Elliott v. Genovese et al

Filing 23

ORDER: This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. On November 29, 2017, the court denied Brian ONeal Elliot's petition for the writ of habeas corpus, dismissed this action, and denied a certific ate of appealability. (Doc. No. 18 .) Pending before the court is the petitioner's Motion for Relief from Judgment Under Rule 60(b)(6) and/or 60 (d)(1) (Rule 60 motion). (Doc. No. 20 .) The respondent filed a response. (Doc. No. 21 .) For the following reasons, the court concludes that the petitioner's Rule 60 motion is substantively a second or successive habeas petition, and the court, therefore, must transfer the motion to the Sixth Circuit Court of Appeals. The Cl erk is DIRECTED to place pages 6 through 50 of Docket Entry No. 20 UNDER SEAL by removing these pages from Docket Entry No. 20 and attaching them to Docket Entry No. 20 as a separate, sealed attachment. This will create a new docket entry a t Docket Entry No. 20-1. The remaining pages of Docket Entry No. 20 (pages 15, 51, and 52) shall remain unsealed at the same docket entry. The Clerk is then directed to TRANSFER the motion (Doc. No. 20 and Doc. No. 20-1) to the United States Co urt of Appeals for the Sixth Circuit, for consideration as an application for consideration as an application for permission to file a second or successive habeas petition. The Clerk is DIRECTED to ensure that the Sixth Circuit receives notice of t his order. Signed by District Judge Aleta A. Trauger on 1/9/2019. (xc:Pro se party by regular mail and Sixth Circuit Court of Appeals by ECF). (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN O’NEAL ELLIOTT,
Petitioner,
v.
KEVIN GENOVESE, Warden,
Respondent.

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No. 3:17-cv-00250
Judge Trauger

MEMORANDUM AND ORDER
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. On
November 29, 2017, the court denied Brian O’Neal Elliot’s petition for the writ of habeas corpus,
dismissed this action, and denied a certificate of appealability. (Doc. No. 18.) Pending before the
court is the petitioner’s Motion for Relief from Judgment Under Rule 60(b)(6) and/or 60(d)(1)
(“Rule 60 motion”). (Doc. No. 20.) The respondent filed a response. (Doc. No. 21.) For the
following reasons, the court concludes that the petitioner’s Rule 60 motion is substantively a
second or successive habeas petition, and the court, therefore, must transfer the motion to the Sixth
Circuit Court of Appeals.
I.

Background
In his pro se habeas corpus petition, the petitioner raised six claims for ineffective

assistance of trial counsel (“IATC”). (Doc. No. 6 at 4.) In the one claim relevant to the pending
Rule 60 motion, the petitioner asserted that “Trial Counsel was ineffective for failing to adequately
investigate the case and inform the Petitioner of his purported trial strategy.” (Id.) The court
included a “difficult to discern” sub-claim in its consideration of this claim. (Doc. No. 17 at 14.)
Specifically, the court considered as part of this claim the petitioner’s assertion that trial counsel

was ineffective for “failing to advise him that the statement his minor niece, who was present at
the shooting, gave to police was inadmissible because it was obtained from her without a parent
or attorney present.” (Id.)
Although the respondent argued that this sub-claim should have been denied because it was
procedurally defaulted, the court explicitly disregarded any procedural default of this sub-claim
and considered it on the merits. (Id.) The court then denied this sub-claim as follows:
With respect to his contention that trial counsel was ineffective for failing to advise
him that his niece’s statement to the police would have been inadmissible at trial
because the police questioned her without a parent or attorney present, the petitioner
does not set forth any legal authority to support this contention, nor does he suggest
what legal authority gives him standing to argue that the police questioning of his
minor niece violated her rights, thereby rendering her statements inadmissible. See
e.g. United States v. Nobles, 422 U.S. 225, 234 (1975) (recognizing that “the Fifth
Amendment privilege against compulsory self-incrimination, being personal to the
defendant, does not extend to the testimony or statements of third parties called as
witnesses at trial.”)
In any event, the [Tennessee Court of Criminal Appeals (“TCCA”)] has long held
that even the admissibility of a juvenile’s confession is not dependent upon the
presence of his or her parents or an attorney at the interrogation. See State v.
Rushing, No. M2003-00101-CCA-R3CD, 2004 WL 784869, at *8 (Tenn. Crim.
App. Apr. 12, 2004) (citing cases). Indeed, the presence of a parent or counsel is
but one consideration that the state court will consider when determining the
admissibility of a juvenile’s confession, and the TCCA has held that “no single
factor [including the presence of an interested adult] . . . should by itself render a
confession unconstitutional absent coercive police activity.” State v. Carroll, 36
S.W.3d 854, 864 (Tenn. Crim. App. 1999) (citing State v. Callahan, 979 S.W.2d
577, 583 (Tenn. 1998). Thus, while there may be factors courts must consider in
determining the admissibility of a minor witness’s statements, there is no support
for the petitioner’s contention that his teenage niece’s statement would have been
inadmissible just because the police questioned her without a parent or attorney
present. Accordingly, trial counsel cannot have been ineffective on this basis and
the petitioner is not entitled to relief.
(Id. at 16–17.)
The petitioner did not appeal the denial of his habeas corpus petition, and the court received
his Rule 60 motion on July 5, 2018. (Doc. No. 20.)

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II.

Rule 60 Motion
Although the petitioner cites to both Rule 60(b) and Rule 60(d) in the title of the pending

motion, his only argument in the motion is based on Rule 60(b). (Doc. No. 20 at 1, 3.) Rule 60(b)
permits a court to “relieve a party . . . from a final judgment, order, or proceeding” for five specified
reasons, Fed. R. Civ. P. 60(b)(1)–(5), or for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6).
This action is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011).
Under AEDPA, a district court does not have jurisdiction to consider a petitioner’s “second or
successive” habeas petition unless the petitioner first obtains authorization from the Court of
Appeals. Burton v. Stewart, 549 U.S. 147, 152–53 (2007). In Gonzalez v. Crosby, the United States
Supreme Court held that, in some circumstances, a Rule 60(b) motion filed in a Section 2254 action
may be subject to AEDPA’s restrictions on “second or successive” habeas petitions. 545 U.S. 529–
30 (2005). That is because “Rule 60(b) motions and motions to amend may not be used as vehicles
to circumvent the limitations that Congress has placed upon the presentation of claims in a second
or successive application for habeas relief.” Moreland v. Robinson, 813 F.3d 315, 322 (6th Cir.
2016) (citing Gonzalez, 545 U.S. at 531–32). Thus, “when faced with what purports to be a Rule
60(b) motion or a motion to amend, federal courts must determine if it really is such a motion or
if it is instead a second or successive application for habeas relief in disguise.” Id. (citing Gonzalez,
545 U.S. at 531–32).
The Sixth Circuit explained the difference between a “true” Rule 60(b) motion and a
“second or successive” habeas application as follows:
A petitioner’s Rule 60(b) motion is a “second or successive” habeas application
“when it ‘seeks vindication of’ or ‘advances’ one or more ‘claims.’” Post v.
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Bradshaw, 422 F.3d 419, 424 (6th Cir. 2005) (quoting Gonzalez, 545 U.S. at 531–
32). A “claim,” in turn, “is ‘an asserted federal basis for relief from a state court’s
judgment of conviction.’” Id. (quoting Gonzalez, 545 U.S. at 530). For example, a
habeas petitioner’s Rule 60(b) motion advances claims “when [the petitioner] seeks
to add a new ground for relief or seeks to present ‘new evidence in support of a
claim already litigated.’” Moreland, 813 F.3d at 322 (quoting Gonzalez, 545 U.S.
at 531). By contrast, a petitioner does not seek to advance new claims “when [his]
motion ‘merely asserts that a previous ruling which precluded a merits
determination was in error—for example, a denial for such reasons as failure to
exhaust, procedural default, or statute-of-limitations bar.’” Post, 422 F.3d at 424
(quoting Gonzalez, 545 U.S. at 532 n.4).
Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016).
In his Rule 60 motion, the petitioner raises two issues regarding his niece’s statement to
the police. (Doc. No. 20 at 2.) First, he re-asserts the sub-claim raised in his original petition—that
trial counsel was ineffective for “failing to advise him that his niece’s statement to the police would
have been inadmissible at trial because the police questioned her without a parent or attorney
present.” (Doc. No. 20 at 2.) At stated above, the court dismissed this claim on the merits. (Doc.
No. 17 at 16–17.) A petitioner’s Rule 60(b) motion “can . . . be said to bring a ‘claim’ if it attacks
the federal court’s previous resolution of a claim on the merits.” Gonzalez, 545 U.S. at 532
(footnote omitted). Accordingly, the first aspect of the petitioner’s Rule 60 motion is properly
considered a second or successive habeas application. Gonzalez, 545 U.S. at 531–32.
The second aspect of the petitioner’s motion constitutes a second or successive claim for
habeas review as well. He argues that his niece’s statement would also have been inadmissible at
trial because the police’s activity was coercive due to the fact that his niece “was not competent to
even give a coherent statement at the time.” (Doc. No. 20 at 2.) The petitioner contends that trial
counsel was ineffective for not challenging the admissibility of his niece’s statement for this
reason, and that his post-conviction counsel was ineffective for failing to present proof regarding
trial counsel’s ineffectiveness in this regard. (Id.) In support of this claim, the petitioner attached

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forty-five pages of his niece’s medical records. 1 (Id. at 6–50.) He did not raise this issue in the
original petition. Whether the court considers this a new, separate claim for relief, or considers it
new evidence in support of the previously-litigated sub-claim, the petitioner is making a “claim”
for AEDPA purposes. Moreland, 813 F.3d at 322–23 (citing Gonzalez, 545 U.S. at 530–32).
Where, as here, a petitioner files what is substantively a “second or successive” habeas
petition without first obtaining authorization from the Court of Appeals, the district court must
transfer the petition to the Sixth Circuit. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (“[W]hen a
second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court
without § 2244(b)(3) authorization from this court, the district court shall transfer the document to
this court pursuant to 28 U.S.C. § 1631.”); In re Smith, 690 F.3d 809, 810 (6th Cir. 2012) (“Sims
instructs district courts to transfer only ‘successive’ petitions to our court for want of jurisdiction
under 28 U.S.C. § 1631 rather than dismiss them outright.”). Accordingly, the court will transfer
the motion to the Sixth Circuit Court of Appeals for consideration as an application for permission
to file a second or successive petition.
III.

Placement of Attached Records Under Seal
As stated above, the petitioner attached to the Rule 60 motion forty-five pages of his niece’s

medical records. (Doc. No. at 6–50.) There is a “‘strong presumption in favor of openness’ as to
court records.” Shane Group, Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.
2016) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir.
1983)). Thus, “a district court that chooses to seal court records must set forth specific findings
and conclusions ‘which justify nondisclosure to the public.’” Id. at 306 (quoting Brown &
Williamson, 710 F.2d at 1176). In doing so, the court must balance the strong public interest in

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For the reasons stated below, these records will be placed under seal.

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accessing the “evidence and records . . . relied upon in reaching” judicial decisions, id. at 305
(quoting Brown & Williamson, 710 F.2d at 1181), with the privacy interests of innocent third
parties, including whether a third party’s information is protected from disclosure by statute or
regulation. Id. at 308. The Sixth Circuit has emphasized that “the privacy interests of innocent
third parties should weigh heavily in a court’s balancing equation.” Id. at 308 (quoting United
States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)); In re Knoxville News-Sentinel Co., 723 F.2d
470, 474 (6th Cir. 1983) (collecting cases) (“[T]rial courts have always been afforded the power
to seal their records when interest of privacy outweigh the public’s rights to know.”).
Here, the records attached to the petitioner’s motion disclose the full name of the
petitioner’s niece on nearly every page. (Doc. No. 20 at 6–50.) On direct appeal, however, the
TCCA referred to the petitioner’s niece as “P.E.,” in compliance with its policy “to refer to minor
victims of sexual crimes by their initials.” State of Tennessee v. Elliott, No. M2014-00083-CCAR3-CD, 2014 WL 5242610, at *1 n.1 (Tenn. Crim. App. Oct. 15, 2014). And on post-conviction
appeal, the TCCA referred to her simply as “the Petitioner’s niece” or “his niece.” Elliott v. State
of Tennessee, No. M2015-020000-CCA-R3-PC, 2016 WL 4039586, at *1–2 (Tenn. Crim. App.
July 26, 2016). Despite its presumption in favor of open court records, the Sixth Circuit has stated
that “the name of a minor victim of a sexual assault” should be maintained in confidence, and is
“typically enough to overcome the presumption of access.” Shane Group, 825 F.3d at 308 (quoting
Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002)). This court, like the TCCA,
finds it appropriate to keep the full name of the petitioner’s niece confidential.
Moreover, all forty-five pages of the attached records contain the type of medical
information that federal and state statutes protect from disclosure. See Thomas v. Nationwide
Children’s Hosp., Inc., No. 2:14-cv-1236, 2018 WL 1512908, at *4 (S.D. Ohio Mar. 27, 2018)

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(quoting Law v. Zuckerman, 307 F. Supp. 2d 705, 711 (D. Md. 2004)) (“The enactment of HIPAA
ushered in a ‘strong federal policy in favor of protecting the privacy of patient medical records.’”);
Givens v. Mullikin, 75 S.W.3d 383, 407 (Tenn. 2002) (citing Tenn. Code Ann. §§ 63-2-101(b)(1);
68-11-1502; 68-11-1503) (“[T]he [Tennessee] General Assembly has enacted several statutes that
expressly require a physician and others to keep a patient’s medical records and identifying
information confidential.”).
The petitioner does not explain how he obtained his niece’s records, or whether his niece
agreed to have them filed as public court records. Thus, the court has no basis to conclude that the
petitioner’s niece waived any confidentiality protections relating to these records. Cf. Tyson v.
Regency Nursing, LLC, No. 3:17-CV-91-DJH, 2018 WL 632063, at *1 (W.D. Ky. Jan. 30, 2018)
(citation omitted) (“[P]laintiffs who place their medical condition at issue waive any applicable
privileges or statutory protections that their medical records would have otherwise had.”). Further,
the court cannot discern any public interest in the disclosure of the information contained in these
records, as the court did not rely on this information in deciding the Rule 60 motion. Cf. Shane
Group, 825 F.3d at 305 (citing Brown & Williamson, 710 F.2d at 1181) (noting that the public’s
interest is particularly focused on “evidence and records . . . relied upon in reaching our
decisions”) (emphasis added). Indeed, in this case, the public interest lies with protecting the names
and medical information of minor sexual assault victims, even if some of the records relate to
treatment as an adult. Thomas, 2018 WL 1512908, at *6 (“[T]his is a case where the public’s
interest lies in protecting the medical information concerning minor children.”). Accordingly, the
records attached to the petitioner’s Rule 60 motion will be placed under seal.

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IV.

Conclusion and Order
For these reasons, the Clerk is DIRECTED to place pages 6 through 50 of Docket Entry

No. 20 UNDER SEAL by removing these pages from Docket Entry No. 20 and attaching them to
Docket Entry No. 20 as a separate, sealed attachment. This will create a new docket entry at Docket
Entry No. 20-1. The remaining pages of Docket Entry No. 20 (pages 1–5, 51, and 52) shall remain
unsealed at the same docket entry.
The Clerk is then directed to TRANSFER the motion (Doc. No. 20 and Doc. No. 20-1) to
the United States Court of Appeals for the Sixth Circuit, for consideration as an application for
permission to file a second or successive habeas petition.
The Clerk is DIRECTED to ensure that the Sixth Circuit receives notice of this order.
It is so ORDERED.
ENTER this 9th day of January 2019.

____________________________________
ALETA A. TRAUGER
United States District Judge

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