller v.
Alabama. There, the Court “h[e]ld that mandatory life without parole for those under the age
of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and
unusual punishments.’” 567 U.S. 460, 465 (2012). Part of the rationale for this holding was
that sentencing a juvenile to die in prison is a determination that the juvenile cannot change;
“but,” the Supreme Court explained, “incorrigibility is inconsistent with youth.” Id. at 473; see
also id. at 471 (explaining that “juveniles have diminished culpability and greater prospects
for reform” than adults). And in 2016, the U.S. Supreme Court decided Montgomery v.
Louisiana. There, the Court held that Miller’s holding applied retroactively, i.e., it applied to
criminal sentences that were already final at the time Miller was decided. 136 S. Ct. 718, 725,
736 (2016).
Shortly after Montgomery was decided, Pinchon sought to reopen his state postconviction proceedings. In denying Pinchon’s motion, the state trial court stated, “because
[Pinchon] was sentenced to life and retains the possibility of release, [his] sentence is not a
violation of the constitutional right provided in Miller.” (Doc. 27-1, PageID.195.)
Pinchon then turned to the Tennessee Court of Criminal Appeals. Precisely what that
court said is critical here, so it is worthwhile to quote liberally from the Tennessee court’s
5

opinion. (Doc. 27-1, PageID.249–250.) Acknowledging Montgomery, the court stated, “It is
clear that Miller’s prohibition on mandatory life-without-parole sentences for juvenile
offenders is a new substantive rule requiring retroactive application to cases on state collateral
review.” (Id. at PageID.250.) But, said the court, Pinchon “was not sentenced to life without
the possibility of parole; he was sentenced to life.” (Id.) And, the Tennessee appellate court
explained, a sentence of life “carries the possibility of release, albeit after fifty-one years.”
(Id.) “[Pinchon] did not receive a mandatory sentence of life without the possibility of parole,
as contemplated by Miller,” the court added. (Id.) And quoting one of its earlier decisions, the
Tennessee Court of Criminal Appeals then concluded, “While the next logical step may be to
extend protection to these types of sentences, that is not the precedent which now exists. We
are not compelled to grant [Pinchon’s] request to expand the meaning of the Miller holding.”
(Id. (quoting Perry v. State, No. W2013-00901-CCA-R3PC, 2014 WL 1377579, at *5 (Tenn.
Crim. App. Apr. 7, 2014)).)
C.

Pinchon then proceeded to federal court, again petitioning for a writ of habeas corpus.
Because this was Pinchon’s third application for the writ, Pinchon needed to “move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A).
In authorizing Pinchon to file a successive petition, the Sixth Circuit explained, “The
‘central intuition’ and mandate of Miller and Montgomery is that sentencing courts must
consider a ‘juvenile’s special circumstances’ because ‘children who commit even heinous
crimes are capable of change’ and, in all but the most extreme circumstances, are required to
have ‘hope for some years of life outside prison walls.’” In re Pinchon, No. 17-5104, 2017
6

WL 11037420, at *2 (6th Cir. Aug. 18, 2017). The Court concluded, “Because Pinchon’s
mandatory sentence of life with the possibility of parole after 51 years is arguably the
functional equivalent of a mandatory sentence of life without parole, we conclude that Pinchon
has made a prima facie showing that the rule of constitutional law established in Miller and
Montgomery is retroactively applicable to him.” Id.
After the Sixth Circuit finished its prima facie review, Pinchon, represented by a federal
defender, filed an amended petition for a writ of habeas corpus. The amended petition states
in part, “Pinchon’s sentence is unconstitutional because it was mandatorily imposed for a crime
he committed as a juvenile, because it categorically denies him parole, and because it requires
him to serve a sentence of 51 to 60 years without any opportunity to gain release by showing
his crime did not reflect irreparable corruption.” (Doc. 25, PageID.85.)
In June 2018, this Court referred all pretrial matters in this case to Magistrate Judge
Newbern. In September 2020, she issued a report and recommendation to deny Pinchon’s
petition. (Doc. 41.)
Both Pinchon and Russell Washburn, the warden of Pinchon’s correctional facility,
object to Magistrate Judge Newbern’s report and recommendation. (Doc. 42, 43.)
II.

When, as here, a party objects to a Magistrate Judge’s report and recommendation, the
Court reviews the issues raised by the objection de novo. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3).

7

III.
A.

Absent Pinchon’s objections, the resolution of his petition would seem to involve a
straightforward application of the Antiterrorism and Effective Death Penalty Act (AEDPA)
and the Sixth Circuit’s decision in Atkins v. Crowell, 945 F.3d 476 (6th Cir. 2019).
Under AEDPA, if a state court “adjudicates [a petitioner’s claim] on the merits,” then
a federal court cannot issue a writ of habeas corpus based on that claim unless (1) the state
court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of” a U.S. Supreme Court holding or (2) “resulted in a decision that was based on
an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
Here, the Tennessee Court of Criminal Appeals adjudicated Pinchon’s claim based on
Miller and Montgomery “on the merits.” In particular, it recognized that Miller applied
retroactively, but found that it did not warrant granting Pinchon relief because “[Pinchon] did
not receive a mandatory sentence of life without the possibility of parole, as contemplated by
Miller.” (Doc. 27-4, PageID.296.)
Given that “on the merits” determination by the state appellate court, Atkins appears to
be right on point. In that case, Howard Atkins, like Pinchon, was convicted by a Tennessee
jury of committing a murder when he was minor. 945 F.3d at 477. And just like Pinchon,
Atkins was sentenced to life—he had to spend at least 51 years in prison. Id. And, also like
Pinchon, Atkins presented a Miller claim to the Tennessee Court of Criminal Appeals. And,
like here, that state appellate court “distinguished Miller because, unlike the juveniles in
[Miller], Atkins could be released after 51 years’ imprisonment and so was ‘not serving a
sentence of life without the possibility of parole.’” Id. Turning to § 2254(d), the Sixth Circuit
8

found that the Tennessee appellate court’s adjudication of Atkin’s claim did not result in a
decision that was “contrary to” Miller: “Whether read broadly or narrowly, Miller creates a
legal rule about life-without-parole sentences. And, whether one looks at Atkins’s sentence
formally or functionally, he did not receive a life-without-parole sentence.” Id. at 478. As for
the “unreasonable application” route to bypassing § 2254(d), the Sixth Circuit explained that
because Atkins was not sentenced to life without the possibility of parole, he was advocating
for an extension of Miller. And “[a] state decision cannot have unreasonably applied a Supreme
Court precedent if a habeas petitioner needs a federal court ‘to extend that precedent’ to obtain
relief.” Id. at 479. Thus, Atkins could not clear § 2254(d)’s bar to the issuance of a writ of
habeas corpus. Id. at 479–80.
All of that seems straightforward enough. And all of that seems to dictate the outcome
here. Indeed, Magistrate Judge Newbern asked for supplemental briefing on Atkins, duly
considered the supplemental briefs, and in a well-reasoned report, found that Atkins dictates
that § 2254(d) bars relief.
B.

Pinchon disagrees with the Magistrate Judge. And in two of his objections, he asks this
Court to take a hard look at the Tennessee Court of Criminal Appeals’ opinion. A meticulous
focus on the words the state appellate court used, argues Pinchon, reveals that its decision is
“contrary to” Supreme Court precedent or is “based on an unreasonable determination of the
facts” (or both). Either way, Pinchon says he has cleared § 2254(d)’s bar to the writ. And once
past that hurdle, Pinchon argues that this Court can examine his Miller claim de novo and find,
like two Court of Appeals judges have suggested, that Miller applies to his 51-year sentence.
See Starks v. Easterling, 659 F. App’x 277, 284 (6th Cir. 2016) (White, J., concurring)
9

(“Although [Tennessee’s] statute nominally distinguishes between life and life without parole,
there is effectively no difference where release eligibility begins only after 51 to 60 years of
service on the sentence. . . . Thus, I conclude that Starks’s mandatory life sentence violates
Miller.”); Atkins v. Crowell, 945 F.3d 476, 481 (6th Cir. 2019) (Cole, C.J., concurring) (“[T]he
logic of Roper, Graham, Miller, and Montgomery ineluctably extends not only to de jure life
without parole sentences but also to de facto ones: both types of sentences deny a child offender
a chance to return to society.”).
The Court considers first Pinchon’s objection that the Tennessee Court of Criminal
Appeals’ decision is “contrary to” Supreme Court precedent; it then examines his objection
that the state court’s decision was “based on an unreasonable determination of the facts.”
C.

To understand Pinchon’s first objection, additional details about Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), are useful. A threshold issue in Montgomery was whether
the U.S. Supreme Court could review the Louisiana Supreme Court’s decision to not give
Miller retroactive effect. 136 S. Ct. at 727. Because Montgomery’s Miller claim was brought
in a state collateral proceeding, an argument was made that the Louisiana Supreme Court
merely held that certain relief was not available in its state’s collateral proceedings—i.e., the
highest court in the state made a ruling on state law. Id. If that were true, the Louisiana Supreme
Court’s decision would not be reviewable. Id. On the other hand, if the Federal Constitution
both established a rule and required that the rule apply retroactively, then the Supreme Court
could review the Louisiana Supreme Court’s refusal to give Miller retroactive effect. Id. This
is because “States may not disregard a controlling, constitutional command in their own
courts.” Id. In finding that it could review the Louisiana Supreme Court’s decision, the U.S.
10

Supreme Court “h[e]ld 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.” Id. at 729. And the Court similarly stated, “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.” Id. at 731 (internal quotation marks omitted).
With that additional information about Montgomery, the Court turns to Pinchon’s first
objection to the Magistrate Judge’s report. Although Pinchon’s objections are not completely
clear to this Court, it appears that this first objection is in fact two closely related arguments.
In one version of the objection, Pinchon points out that Montgomery “h[e]ld 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.” (Doc. 43,
PageID.413 (quoting 136 S. Ct. at 729).) According to Pinchon, a “rule of constitutional law
controls the outcome of a case” when the “logic of the rule newly justifies an outcome in the
petitioner’s favor.” (Doc. 43, PageID.413.) And, Pinchon thinks that is just the case here:
according to Judge White, Chief Judge Cole, and perhaps other judges, the logic of Miller
applies to an at-best 51-year sentence. (Doc. 43, PageID.414.) And so, under Montgomery, the
Tennessee Court of Criminal Appeals was “require[d] . . . to give retroactive effect to that
rule,” id. at 729. It did not do so, and so its decision is “contrary to” Montgomery. If follows,
says Pinchon, that he has cleared § 2554(d).
This Court is not persuaded. Montgomery held that “when a new substantive rule of
constitutional law controls the outcome of a case,” a state court must give the rule retroactive
effect. 136 S. Ct. at 729 (emphasis added). Montgomery did not say that when the “logic” of a
new rule may control the outcome of a case, a state court must give the logic retroactive effect.
11

Pinchon seeks to fill this silence with Francis v. Franklin, 471 U.S. 307 (1985). (Doc. 43,
PageID.413.) In Francis, the Supreme Court applied a constitutional rule in a scenario slightly
different than the one in which the rule originated. See id. at 316–17. And it found that the
petitioner was entitled to habeas corpus relief. Id. at 327. So, perhaps, Francis applied the
“logic” of a rule to grant a writ. But Francis did not hold that a rule controls the outcome of a
case as that phrase is used in Montgomery whenever the rule’s logic controls the outcome of a
case—Francis was decided decades before Montgomery. So Pinchon has not persuaded this
Court that Montgomery’s holding required the Tennessee Court of Criminal Appeals to apply
the “logic” of Miller. As for Miller’s rule, the Sixth Circuit has stated, “Miller creates a legal
rule about life-without-parole sentences.” Atkins, 945 F.3d at 478. Pinchon’s sentence is not
life without parole. As such, Pinchon has not shown that the Tennessee Court of Criminal
Appeals acted contrary to Montgomery’s requirement to give effect to “a new substantive rule
of constitutional law [that] controls the outcome of a case.”
That leaves the second variant of Pinchon’s first objection. As noted above, in
Montgomery the Supreme Court also said, “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.” 136 S. Ct. at 731 (emphasis added). In Pinchon’s view, the Tennessee Court of
Criminal Appeals did not fulfill this duty. (See Doc. 25, PageID.101–102; Doc. 43,
PageID.415–416.) Pinchon points out that the Tennessee court focused on what Miller
“compelled”: “While the next logical step may be to extend protection to these types of
sentences, that is not the precedent which now exists. We are not compelled to grant
[Appellant’s] request to expand the meaning of the Miller holding.” (Doc. 27-1, PageID.250
(emphasis added); see also Doc. 43, PageID.414.) According to Pinchon, this language shows
12

that the Tennessee Court of Criminal Appeals mistakenly believed that it could grant him relief
only if Miller “compelled” a finding that his sentence was unconstitutional (Doc. 43,
PageID.413–414), i.e., only if the narrowest interpretation of Miller’s holding dictated that his
sentence was unconstitutional. Apparently, Pinchon thinks that Montgomery demands that the
Tennessee appellate court first determine the scope of Miller’s holding (which may or may not
be limited to life-without-parole sentences), and only after that, decide whether his sentence
fell within that scope. (See Doc. 43, PageID.415–416.) So, argues Pinchon, the Tennessee
Court of Criminal Appeals did not fulfill its “duty to grant the relief that federal law requires,”
Montgomery, 136 S. Ct. at 731. And thus, its decision is “contrary to” Montgomery.
The Court is not convinced that the Tennessee Court of Criminal Appeals failed to
determine Miller’s scope and instead assumed that it could not grant relief unless Miller
“compelled’ it to do so. That court stated, “In Miller, the Supreme Court held that ‘the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.’” (Doc. 27-1, PageID.250 (quoting Miller, 567 U.S. at 479).)
And later in its opinion, “[Appellant] did not receive a mandatory sentence of life without the
possibility of parole, as contemplated by Miller.” (Doc. 27-1, PageID.250.) Those statements
sound like an interpretation of Miller’s scope. And only after making those statements did the
Tennessee Court of Criminal Appeals quote its earlier opinion in Perry: “While the next logical
step may be to extend protection to these types of sentences, that is not the precedent which
now exists. We are not compelled to grant the [Appellant’s] request and expand the meaning
of the Miller holding.” (Doc. 27-1, PageID.250 (quoting Perry v. State, No. W2013-00901CCA-R3PC, 2014 WL 1377579, at *5 (Tenn. Crim. App. Apr. 7, 2014)).) Taking all this
together then, the Tennessee Court of Criminal Appeals interpreted Miller and then, in quoting
13

Perry, indicated that the Eighth Amendment’s prohibition on “cruel and unusual punishment”
might in a future case be expanded to prohibit sentencing juvenile offenders to lengthy termof-years sentences, but it did not feel “compelled,” i.e., persuaded, to expand the prohibition
in Pinchon’s case. Thus, the Tennessee Court of Criminal Appeals did not simply assume that
it could not grant relief unless the narrowest interpretation of Miller’s holding compelled it to
do so. As such, the Tennessee court did not fail “to grant the relief that federal law requires,”
Montgomery, 136 S. Ct. at 731 (emphasis added).
In sum, under either variant of his first objection, Pinchon has not shown that the
Tennessee Court of Criminal Appeals’ adjudication of his Miller claim resulted in a decision
that is “contrary to” Montgomery as that phrase is used in 28 U.S.C. § 2254(d) and as that
phrase was applied in Atkins.
D.

In his second objection to the Magistrate Judge’s report, Pinchon argues that the
Tennessee Court of Criminal Appeals’ decision is “based on an unreasonable determination of
the facts,” and thus, he clears § 2254(d)’s bar to the writ. In its opinion, the state appellate
court stated, “Although [Tennessee Code § 40-35-501(i)(1)] does not refer to a sentence of life
as one with the possibility of parole, a defendant sentenced to life for a first degree murder
conviction occurring after July 1, 1995, is eligible for release after serving at least fifty-one
years.” (Doc. 27-1, PageID.250 (emphasis in original).) Based on the court’s use of emphasis,
Pinchon argues that “the TCCA indicated that it believes that [he] will have the possibility of
something that is the functional equivalent of parole.” (Doc. 43, PageID.416.) “But, as a matter
of fact,” says Pinchon, “[he] is not eligible for parole or for any functional equivalent.” (Doc.
43, PageID.417.) Pinchon points out that he “will never face a parole board or any decision14

maker that would consider whether he deserves release in light of reformation and
circumstances surrounding the offense.” (Id.) So, says Pinchon, the Tennessee Court of
Criminal Appeals’ decision rested on “an erroneous premise by presuming that a ‘life’ sentence
is essentially the same thing as a sentence of ‘life with the possibility of parole.” (Id.)
The Court is again not persuaded. In the passage with the emphasized language, the
Tennessee Court of Criminal Appeals was correctly recognizing that similar to a life with
parole sentence, Pinchon is not guaranteed to spend the rest of his days in prison. So this Court
perceives no factual error. And even if the state court made a factual error, this Court fails to
see how the state court’s decision is “based on” that error as § 2254(d)(2) requires. The
Tennessee Court of Criminal Appeals stated, “The Appellant in this case received a sentence
of life, which carries the possibility of release, albeit after fifty-one years. He did not receive
a mandatory sentence of life without the possibility of parole, as contemplated by Miller.”
(Doc. 27-1, PageID.250.) So whether Pinchon’s sentence is or is not similar to a life-withparole sentence, the bottom line for the Tennessee Court of Criminal Appeals was that
Pinchon’s sentence was not life without parole—the sentence at issue in Miller.
Pinchon’s second objection will thus be overruled.
E.

Pinchon makes a third objection too, but it is not one that this Court need address. He
argues that the Tennessee Court of Criminal Appeals unreasonably applied Miller. But Pinchon
recognizes that this argument is foreclosed by the Sixth Circuit’s decision in Atkins v. Crowell,
945 F.3d 476 (6th Cir. 2019). (Doc. 43, PageID.418.) As Pinchon makes the objection only to
preserve the issue for federal appellate courts, this federal trial court will say nothing more
about it.
15

* * *
In short, Pinchon’s objections to the Magistrate Judge’s report and recommendation
will be overruled.
IV.

What has been said so far would be the end of the matter in most cases—a magistrate
judge made a recommendation unfavorable to one party, that party objected, and a district
judge overruled those objections. But in this case, the party that prevailed before the magistrate
judge, Warden Washburn, has also filed two objections.
Both of the Warden’s objections are based on 28 U.S.C. § 2244(b)(4). Section
2244(b)(4) states, “A district court shall dismiss any claim presented in a second or successive
application that the court of appeals has authorized to be filed unless the applicant shows that
the claim satisfies the requirements of this section,” i.e., § 2244. Section 2244 has several
requirements. One is that a claim in a successive petition must be based on a new, retroactive
constitutional rule or previously undiscovered facts. See 28 U.S.C. § 2444(b)(2). Another
requirement of § 2244 is the petition be timely filed. See 28 U.S.C. § 2444(d)(1). In the
Warden’s view, Pinchon has met neither of these requirements. And, argues the Warden, “the
Magistrate Judge erred by not conducting any analysis under § 2244(b)(4) as it was statutorily
required to do.” (Doc. 42, PageID.404.)
A.

The Court first addresses the Warden’s objection that the Magistrate Judge erred in not
deciding whether Pinchon’s claim relies on a new, retroactive constitutional rule.
To understand this argument, some legal background is useful. To oversimplify
slightly, under § 2244(b)(2), a successive petition “shall be dismissed” unless one of two
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exceptions are satisfied: the petitioner’s claim relies on a new, retroactive constitutional rule
or the claim is based on facts not previously discoverable through due diligence. The federal
appellate courts and the federal district courts each have role to play in enforcing
§ 2244(b)(2)’s prohibition on successive petitions. Under § 2244(b)(3)(C), the federal
appellate courts decide whether the petitioner has a made “a prima facie showing” that his
claim falls within one of the two exceptions. But even when the federal appellate court makes
that determination, § 2244(b)(4) requires the federal district court to make an independent
determination as to whether the § 2244(b)(2)’s successive-petition bar applies or whether one
of the two exception applies. See Tyler v. Cain, 533 U.S. 656, 661 n.3 (2001) (“[A] court of
appeals may authorize [a successive] filing only if it determines that the applicant makes a
‘prima facie showing’ that the application satisfies the statutory standard. But to survive
dismissal in district court, the applicant must actually ‘sho[w]’ that the claim satisfies the
standard.” (internal citations omitted)); In re Embry, 831 F.3d 377, 378 (6th Cir. 2016)
(“Embry need only make a ‘prima facie’ showing of an entitlement to relief, and the district
court is free to decide for itself whether Embry’s claim relies on a new rule made retroactive
by the Supreme Court.” (internal citations omitted)). So even though the Sixth Circuit
authorized Pinchon to file a successive petition, § 2244(b)(4) places an obligation on this Court
to independently decide whether Pinchon’s claim satisfies one of the two exceptions for
successive petitions. The exception that is relevant here is set out in § 2244(b)(2)(A): “the
applicant shows that the claim relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.”
With that background on § 2244(b), the Warden’s first objection can be readily
understood. In issuing her report, the Magistrate Judge did not mention § 2244(b) and did not
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make any recommendation as to whether Pinchon’s claims relies on a new, retroactive
constitutional rule. In the Warden’s view, § 2244(b)(4) required the Magistrate Judge—and
requires this Court—to make a finding as to whether Pinchon’s claim fell within the exception
for successive petitions provided by § 2244(b)(2)(A). (Doc. 42, PageID.407.)
On the facts of this case, it was not error for the Magistrate Judge to bypass § 2244(b)(4)
and instead recommend dismissal on other grounds. As an initial matter, it appears that
§ 2244(b)(4), the rule requiring district courts to dismiss claims in a successive petition if they
do not satisfy § 2244’s requirements, is not jurisdictional. In recent years, the Supreme Court
has emphasized that claim-processing rules—even mandatory ones—are different from rules
that affect a court’s jurisdiction: “A rule is jurisdictional if the Legislature clearly states that a
threshold limitation on a statute’s scope shall count as jurisdictional.” Gonzalez v. Thaler, 565
U.S. 134, 141, (2012). And the Sixth Circuit has stated that § 2244(b)(4) does not “‘clearly
state’ a jurisdictional bar.” Williams v. United States, 927 F.3d 427, 438 (6th Cir. 2019)
(quoting Gonzalez, 565 U.S. at 141). Secondly, the Warden in this case failed to make any
argument in favor of a successive-petition bar when answering Pinchon’s petition. In fact, the
Warden’s answer suggested that there was no such bar: “The amended petition constitutes a
second habeas petition . . . . However, Petitioner has properly and successfully sought
authorization to proceed on this petition from the court of appeals.” (Doc. 28, PageID.324.) It
was not until this case had been pending for years and after the Magistrate Judge sought
supplemental briefing on Atkins that the Warden—for the first time—asserted § 2244(b)(2)’s
successive-petition bar. Given the procedural posture, and given that Pinchon’s petition was
subject to dismissal on other grounds, the Court is not convinced that the Magistrate Judge

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erred in not making a finding under § 2244(b)(4). And for the same reason, this Court need not
make that finding, either.
But supposing otherwise, Pinchon has “show[n] that [his] claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable,” 28 U.S.C. § 2244(b)(2)(A).
The Warden homes in on the word “relies” in the statute. According to the Warden, the
Sixth Circuit held in Atkins that “Miller create[d] a legal rule about life-without-parole
sentences” and Pinchon was not sentenced to life without parole. (Doc. 42, PageID.407.) So,
the Warden concludes, Pinchon’s claim cannot “rel[y]” on Miller. (See id.)
Pinchon’s claim clearly relies on Miller. Without Miller, Pinchon would have to lay a
new foundation to show that his sentence was prohibited by the Eighth Amendment. But with
Miller, Pinchon’s argument is, at most, a remodel. Indeed, in his view and the view of some
Court of Appeals judges, Miller’s logic applies to lengthy term-of-years sentences. So
Pinchon’s claim “relies” on Miller. Cf. In re Hoffner, 870 F.3d 301, 309 (3d Cir. 2017)
(providing—for purposes of a prima facie showing—a claim that seeks a “non-frivolous
extension” of new constitutional rule “relies” on that rule).
In further support of this conclusion, the Court notes that Sixth Circuit granted Pinchon
authorization to file a successive petition based on Miller. To be sure, that was merely a
determination that Pinchon had made a prima facie showing. But the Sixth Circuit was fully
aware that the sentence at issue in Miller was different than Pinchon’s sentence: “Because
Pinchon’s mandatory sentence of life with the possibility of parole after 51 years is arguably
the functional equivalent of a mandatory sentence of life without parole, we conclude that
Pinchon has made a prima facie showing that the rule of constitutional law established in Miller
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and Montgomery is retroactively applicable to him.” In re Pinchon, No. 17-5104, 2017 WL
11037420, at *2 (6th Cir. Aug. 18, 2017). In other words, despite being aware of the differences
in the two sentences, the Sixth Circuit found that Pinchon had made a prima facie showing that
his claim “relies” on Miller.
In short, the Court finds that it is not necessary to resolve the successive-petition issue
because other grounds are dispositive and because the Warden did not raise the issue in his
answer. But if § 2244(b)(4) nonetheless requires the Court to address that issue, Pinchon has
“show[n] that [his] claim relies on a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C.
§ 2244(b)(2)(A).
B.

In his second objection, the Warden again points to the district court’s obligation under
§ 2244(b)(4). (See Doc. 42, PageID.408.) Recall that under § 2244(b)(4), “A district court shall
dismiss any claim presented in a second or successive application that the court of appeals has
authorized to be filed unless the applicant shows that the claim satisfies the requirements of
this section,” i.e., § 2244. One of § 2244’s requirements is that a petition be filed within one
year of the latest of four dates. The date that is relevant in this case is “the date on which the
constitutional right asserted was initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2244(d)(1)(C). The Warden argues that Miller was decided in
2012. (Doc. 39, PageID.369.) Yet, says the Warden, Pinchon did not file his petition until
2016. (See id.) Thus, says the Warden, Pinchon’s petition is too late. And, the Warden argues,

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§ 2244(b)(4) obligated the Magistrate Judge—and obligates this Court—to make that finding.
(Doc. 42, PageID.408.)
This Court disagrees. As already stated, § 2244(b)(4) is not a limit on this Court’s
jurisdiction. And even if § 2244(b)(4) requires this Court to address a potential statute-oflimitations bar in some cases, this is not such a case. The Warden acknowledges that “[a]
statute-of-limitations defense is typically forfeited ‘if not raised in a defendant’s answer or in
an amendment thereto.’” (Doc. 42, PageID.408); see also Day v. McDonough, 547 U.S. 198,
202 (2006) (discussing § 2244(d)(1)’s statute-of-limitations bar and providing “[o]rdinarily in
civil litigation, a statutory time limitation is forfeited if not raised in a defendant’s answer or
in an amendment thereto.”). And here, the Warden’s answer indicated that Pinchon’s petition
was timely: “the amended petition was untimely filed because it was filed after the statute of
limitations expired on July 13, 2017. However, the amended petition relates back to the
original petition because Petitioner’s counsel restated the claims in the original petition as
instructed by the Court. Consequently, the amended petition may be addressed.” (Doc. 28,
PageID.324 (emphasis added).) It was not until the Magistrate Judge requested supplemental
briefing on Atkins that the Warden, for the first time, claimed that Pinchon’s petition was
untimely. (Doc. 39, PageID.369.) Indeed, the Warden concedes, “In the answer, Respondent
submitted that the petition was timely filed.” (Doc. 42, PageID.403.) As such, it appears that
the Warden forfeited a statute-of-limitations defense.
The Warden thinks otherwise, claiming that his “supplemental brief can be considered
a court-ordered, amended pleading to his original answer due to intervening case law.” (Doc.
42, PageID.408.) But what intervening case law? Apparently, the Warden is referring to Atkins.
But from the very outset of this case the Warden knew Pinchon’s claim was based on Miller,
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knew Miller was decided in 2012, and knew that Pinchon filed his petition in 2016. Maybe
Atkins strengthened the Warden’s statute-of-limitations defense (although it is not apparent
how), but even without Atkins, the Warden had enough to raise the defense in his answer. Yet
he did not. In any event, a supplemental brief is not a motion to amend an answer.
The Warden also argues that his wavier in his answer was inadvertent. (Doc. 42,
PageID.409.) By claiming inadvertence, the Warden seeks to invoke an exception to waiver
set out in Day v. McDonough, 547 U.S. 198 (2006). There, the district court “confronted no
intelligent waiver” of the statute-of-limitations bar set out in § 2244(d)(1). Id. at 202. But here,
it is questionable that the Warden’s waiver was inadvertent—it certainly did not involve the
mistaken understanding of the law at issue in Day. See id. (“[H]ad the State followed the
Eleventh Circuit’s instruction on computation of elapsed time, the timeliness concession would
not have been made.”). But even if the Warden’s waiver was inadvertent, Day merely says that
this Court may raise timeliness sua sponte—not that it must. See id. at 209.
In short, this Court agrees with the Magistrate Judge: “In light of [the Warden’s]
acknowledged waiver, and considering the late stage of these proceedings, the Court declines
[the Warden’s] invitation to consider the timeliness of Pinchon’s amended petition sua sponte.”
(Doc. 41, PageID.393.)
* * *
Given the Warden’s answer and the subsequent procedural history, and given that
Pinchon’s petition will be denied on other grounds, § 2244(b)(4) does not require this Court to
address the successive-petition bar of § 2244(b)(2) or the timeliness bar of § 2244(d)(1). The
Warden’s objections will be overruled.

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V.

For the reasons given, the Court ADOPTS Magistrate Judge Newbern’s report and
recommendation (ECF No. 41), overrules Pinchon’s objections (ECF No. 43), and overrules
Warden Washburn’s objections (ECF No. 42). For the reasons provided in her report, and for
the reasons set out in this opinion, Pinchon’s petition for a writ of habeas corpus is DENIED.
The Court believes that reasonable jurists could debate whether 28 U.S.C. § 2254(d)
bars Pinchon’s petition for a writ of habeas corpus. See Slack v. McDaniel, 529 U.S. 473, 483–
84 (2000). And reasonable jurists could debate whether Miller’s holding extends to Pinchon’s
sentence. So the Court GRANTS Pinchon a certificate of appealability. And if Pinchon chooses
to appeal, he may proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
Dated: March 31, 2021
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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