Davidson v. Nelsen (DPLC1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

LEMARICUS DEVALL DAVIDSON, )

)

Petitioner, )

)

v. ) No.: 3:22-CV-15-TAV-DCP

)

KENNETH NELSEN, Warden of )

Riverbend Maximum Security Institution, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner’s Motion to Stay and Hold in Abeyance Federal

Habeas Proceedings [Doc. 62] and Motion for Extension of Time to file his motion for

discovery [Doc. 68]. For the reasons discussed herein, Petitioner’s Motion to Stay and

Hold in Abeyance Federal Habeas Proceedings [Doc. 62] is DENIED, and his Motion for

Extension of Time [Doc. 68] is GRANTED.

I. Background

This case arises out of the 2007 kidnapping, robbery, rape, and murder of Channon

Christian and Christopher Newsom [See Doc. 24, p. 12]. In 2009, following an 8-day trial,

a Knox County jury convicted Petitioner of numerous offenses, including 16 counts of

first-degree felony murder and 2 counts of first-degree premeditated murder [See id. at

171]. See State v. Davidson, 509 S.W.3d 156, 180 (Tenn. 2016).1 The jury recommended

1 Following the verdict, the trial court dismissed two felony-murder counts [See Doc.

12-30, p. 42]. Davidson, 509 S.W.3d at 180.

the death sentence for the murders [See Doc. 12-29, pp. 43–47]. Davidson, 509 S.W.3d at

180 (“The jury imposed two sentences of death[.]”).

Petitioner has filed a petition for writ of habeas corpus in this Court and challenges

the legality of his confinement under 28 U.S.C. § 2254 [Doc. 24, p. 11]. He now moves

the Court to stay, and hold in abeyance, this proceeding pursuant to Rhines v. Weber, 544

U.S. 269 (2005) “to permit the state courts to review a motion to reopen, two writs of error

corum nobis, and a second petition for post-conviction relief” [Doc. 62, p. 1]. According

to Petitioner, his “pending filings [in state court] raise several ineffective assistance of

counsel claims and a newly arising Equal Protection claim that are relevant to this”

proceeding [Id.]. Respondent has filed a response to Petitioner’s motion [Doc. 66], and

Petitioner has filed a reply [Doc. 67].

II. Standard of Review

“The statutory authority of federal courts to issue habeas corpus relief for persons

in state custody is provided 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). The text of § 2254 provides that a petition for a writ of habeas corpus “shall not

be granted unless it appears that . . . the applicant has exhausted the remedies available in

the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Accordingly, “[a] federal district

court, generally speaking, may not grant [] [a] writ on a ‘mixed petition’”—that is, a

petition containing both exhausted and unexhausted claims. Harris v. Lafler, 553 F.3d

1028, 1031 (6th Cir. 2009) (citations omitted).

Before the AEDPA’s enactment, the United States Supreme Court, pursuant to Rose

v. Lundy, 455 U.S. 509, 522 (1982) imposed a “total exhaustion requirement,” meaning

federal district courts had to dismiss mixed petitions in their entirety. Id. (“[W]e hold that

a district court must dismiss habeas petitions containing both unexhausted and exhausted

claims.”). The AEDPA, however, “dramatically altered the landscape for federal habeas

corpus petitions.” Rhines, 544 U.S. at 274. Although it preserves Lundy’s total-exhaustion

requirement, the AEDPA imposes a one-year statute of limitations on the filing of federal

petitions “to reduce delays in the execution of state and federal criminal sentences,

particularly in capital cases.” Id. (internal quotation marks and citations omitted).

However, “[a]s a result of the interplay between AEDPA’s 1-year statute of

limitations and Lundy’s dismissal requirement,” a state prisoner who timely filed a mixed

petition in federal court risked “forever losing their opportunity for any federal review of

their unexhausted claims.” Id. at 269 (“If a petitioner files a timely but mixed petition in

federal district court, and the district court dismisses it under Lundy after the limitations

period has expired, this will likely mean the termination of any federal review.”). To avoid

this harsh result, the Supreme Court in Rhines determined that a district court may stay,

and hold in abeyance, a mixed petition while a state prisoner presents his unexhausted

claims in state court. Id. at 276 (“AEDPA does not deprive district courts of that authority.”

(citation omitted)). “Once the petitioner exhausts his state remedies, the district court will

lift the stay and allow the petitioner to proceed in federal court.” Id. at 275–76.

The Rhines Court, however, was clear that a district court’s authority to issue a stay

is not unbridled because “if employed too frequently,” a stay can “frustrate the AEDPA’s

goal of finality by dragging out indefinitely their [a state prisoner’s] federal habeas

review.” Id. at 277–78. Accordingly, a district court contemplating a stay of a mixed

petition must consider whether a “petitioner’s interest in obtaining federal review of his

claims outweighs the competing interests in finality and speedy resolution of federal

petitions.” Id. at 278. If “the petitioner ha[s] good cause for his failure to exhaust, his

unexhausted claims are potentially meritorious [or not plainly meritless], and there is no

indication that he engaged in dilatory litigation tactics,” denying a stay “likely would be an

abuse of discretion.” Id. (emphasis added) (explaining that, “[i]n such a case, the

petitioner’s interest in obtaining federal review of his claims outweighs the competing

interests in finality and speedy resolution of federal petitions”). A petitioner bears the

burden of showing he is entitled to a stay. Sueing v. Palmer, 503 F. App’x 354, 357 (6th

Cir. 2012).

III. Discussion

A. Motion to Stay

1. Ineffective-Assistance-of-Counsel Claims

Petitioner seeks a Rhines stay so he can “present[] to the state court (for the second

time)” several claims of ineffective assistance of trial counsel [Doc. 63, p. 5]. Petitioner

identifies these claims as follows: trial counsel was ineffective for failing to (1) “seek a

change of venue due to unprecedented levels of inflammatory media” [Id. at 15];

(2) adequately ensure the venire represented a fair cross-section of the community [Id. at

16]; (3) consult with a ballistics expert [Id. at 17]; (4) present evidence of diminished

capacity [Id. at 18]; (5) present evidence of Judge Richard Baumgartner’s impairment and

misconduct [Id. at 19]; and (6) offer expert testimony at sentencing on Petitioner’s

cognitive impairment [Id. at 20].

Petitioner indicates that he raised these ineffective-assistance-of-counsel claims in

his amended petition for post-conviction relief [Doc. 63, p. 8]. He contends, though, that

he was unsuccessful in trying to develop them because the state court “arbitrarily” denied

him “funding and time” [Id. at 10]. In particular, Petitioner explains that he had moved the

trial court to obtain the expert services of: (1) Bryan Edelman, Ph.D., an expert on the

impact of pretrial publicity on juror decision-making, in support of his

ineffective-assistance-of-counsel “venue claim” [Id. at 9; Sealed Doc. 18-3, pp. 84–113];

(2) Justin D. Levinson, L.L.M., J.D., an expert on implicit racial bias and its impact on

juror decision-making, in support of his ineffective-assistance-of-counsel claims

“surrounding the issues of pretrial publicity, venue, and conduction of jury selection” [Doc.

63, p. 10; Sealed Doc. 18-3, pp. 23–24]; (3) James Lipman, Ph.D., a neuropharmacologist,

in support of his ineffective-assistance-of-counsel claims relating to trial counsel’s alleged

failure to “present evidence of diminished capacity” and of Judge Baumgartner’s

impairment and misconduct [Doc. 63, p. 10; Sealed Doc. 18-3, pp. 144–59]; (4) Frederick

Wentling, a ballistics expert, in support of his ineffective-assistance-of-counsel “ballistics

claim” [Doc. 63, p. 10; Sealed Doc. 18-6, pp. 46–60]; and (5) Pamela Auble, Ph.D., a

licensed psychologist, in support of his ineffective-assistance-of-counsel “experts at

sentencing claim” [Doc. 63, p. 10; Doc. 63-1, pp. 345–46; Sealed Doc. 18-3, pp. 81–82].

The trial court denied his motions for the expert services of Edelman, Levinson,

Wentling, and Auble [Doc. 63, p. 12; Sealed Doc. 18-3, pp. 16–18; Sealed Doc. 18-9,

pp. 3–11]. And although it did partially grant Petitioner’s motion for the services of expert

Lipman [Doc. 63, p. 12; Doc. 18-3, pp. 6–7], Petitioner states that “the court refused to

allow [him] adequate time” to complete the necessary factual investigation related to expert

Lipman [Doc. 63, p. 12 (citing Doc. 13-43, p. 170 (arguing, on appeal, that the trial court

employed an “expedited approach to Mr. Davidson’s capital post-conviction claims”))].

Petitioner, in his recent state court filings, presents his

ineffective-assistance-of-counsel claims again, but “[t]his time,” he supports them with

“evidence the state court previously denied” [Doc. 63, p. 5]. This evidence consists of

“newly developed expert opinions,” including the declarations of experts Edelman,

Levinson, Lipman, Auble, and Wentling, in addition to witness statements [Id. at 5, 9–10].

a. Whether Rhines Applies

In this section, the Court will first consider whether Rhines applies to the following

four ineffective-assistance-of-trial-counsel claims: trial counsel was ineffective for failing

to (1) “seek a change of venue due to unprecedented levels of inflammatory media”

(“venue-related claim”) [Doc. 63, p. 15]; (2) consult with a ballistics expert [Id. at 17];

(3) present evidence of diminished capacity (“diminished-capacity claim”) [Id. at 18]; and

(4) present evidence of Judge Baumgartner’s impairment and misconduct [Id. at 19].2

2 Unlike these four claims, the record reflects that Petitioner did not raise the following two

ineffective-assistance-of-trial-counsel claims on appeal: trial counsel was ineffective for failing to

(1) “ensure the venire was comprised of a fair cross-section of the community” [Doc. 63, p. 16];

and (2) “offer expert testimony at sentencing on” Petitioner’s “cognitive impairment” [Id. at 9; see

Doc. 13-43 (appellate brief)]. The Court will address whether Petitioner is entitled to a Rhines

stay for these claims in the next section of this memorandum opinion and order.

According to Respondent, Rhines does not apply for two reasons. First,

Respondent argues that Petitioner has already “properly exhausted” some of the

ineffective-assistance-of-trial-counsel claims he is raising for a second time in state

proceedings [Doc. 66, p. 2]. Second, Respondent insists Petitioner is “pursuing evidence

exhaustion” for claims that, again, Petitioner has “properly exhausted” in state court [Id. at

2, 6]. In other words, Respondent maintains that a distinction exists between “claim

exhaustion” and “evidence exhaustion” [Id. at 6 (emphasis added)]. And because Petitioner

is pursuing the latter for claims he has exhausted, Rhines does not apply [Id. at 5–6].

Respondent cites Carter v. Mitchell, 829 F.3d 455, 467 (6th Cir. 2016) and McKnight v.

Bobby, No. 2:09-cv-59, 2016 WL 4086978, at *6 (S.D. Ohio Aug. 2, 2016) in support of

its position that Rhines is inapplicable when a state prisoner moves to stay his federal

habeas proceeding to pursue “evidence exhaustion” in state court [Id. at 6, 9].

In Petitioner’s reply, he agrees that both Carter and McKnight “conclude[d]

‘evidence exhaustion’ is impermissible” [Doc. 67, p. 3]. He maintains, though, that Carter

and McKnight are distinguishable from his case because, unlike the petitioner or

petitioner’s attorneys in Carter and McKnight, his “post-conviction counsel did not

negligently fail to develop the evidence” [Id.].

The Court will first address Respondent’s position that Rhines does not apply to

exhausted claims. As already stated, a Rhines stay is appropriate when “good cause” exists

“for the petitioner’s failure to exhaust his claims first in state court, his unexhausted claims

are potentially meritorious,” and the petitioner has not engaged in dilatory tactics. 544

U.S. at 278 (emphasis added). Rhines therefore contemplates a stay of a federal habeas

petition when a state prisoner returns to state court to pursue unexhausted claims, and

Petitioner does not appear to dispute this point [See Doc. 63, p. 7 (stating, in his motion,

that “[t]he [Rhines] Court approved a ‘stay-and-abey’ procedure whereby a district court

stays a federal habeas petition and holds it in abeyance while the petitioner presents his

unexhausted claims to the state court” (emphasis added) (citing Rhines, 544 U.S. at 275))].

In addition, courts have declined to extend Rhines when a state prisoner moves to stay his

federal habeas proceeding to pursue claims he has already properly exhausted in state court.

See, e.g., Jones v. Shoop, No. 5:19 CV 20563, 2023 WL 1929944, at *6 (N.D. Ohio Feb.

10, 2023) (stating that the petitioner “has provided state courts one full opportunity to

resolve [the] constitutional issues by invoking one complete round of the State’s

established appellate review process, and the claims are exhausted . . . . Rhines does not

apply[.]” (internal quotation marks and citation omitted)); Carter, 829 F.3d at 469 (denying

a stay when the petitioner was pursuing “evidence exhaustion” for

ineffective-assistance-of-trial-counsel claims that he already “properly raised . . . in his

direct appeal”). Caselaw, therefore, supports that Rhines does not apply to claims that a

state prisoner has already properly exhausted in state court.

Next, the Court will consider whether Petitioner has “properly exhausted” his

claims, as Respondent contends because, if he has, Rhines does not apply [Doc. 66, p. 2].

A state prisoner properly exhausts his state remedies when he fairly presents his claims to

the state courts. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[W]e ask not only

whether a prisoner has exhausted his state remedies, but also whether he has properly

exhausted those remedies, i.e., whether he has fairly presented his claims to the state

courts[.]” (emphasis in original)). To satisfy the fair-presentation requirement, the

petitioner must raise his claim under the same theory for the state court’s consideration.

Cowans v. Bagley, 236 F. Supp. 2d 841, 857 (S.D. Ohio 2002). Fair presentation of a claim

also requires that “prisoners give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s appellate review

process.” O’Sullivan, 526 U.S. at 845. In Tennessee, presentation of a claim to the

Tennessee Court of Criminal Appeals (“TCCA”)—the state’s intermediate appellate

court—is sufficient to deem the claim exhausted under state law. See Tenn. S. Ct. R. 39

(“[A] claim presented to the Court of Criminal Appeals shall be considered exhausted even

when such claim is not renewed in the Supreme Court on automatic review.”); see also

Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (noting that “Rule 39 clearly removed

Tennessee Supreme Court review as an antecedent for habeas purposes”).

Again, Petitioner acknowledges that he previously presented his

ineffective-assistance-of-trial-counsel claims—those that “he presents to the state court

[]for the second time[]”—before the trial court is his amended petition for post-conviction

relief [Doc. 63, p. 5]. But, for the reasons explained below, the record reflects that he also

renewed four of them on appeal following the trial court’s denial of his petition for

post-conviction relief and therefore “invoke[d] one complete round of . . . [Tennessee]’s

established appellate review process,” and the state courts considered them. O’Sullivan,

526 U.S. at 845. In addition, these four claims—that he is presenting for a second time in

state court—are similar in substance to those he previously presented on appeal following

the trial court’s rejection for post-conviction relief. See Shoop, 2023 WL 1929944 at *4–5

(recognizing that “[t]he legal and factual predicates of [the petitioner’s] allegedly ‘new’

ineffective-assistance habeas claims are essentially the same as those he presented on state

post-conviction review” and concluding that “What is really exhausted here, then, is not

the claims, but the evidence supporting those claims.” (emphasis in original)).

Beginning with Petitioner’s venue-related claim, Petitioner, in his amended petition

for post-conviction relief, faulted his trial attorneys for failing to move for a change of

venue despite “inflammatory pretrial publicity” [Doc. 13-12, p. 152]. Petitioner recounted

the “pervasive, intrusive, and constant” local media coverage of his case, and cited Irvin v.

Dowd, 366 U.S. 717 (1961), Sheppard v. Maxwell, 384 U.S. 333, 363 (1966), and Rideau

v. Louisiana, 373 U.S. 713 (1963) in arguing that the jury—like the juries in those

cases—was “presumptively prejudiced” against him, [Id. at 153, 157]. In addition,

Petitioner distinguished his case from Skilling v. United States, 561 U.S. 358 (2010), in

which the Supreme Court first considered whether a “presumption of prejudice” existed

and then whether “actual prejudice infected” the defendant’s jury. Skilling, 561 U.S. at

385–86. Petitioner argued that the “presumption of prejudice” alone “warrant[ed] a new

trial” [Doc. 13-13, pp. 4, 5 (“This, personal prejudice alone, demands a new trial.”)]. Citing

Strickland v. Washington, 466 U.S. 668, 685 (1984), he asserted that trial counsel’s “failure

to recognize the prejudicial effects of the pretrial publicity” amounted to “constitutionally

deficient performance that prejudiced” him [Id. at 5; see Doc. 13-12, p. 149.]

The trial court rejected Petitioner’s claim. [Doc. 13-16, p. 16]. Although it agreed

with Petitioner that trial counsel was deficient in failing to move for a change of venue, it

determined that any “presumed prejudice” due to pretrial publicity had been rebutted due

to “the jury selection process” [Id. at 8, 16]. For similar reasons, it found “there [wa]s no

showing of prejudice” under Strickland [Id. at 16 (“The Court having determined that the

trial jury was fairly chosen and qualified to hear this case, the Court necessarily also

determines that while trial counsel breached an objective standard of reasonableness in

failing to move for a change of venue/venire, there is no showing of prejudice.” (citing

Strickland, 466 U.S. at 692, 694))].

Petitioner’s appellate brief shows that he renewed this claim on appeal to the TCCA,

and the TCCA agreed with the trial court’s conclusions [See Doc. 13-43, pp. 95–110]. The

TCCA, in relevant part, explained that Petitioner’s trial attorneys utilized “every single one

of th[e] measures” to guard against the risk of actual juror prejudice.” Davidson v. State,

No. E2019-00541-CCA-R3-PD, 2021 WL 3672797, at *41 (Tenn. Crim. App. Aug. 19,

2021); see id. at *42 (“[T]he record shows that the attorneys and trial judge

undertook . . . painstaking care in this case.”). And so, it disagreed with Petitioner’s

position that prejudice should be presumed and concluded that Petitioner “failed to carry

his burden of establishing that counsel’s deficient performance rendered the result of the

trial unreliable or the proceeding fundamentally unfair.” Id.

In his petition before this Court, he argues, as part of Claim 1, that trial counsel

rendered ineffective assistance of counsel when it failed to petition the trial court for a

change of venue because (1) “the hostile, pretrial publicity prejudiced” him [Doc. 24, pp.

30–38 (“1.1.A.”)], and (2) “the venire was prejudiced against” him, [Id. at 42–54

(“1.1.B.”)]. He devotes two sections of this claim to arguing that the TCCA’s decision was

“unreasonable” under § 2254(d)—the standard that applies to claims adjudicated on the

merits in state court [Id. at 55–63 (“1.1.C”–“1.1.D.” (citing 28 U.S.C. § 2254(d)(1)–(2)))].

In his recent state-court findings, Petitioner claims, as he did in his petition for

post-conviction relief and on appeal, that trial counsel was ineffective for failing to request

a change of venue [Doc. 63-1, p. 83]. But now, he supports this claim with Edelman’s

declaration to establish that, contrary to the state courts’ previous rulings, “[t]he jury

selection methods were insufficient to eliminate the bias created by the pretrial publicity

or rebut a presumption of prejudice” [Id. at 66, 86].

Like his venue-related claim, the ballistic-evidence claim, diminished-capacity

claim, and failure-to-present-evidence claim relating to Judge Baumgartner that Petitioner

raises in his recent state-court filings mirror those that he already raised on post-conviction

appeal.

As to his ballistics-evidence claim, Petitioner, in his amended petition for

post-conviction relief, faulted trial counsel for failing to consult with a ballistics expert

[Doc. 13-13, p. 51]. Petitioner explained that the state’s ballistic expert, Patricia Resig,

testified, in relevant part, that the two bullets recovered from Mr. Newsom’s neck and back

“could have been fired from the revolver found” with Petitioner at the time of his arrest

[Id.]. An independent expert, Petitioner argued, would have cast further doubt on the

state’s theory that the revolver found with him was the same one used to kill Mr. Newsom

[Id. at 52]. The trial court rejected this claim because it determined that Petitioner did not

suggest a likelihood that an independent expert could have reached conclusions other than

those reached by Ms. Resig. Davidson, 2021 WL 3672797 at *45 (summarizing trial

court’s opinion). On appeal, Petitioner asserted, again, that trial counsel’s failure to consult

a ballistics expert “constitute[d] deficient performance under Strickland and resulted in

prejudice” [Doc. 13-43, p. 191]. The TCCA agreed with the trial court’s conclusion that

Petitioner satisfied neither prong under Strickland. Davidson, 2021 WL 3672797 at *45.

In his petition before this Court, he argues, as part of Claim 5, that trial counsel

“ineffectively failed to investigate and present evidence that would have undermined the

State’s ballistic evidence” [Doc. 24, pp. 170–71]. He references the TCCA’s opinion and

argues that “[t]he Tennessee courts’ conclusions were . . . unreasonable” under

§§ 2254(d)(1) and (d)(2) [Id. at 173–74 (“On appeal, the Tennessee Court of Criminal

Appeals affirmed the trial court’s denial on the merits” (citing Doc. 13-50))]. In its answer,

Respondent agrees that Petitioner exhausted this claim [Doc. 50, p. 88].

In his recent state-court filings, he now claims, as he did previously, that trial

counsel was ineffective for failing to retain an expert in ballistics [Doc. 63-1, pp. 107–14].

But now, he supports this claim with Wentling’s declaration—evidence that, Petitioner

argues, would have shown “there was no scientific basis for the jury to conclude that” his

“gun was the weapon used to kill” Mr. Newsom [Id. at 109, 115 (arguing that “under

Strickland, a reasonable probability exists that the outcome of [Petitioner]’s trial would

have differed had his trial counsel retained and presented an independent ballistics expert”].

With respect to Petitioner’s diminished-capacity claim, he argued during

post-conviction proceedings that trial counsel was ineffective during the guilt phase for

failing to present an expert witness to show that he, “due to mental disease or defect,” could

not form the requisite mental state to support a first-degree murder conviction [Doc. 13-13,

pp. 53–54]. In support of this claim, Petitioner explained that, although trial counsel did

retain the services of psychiatrist Dr. Peter Brown, his services were limited to the issue of

mitigation during sentencing [Id. at 54; see Doc. 12-18, pp. 37–77 (Dr. Brown’s

sentencing-phase testimony)]. As a result, Petitioner maintained that the defense “lacked

the necessary tools to conduct a constitutionally adequate defense” during the guilt phase

of trial and lacked an understanding of the “neuropharmacological issues in this case” [Id.].

The trial court rejected this claim due to lack of evidence [Doc. 13-16, p. 39].

Specifically, the trial court observed that Petitioner’s trial counsel testified that Petitioner

“seemed reasonably intelligent and did not appear to exhibit any mental disorder” [Id. at

38]. And one of Petitioner’s trial attorneys, it explained, also testified that he relied on Dr.

Brown to identify any serious psychological disorders or “other issues relating to”

Petitioner [Id.]. The trial court further explained that it had no way of knowing whether

Dr. Brown discussed a potential diminished capacity defense with Petitioner’s attorneys

because Dr. Brown did not testify at the post-conviction hearing [Id.]. Petitioner renewed

this claim on appeal, and the TCCA agreed with the trial court that Petitioner failed to carry

his burden of proving ineffective assistance of counsel [Doc. 13-43, p. 192]. Davidson,

2021 WL 3672797 at *46.

In his petition before this Court, he argues, as part of Claim 5, that trial counsel

“were ineffective when they failed to present expert testimony that” he “was unable to form

the requisite mental statue for first-degree murder” [Doc. 24, pp. 177–78]. Respondent, in

its answer to the petition, agrees that this claim is exhausted [Doc. 50, p. 91 (citing Doc.

13-43)].

In his recent state-court filings, Petitioner raises a similar claim [Doc. 63-1, pp. 116

(“[Petitioner]’s trial counsel rendered ineffective assistance of counsel by failing to present

evidence of intoxication and diminished capacity through appropriate expert testimony to

negate the required mental state for first degree murder[.]”), 120 (“Had such evidence [of

his multi-drug intoxication] been presented [at the guilt phase], a reasonable probability

exists that [the] jury would not have determined . . . [he] had the requisite mental state to

commit first degree murder.”)]. But now, he supports his claim with the following

evidence: (1) affidavits from fact witnesses, who attest to Petitioner’s drug use throughout

the week of the crime and during the commission of the crime; (2) a psychological

evaluation from licensed clinical psychologist Malcolm H. Woodland, Ph.D.; and (3) the

“Report of Neuropharmacological Opinion of Jonathan Lipman” [Id. at 116–18, 249–67,

269–79, 281–301 ].

Finally, as to the ineffective-assistance-of-trial-counsel claim relating to Judge

Baumgartner, Petitioner argued in his amended petition for post-conviction relief that trial

counsel failed to adequately present evidence of Judge Baumgartner’s impairment and

misconduct [Doc. 13-13, pp. 37–38]. In support of this claim, Petitioner explained that

trial counsel filed an amended motion for new trial and subsequent pleadings, asserting that

Judge Baumgartner’s intoxication and misconduct created a structural error in his case [Id.

at 38]. He faulted trial counsel, however, for relying primarily on the Tennessee Bureau

of Investigation (“TBI”) investigative report because it “was not focused on [Petitioner]’s

trial [Id.]. In other words, “[i]t . . . lacked reference to specific instances tying misconduct

to” Petitioner’s trial [Id.]. Accordingly, trial counsel’s reliance “on this non-specific and

incomplete evidence,” Petitioner argued, “was deficient performance and prejudiced” him

[Id.].

In addressing this claim, the trial court stated that, as an initial matter, Petitioner was

“attempt[ing] to relitigate issues surrounding Judge Baumgartner’s purported addiction

during trial” that the Tennessee Supreme Court already twice considered and “found . . . to

be without merit” [Doc. 13-16, p. 32; see Doc. 22-11, p. 1 (Tennessee Supreme Court’s

opinion)]. In any event, it found that the evidence during Petitioner’s post-conviction

hearing did not support that Judge Baumgartner’s actions affected Petitioner’s trial [Id. at

32–33 (“Petitioner’s three attorneys testified they did not find Judge Baumgartner to be

affected by any medication he have been taking at the time; rather they found him to be an

active and engaged participant in [Petitioner]’s trial. No other witness stated otherwise.”)].

It therefore rejected Petitioner’s claim that trial counsel’s failure to present adequate

evidence of Judge Baumgartner’s impairment and misconduct amounted to ineffective

assistance of counsel [Id.]. Petitioner renewed his claim on appeal [Doc. 13-43, pp. 189–90

(asserting that trial counsel was ineffective for relying “primarily” on the TBI

investigation)]. The TCCA agreed with the trial court’s rejection of this claim, stating that

Petitioner failed to support it “with clear and convincing evidence.” Davidson, 2021 WL

3672797 at *44.

In his petition before this Court, he argues, as part of Claim 5, that trial counsel

“ineffectively failed to investigate and present evidence demonstrating Judge

Baumgartner’s mental impairment and bias” [Doc. 24, pp. 191, 196]. Petitioner states that

he “appealed this claim” and argues under subsection “5.9.E.” that “the state court

resolution of this claim was . . . unreasonable” [Id. at 196 (citing 28 U.S.C. § 2254(d))].

Respondent indicates in its answer that Petitioner has exhausted this claim, “[t]o the extent

that he challenges trial counsels’ ineffectiveness for failing to present adequate evidence at

the hearing on the motion for new trial” [Doc. 50, p. 99].

In his recent state-court filings, Petitioner claims, as he did in his post-conviction

proceedings and appeal, that trial counsel “rendered ineffective assistance of counsel by

failing to produce evidence outside the TBI’s investigate report” [Compare Doc. 63-1, p.

139–40 (stating that trial counsel “relied exclusively on the TBI’s investigation, which was

not particularized to conduct that occurred in [Petitioner’]s case”), with Doc. 13-43, pp.

189–90]. But he now supports this claim with Lipman’s report to prove “the prejudice

prong for this claim of ineffective assistance of counsel” [Id. at 141, 348–61]. Notably,

Petitioner points out that Lipman concluded Judge Baumgartner, as a likely result of his

irregular opiate dosing, “‘experienc[ed] some mental confusion and voids in awareness

during the proceedings of the trial’” [Id. at 141, 354–55]. According to Petitioner, had trial

counsel presented “this information” in support of his motion for new trial, the Tennessee

Supreme Court “would not have found that ‘[n]o such proof [of opiate drug effects] exists

in the record before this Court’” [Id. at 141 (quoting Doc. 22-1, p. 4)].

In sum, the record supports that Petitioner has already exhausted these four claims

because he presented them to the TCCA, and the TCCA considered them on the merits.

See Adams, 330 F.3d at 402 (“[O]nce the Court of Criminal Appeals has denied a claim of

error, ‘the litigant shall be deemed to have exhausted all available state remedies available

for that claim.’” (quoting Tenn. Sup. Ct. R. 39)). And although he is seeking to present

these four claims again, albeit with “newly developed expert opinions and witness

affidavits,” he does not adequately explain how they have not already been “fairly

presented” to the Tennessee courts, and exhausted, in view of the state-court record [Doc.

63, pp. 4, 8]. O’Sullivan, 526 U.S. at 845; see Mundt v. Jenkins, No. 2:17-cv-773, 2024

WL 1859867, at *34 (S.D. Ohio Apr. 29, 2024) (noting that “Petitioner has not explained

how his ineffective assistance of trial counsel claim has not already been ‘fairly presented’

to the Ohio courts solely based on the missing [evidence]” when determining whether a

Rhines stay was appropriate)].

In a similar vein, he offers no explanation as to how this “newly developed expert

evidence” constitutes a new, unexhausted claim, to clarify whether he is pursuing evidence,

as opposed to claim, exhaustion [Doc. 63, p. 4]. See Mammone v. Jenkins, No. 5:16CV900,

2018 WL 454432 at *3 (N.D. Ohio Jan. 17, 2018) (“That petitioner has obtained ‘new’

evidence in support of this claim . . . does not mean his claim is unexhausted.”). In addition,

for the reasons explained above, a comparison of these four claims he is presenting in his

recent state-court filings for a “second time” and those he previously raised before the state

courts—in addition to his statements in his motion—suggest that he is pursuing evidence

exhaustion [See Doc. 63, p. 5 (“This time, though, these claims are supported by newly

developed expert opinions and witness statements—evidence the state court previously

denied Mr. Davidson the opportunity to develop[.]” (emphasis added))]. And to the extent

that he is seeking a stay to exhaust evidence in state court, Carter directly addresses the

inappropriateness of a Rhines stay.

In Carter, the state prisoner pleaded, in relevant part, two

ineffective-assistance-of-trial-counsel claims in his petition that he had “properly raised”

in state court. 829 F.3d at 469). After filing his initial petition, he moved to stay his federal

habeas proceedings to exhaust “new mitigation evidence” in support of these claims in

state court. Id. (internal quotation marks omitted). The district court, however, declined to

extend Rhines “to encompass ‘unexhausted evidence’” because doing so “would provide

virtually limitless opportunities to delay finality in habeas litigation,” and therefore, it

denied his request to stay proceedings. Carter v. Mitchell, No. 1:98-cv-853, 2013 WL

1828950, at *2 (S.D. Ohio May 1, 2013). The Sixth Circuit agreed with the district court’s

determination that Rhines does not allow stays for “unexhausted evidence, only for

unexhausted claims.” 829 F.3d at 465 (emphasis added) (internal quotation marks

omitted). The “word ‘evidence,’” it explained, “does not appear anywhere in Rhines.” Id.

(citation omitted).

To conclude, the Court, in view of the state-court record, finds persuasive

Respondent’s position that Petitioner “properly raised” these four claims on appeal and that

Rhines, therefore, does not apply [Doc. 66, p. 2]. In addition, Petitioner does not clarify

whether he is pursuing evidence or claim exhaustion. And given the substance of his

claims, the Court finds that Petitioner is pursuing evidence exhaustion, and a Rhines stay

is inappropriate. Accordingly, Petitioner’s request to stay this proceeding under Rhines

while he pursues his ineffective-assistance-of-trial-counsel claims, relating to venue,

ballistics evidence, Petitioner’s diminished capacity, and Judge Baumgartner, is DENIED.

b. Applying Rhines

The Court will endeavor to apply Rhines to Petitioner’s two remaining

ineffective-assistance-of-trial-counsel claims. These two claims are as follows: trial

counsel was ineffective for failing to (1) ensure the venire was compromised of a fair

cross-section of the community, and (2) offer expert testimony at sentencing on Petitioner’s

cognitive impairment [Doc. 63, p. 19]. Petitioner raised these claims in his petition for

post-conviction relief [Doc. 13-13, pp. 10–12, 81–83], but the record does not reflect he

raised them on appeal [See Doc. 13-43]. In its answer to the petition, Respondent states

these two claims were not properly exhausted and are now procedurally defaulted [Doc.

50, pp. 40, 114–15]. In response to Petitioner’s motion to stay, Respondent, again, argues

these two claims are “now procedurally defaulted,” “Petitioner lacks any means to properly

exhaust the claims in state court,” and he “failed to exhaust state-court remedies while they

remained available to him” [Doc. 66, p. 2 (citing Doc. 50)].

According to Petitioner, good cause exists to justify a Rhines stay because he was

“diligent in presenting his IAC claims to the state court,” and “through no fault of” his own,

the state court denied him funding and time to develop these claims [Id. at 8, 10 15]. In

support of his assertion that he has been diligent, he cites Cunningham v. Hudson, 756 F.3d

477 (6th Cir. 2014) [Id. at 8] Petitioner maintains that “[j]ust as in Cunningham,” he

“diligently but unsuccessfully develop[ed] the evidence in support of his claims in state

court” [Id. at 13 (emphasis added)]. He also cites Green v. Woods, No. 16-1018, 2016 WL

11854871, at *2 (6th Cir. Sept. 13, 2016) for the assertion that “[g]ood cause is established

if the petitioner has a ‘reasonable excuse’ to justify the failure to exhaust a claim” [Id. at

8].

In opposition, Respondent asserts “there is no good cause for [a] stay” because,

again, Petitioner is pursuing evidence exhaustion for claims he has already either properly

raised in state court or, as to these two claims, procedurally defaulted [Doc. 66, p. 6]. In

addition, Petitioner’s position that the “state courts wrongly thwarted his diligent attempts

to properly exhaust the claims,” is “a poor attempt to absolve post-conviction counsel’s

inadequate representation to bypass 28 U.S.C. § 2254(e)’s general prohibition of

evidentiary development of th[e] procedurally defaulted”

ineffective-assistance-of-trial-counsel claims [Id. at 8]. See 28 U.S.C. § 2254(e)

(explaining an “applicant[’s]” limitations on “develop[ing] the factual basis of a claim” in

federal habeas proceedings).

Here, a review of Petitioner’s fair cross-section and cognitive-impairment claims

supports that, like his other four ineffective-assistance-of-trial-counsel claims, he is

pursuing evidence exhaustion rather than claim exhaustion because they are similar in

substance to those that he previously raised in his amended petition for post-conviction

relief. Shoop, 2023 WL 1929944 at *4–5 (“The legal and factual predicate of Jones’

allegedly ‘new’ . . . claims are essentially the same as those he presented on state

post-conviction review . . . . What is really exhausted here, then, is not the claims, but the

evidence supporting the claims.” (emphasis in original)).

In his amended petition for post-conviction relief he argued his trial attorneys “were

ineffective due to their failure to adequately raise a constitutional cross-section challenged

based on the racial composition of the venire” [Doc. 13-13, p. 10]. He faulted his trial

attorneys for “only challeng[ing] the potentially arbitrary and discriminatory method used

to select the grand and petit juries in his case through pretrial motion practice” [Id. (internal

quotation marks and citation omitted)]. He claimed that trial counsel, instead, should have

“put on proof in his motion for a new trial that African Americans were underrepresented

in the jury pool or that such underrepresentation was the result of systemic exclusion” [Id.

at 11]. Petitioner argued that, had they done so, he “likely would have prevailed on his fair

cross-section challenge” [Id. at 12].

In his recent state-court filings, he argues, again, that his trial counsel only

challenged “the potentially arbitrary and discriminatory method used to select the grand

and petit juries in his case through their pretrial motion practice” [See Doc. 63-1, p. 95

(internal quotation marks and citation omitted)]. But now, he supports his claim with the

Declaration of Professor Richard Seltzer [Id. at 95 (“[T]he percentage of the Black

population underrepresented in the jury pool, was 41.3%.”), 184–90].

As to his cognitive-impairment claim, Petitioner argued in his amended petition for

post-conviction relief that his trial attorneys failed to adequately consult with experts and

present evidence of at sentencing that would have “demonstrated significant deficits

consistent with brain impairments and potentially identified organic injuries” [Doc. 13-13,

pp. 82–83]. Although trial counsel presented testimony of Dr. Brown, he argued his trial

attorneys should have consulted with a “neuropsychologist, a neurologist,

neuropharmacologist, or other expert” because “the bulk of Dr. Brown’s testimony focused

on statistics regarding outcomes for children who underwent childhood abuse and trauma”

[Id. at 83]. In addition, Petitioner argued that Dr. Brown’s testimony was “highly

prejudicial” because he stated that “94% of children with backgrounds similar to”

Petitioner’s “background would ultimately commit a violent offence by age 18” [Id.]. This

testimony, Petitioner asserted, suggested to the jury that he is “an inevitably violent

criminal”—testimony that is “highly prejudicial to a jury who would be deciding whether”

his life should be spared [Id.].

In his recent state-court filings, he claims trial counsel’s failure to present evidence

of his cognitive deficits constitutes ineffective assistance of counsel, arguing, as he did in

his petition for post-conviction relief, that Dr. Brown’s testimony “focused on childhood

risk factors for future violence” [Doc. 63-1, pp. 125–26, 129]. But now, he relies on the

declaration of expert Auble and report of language specialist Shameka Stewart, Ph.D., J.D.,

to show Petitioner “possessed significant mitigating cognitive deficits” and to further show

that trial counsel was deficient and failed to present evidence of Petitioner’s cognitive

deficits at the sentencing hearing prejudiced his defense [Id. at 128, 132].

So, like his other four ineffective-assistance-of-trial-counsel claims, the record

supports that Petitioner is pursuing evidence exhaustion as opposed to claim exhaustion,

and a Rhines stay is therefore improper. See Carter, 829 F.3d at 465.

In addition, the Court does not find Petitioner’s reliance on Cunningham persuasive.

Again, Petitioner argues that the Court should allow him to stay his case because, like the

petitioner in Cunningham, he “diligently but unsuccessfully attempted to develop the

evidence at issue in support of his claims in state court” [Doc. 63, p. 13]. But the

circumstances in Cunningham are distinguishable from Petitioner’s case.

In Cunningham, the petitioner pursued a juror bias claim in state proceedings based

on “negative information” that a juror had obtained about him from her work colleagues.

756 F.3d at 479. The petitioner had moved the state court for discovery to develop this

claim, but the state court denied his request. Id. at 480. After the state court rejected his

claim, the petitioner renewed it on appeal, and the state appellate court affirmed the lower

court’s decision. Id. The petitioner then filed a petition for a writ of habeas corpus in

federal court, which included the same juror bias claim he previously raised in state

proceedings. Id. The district court permitted discovery, and the petitioner acquired

affidavits which revealed that the juror “knew the victim’s families,” and this evidence

gave rise to “a second-juror-bias claim.” Id. at 485–86. The district court, however, found

this claim was unexhausted and procedurally defaulted because he failed to raise it in

state-court proceedings. Id. at 481.

On appeal, the petitioner asked the Sixth Circuit to remand the petition to the district

court to “stay-and-abey the proceedings” so he could exhaust his second juror bias claim.

Id. at 486–87. The Sixth Circuit, before remanding, addressed the warden’s argument that

the petitioner was not entitled to a stay because the petitioner was not diligent in uncovering

the factual basis of his second juror bias claim. Id. It found the warden’s argument

unpersuasive because the petitioner “did not become aware of the factual basis for his claim

until he conducted discovery in the federal district court.” Id. at 486 (emphasis added).

Thus, Cunningham addressed the issue of diligence when a petitioner was

attempting to develop the factual basis for a claim that he was not aware of and never raised

before any state court—one that was different in substance from his original juror bias

claim. See Cunningham, 756 F.3d at 479–80 (stating that the first juror bias claim was

based on “negative information” a juror obtain while the second was based on the juror

knowing the victim’s family). But again, Petitioner’s cognitive-impairment and fair cross-

section claims are like those he previously raised in his amended petition for post-

conviction relief, and Petitioner does not suggest that the “newly developed expert

opinions” give rise to new claims [Doc. 63, p. 3]. See Mammone, 2018 WL 454432 at *3

(“That petitioner has obtained ‘new’ evidence in support of this claim . . . does not mean

his claim is unexhausted.”). So, Cunningham did not contemplate whether a petitioner is

diligent under the circumstances at issue here—when a petitioner is, by all appearances,

returning to state court to relitigate claims he previously raised, albeit with the benefit of

“newly developed expert opinions” [Doc. 63, p. 5].

In addition, even assuming that Petitioner was diligent in attempting to develop this

evidence in state court, he does not explain why he failed to renew these two

ineffective-assistance-of-trial-counsel claims on appeal following the trial court’s rejection

of his petition for post-conviction relief [Compare Doc. 13-13, pp. 10, 82–83 (petition for

post-conviction relief), with 13-43 (appellate brief)]. See West v. Carpenter, 790 F.3d 693,

698 (6th Cir. 2015) (affirming district court’s ruling that the petitioner’s claim was

defaulted because he failed to raise the issue at his post-conviction appellate proceedings).

He therefore does not show a “reasonable excuse” for failing to raise these two claims on

appeal. Green, 2016 WL 11854871 at *3 (“To establish good cause, the petitioner must

‘set forth a reasonable excuse, supported by sufficient evidence, to justify that failure [to

exhaust his claims in state court]” (internal quotation marks and citation omitted)); see

Rodano v. Marquis, No. 1:18cv2770, 2020 WL 994652, at *5 (N.D. Ohio Mar. 2, 2020)

(“Generally, to show good cause for a failure to exhaust state remedies, a petitioner must

show why he failed to use available state remedies timely and appropriately.”).

Accordingly, Petitioner has not shown he is entitled to a stay under Rhines as to his

fair cross-section and cognitive-impairment claims because the indicates that he is pursuing

evidence exhaustion as opposed to claim exhaustion. See Carter, 829 F.3d at 465

(determining that Rhines does not allow stays for “unexhausted evidence, only for

unexhausted claims” (internal quotation marks omitted)). In the alternative, he does not

explain why he failed to present these two claims on appeal. See Rhines, 544 U.S. at 277

(“[S]tay and abeyance is only appropriate when the district court determines there was

good cause for the petitioner's failure to exhaust his claims first in state court.”).

Accordingly, Petitioner’s request to stay this proceeding under Rhines while he pursues his

ineffective-assistance-of-trial-counsel claims, relating to fair cross-section and Petitioner’s

cognitive impairments, is DENIED.

2. Equal Protection Claim

Petitioner also seeks a Rhines stay to pursue a “newly arising Equal Protection

Claim” based on a “new rule of constitutional law set forth in Students for Fair Admissions

Incorporated v. President & Fellows of Harvard College, 600 U.S. 181, 203 (2023) [Doc.

63, p. 5]. Petitioner concedes that this claim is unexhausted [Id. at 21]. According to

Petitioner, he has good cause for a stay because his Equal Protection claim is “newly

arising,” and he “timely presented” it to the state court in his motion to reopen

post-conviction proceedings under Tennessee Code Annotated § 40-30-117 [Id. at 14]. See

Tenn. Code Ann. § 40-30-117(a)(1) (“The motion must be filed within one (1) year of the

ruling of the highest state appellate court or the United States supreme court[.]”).

In Students for Fair Admissions, the Supreme Court held that two universities’

race-based admissions systems violated the Equal Protection Clause of the Fourteenth

Amendment because their programs were not “sufficiently measurable to permit judicial

[review] under the rubric of strict scrutiny.” 600 U.S. at 214 (internal quotation marks and

citations omitted)). In addition, it found that these race-based admissions programs failed

“to articulate a meaningful connection between the means they employ and the goals they

pursue.” Id. at 215.

According to Petitioner, this decision “demonstrates the Tennessee Supreme

Court’s standardless race-based conscious proportionality review”—the standard of review

the Tennessee Supreme Court applied in his case when it considered the proportionality of

this death sentences—also violates the Equal Protection Clause [Doc. 63, pp. 20–21 (citing

Davidson, 509 S.W.3d at 225)]. In support of his argument, Petitioner, citing the

Tennessee Supreme Court’s opinion in State v. Bland, 958 S.W.2d 651, 675 (Tenn. 1997),

argues that the state’s highest appellate court considers a “comparison of characteristics,”

including the defendant’s race, when conducting its proportionality review of the death

sentence [Doc. 63-1, p. 33 (internal quotation marks omitted)]. And so, because

“Tennessee’s proportionality review undeniably considers the race of the defendant as a

point of comparison,” its “goals,” like the universities’ race-based programs at issue in

Students for Fair Admissions, are not “sufficiently coherent” [Id. at 75 (internal quotation

marks and citation omitted)].

Petitioner acknowledges that “[c]ourts in this circuit have not set forth a uniform

standard for what makes a claim plainly meritless under” Rhines [Doc. 63, p. 14]. But he

cites Cowan v. Stovall, 645 F.3d 815, 820 (6th Cir. 2011) and Hickey v. Hoffner, 701

F. App’x 422, 426 (6th Cir. 2017), to show that the Sixth Circuit has equated “plainly

meritless” with “frivolous” and that courts are “caution[ed] against ruling on the merits of

the claim” [Id. (internal quotation marks omitted))]. In Cowan and Hoffner, the Sixth

Circuit found the petitioners’ ineffective-assistance-of-trial-counsel claims, based on

failure to investigate witnesses or to call alibi witnesses, were not “plainly meritless” when

the record was supported with affidavits, or otherwise suggested, witnesses would have

testified in the petitioners’ favors. Cowan, 645 F.3d at 820; Hoffner, 701 F. App’x at 426.

In a published opinion, the district court in Misch v. Chambers-Smith, 656 F. Supp. 3d 761,

763 (N.D. Ohio 2023), stated that “[u]nder the law of this Circuit, a claim with at least a

colorable basis is not plainly meritless” under Rhines. Id. (citing Hoffner, 701 F. App’x at

426).

Petitioner argues his Equal Protection Claim is not plainly meritless because it is

“colorable” and “has factual support” [Doc. 63, p. 21]. He further maintains “[i]t is at least

debatable that the state court will review his claim” because Students for Fair Admissions

“will apply retroactively” under Tennessee Code Annotated § 40-30-122 [Id. at 27]. A rule

applies retroactively, he states, if “it requires the observance of fairness safeguards that are

implicit in the concept of ordered liberty,” and Students for Fair Admissions “meets this

test” [Id. at 28].

In opposition, Respondent argues Petitioner’s Equal Protection claim is “plainly

meritless” because “[t]he application of Equal Protection principles to race-based

university admissions decision-making has no impact on the limited way in which race

may be considered in Tennessee’s proportionality review” [Doc. 66, p. 17]. In addition,

Respondent maintains the state court will not reopen his post-conviction proceeding “to

authorize review of th[is] claim” under Tennessee Code Annotated § 40-30-117 [Id.].

A review of Petitioner’s recent state-court filings show he is pursuing this claim in

a motion to reopen his post-conviction proceedings under Tennessee Code Annotated

§ 40-30-117. This statute allows a petitioner to file a motion in the trial court to reopen the

first post-conviction petition only if:

The claim in the motion is based upon a final ruling of an

appellate court establishing a constitutional right that was not

recognized as existing at the time of trial, if retrospective

application of that right is required.

Tenn. Code Ann. § 40-30-117(a)(1). Tennessee Code Annotated § 40-30-122, which

Petitioner cites, [Doc. 63, p. 28], provides guidance on when a new rule applies

retroactively:

[A] new rule of constitutional criminal law is announced if the

result is not dictated by precedent existing at the time the

petitioner's conviction became final and application of the rule

was susceptible to debate among reasonable minds. A new rule

of constitutional criminal law shall not be applied retroactively

in a post-conviction proceeding unless the new rule places

primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe or requires the

observance of fairness safeguards that are implicit in the

concept of ordered liberty.

Tenn. Code Ann. § 40-30-122.

Petitioner explains that Students for Fair Admissions “will be retroactive” under

§ 40-30-122 “if it requires the observance of fairness safeguards that are implicit in the

concept of ordered liberty” [Id.]. In his recent state-court filings, he further explains how

the decision is “implicit in the concept of ordered liberty” within the meaning of

§ 40-30-122 [Doc. 63-1, pp. 78–79].

But § 40-30-122, by all appearances, applies when a “new rule of constitutional

criminal law is announced.” Id. (emphasis added); see Bush v. State, 428 S.W.3d 1, 20

(Tenn. 2014) (explaining that “the ‘fairness safeguards’ of Tennessee Code Annotated

§ 40-30-122 are equivalent to the Teague v. Lane standard’s ‘watershed rules of criminal

procedure’ or ‘those new procedures without which the likelihood of an accurate

conviction is seriously diminished’” (quoting Teague v. Lane, 489 U.S. 288, 313 (1989))).

And Petitioner does not offer any relevant legal authority suggesting that the rule of law in

Students for Fair Admissions—finding race-based admissions programs in the context of

higher education unconstitutional—could, plausibly, “apply retroactively” to Tennessee’s

proportionality review for capital punishment or Petitioner’s criminal conviction and

sentence under § 40-30-122 [Doc. 63, pp. 27–28]. Cf. Bush, 428 S.W.3d at 21 (“Because

the rule we announced in Ward v. State was neither a watershed rule of criminal procedure

nor a rule that substantially enhances the accuracy of convictions, we decline to find that

the rule is ‘implicit in the concept of ordered liberty’ under Tenn. Code Ann.

§ 40–30–122”). So, although the Court recognizes that Petitioner need not show his claim

is actually meritorious under the “potentially meritorious” or “plainly meritless” factors of

Rhines, it strains to find, on the record before it, that Petitioner’s Equal Protection claim is

even “colorable” [Doc. 63, p. 22]. Rhines, 544 U.S. at 277–78; see Reye v. Soto, No. CV

15-68566-CJC (SP), 2016 WL 4951150, at *5 (C.D. Cal. Aug, 1, 2016) (determining that

the petitioner’s claim, based on “new rule of constitutional law” was “plainly meritless”

because the state-law opinion “[wa]s not applicable to petitioner’s conviction”).

To conclude, Petitioner has not demonstrated his Equal Protection claim is

“potentially meritorious,” or not “plainly meritless.” Rhines, 544 U.S. at 277–78.

Accordingly, his request to stay this proceeding under Rhines, while he pursues his Equal

Protection claim in state court, is DENIED.

B. Motion for Extension of Discovery Deadline

Petitioner moves the Court to extend the time for filing his motion for discovery

[Doc. 68]. Pursuant to this Court’s scheduling order, “all motions for discovery [are

due] . . . within 90 days of the reply” to the petition [Doc. 10, p. 2]. Because Petitioner

filed his reply to the petition on May 17, 2024 [Doc. 61], motions for discovery were due

on August 15, 2024 [Doc. 68, p. 1]. In his motion, he asks the Court to enter an order “to

include an extension of forty-five days, after an order from this Court denying the stay

motion” [Id. at 2].

Under Rule 6 of the Federal Rules of Civil Procedure, a “court may, for good cause,”

permit an extension “if a request is made[] before the original time” expires. Fed. R. Civ.

P. 6(b)(1)(A). “[T]he primary measure of the ‘good cause’ standard” under Rule

6(b)(1)(A) “is the moving party’s diligence in attempting to meet the deadlines, though

courts may also consider prejudice to the nonmoving party.” Layman v. United Parcel

Serv., Inc., No. 3:17-CV-738, 2019 WL 1966123, at *3 (W.D. Ky. May 2, 2019) (citing

Inge v. Rock Fin. Corp., 281 F.3d 623, 625 (6th Cir. 2002)). Petitioner filed his motion for

extension before the time for filing his motion for discovery expired, and his motion,

therefore, is timely. The Court also sees no foreseeable prejudice in permitting a 45-day

extension because Petitioner states Respondent does not oppose his motion [Doc. 68, p. 2].

Accordingly, for good cause, and because Petitioner’s motion is unopposed, his

request “to include an extension of forty-five days” [Doc. 68] will be GRANTED.

IV. Conclusion

For the reasons set forth above, Petitioner’s Motion to Stay and Hold in Abeyance

Federal Habeas Proceedings [Doc. 62] is DENIED. His Motion for Extension of Time to

file his motion for discovery [Doc. 68] is GRANTED. Petitioner SHALL file his motion

for discovery within 45 days of this Order’s entry.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE