Eisom v. Donahue

Filing 37

ORDER GRANTING 36 MOTION FOR SUMMARY JUDGMENT, DENYING § 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge J. Daniel Breen on 3/1/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
AUBREY T. EISOM,
Petitioner,
v.
MICHAEL DONAHUE,
Respondent.

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No. 1:13-cv-01289-JDB-egb

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT,
DENYING § 2254 PETITION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Before the Court is the § 2254 amended petition of Aubrey T. Eisom (“Petitioner”) and
the motion for summary judgment of Respondent, Michael Donahue (“Respondent” or “the
State”). (See ECF Nos. 8 and 31.) For the reasons that follow, the motion is GRANTED and the
amended petition is DENIED.
A Dyer County, Tennessee Circuit Court jury convicted Eisom of two counts of first
degree felony murder and one count of especially aggravated robbery.

State v. Eisom,

No. W2009-02098-CCA-R3-CD, 2010 WL 4540069, at *1 (Tenn. Crim. App. Nov. 5, 2010),
perm. app. denied (Tenn. Mar. 9, 2011).

The trial court sentenced Eisom to consecutive

sentences of life imprisonment for both of the felony murder convictions and a consecutive
sentence of forty years’ incarceration for the especially aggravated robbery conviction. Id. The
Tennessee Court of Criminal Appeals (“TCCA”) affirmed the convictions and sentences on
November 5, 2010. Id. at *19. The Tennessee Supreme Court denied discretionary review on
March 9, 2011. Id. at *1. Petitioner filed for state post-conviction relief on February 10, 2012.
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(ECF No. 20-15.) The petition was denied, and the TCCA affirmed on September 24, 2013.
Eisom v. State, No. W2012-02355-CCA-R3-PC, 2013 WL 5423073, at *19 (Tenn. Crim. App.
Sept. 24, 2013). He did not seek review by the Tennessee Supreme Court. Id. at *1.
In his amended § 2254 petition in this case, the inmate asserts that his post-conviction
counsel and post-conviction appellate counsel were ineffective, in violation of the Sixth
Amendment. (ECF Nos. 8 and 8-1.) Subsequent to filing his amended petition, Petitioner
moved for expansion of the record to include the preliminary hearing transcript, arguing that the
transcript “is needed . . . to support his ineffective assistance of counsel claim.” (ECF No. 21 at
1.) While the motion was pending, Eisom moved for summary judgment in which he asserted
that there were “no genuine issue[s] of material fact” as to his habeas claims and that he was
entitled to judgment “as a matter of law.” (ECF No. 24 at 1.) In the first ground for relief, he
argued that the TCCA’s evidence sufficiency ruling was an unreasonable application of the
Supreme Court’s decision in Jackson v. Virginia, 433 U.S. 307 (1979). This claim was not
raised in the amended petition, but was asserted for the first time in the summary judgment
motion. Petitioner also sought judgment as a matter of law on his ineffective assistance claims.
(ECF No. 24 at 1.)
The motion to expand the record was denied on September 22, 2015. (ECF No. 27.) On
March 31, 2016, the Court denied Petitioner’s motion for summary judgment, concluding that
that he was not entitled to relief on any of his claims, including the newly-asserted evidencesufficiency claim. (ECF No. 30.)
On July 18, 2016, the State filed a motion for summary judgment. (ECF No. 31.) It
argued that the parties were bound by the Court’s rulings in the order denying Petitioner’s
motion for summary judgment, and that pursuant to those rulings, the amended petition should

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be denied and judgment entered as a matter of law in Respondent’s favor. Eisom did not file a
brief in opposition to the motion. Four months after the motion was filed, the Court, having
heard nothing from Petitioner, ordered him to show cause why his claims should not be
dismissed for failure to prosecute. (ECF No. 32.) Petitioner responded to the show-cause order
by filing a document styled “Motion to Show Cause,” in which he argued that the summary
judgment motion should be denied to allow expansion of the record.1 (ECF No. 36.)
The Court’s rulings in its order denying Petitioner’s summary judgment motion govern
disposition of the State’s motion. The doctrine of the law of the case discourages a court from
revisiting its prior rulings in the same case, except in “limited” circumstances. Lac Vieux Desert
Band of Lake Superior Chippewa Indians v. Michigan Gaming Control Bd., 276 F.3d 876, 879
(6th Cir. 2002). See also Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007) (“[T]he
law of the case doctrine embodies the notion that a court ought not to re-visit an earlier ruling in
a case absent a compelling reason, such as manifest error or a change in the law, that warrants reexamination.”).

The doctrine “‘comes into play only with respect to issues previously

determined.’” Holloway v. Brush, 220 F.3d 767, 777 (6th Cir. 2000) (en banc) (quoting Quern v.
Jordan, 440 U.S. 332, 347 (1979)). Here, in its order denying Eisom’s motion for summary
judgment, the Court ruled on the issues raised by Petitioner’s habeas claims and concluded that
he was not entitled to habeas relief. The rulings are therefore the law of the case. See, e.g., Biel
Loanco III-A, LLC v. Labry, 862 F. Supp. 2d 766, 769 (W.D. Tenn. 2012) (issues decided in
court’s order denying plaintiff’s motion for summary judgment were law of the case). Judgment
in the State’s favor was not entered at the time because it had not filed a cross-motion for
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The “Motion to Show Cause” (ECF No. 36) is DENIED because it is improperly styled
as a “motion.” The Court nevertheless takes into account the arguments Petitioner advances in
that document.

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summary judgment. Entry of judgment for the Respondent is now warranted. There are no
material factual disputes and the Court’s rulings, which are law of case, entitle Respondent to
judgment in its favor.2
Eisom’s show-cause submission does not provide grounds for revisiting the earlier
rulings. Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may . . .
defer considering the motion or deny it . . . .” Fed. R. Civ. P. 56(d). The inmate asserts that had
the Court granted his 2015 motion to expand the record to include his preliminary hearing
transcript, he could have shown that material factual disputes exist that preclude entry of
summary judgment for Respondent, and that he could do so now. Petitioner does not give
“specified reasons,” id., why the transcript will support his claims. Importantly, he asserted in
his summary judgment motion that there were no material factual disputes and that judgment
could be entered as a matter of law. That prior litigation position undermines Eisom’s current
request—which itself was prompted only by the Court’s entry of a show-cause order months
after Petitioner failed to respond to the State’s motion for summary judgment. Accordingly, the
Court finds that Petitioner has not provided a compelling reason to revisit the rulings set forth in
the order denying his motion for summary judgment.
Respondent’s motion for summary judgment is therefore GRANTED and the amended
petition is DENIED. Judgment shall be entered for Respondent.
APPEAL ISSUES
A § 2254 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
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Even if the Court’s rulings were not the law of the case, the Court would, and hereby
does, reaffirm them.  
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may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. §§ 2253(c)(2) & (3). Although a COA does not require a showing that the
appeal will succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), a court should not issue a
COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
In this case, there is no question that the petition should be denied for the reasons stated.
Because any appeal by Eisom does not deserve attention, the Court DENIES a certificate of
appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R.
App. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal
would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reasons it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.

IT IS SO ORDERED this 1st day of March, 2017.
s/ J. Daniel Breen______________________
CHIEF UNITED STATES DISTRICT JUDGE

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