# Avery v. Genovese

> District Court, M.D. Tennessee · January 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10436195

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** January 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

FREDERICK A. AVERY, )
)
Petitioner, )
)
v. ) No. 3:17-cv-00255
) Judge Trauger
KEVIN GENOVESE, Warden, )
)
Respondent. )

MEMORANDUM
Frederick Alexander Avery, a state prisoner, filed a pro se petition for the writ of habeas
corpus under 28 U.S.C. § 2254 (Doc. No. 1) and an amended petition (Doc. No. 22). The
respondent filed an answer (Doc. No. 38) and the petitioner filed a reply (Doc. No. 39), followed
by two supplements (Doc. Nos. 43 at 44). For the following reasons, the petitioner is not entitled
to relief under Section 2254 and this action will be dismissed.
I. Background
A Davidson County jury convicted the petitioner and his brother of aggravated robbery,
especially aggravated robbery, reckless endangerment, and attempted second degree murder. (Doc.
No. 25-1 at 60–63.) The petitioner received sentences of life without the possibility of parole and
20 years’ imprisonment, to be served consecutively. (Id.) The Tennessee Court of Criminal
Appeals (“TCCA”) affirmed. State v. Avery, No. M2008-01809-CCA-R3-CD, 2009 WL 4724430
(Tenn. Crim. App. Dec. 10, 2009). The petitioner filed a pro se application for permission to appeal
to the Tennessee Supreme Court (“Rule 11 Appeal”) (Doc. No. 25-11), and later testified that “it
was dismissed because he was represented by counsel.” Avery v. State, No. M2011-02493-CCA–
R3-PC, 2013 WL 451867, at *1 (Tenn. Crim. App. Feb. 6, 2013). The petitioner’s counsel also
filed a Rule 11 Appeal, and the Supreme Court denied it as untimely. (Doc. No. 25-12.)
The same counsel represented the petitioner at trial, on direct appeal, and in these Rule 11
Appeal proceedings. For clarity, the court will refer to this attorney as “trial counsel.”

The petitioner then filed a pro se petition for post-conviction relief (Doc. No. 25-13 at 39–
53), and the post-conviction court appointed counsel (id. at 56–58). The court will refer to this
attorney as “post-conviction counsel.”
Post-conviction counsel filed an amended petition. (Id. at 59–62.) After an evidentiary
hearing, due to trial counsel’s admitted miscalculation of the Rule 11 Appeal deadline, the post-
conviction court reopened the petitioner’s direct appeal to allow him to file a delayed Rule 11
Appeal.1 (Doc. No. 25-13 at 74.) Post-conviction counsel represented the petitioner in these
delayed Rule 11 Appeal proceedings. (Doc. No. 25-19 (Rule 11 Appeal brief).) And in February
2012, the Supreme Court denied the petitioner’s Rule 11 Appeal. (Doc. No. 25-21.)
With the petitioner’s post-conviction claims still pending, the proceedings returned to the

post-conviction court. At a hearing in March 2012, “the petitioner waived any conflict of interest
with his current counsel and advised the court that he had chosen not to amend the post-conviction
petition regarding any Rule 11 grounds.” Avery v. State, No. M2014-02427-CCA-R3-PC, 2015
WL 6768884, at *4 (Tenn. Crim. App. Nov. 6, 2015). Over a year and one-half later, however, the
petitioner filed a pro se motion requesting the appointment of new post-conviction counsel and the
opportunity to amend the post-conviction petition. (Doc. No. 25-22 at 70.) The post-conviction
court denied these requests, as well as the petitioner’s claims. (Id. at 73–74 & n.2.)

1 The post-conviction court also denied the petitioner’s claims on the merits at that time. (Doc. No. 25-13 at 71–73.)
But the TCCA subsequently instructed the court to enter an “order granting the delayed Rule 11 appeal but holding
the post-conviction proceedings in abeyance pending the final disposition of the Rule 11 application.” Avery, 2013
WL 451867, at *2. The post-conviction court complied. (Doc. No. 25-22 at 68.)
Post-conviction counsel continued to represent the petitioner on appeal. (Doc. No. 25-23
(post-conviction appeal brief).) The TCCA affirmed the denial of the petition, Avery, 2015 WL
6768884, and the Tennessee Supreme Court denied discretionary review. (Doc. No. 25-28.)
II. Claims

The petitioner asserts three claims here. First, he asserts that the trial court erred by
imposing an indeterminate sentence, which is illegal under the Tennessee Rules of Criminal
Procedure and Tennessee law. (Doc. No. 1 at 4; Doc. No. 22 at 3.) Second, the petitioner asserts
that he received ineffective assistance of counsel, stating that his pro se efforts were “denied”
because his attorney abandoned him without withdrawing as attorney of record. (Id. at 5.)2 And
third, the petitioner asserts that post-conviction counsel was ineffective because she was
reprimanded “by the Board for [the petitioner’s] allegations of malicious prosecution[,] abuse of
process, abandonment, [and] filing groundless appeals without [his] consent.” (Doc. No. 22 at 3.)3
III. Standard of Review
Federal courts have the authority to grant habeas relief to state prisoners under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Harrington v. Richter, 562
U.S. 86, 97 (2011). Under AEDPA, a claim “adjudicated on the merits” in state court cannot be
the basis for federal relief unless the state court’s decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States”; or (2) “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “The question under

2 This claim is asserted in a space on the petition form for explaining why the petitioner did not previously present his
claims in another court. (Doc. No. 1 at 5.) Nonetheless, the court liberally construed this as an independent claim.
(Doc. No. 23 at 2.)

3 This assertion first appeared in the petitioner’s motion to file a second or successive habeas petition, filed in the
Sixth Circuit. (Doc. No. 22 at 2.) The Sixth Circuit denied this motion as unnecessary. (Doc. No. 21.) The motion was
then filed here, and this court liberally construed it as an amended petition. (Doc. No. 23 at 1.)
AEDPA,” therefore, “is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410
(2000)).

The demanding review of claims rejected on the merits in state court, however, is ordinarily
only available to petitioners who “exhausted the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). In Tennessee, a petitioner is “deemed to have exhausted all available state
remedies for [a] claim” when it is presented to the Tennessee Court of Criminal Appeals. Adams
v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39). “To be properly
exhausted, each claim must have been ‘fairly presented’ to the state courts,” meaning that the
petitioner presented “the same claim under the same theory . . . to the state courts.” Wagner v.
Smith, 581 F.3d 410, 414, 417 (6th Cir. 2009) (citations omitted).
The procedural default doctrine is “an important ‘corollary’ to the exhaustion
requirement,” under which “a federal court may not review federal claims that . . . the state court

denied based on an adequate and independent state procedural rule.” Davila v. Davis, 137 S. Ct.
2058, 2064 (2017) (citations omitted). A claim also may be “technically exhausted, yet
procedurally defaulted,” where “a petitioner fails to present a claim in state court, but that remedy
is no longer available to him.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones
v. Bagley, 696 F.3d 475, 483–84 (6th Cir. 2012)).
To gain review of a procedurally defaulted claim, a petitioner must “establish ‘cause’ and
‘prejudice,’ or a ‘manifest miscarriage of justice.’” Middlebrooks v. Carpenter, 843 F.3d 1127,
1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790–91 (6th Cir. 2014)). Cause
may be established by “show[ing] that some objective factor external to the defense”—a factor
that “cannot be fairly attributed to” the petitioner—“impeded counsel’s efforts to comply with the
State’s procedural rule.” Davila, 137 S. Ct. at 2065 (citations omitted). To establish prejudice, “a
petitioner must show not merely that the errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” Garcia-Dorantes v. Warren, 801 F.3d 584, 598 (6th Cir. 2015)
(quoting Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991)) (internal quotation marks omitted).
There is also “a narrow exception to the cause requirement where a constitutional violation has
‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.”
Dretke, 541 U.S. at 392 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
IV. Analysis
Before analyzing the petitioner’s claims, the court first clarifies their construction. The crux
of Claims 1 and 3 is evident—Claim 1 is an illegal-sentence claim, while Claim 3 is a claim of
ineffective assistance of post-conviction counsel. But the basis of Claim 2 is not immediately clear.
Indeed, the respondent argues that this claim should be dismissed as “too vague” because the

petitioner asserts that he received ineffective assistance without specifying which counsel rendered
the allegedly deficient performance. (Doc. No. 38 at 6.)
Because the petitioner asserts a distinct claim of ineffective assistance against post-
conviction counsel in Claim 3, however, it is reasonable to infer that Claim 2 refers to the
petitioner’s other appointed attorney. Thus, the court construes Claim 2 to assert that trial counsel
provided ineffective assistance during the petitioner’s direct appeal proceedings.4 So construed,
the petitioner’s three claims will be denied.

4 This construction is consistent with the state court record. In the petitioner’s pro se application for permission to
appeal his direct appeal proceedings to the Tennessee Supreme Court, he complains that trial counsel “abandon[ed]
him as a client” after trial and did not “file[] a motion to withdraw.” (Doc. No. 25-11 at 8–9.) This language tracks the
language in Claim 2.
A. Claim 1—Illegal Sentence
The petitioner first asserts that the trial court erred under state law and state rules of
procedure by imposing an indeterminate sentence. The respondent contends that this claim is not
cognizable in this federal habeas proceeding. (Doc. No. 38 at 5–6.) The court agrees.

Federal habeas relief is available to a state prisoner “only on the ground that he is in custody
in violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2254(a). “[T]he
Supreme Court has ‘stated many times that federal habeas corpus relief does not lie for errors of
state law.’” Thomas v. Stephenson, 898 F.3d 693, 700 (6th Cir. 2018) (quoting Estelle v. McGuire,
502 U.S. 62, 67 (1991)). This includes asserted errors in the application of state sentencing law.
See Noonan v. Burton, No. 17-2459, 2018 WL 6584905, at *3 (6th Cir. Oct. 15, 2018) (citing
Estelle, 502 U.S. at 67) (“[T]o the extent that [the petitioner] alleges that the trial court’s sentencing
decision violated state law, his claim is not cognizable on federal habeas review.”). Here, in both
the original petition and amended petition, the petitioner does not attempt to argue this claim as a
matter of federal law. Claim 1 will be denied for this reason.

Even if the petitioner argued this claim under federal law, moreover, it would be
procedurally defaulted without cause. The petitioner did not present a claim that his sentence is
impermissibly indeterminate to the TCCA on either direct or post-conviction appeal. He can no
longer do so under Tennessee Rule of Appellate Procedure 4, Tennessee’s one-year statute of
limitations for post-conviction petitions, and Tennessee’s “one-petition” limitation on post-
conviction relief. Tenn. Code Ann. §§ 40-30-102(a), (c). This argument is therefore defaulted.
Through Claim 2, the petitioner generally asserts that he received ineffective assistance
from trial counsel on direct appeal.5 But the petitioner could not rely on this as an allegation of

5 In the amended petition, the petitioner also seems to imply that the court should excuse the procedural default of his
illegal-sentence claim under Martinez v. Ryan, 566 U.S. 1 (2012). (Doc. No. 22 at 3.) But Martinez is strictly limited
cause to overcome any default because “an ineffective-assistance-of-counsel claim asserted as
cause for the procedural default of another claim can itself be procedurally defaulted.” Hodges v.
Colson, 727 F.3d 517, 530 (6th Cir. 2013) (quoting Edwards v. Carpenter, 529 U.S. 446, 453
(2000)). And here, the petitioner did not exhaust a claim that trial counsel was ineffective for

failing to challenge his sentence as impermissibly indeterminate. Accordingly, the petitioner would
not be entitled to relief even if he argued Claim 1 under federal law.
B. Claim 2—Ineffective Assistance of Trial Counsel on Appeal
Next, the petitioner asserts that trial counsel provided ineffective assistance by abandoning
him during his direct appeal proceedings without withdrawing as attorney of record. On post-
conviction appeal, the petitioner contended as follows: “[T]he fact that [trial] counsel missed the
deadline for filing the Rule 11 application ‘reinforces the [petitioner’s] position that [counsel] was
simply uninterested, unable, and unwilling to properly defend him in the case.” Avery, 2015 WL
6768884, at *5. Based on this argument, the court liberally construes Claim 2 to have been
exhausted on post-conviction appeal.

The TCCA affirmed the denial of the petitioner’s post-conviction petition with little
analysis, without specifically addressing the argument raised in Claim 2. See Avery, 2015 WL
6768884, at *5 (summarizing trial counsel’s evidentiary hearing testimony and the post-conviction
court’s findings before concluding that “[t]he record fully supports the findings and conclusions
of the post-conviction court”). The court therefore presumes that the TCCA rejected the
petitioner’s argument on the merits. See Harrington, 562 U.S. at 99 (“When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that the

to claims of “ineffective assistance of counsel at trial,” Davila, 137 S. Ct. at 2065–66, so it does not apply to this claim
of trial court error.
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.”).
The TCCA accurately identified and explained the federal standard governing the adequacy
of a criminal defendant’s representation, as defined in Strickland v. Washington, 566 U.S. 668

(1984). Avery, 2015 WL 6768884, at *4. Under Strickland, a petitioner must show (1) deficient
performance and (2) prejudice to the defendant. Knowles v. Mirzayance, 556 U.S. 111, 124 (2009)
(citing Strickland, 466 U.S. at 687). Trial counsel’s performance is deficient where it falls “below
an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. And to establish
prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “[A]
court deciding an ineffective assistance claim” need not “address both components of the inquiry
if the defendant makes an insufficient showing on one.” Id. at 697.
The TCCA’s rejection of this claim was reasonable. The court first notes that trial counsel

did not actually “abandon” the petitioner on direct appeal because he, in fact, filed a timely brief
on the petitioner’s behalf before the TCCA. (Doc. No. 25-7 (direct appeal brief)); see Young v.
Westbrooks, 702 F. App’x 255, 259–66 (6th Cir. 2017) (distinguishing Maples v. Thomas, 565
U.S. 266 (2012)) (explaining that post-conviction counsel did not “abandon” a habeas petitioner
where counsel filed a brief that was considered on the merits). And as to trial counsel missing the
Rule 11 Appeal deadline, the petitioner has not demonstrated that he suffered any prejudice. The
post-conviction court reopened the petitioner’s direct appeal to allow him to file a delayed Rule
11 Appeal, and post-conviction counsel filed it. Although this Rule 11 Appeal was ultimately
denied, the Supreme Court considered the application as it would have if trial counsel originally
filed it in a timely manner. Accordingly, the petitioner’s claim that trial counsel provided
ineffective assistance on direct appeal is without merit.
As part of Claim 2, the petitioner also asserts that the trial court erred in “rejecting [his]
request for discharge of appointed counsel.” (Doc. No. 1 at 5.) For context, this claim seems to

reference the petitioner’s motion, filed in the trial court with the following title: “Pro Se Motion
for Court Order to Compel Appointed Attorney to Release All Case Filed to Indigent Client Prior
to Being Paid by State for Rendered Services.” (Doc. No. 25-22 at 13–17, 21.) Through this
motion, the petitioner requested an order directing trial counsel to provide him a copy of everything
in the case file prior to being paid or discharged from the case. (Id. at 16.) On January 7, 2010, the
trial court denied this motion because the petitioner’s “case [was] on appeal” and the trial court
“ha[d] no authority over [his] case.” (Id. at 21–22.)
To the extent that the petitioner intends to bring an independent claim based on the trial
court’s denial of this motion, it will be denied. The petitioner defaulted this claim by failing to
present it to the TCCA at any point. And the petitioner cannot point to trial counsel’s asserted

appellate ineffectiveness as cause to overcome this default because, as with Claim 1, the petitioner
did not exhaust such a claim on post-conviction appeal. See Hodges, 727 F.3d at 530 (“[A]n
ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another
claim can itself be procedurally defaulted.”). For all of these reasons, Claim 2 will be denied.
C. Claim 3—Ineffective Assistance of Post-Conviction Counsel
Lastly, the petitioner asserts that post-conviction counsel was ineffective. The respondent
argues that this claim should be denied as not cognizable or untimely. (Doc. No. 38 at 10–11.)
Because this claim is clearly non-cognizable and conclusory, it is unnecessary to address the
timeliness issue here. See Payne v. Horton, No. 2:18-CV-10231, 2018 WL 5981696, at *1 (citing
Smith v. State of Ohio Dep’t of Rehab., 463 F.3d 426, 429 n.2 (6th Cir. 2006)) (considering the
merits of habeas claims where the respondent argued that they were untimely).
Both statute and long-standing precedent bar any stand-alone claims of ineffective
assistance during post-conviction proceedings. 28 U.S.C. § 2254(i) (“The ineffectiveness or

incompetence of counsel during Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section 2254.”); Coleman v. Thompson, 501
U.S. 722, 752 (1991) (“There is no constitutional right to an attorney in state post-conviction
proceedings.”) (citations omitted).
To the extent that the petitioner argues that post-conviction counsel was ineffective in
handling his delayed Rule 11 Appeal, this claim is conclusory at most. Shortly after the Tennessee
Supreme Court denied the petitioner’s delayed Rule 11 Appeal, the post-conviction court held a
hearing where “the petitioner waived any conflict of interest with his [post-conviction] counsel
and advised the court that he had chosen not to amend the post-conviction petition regarding any
Rule 11 grounds.” Avery, 2015 WL 6768884, at *4. The post-conviction court’s order on this

hearing specifies that the petitioner’s waiver was “knowing and voluntary.” (Doc. No. 25-22 at
62.) Nowhere in the petitioner’s filings does he explain how, exactly, post-conviction counsel was
deficient in litigating the delayed Rule 11 Appeal. The petitioner also has not identified any
argument post-conviction counsel could have made with a reasonable probability of resulting in a
different outcome. Such “conclusory and perfunctory” claims of ineffective assistance “are
insufficient to overcome the presumption of reasonable professional assistance and are insufficient
to warrant habeas relief.” Wogenstahl v. Mitchell, 668 F.3d 307, 335–36 (6th Cir. 2012). Claim 3
will be denied.
V. Proposed Claims in the Petitioner’s Two Supplements
The petitioner also has not provided a basis for relief in his late-filed supplements. The
petitioner refers to the first supplement as an “amendment” to his habeas corpus petition that raises
“jurisdictional [and] indictment issues.” (Doc. No. 43 at 1.) The second supplement, likewise,

asserts that the Davidson County Criminal Court “stepp[ed] outside the scope of its authority and
usurp[ed] jurisdiction.” (Doc. No. 44 at 1.) Together, the court considers these filings as a motion
to amend the petition. But for the following reasons, it would be futile to allow the petitioner to
add the claims in these two supplements.
Rule 15 of the Federal Rules of Civil Procedure governs the amendment of habeas corpus
petitions in federal court. Mayle v. Fenix, 545 U.S. 644, 655 (2005). Under Rule 15(a)(1), a party
may “amend its pleading once as a matter of course” within either 21 days of serving it, or 21 days
after the opposing party files a response or motion. “In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). In this case, the petitioner may not amend as a matter of course because he did not file

these two supplements within the necessary time period, and the respondent did not give written
consent. Accordingly, the petitioner may only amend with the court’s leave.
Federal courts “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
“In evaluating the interests of justice, courts consider several factors, including ‘undue delay in
filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure
deficiencies by previous amendments, undue prejudice to the opposing party, and futility of
amendment.’” Oleson v. United States, 27 F. App’x 566, 569 (6th Cir. 2001) (quoting Coe v. Bell,
161 F.3d 320, 341 (6th Cir. 1998)). Here, the court will not grant the petitioner leave to amend
because the petitioner’s proposed claims are untimely.
There is a one-year statute of limitations for filing habeas corpus petitions. 28 U.S.C. §
2244(d)(1). The court previously determined that the petitioner’s limitation period started running
on March 23, 2016. 6 (Doc. No. 31 at 3–6.) The petitioner filed his original petition on January 25,
2017 (id. at 6), but “a federal habeas petition does not toll the limitations period.” Connolly v.

Howes, 304 F. App’x 412, 416–17 (6th Cir. 2008) (citing Duncan v. Walker, 533 U.S. 167, 172
(2001)). Thus, the petitioner’s limitation period expired on March 23, 2017. He did not file the
supplements asserting new proposed claims until May 2019 (Doc. No. 43) and October 2019 (Doc.
No. 44), respectively. The proposed claims are therefore untimely.
“[C]laims otherwise barred by AEDPA’s limitations period may be added to a habeas
petition under Federal Rule of Civil Procedure 15 if they ‘relate back’ to the ‘conduct, transaction,
or occurrence’ in the original petition.” Wiedbrauk v. Lavigne, 174 F. App’x 993, 1001–02 (6th
Cir. 2006) (citing Mayle, 545 U.S. at 648–50). “[T]o qualify for relation back, the original and
[proposed] petitions must ‘state claims that are tied to a common core of operative facts.’” Watkins
v. Deangelo-Kipp, 854 F.3d 846, 850 (6th Cir. 2017) (quoting Mayle, 545 U.S. at 664). A proposed

claim “does not relate back to the original petition ‘when it asserts a new ground for relief
supported by facts that differ in both time and type from those the original pleading set forth.’” Id.
(quoting Mayle, 545 U.S. at 650).
Here, the petitioner’s proposed claims are difficult to discern, but the first supplement
explicitly states that it is raising “jurisdictional and indictment issues.” (Doc. No. 43 at 1.) The
petitioner seems to assert that the indictment was invalid because some of the grand jurors were
either “legally [un]qualified” or “improperly selected.” (Id. at 1–2.) The first supplement does not
expand on any jurisdictional issues. The second supplement, meanwhile, focuses on little else. It

6 The court determined this date in the course of denying the respondent’s motion to dismiss the petitioner’s original
habeas petition as untimely. (Doc. Nos. 31 and 32.)
is titled “Petition for Writ of Prohibition Challenging Jurisdiction,” and contains several pages of
disjointed legalese supposedly standing for the general proposition that the State of Tennessee did
not have jurisdiction to prosecute the petitioner for the charged offenses. (Doc. No. 44 at 1, 4.)
The court concludes that these proposed claims do not “relate back” to the petitioner’s

original or amended petition. As discussed in the analysis above, see supra Section IV, the
petitioner asserts that his sentence is indeterminate, he received ineffective assistance of counsel
on direct appeal, and he received ineffective assistance of post-conviction counsel. These claims
do not involve any facts that might support the petitioner’s proposed claims, which stem from
alleged deficiencies in the indictment and an asserted lack of jurisdiction. Thus, the petitioner’s
proposed claims are “new ground[s] for relief supported by facts that differ in both time and type”
from the petitioner’s original claims. See Mayle, 545 U.S. at 650. It would be futile to allow the
petitioner to amend the petition to add these untimely proposed claims.
Finally, the court notes that “AEDPA’s limitations period is not jurisdictional, so may be
tolled for equitable reasons.” Watkins, 854 F.3d at 851 (citing Holland v. Florida, 560 U.S. 631,

645–49 (2010)). To qualify for equitable tolling, a petitioner bears the burden of establishing “(1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way” and prevented timely filing. Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Equitable tolling is applied “sparingly.” Hall v. Warden, Lebanon Corr.
Inst., 662 F.3d 745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th
Cir. 2010)). Here, the petitioner does not attempt to provide any explanation for the untimely filing
of his proposed claims. Instead, he seems to argue only that “jurisdiction can be challenged at any
time.” (Doc. No. 44 at 3.) This argument does not entitle the petitioner to equitable tolling.
VI. Conclusion
For these reasons, the petitioner’s original petition (Doc. No. 1) and amended petition (Doc.
No. 22) will be denied, and it would also be futile to allow the petitioner to add the proposed claims
in his two supplements. (Doc. Nos. 43 and 44.) Accordingly, this action will be dismissed.
Because this constitutes a “final order adverse to” the petitioner, the court must “issue or
deny a certificate of appealability.” Habeas Rule 11(a). A certificate of appealability 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). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If
the petition [is] denied on procedural grounds, the petitioner must show, ‘at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.’” Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017) (quoting
Slack, 529 U.S. at 484). Here, the court concludes that the petitioner has not satisfied these
standards, and will therefore deny a certificate of appealability.
An appropriate order is filed herewith. ff
Mil dag —
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436195. Public record. Not legal advice.