Moody v. Westbrooks
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 4/14/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DEANGELO MOODY,
Petitioner,
v.
MIKE PARRIS, Warden,
Respondent.
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Case No. 3:17-cv-01452
Judge Trauger
MEMORANDUM
The petitioner, DeAngelo Moody, has filed two post-judgment motions in this habeas
corpus action: a Motion for Relief From Judgment Under Federal Rule of Civil Procedure 60(b)
(Doc. No. 32) and a Motion for Indicative Ruling Under Federal Rule of Civil Procedure 62.1
(Doc. No. 33). The respondent filed responses in opposition to both motions (Doc. Nos. 40, 41),
and the petitioner filed briefs in reply to those responses (Doc. Nos. 43, 45).
For the reasons given below, and by contemporaneous order, the court will deny the
petitioner’s post-judgment motions.
I. BACKGROUND
The petitioner is currently serving a sentence of life in prison based on his May 12, 2011
conviction by a Davidson County, Tennessee jury of first-degree felony murder. On November
15, 2017, he filed his pro se Petition for the Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
(Doc. No. 1.) The court found that the Petition contained exhausted claims of (1) insufficiency of
the evidence and (2) ineffective assistance of counsel, for failing to interview and call as a witness
a co-defendant, Ortago Thomas. These claims were denied on their merits. The Petition’s
remaining claims of ineffective assistance and trial court error were denied on grounds of
procedural default unexcused by any showing of cause and prejudice, including an insufficient
showing of the petitioner’s actual innocence based on the post-conviction testimony of Mr.
Thomas. (Doc. Nos. 19, 20.)
On March 5, 2020, the court entered judgment denying the Petition for Writ of Habeas
Corpus and dismissing this action. (Doc. No. 21.) Finding that reasonable jurists could debate
“whether the petitioner’s exhausted claim of ineffective assistance of counsel has merit, and
whether his showing of actual innocence via Ortago Thomas’s testimony is sufficient to excuse
his procedural default,” the court granted a certificate of appealability (COA) on those issues.
(Doc. No. 20.)
The petitioner appealed this court’s decision to the Sixth Circuit Court of Appeals, where
counsel was appointed for the petitioner “[g]iven the procedural complexity of the issues certified
for appeal by the district court.” Moody v. Parris, No. 20-5299, Doc. No. 8-2 at 8 (6th Cir. Aug. 3,
2020). In its order appointing counsel, the Sixth Circuit considered the petitioner’s request to
expand the scope of the appeal by enlarging this court’s COA to include the remaining claims of
his pro se Petition. Id. at 3–9. The Sixth Circuit denied this request, leaving the issues for appeal
as certified by this court. But appellate briefing was held in abeyance, id., Doc. No. 15, in light of
counsel’s filing in this court of the pending motions under Rules 60(b) and 62.1.
The Sixth Circuit’s order declining to expand the COA further describes the pertinent
background and procedural history of this case, as follows:
In the course of a drive-by shooting in Nashville, Tennessee, a sixteen-year old girl
was killed by a stray bullet that entered her home. Moody, Thomas, and Martez D.
Matthews were each indicted for one count of first-degree felony murder and one
count of employing a firearm during the commission of a dangerous felony. All
three defendants were minor teenagers at the time of indictment. Thomas’s case
was severed, and Moody and Matthews were tried together. [footnote: “Thomas
entered a plea of guilty to second-degree murder and received a fifteen-year term
of imprisonment.”] A jury subsequently found Matthews guilty on both charges,
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while finding Moody guilty of felony murder but acquitting him on the firearm
charge. The trial court sentenced both defendants to life imprisonment.
Moody appealed, challenging the sufficiency of the evidence. The Tennessee Court
of Criminal Appeals found no error and affirmed but remanded for the entry of
judgment to reflect that Moody was acquitted of the firearm charge. State v. Moody,
No. M2011-01930-CCA-R3CD, 2013 WL 1932718, at *1 (Tenn. Crim. App. May
9, 2013), perm. app. denied, (Tenn. Oct. 17, 2013).
In 2014, Moody filed a pro se petition for post-conviction relief, asserting the
ineffective assistance of counsel. Appointed counsel filed an amended petition that
included additional allegations of trial counsel’s ineffective assistance. One of the
allegations was that trial counsel was ineffective for failing to interview Thomas or
call him as a witness. Thomas stated at the postconviction hearing that he would
have testified at Moody’s trial that Moody did not have a gun and that it was only
Thomas and another individual named Quontez Caldwell who did the shooting;
Thomas stated that Matthews also had a gun but that Caldwell was using it. See
Moody v. State, No. M2015-02424-CCA-R3PC, 2017 WL 829820, at *6-7 (Tenn.
Crim. App. Mar. 2, 2017). The trial court concluded that Moody was entitled to
post-conviction relief based on a finding that trial counsel was ineffective for failing
to interview Thomas or call him as a witness at trial; the trial court denied all other
claims raised by Moody. The state appealed, and Moody responded but did not
challenge the rejection of his remaining issues. The Tennessee Court of Criminal
Appeals reversed. Id., at *10-11. The Tennessee Supreme Court denied Moody’s
application for permission to appeal on June 9, 2017.
Moody timely filed this habeas petition in November 2017, raising the following
claims: (1) the evidence was insufficient to support his conviction; (2) trial counsel
was ineffective for failing to prepare for trial, move to sever his trial from
Matthews’s trial, move for dismissal of all charges after he was acquitted of the
firearm charge, and challenge the constitutionality of his sentence under Miller v.
Alabama, 567 U.S. 460 (2012), and Graham v. Florida, 560 U.S. 48 (2010); (3) the
trial court failed to act as a thirteenth juror; (4) the trial court erred by failing to
allow him to retain counsel of his choice; and (5) his sentence was unconstitutional
in light of Miller and Graham. The warden filed a response, asserting that the
majority of Moody’s claims were unexhausted or procedurally defaulted and that
his remaining claims did not warrant habeas relief. Moody filed a reply.
After review, the district court concluded that the state court’s adjudication of
Moody’s insufficient-evidence claim was not contrary to clearly established federal
law. It further concluded that, except for his claim regarding counsel’s failure to
prepare for trial as it related to Thomas, Moody procedurally defaulted his
ineffective-assistance-of-counsel claims by failing to cross-appeal the trial court’s
denial of them on post-conviction review. Although Moody argued that counsel
ignored his instructions to present these claims to the appellate court, the district
court concluded that counsel’s deficient performance could not establish cause to
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excuse his default. With respect to the claim alleging ineffective assistance in
connection with Thomas’s testimony, the district court determined that it did not
warrant relief, but concluded that reasonable jurists could debate that conclusion
and granted a COA as to that issue. Finally, the district court concluded that claims
(3), (4), and (5) were not presented to the appellate court and were therefore
defaulted, and that Moody’s claim of actual innocence, based on Thomas’s postconviction testimony, was insufficient to excuse the default. However, the district
court determined that its conclusion was debatable among jurists of reason and also
granted a COA on that procedural issue. The district court therefore denied
Moody’s habeas petition and granted a COA on “whether [Moody]’s undefaulted
claim of ineffective assistance of counsel has merit, and whether his showing of
actual innocence via Ortago Thomas’s testimony is sufficient to excuse his
procedural default” on claims (3), (4), and (5).
Moody, No. 20-5299, Doc. No. 8-2 at 1–3.
II. ANALYSIS OF THE MOTIONS
A. Rule 62.1 Motion
“Under Rule 62.1, a district court may make certain indicative rulings on motions that the
court lacks authority to grant because of a pending appeal. A district court may defer considering
the motion, deny the motion, or state that it would grant the motion or that the motion raises a
substantial issue.” Dice Corp. v. Bold Techs., 556 F. App’x 378, 382 (6th Cir. 2014) (citing
Fed.R.Civ.P. 62.1(a)). As explained below, the court will deny the Rule 60(b) Motion in part and
defer consideration of it in part. The petitioner’s Rule 62.1 Motion for a ruling indicating that it
would grant the Rule 60(b) Motion or that it raises a substantial issue requiring further review in
the district court will therefore be denied.
B. Rule 60(b) Motion
The petitioner seeks relief from this court’s judgment dismissing his pro se habeas petition,
citing Rule 60(b)(1) and (2). Subsection (b)(1) authorizes relief from judgment in the event of
“mistake, inadvertence, surprise, or excusable neglect”; subsection (b)(2) allows relief based on
“newly discovered evidence that, with reasonable diligence, could not have been discovered in
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time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(1), (b)(2). Relief under any
subsection of Rule 60(b) is “circumscribed by public policy favoring finality of judgments and
termination of litigation.” Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund,
249 F.3d 519, 524 (6th Cir. 2001) (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976
F.2d 290, 292 (6th Cir. 1992)). “Accordingly, the party seeking relief under Rule 60(b) bears the
burden of establishing the grounds for such relief by clear and convincing evidence.” Info–Hold,
Inc. v. Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008) (citing cases).
The petitioner argues that this court’s judgment dismissing his habeas petition is
undermined by two errors redressable as “mistakes” under Rule 60(b)(1), and by the fact that it
lacked the benefit of newly discovered witness-recantation evidence under Rule 60(b)(2). Prior to
analyzing these arguments, however, “[w]hen faced with a Rule 60(b) motion filed in response to
the denial of an application for habeas relief, the district court must first determine whether the
petitioner is only seeking Rule 60(b) relief or is attempting to file a second or successive habeas
application.” Webb v. Davis, 940 F.3d 892, 897 (5th Cir. 2019) (citing Gonzalez v. Crosby, 545
U.S. 524, 531–32 (2005)). Pertinent provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) limit the circumstances under which a state prisoner may file, and the
district court may entertain, a second or successive application for habeas relief, as follows:
(b)(1) A claim presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless(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; or
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(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
(3)(A)
Before a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application.
28 U.S.C. § 2244(b).
For these purposes, the Sixth Circuit does not distinguish between a Rule 60(b) motion
filed during the pendency of the appeal from the denial of the movant’s first habeas petition, and
one filed after all appellate remedies have been pursued to completion; if a Rule 60(b) motion
seeks to raise habeas claims, it is a second or successive habeas petition that requires circuit court
authorization. Moreland v. Robinson, 813 F.3d 315, 324 (6th Cir. 2016). Accordingly, the court
must determine whether the petitioner’s Rule 60(b) motion seeks to litigate habeas claims, or
merely to challenge the court’s previous finding of a procedural bar to consideration of the merits
of such claims. As explained below, the court finds that the petitioner’s motion based on legal
error under Rule 60(b)(1) does not assert habeas claims but nonetheless fails to establish grounds
for relief, while his motion based on new evidence under Rule 60(b)(2) implicates a habeas claim
and is otherwise in a procedural posture that makes it improper for this court to adjudicate.
1. Rule 60(b)(1) –– Erroneous Findings of Procedural Default and Exhaustion
Rule 60(b)(1) allows for relief where the court has made “a substantive mistake of law or
fact in the final judgment or order.” Huffman v. Speedway LLC, 621 F. App’x 792, 795 n.2 (6th
Cir. 2015) (quoting Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000)). The
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petitioner asserts that such substantive mistakes were made in this case, in the court’s
determination of which claims were or were not subject to review on their merits.
As noted by the Sixth Circuit, this court found that all the petitioner’s habeas claims had
been exhausted, either properly (by presentation to the Tennessee Court of Criminal Appeals
(TCCA)) or technically (by procedural default). The court reviewed the merits of the properly
exhausted claims of sufficiency of the evidence (exhausted on direct appeal) and trial counsel’s
ineffectiveness vis-à-vis Thomas (exhausted on post-conviction appeal), while declining to review
the merits of the remaining claims in the first instance 1 due to their unexcused procedural default.
The petitioner now argues that the court erred in finding his claims either procedurally defaulted
or fully exhausted on post-conviction appeal, because those claims were not abandoned or finally
adjudicated at that stage but remain pending, nearly four years later, in the post-conviction trial
court. In response, the state argues that those claims and others made in the post-conviction trial
court were resolved in litigating the case after counsel was appointed, and have not been considered
“live” claims by the state courts or the parties since the TCCA rendered its 2017 decision on postconviction appeal, which the Tennessee Supreme Court then declined to review.
In support of his argument, the petitioner directs the court to the record of proceedings on
initial post-conviction review. He asserts that each of the claims of the original, pro se postconviction petition were preserved for review in appointed counsel’s amended post-conviction
petition, by the latter’s incorporation of “all factual and legal allegations contained in all the
motions and pro se petitions [the petitioner] has filed previously in this matter.” (Doc. No. 7-15 at
87.) Following this global incorporation-by-reference in its introduction, the amended post-
The court alternatively considered whether the petitioner––if his default could be excused––could
demonstrate prejudice from any claimed errors of counsel or other constitutional harm from the trial court
errors he alleged, and found that he could not. (Doc. No. 19 at 24–25, 32–33.)
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conviction petition asserted two claims to relief: ineffective assistance of counsel (based on
counsel’s failure to adequately investigate the case, communicate with the petitioner, crossexamine witnesses, file proper motions, advise the petitioner regarding whether he should testify,
or explain the charge he was facing) and structural error related to the trial court’s effective denial
of the petitioner’s right to counsel (based on counsel’s deficient performance being the equivalent
of having no counsel at all, the trial court’s failure to relieve the petitioner from the ineffective
representation, and the trial court’s failure to continue the trial date so that substitute counsel could
adequately prepare to undertake the representation). (Doc. No. 7-15 at 91–98.) The amended postconviction petition then closed with a claim that the petitioner’s federal and state constitutional
rights were violated by “[t]he cumulative effect of all errors” made during trial proceedings. (Id.
at 99.) In asserting this claim, the amended post-conviction petition explains as follows:
Mr. Moody hereby incorporates into this claim for relief, by express reference, all
other paragraphs contained in this amended petition, all pleadings filed in this case
previously and to be filed subsequent to the filing of this petition, as well as all
appellate briefing (including certiorari litigation), filed by Mr. Moody in connection
with [his] criminal case, and any further amended motions or petitions to be filed
by Mr. Moody at any time in the future.
(Id.) It is from these references in the amended post-conviction petition filed by counsel––as well
as the fact that a pro se brief in support of the claims of the original, pro se petition was filed on
the same day as counsel’s amendment––that the petitioner’s current counsel concludes that there
are live claims that remain pending before the post-conviction trial court. Counsel argues that the
pendency of these live claims should have rendered improper the subsequent exercise of
jurisdiction in the TCCA and the Tennessee Supreme Court, and that it certainly rendered
erroneous this court’s finding that all available state remedies had been exhausted.
The court disagrees. The post-conviction trial court rendered a post-hearing decision that
granted relief on the ineffective assistance of counsel claim and denied relief on the structural error
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claim, ordering “that the Petition for Post-Conviction Relief be granted and a new trial be set.”
(Doc. No. 7-16 at 127.) It also expressly denied the petitioner’s cumulative error claim (which it
termed a claim of “cumulative error of Mr. Kovach’s representation of Petitioner”) as moot. (Id.
at 126.) It did not reserve ruling on any other claims. Contrary to current counsel’s argument, the
trial court’s decision was a final judgment that disposed of all claims to post-conviction relief,
inasmuch as it “decide[d] the controversy between the parties on the merits and fixe[d] their rights
so that, if the judgment [were] affirmed, nothing remain[ed] for the trial court to do but to proceed
with its execution.” Abston v. State, No. W2014-02513-CCA-R3-PC, 2016 WL 3007026, at *7
(Tenn. Crim. App. May 17, 2016) (quoting State v. Comer, 278 S.W.3d 758, 761 (Tenn. Crim.
App. 2008)).
Counsel cites Save Our Fairgrounds v. Metro. Gov’t of Nashville, No. M2019-00724COA-R3-CV, 2019 WL 3231381 (Tenn. Ct. App. July 18, 2019), for the proposition that a trial
court order that does not adjudicate all claims is not a final judgment. But the trial court in that
case dismissed the plaintiff’s case on summary judgment without considering two of the plaintiff’s
claims for relief, and the appellate court found that the defendant had not carried its burden of
proving that the plaintiff’s two remaining claims had been waived in the trial court or abandoned
on appeal, id. at *4–7; whereas here, the post-conviction trial court fully granted the relief
requested by the petitioner based on a finding in his favor on the ineffective-assistance claim,
denied relief on the structural error claim, found the cumulative error claim moot, and denied sub
silentio any claims not encompassed by these rulings (whether those other claims were also
deemed moot, or were considered waived or plainly unmeritorious) in entering judgment for the
petitioner. The sweep of the judgment was further recognized when the state’s subsequent appeal
was noticed, docketed, and adjudicated as an appeal “as of right” under Tennessee Rule of
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Appellate Procedure 3(c), “from the final judgment” of the trial court (Doc. Nos. 7-16 at 131, 723 at 1)––not as an interlocutory appeal under Tennessee Rule of Appellate Procedure 9(g) that
left issues pending in the trial court.
Furthermore, even if there were grounds for finding that one or more post-conviction
claims were left pending by their exclusion from the trial court’s judgment, any such claims were
subsequently abandoned on appeal. When the state appealed from the grant of post-conviction
relief to the petitioner, arguing that the trial court erred in “finding that trial counsel was ineffective
for failing to interview or call the petitioner’s co-defendant [Ortago Thomas] to testify at trial
(Doc. No. 7-22 at 6), the petitioner, as appellee, responded in defense of the trial court’s decision
(Doc. No. 7-21) but failed to assert any grounds for relief from those aspects of the judgment that
were unfavorable to him. Counsel argues before this court that “[t]he TCCA appeal was not
Moody’s to shape” (Doc. No. 33-1 at 25), and that post-conviction counsel could not have appealed
the unaddressed “live claims” “because there was no adverse judgment on those claims to appeal
from” (Doc. No. 45 at 10 n.3), but it appears that Tennessee law required the petitioner to raise
before the TCCA any reasons for believing that his conviction was unlawful, regardless of his
status as appellee, in order to avoid forfeiture of such claims. See State v. Stewart, 439 S.W.3d 906
(Tenn. Crim. App. 2013).
In Stewart, at 907–08, the TCCA considered the case of a defendant who had been
convicted of vehicular assault and sentenced to one year of incarceration followed by 12 years of
placement in a community corrections program. The defendant, Stewart, recognized the favorable
sentence he had received and did not initially appeal. But the state filed an appeal arguing for
reversal of the trial court’s judgment because Stewart was statutorily ineligible for a community
corrections sentence. Stewart filed a brief in opposition to the state’s appeal, but the TCCA agreed
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with the state and remanded the case for resentencing in accord with the pertinent statutory
guidelines. On remand, the trial court entered a judgment ordering Stewart to serve the entirety of
his 12-year sentence in prison. Stewart timely filed a motion for new trial challenging his
resentencing and raising several issues with respect to the guilt phase of his trial, including the
insufficiency of the evidence to support his conviction. After considering the issues raised in the
motion for new trial, the trial court denied the motion, whereupon Stewart filed an appeal before
the TCCA challenging the sufficiency of the convicting evidence. Id.
The TCCA held that Stewart “forfeited his challenge to the sufficiency of the evidence by
failing to raise it in his first appeal.” Id. at 908. The appellate court noted that, even though the
state filed the first appeal to challenge the community corrections sentence, Stewart had both the
opportunity and the obligation at that time to raise any issues related to his conviction. Id. (citing
Tenn. R. App. P. 27(b) (“If appellee is also requesting relief from the judgment, the brief of the
appellee shall contain the issues and arguments involved in his request for relief as well as the
answer to the brief of appellant.”)). When he failed to do so, the first TCCA decision became the
law of the case; as such, it narrowed the issues in the case “to the single issue of the propriety of
the sentence,” and further constricted the trial court’s authority to only those actions contemplated
in the instructions on remand. Id. at 908–09. The TCCA held that “the trial court was bound by
the remand order strictly to the issue of the defendant’s sentence,” and that even though the trial
court had considered the defendant’s insufficient-evidence claim on the merits, the defendant’s
appeal of that ruling was procedurally barred by his failure to raise the issue in his first appearance
before the TCCA. Id. at 909.
In the case before this court, the TCCA observed that the post-conviction trial court
“granted relief based on a finding that trial counsel was ineffective for failing to interview Mr.
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Thomas or call him as a witness at trial” and “denied relief on all other claims raised by the
petitioner.” (Doc. No. 7-23 at 12.) With the appeal framed exclusively around the one claim that
the trial court decided in favor of the petitioner, and not his “other,” “denied” claims, the TCCA’s
opinion “reverse[d] the post-conviction court’s grant of relief and reinstate[d] the judgment against
the petitioner.” (Id. at 17.) The TCCA entered judgment effecting this reversal of the lower court,
taxing the costs of the appeal to the state, and remanding the case to the trial court “for further
proceedings consistent with this court’s opinion and for collection of costs accrued below.” (Doc.
No. 7-26.)
Counsel argues that, following the Tennessee Supreme Court’s June 9, 2017 denial of
permission to appeal this judgment (Doc. No. 32-5 at 2), and pursuant to the TCCA’s remand for
further proceedings, the trial court should have proceeded to adjudicate the “live claims,” which
remained pending because “Moody never waived or otherwise withdrew them.” (Doc. No. 33-1 at
23.) Counsel argues that these pending claims are, at worst, unexhausted through no fault of the
petitioner’s or, at best, “exhausted by Moody’s fair presentation and the trial court’s subsequent
failure to adjudicate them,” but have not in either event been procedurally defaulted, as this court
mistakenly found. (Id. at 22–23.) However, this argument is not persuasive. For purposes of
deciding whether grounds exist for relief under Rule 60(b)(1), the court finds that, under the
holding in Stewart, the petitioner forfeited further review of the claims that the post-conviction
trial court did not decide favorably to him when he failed to raise the lack of a favorable decision
on those claims as an issue before the TCCA. Accordingly, this court did not err in finding those
claims procedurally defaulted.
Relatedly, counsel argues that the TCCA left the claim of ineffective assistance with regard
to interviewing or calling Thomas unresolved, as “[n]othing in the TCCA’s opinion precluded the
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post-conviction court on remand from making additional fact findings regarding [that claim]”;
therefore, the petitioner argues that this court should award relief from judgment due to its mistake
in labeling the claim exhausted. (Id. at 24–25.) But the TCCA did not vacate the trial court’s award
of relief and remand for further factfinding; it reversed and ordered reinstatement of the judgment
against the petitioner after “conclud[ing] that trial counsel did not render deficient performance”
and determining that the record “support[ed] a finding that there was no reasonable probability
that the result of the trial would have been different had Mr. Thomas testified.” Moody v. State,
No. M2015-02424-CCA-R3-PC, 2017 WL 829820, at *10–11 (Tenn. Crim. App. Mar. 2, 2017),
perm. app. denied (Tenn. June 9, 2017). “Black’s Law Dictionary . . . underscores the distinction
between vacatur and reversal[:] Although the word reverse shares vacate’s meanings of to annul
and to set aside, it has an additional, more extensive definition: ‘To reverse a judgment means to
overthrow it by contrary decision, make it void, undo or annul it for error.’” Kelso v. U.S. Dep’t
of State, 13 F. Supp. 2d 12, 18 (D.D.C. 1998) (citations omitted; emphasis in original). The TCCA
reversed the award of relief to the petitioner based on what it determined to be an erroneous
judgment of the trial court. It further ordered reinstatement of the judgment originally imposed on
the petitioner, an order unsurprisingly accompanied by remand to the trial court. See Dart v. United
States, 848 F.2d 217, 230 (D.C. Cir. 1988) (“Rarely if ever would an appellate court reverse a
judgment that was in a defendant’s favor and impose a judgment against him, without remanding
the matter to the [trial] court.”). This ineffective-assistance claim was thus finally determined at
the appellate level and was fully exhausted when the Tennessee Supreme Court denied the
petitioner’s request for review of the TCCA’s decision. Accordingly, this court did not err in
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adjudicating the claim upon habeas review. 2
In sum, the court finds that the petitioner has not carried his burden of showing any error
justifying relief from the court’s judgment under Rule 60(b)(1). The petitioner’s Motion seeking
such relief will be denied.
B. Rule 60(b)(2) –– New Evidence of Actual Innocence
Counsel asserts that the petitioner is entitled to relief from judgment in light of new
evidence demonstrating his actual innocence, in the form of Quantez Caldwell’s testimony on
September 23, 2020, at a hearing on the petitioner’s pending motion for writ of error coram nobis
in the state trial court. 3 (Doc. No. 32-2 (hearing transcript).) He states that “Rule 60(b)(2) provides
for relief when (1) a habeas petitioner with newly discovered evidence exercises due diligence to
obtain the evidence and (2) the new evidence would have produced a different outcome. (Doc. No.
33-1 at 26 (citing Smith v. Bauman, 2019 WL 4865345, at *2 (6th Cir. 2019)). Counsel proffers
that Caldwell, the state’s key witness and “the only witness that offered any evidence that Moody
may be criminally responsible for the underlying events” (id. at 27), recanted his trial testimony
during the coram nobis hearing. He asserts that he proceeded with due diligence in bringing
Counsel apparently filed a second amended post-conviction petition in state court on December 8, 2020,
several months after the Sixth Circuit exercised appellate jurisdiction and denied an expanded COA (Doc.
No. 28), in order to “add[ ] a claim under Brady v. United States, 397 U.S. 742 (1970), and further brief[ ]
the remanded Thomas IAC Claim.” (Doc. No. 45 at 4, 7–8 n.2.) He reports that the state responded to this
new attempt to amend the post-conviction petition, and that he filed a reply to the state’s response, but that
the trial court has not yet acted. (Id.) The bare fact that these state-court filings were made do not affect this
court’s review for error under Rule 60(b)(1).
2
Under Tennessee law, “a writ of error coram nobis will lie for subsequently or newly discovered evidence
relating to matters which were litigated at the trial if the judge determines that such evidence may have
resulted in a different judgment, had it been presented at the trial.” Tenn. Code Ann. § 40-26-105(b). The
petitioner filed a pro se application for writ of error coram nobis in the Davidson County Criminal Court
on November 8, 2019, asserting Caldwell’s desire to recant his trial testimony. (Doc. No. 32-2; Doc. No.
32-6 at 11.) The coram nobis application was subsequently amended by counsel twice in early 2020, and
the matter came to be heard last September. (Doc. Nos. 32-3, 32-4; Doc. No. 32-6 at 11.) The application
has not yet been decided.
3
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Caldwell’s state-court testimony before this court, and that its revelation would have changed the
outcome of the petitioner’s trial because, “[a]fter Caldwell’s recantation, the State’s only
incriminating evidence is gone” and “no jury could have reasonably convicted Moody” on the
remaining record. (Id. at 26–27.) Counsel concludes that the petitioner is therefore entitled to relief
from this court’s judgment that his showing of actual innocence was insufficient to excuse his
procedural default.
In response, the state argues that this court cannot entertain the petitioner’s Rule 60(b)(2)
motion and proffer of new evidence unless the Sixth Circuit first authorizes its filing as a second
or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A), because the motion “clearly argues
that this Court should revisit its rejection of his previous actual innocence argument” and thus
attacks the court’s previous ruling on the merits of a habeas claim. (Doc. No. 40 at 3–4.) The
petitioner replies that his motion under Rule 60(b)(2) does not advance a freestanding actualinnocence claim, but clearly “seeks relief from the Court’s actual-innocence findings made in its
procedural default analysis.” (Doc. No. 45 at 6.)
As the Sixth Circuit has explained in addressing the sometimes-difficult distinction
between Rule 60(b) grounds and successive habeas claims,
Case law provides us with some guidance in delineating the boundary between the
two. 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. 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.’” Ibid. (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).
15
Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016).
Here, contrary to the state’s argument, the Rule 60(b)(2) motion explicitly offers the
evidence of Caldwell’s recantation to “demonstrate[ ] Moody’s actual innocence such that certain
claims found to be procedurally defaulted can be heard on the merits” (Doc. No. 33-1 at 6)––not
to establish error in any prior rejection of the merits of the underlying claims. Counsel submits that
the evidence is sufficiently probative to excuse any “lingering procedural defaults . . . under the
actual innocence exception,” and notes that “to the extent that the Court would want to test the
veracity of Caldwell’s testimony” offered for that purpose, “it should consider ordering an
evidentiary hearing on Moody’s actual innocence.” (Id. at 26 & n.8.)
However, while the Rule 60(b)(2) motion seeks relief without explicitly “attack[ing] the
. . . court’s previous resolution of a claim on the merits,” Gonzalez, 545 U.S. at 532, the new
evidence implicitly attacks the court’s resolution of the merits of the petitioner’s sufficiency-ofthe-evidence claim. According to the Sixth Circuit, “[i]t makes no difference that the motion itself
does not attack the district court’s substantive analysis” of the merits of a habeas claim––“all that
matters is that [the petitioner] is ‘seek[ing] vindication of’ or ‘advanc[ing]’ a claim by taking steps
that lead inexorably to a merits-based attack on the prior dismissal of his habeas petition.” Post,
422 F.3d at 424–25 (quoting Gonzalez, 545 U.S at 531–32); see also, e.g., Rodwell v. Pepe, 324
F.3d 66, 70–71 (1st Cir. 2003) (cited in Gonzalez, 545 U.S. at 531) (stating that district court must
examine “the factual predicate set forth in support of a [Rule 60(b)(2)] motion to see if it “deals
primarily with the constitutionality of the underlying state conviction or sentence”; joining circuit
consensus that Rule 60(b) motion in a habeas case is a second or successive habeas petition if it
“threatens to encroach upon precincts patrolled by the AEDPA” by relying on a “factual predicate
. . . [that] constitutes a direct challenge to the constitutionality of the underlying conviction”). As
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stated by the Supreme Court in Gonzalez, “even claims couched in the language of a true Rule
60(b) motion” may in fact be habeas claims that would circumvent AEDPA’s strictures if not
recognized as such; “[t]he same is true of a Rule 60(b)(2) motion presenting new evidence in
support of a claim already litigated: Even assuming that reliance on a new factual predicate causes
that motion to escape § 2244(b)(1)’s prohibition of claims ‘presented in a prior application,’
§ 2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b).” 545 U.S. at
531.
The Rule 60(b)(2) motion before this court asks to introduce testimony that, if credited,
would “leave[ ] the State with no evidence of Moody’s guilt” inasmuch as “Caldwell was the only
witness that offered any evidence that Moody may be criminally responsible for the underlying
events.” (Doc. No. 33-1 at 26–27.) Counsel observes that Caldwell’s “testimony has been
indisputably critical to court decisions maintaining Moody’s conviction and the State has admitted
as much,” to the extent that “[a]fter Caldwell’s recantation, the State’s only incriminating evidence
is gone.” (Id. at 27; see also Doc. No. 45 at 5 (stating that Caldwell’s “trial testimony was the only
evidence linking Moody to the shooting” (emphasis in original)).) Previously, in asserting his “first
and foremost” habeas claim that the evidence at trial was insufficient to support his conviction, the
pro se petitioner argued that his conviction rested entirely upon Caldwell’s testimony, which
lacked corroborative support from even “a single piece of reliable, independent evidence.” (Doc.
No. 1 at 6; Doc. No. 15 at 2.) Both this court and the Sixth Circuit (in denying an expanded COA)
rejected the evidence-based habeas challenge because the jury was entitled to rely on the testimony
of an eyewitness such as Caldwell, even if that testimony was not corroborated by other witnesses.
(Doc. No. 19 at 21 (ruling that “it is the province of the jury to determine the reliability of witness
testimony, and Mr. Caldwell’s testimony need not be corroborated for purposes of this court’s
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review for sufficiency of the evidence”)); Moody v. Parris, No. 20-5299, Doc. No. 8-2 at 6 (6th
Cir. Aug. 3, 2020) (ruling that “Caldwell’s testimony that Moody had a weapon and was shooting
. . . was sufficient for the jury to find” him criminally responsible for the conduct of his codefendants). The court therefore finds that the petitioner’s Rule 60(b)(2) motion “lead[s]
inexorably to a merits-based attack on the prior dismissal of his habeas petition,” Post, 422 F.3d
at 424–25, in the form of a claim that the convicting evidence was not sufficient in light of
Caldwell’s recantation––a claim that is successive because it “reli[es] on a new factual predicate”
“in support of a claim already litigated.” Gonzalez, 545 U.S. at 531.
The Rule 60(b)(2) motion is thus a second or successive habeas application that must be
authorized by the Sixth Circuit.
Accordingly, pursuant to Rule 62.1(a)(1), the court will defer consideration of the Motion
to the extent that it seeks relief from judgment under Rule 60(b)(2), until such time as the Sixth
Circuit authorizes its filing under Section 2244(b)(3)(A). The Clerk of Court will be directed to
transfer the motion to the Sixth Circuit pursuant to 28 U.S.C. § 1631 and In re Sims, 111 F.3d 45
(6th Cir. 1997).
Alternatively, even if the relief sought here were clearly confined to the court’s
determination of unexcused procedural default, the court would still defer consideration of the
Motion, since any review of the reliability of the new evidence would have to await the judgment
of the state court on the petitioner’s coram nobis petition. See Bennett v. Mills, No. 1:06-cv-254,
2007 WL 2823324, at *6 (E.D. Tenn. Sept. 27, 2007) (“This Court must defer to the state court’s
credibility determinations of witnesses whose demeanor has been observed by that court, unless
Petitioner demonstrates the state credibility determinations are not supported by the record.
Accordingly, in determining whether Petitioner has submitted credible new evidence of actual
18
innocence sufficient for the limited purpose of [excusing procedural default], the Court defers to
the state coram nobis court’s credibility determinations.”) (citing Rice v. Collins, 546 U.S. 333,
339 (2006)). The witnesses whose testimony is offered to support the petitioner’s actual-innocence
assertion in this court, Caldwell and Thomas, have appeared and testified on multiple occasions
before the state trial court, most recently at the hearing on the petitioner’s pending coram nobis
petition. (Doc. No. 32-1.) In considering whether coram nobis relief is appropriate, the trial judge
will presumably weigh these witnesses’ most recent testimony against his prior observations of
their credibility. (See Doc. No. 7-15 at 23–25 & n.4.) Without knowing the state court’s resolution
of the matter, this court would be in no position to adjudicate the reliability of the new evidence
offered in the petitioner’s Rule 60(b)(2) Motion.
Deferral of further consideration in this court is also appropriate because the petitioner is
currently seeking vacatur of his conviction and a new trial in two petitions pending in state court,
while his federal habeas corpus action is being held in abeyance before the Sixth Circuit, subject
to required joint status reports every 90 days. Moody v. Parris, No. 20-5299, Doc. No. 15 (6th Cir.
Jan. 5, 2021). The Sixth Circuit will decide whether to continue to hold the matter in abeyance, or
how best to proceed with the litigation of this case, but it does not appear that the petitioner’s
motion raises a substantial issue for this court to adjudicate at this time.
III. CONCLUSION
In light of the foregoing, the petitioner’s Motion for Indicative Ruling Under Federal Rule
of Civil Procedure 62.1 (Doc. No. 33) will be denied. The petitioner’s Motion for Relief From
Judgment Under Federal Rule of Civil Procedure 60(b) (Doc. No. 32) will also be denied to the
extent that it seeks relief under Rule 60(b)(1). The court will defer consideration of the Rule 60(b)
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Motion to the extent that it seeks relief under Rule 60(b)(2) and will transfer that part of the Motion
to the Sixth Circuit for consideration as a second or successive habeas petition.
An appropriate order will enter.
____________________________________
Aleta A. Trauger
United States District Judge
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