Petition for Writ of Certiorari — Shawn R. Bough, Petitioner v. Kenneth D. Hutchison, Warden

No.

USCA6 Nolfsftf

In The

Supreme Court of the United States

SHAWN R. BOUGH,

Petitioner,

v.

KEN HUTCHISON, WARDEN,

Respondent,

On Petition For A Writ Of Certiorari To The

United States Court of Appeals

For the Sixth Circuit

APPENDIX A-K

Herbert Slatery, Esq.

Tennessee Attorney General

Counsel for Respondent

TAG’S Office

425 5™ Avenue North

P.O. BOX 20207

Nashville, Tennessee 37202

SHAWN R. BOUGH

#335025

Pro se, Petitioner

BCCX

1045 HORSEHEAD ROAD

PIKEVILLE, TENNESSEE 37367

APPENDIX A.Shawn R. Bough, Petitioner, v. Kevin Hampton, Warden, No. 19-5181 (6th Cir. June 10,

2019)(Denial of the request for a COA).

Page 1 of 4

Bough v. Hampton | WestlawNext

WESTLAW

Bouqh v. Hampton

„

UnilodStotei.Courtcl Appeals, Sixth Circuit, i June 10, 2018 i Not Reported In Fea Rptr. 1 2018 WL 4017414 (Approx. 3 pages)

2019 WL 4017414

Only the Westlaw citation is currently available.

United States Court of Appeals, Sixth Circuit.

Shawn R. BOUGH, Petitioner-Appellant,

v.

Kevin HAMPTON, Respondent-Appellee.

No. 19-5181

FILED June 10,2019

Attorneys and Law Firms

Shawn R. Bough, Plkeville, TN, pro se.

Thomas Austin Watkins, Office of the Attorney General, Nashville, TN, for

Respondent-Appellee.

ORDER

*1 Shawn R. Bough, a pro se Tennessee prisoner, appeals a district court's

judgment denying his petition for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. He has applied for a certificate of appealability and has moved to

proceed in forma pauperis on appeal. See Fed. R. App. P. 22(b), 24(a).

In 2001, a jury convicted Bough of felony murder and especially aggravated

robbery of a hotel clerk. SeeTenn. Code Ann. §§ 39-13-202(a)(2), 39-13-403.

Bough was sentenced to life in prison. His co-defendant, Craig Shears, was

convicted of the same offenses at a separate trial. State v. Shears, No. E200400797-CCA-R3-CD, 2005 WL 2148625 (Tenn. Crim. App. Sept. 7, 2005)

(unpublished opinion). Shears testified at his own trial that he saw Bough shoot the

victim and that Bough stated, "I think I might have killed him." Id. at *5.

The Tennessee Court of Criminal Appeals affirmed Bough's convictions on direct

appeal. State v. Bough, No. E2002-00717-CCA-R3-CD, 2004 WL 50798 (Tenn.

Crim. App. Jan. 12, 2004) (unpublished opinion). The Tennessee Supreme Court

affirmed the decision in part, vacated the decision in part, and remanded the

action. State v. Bough, 152 S.W.3d 453 (Tenn. 2004). On remand, the Tennessee

Court of Criminal Appeals again affirmed Bough's convictions, State v. Bough, No.

E2004-02928-CCA-RM-CD, 2005 WL 100842 (Tenn. Crim. App. Jan. 19, 2005)

(unpublished opinion), perm. app. denied (Tenn. May 23, 2005).

On May 16, 2006, Bough filed a petition for post-conviction relief. The trial court

denied the petition, and the Tennessee Court of Criminal Appeals affirmed the

decision. Bough v. State, No. E2007-00475-CCA-R3-PC, 2007 WL 3026395 (Tenn.

Crim. App. Oct. 18, 2007) (unpublished opinion), perm. app. denied, No. E200700475-SC-R11-PC (Tenn. Feb. 25, 2008) (order). Bough pursued state habeas

proceedings from March 30, 2010, to May 24, 2011.

On March 7, 2016, Bough filed a state petition for a writ of error coram nobis,

presenting an affidavit from Shears as newly discovered evidence. Shears stated in

his affidavit, dated October 23, 2015, that he was solely responsible for the murder

and robbery and that Bough had left the hotel before the crimes occurred. After an

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Page 2 of 4

evidentiary hearing, where Shears testified, the trial court denied the petition

because Shears was not credible and other evidence supported Bough's convictions.

The Tennessee Court of Criminal Appeals affirmed the denial. Bough v. State, No.

E2017-00015-CCA-R3-ECN, 2017 WL 3017289 (Tenn. Crim. App. July 17, 2017)

(unpublished opinion), perm. app. denied (Tenn. Oct. 3, 2017).

In his § 2254 petition, placed in the prison mailing system on May 15, 2018, and

later amended, Bough asserted that: (1) the state courts' denial of a new trial

based on his newly discovered evidence violated his right to due process and a fair

trial; (2) he is entitled to habeas relief based upon this freestanding claim of actual

innocence; (3) his criminal convictions are not supported by sufficient evidence; (4)

trial counsel rendered ineffective assistance by failing to conduct an adequate

investigation; (5) trial and appellate counsel rendered ineffective assistance by

failing to challenge properly the felony-murder instruction as a constructive

amendment to the indictment; (6) trial counsel rendered Ineffective assistance by

failing to challenge properly the admission of a recording of a 911 call by the victim

and a police detective's testimony about the victim's utterances; and (7) trial and

appellate counsel rendered ineffective assistance by failing to challenge properly

certain comments by the prosecutor. Bough contended that his petition should be

deemed to be timely because it was based on newly discovered evidence and

further delay was due to misleading advice by his coram nobis counsel.

*2 The district court denied the § 2254 petition, reasoning that it was untimely and

that equitable tolling did not apply. The court declined to issue a COA.

An individual seeking a COA is required to make a substantial showing of the denial

of a federal constitutional right. See 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). When the appeal concerns a district

court's procedural ruling, a COA should issue when the petitioner demonstrates

"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." Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

A § 2254 petition must be filed within one year after the latest of certain events,

including "the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review" and "the date on

which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(A), (D).

A prisoner may toll the limitations period by properly filing a state application for

post-conviction review. See 28 U.S.C. § 2244(d)(2).

If a prisoner fails to timely file a § 2254 petition, the prisoner is entitled to

equitable tolling of the limitations period upon a showing that he was diligently

pursuing his rights but was prevented from timely filing the petition by an

extraordinary circumstance. Holland v. Florida, 560 U.S. 631, 649 (2010); Jones v.

United States, 689 F.3d 621, 627 (6th Cir. 2012). Alternatively, the untimeliness of

a petition may be excused on the ground of actual innocence where a petitioner

"show[s] that it is more likely than not that no reasonable juror would have

convicted him in the light of ... new evidence." McQuiggin v. Perkins, 569 U.S. 383,

399 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

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Page 3 of 4

Jurists of reason would agree that Bough's § 2254 petition is time-barred under §

2244(d)(1)(A). Direct review of Bough's convictions in state court ended on May

23, 2005, when the Tennessee Supreme Court denied permission to appeal. His

convictions became final on Monday, August 22, 2005, when the ninety-day period

for filing a certiorari petition with the United States Supreme Court expired. See

Jimenez v. Quarterman, 555 U.S. 113, 119 (2009); Sherwood v. Prelesnik, 579

F.3d 581, 585 (6th Cir. 2009).

The one-year limitations period then began to run, but was tolled 267 days later

when Bough filed his post-conviction petition on May 16, 2006. See 28 U.S.C. §

2244(d)(2), The limitations period began to run again when the Tennessee

Supreme Court denied leave to appeal on February 25, 2008. At this point, Bough

had ninety-eight days, or until June 2, 2008, to file a timely § 2254 petition, but did

not do so. He instead waited nearly ten years, until May 15, 2018. Bough's other

attempts to obtain collateral relief in state court were filed after the expiration of

the limitations period and did not revive it. See Vroman v. Brigano, 346 F.3d 598,

602 (6th Cir. 2003). Thus, his petition is not timely under § 2244(d)(1)(A).

*3 The timeliness of Bough's § 2254 petition under § 2244(d)(1)(D) does not

deserve further consideration. Bough failed to explain the circumstances behind

obtaining Shears's affidavit and, thus, did not establish "the date on which the

factual predicate" of his claims "could have been discovered through the exercise of

due diligence." 28 U.S.C. § 2244(d)(1)(D).

Jurists of reason would further agree that Bough is not entitled to equitable toiling.

He does not allege that he was prevented from timely filing his § 2254 petition by

an extraordinary circumstance. See Holland, 560 U.S. at 649. Nor has he made a

substantial showing that no reasonable juror would have convicted him in light of

Shears's affidavit and testimony. See Perkins, 569 U.S. at 399. Courts regard

recantation testimony with extreme suspicion, especially where, as here, it occurs

many years after the original testimony and no explanation for the delay is given.

See id.; Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J., concurring);

Thomas v. United States, 849 F.3d 669, 678 (6th Cir. 2017). Additionally, the

coram nobis court's finding that Shears was not credible is entitled to great

deference on habeas review. See Howell v. Hodge, 710 F.3d 381, 386 (6th Cir.

2013). Moreover, witnesses at trial indicated that Bough and Shears were together

at the time of the shooting, that Bough told two people that he had shot someone,

and that the victim indicated that two men robbed and shot him. Bough, 152

S.W.3d at 456-58.

The court declines to consider Bough's new arguments regarding discrepancies in

testimony because he did not raise them below, and no exceptional circumstances

exist that merit their consideration. See Dealer Comput. \Servs., Inc. v. Dub

Herring Ford, 623 F.3d 348, 357 (6th Cir. 2010).

Accordingly, the court DENIES Bough's COA application. The in forma pauperis

motion is DENIED as moot.

All Citations

Not Reported in Fed. Rptr., 2019 WL 4017414

End of

Document

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

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APPENDIX BShawn R. Bough, Petitioner, v. Kevin Hampton, Warden, No. 19-5181 (6th Cir. September 25,

2019) (Denial of Petition to Rehear Enbanc the Denial of COA).

No. 19-5181

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHAWN R. BOUGH,

)

)

)

)

)

)

)

)

)

Petitioner-Appellant,

v.

KEVIN HAMPTON,

Respondent-Appellee.

Sep 25, 2019

DEBORAH S. HUNT, Clerk

ORDER

Before: CLAY, DONALD, and LARSEN, Circuit Judges.

Shawn R. Bough petitions for rehearing en banc of this court’s order entered on June 10,

2019, denying his application for a certificate of appealability. The petition was initially referred

to this panel, on which the original deciding judge does not sit. After review of the petition, this

panel issued an order announcing its conclusion that the original application was properly denied.

The petition was then circulated to all active members of the court, none of whom requested a

vote on the suggestion for an en banc rehearing. Pursuant to established court procedures, the

panel now denies the petition for rehearing en banc.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

APPENDIX CShawn R. Bough, Petitioner, v. Kevin Hampton, Warden, No. 19-5181 (6* Cir. September 10,

2019) (Denial of Petition to Rehear the Denial of COA).

No. 19-5181

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SHAWN R. BOUGH

)

)

)

)

)

)

)

)

)

Petitioner-Appellant,

v.

KEVIN HAMPTON,

Respondent-Appellee.

Sep 10, 2019

DEBORAH S. HUNT, Clerk

ORDER

Before: CLAY, DONALD, and LARSEN, Circuit Judges.

Shawn R. Bough, a pro se Tennessee prisoner, petitions the court to rehear en banc its

order denying him a certificate of appealability. The petition has been referred to this panel, on

which the original deciding judge does not sit, for an initial determination on the merits of the

petition for rehearing. Upon careful consideration, the panel concludes that the original deciding

judge did not misapprehend or overlook any point of law or fact in issuing the order and,

accordingly, declines to rehear the matter. Fed. R. App. P. 40(a).

The Clerk shall now refer the matter to all of the active members of the court for further

proceedings on the suggestion for en banc rehearing.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

APPENDIX DShawn R. Bough, Petitioner, v. Darren Settles, Respondent, No. 3:18-cv-00204,20i9 WL

430906 (E.D. Tenn. February 4,2019) (Denial-dismissal of habeas corpus petition).

Bough v. Settles | WestlawNext

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WESTLAW

Bough v. Settles

United States District Court. E.O. Tannossea, Northern Division, at Knoxvile. i February 4,2019 | SllpCopy ( 2019 WL430906 (Approx 6pages)

2019 WL 430906

Only the Westlaw citation is currently available.

United States District Court, E.D. Tennessee, Northern Division,

at Knoxville.

Shawn R. BOUGH, Petitioner,

v.

Darren SETTLES, Respondent.

No.: 3:i8-cv-00204 REEVES/POPLIN

Filed 02/04/2019

Attorneys and Law Firms

Shawn R. Bough, Pikeville, TN, pro se,

Thomas Austin Watkins, State of Tennessee, Office of Attorney General, Nashville,

TN, for Respondent.

MEMORANDUM OPINION

PAMELA L. REEVES, UNITED STATES DISTRICT JUDGE

*1 This is a pro se prisoner's petition for a writ of habeas corpus under 28 U.S.C. §

2254. Now before the Court are Petitioner's motion to amend the petition [Doc. 11]

and Respondent's motion to dismiss the petition as dme-barred [Doc. 13].

Petitioner filed a response in opposition to the motion to dismiss [Doc. 16]. The

Court will address these motions in turn.

X. MOTION TO AMEND

For good cause shown therein, Petitioner's motion to amend [Doc. 11] will be

GRANTED. As such, Petitioner's amended § 2254 petition [Doc. 11-2] is the

operative pleading for all purposes, including the Court's consideration of

Respondent's motion to dismiss.

II. MOTION TO DISMISS

A. BACKGROUND

1. Factual Background1

Throughout the night of December 19, 1998, and the next morning, Petitioner and

Craig Shears, both college students, made several visits to hotel room 207 at the

Expo Inn in Knoxville in which two female college students were staying. During

one of these visits, one of the female college students noticed a gun under the bed

where Petitioner was sitting. She told Petitioner not to forget his gun and Petitioner

thanked her and put the gun in his sock.

Approximately an hour after Petitioner and Shears left the hotel room for the final

time around nine a.m. on December 20, 1998, the female college students heard

gunshots In the hotel lobby area. After multiple calls from Petitioner and shortly

after the gunshots, Dante Smith came to the hotel in his car to pick up Petitioner

and Shears. Smith saw Petitioner and Shears running from the lobby, and Petitioner

was carrying a plastic tub with envelopes. According to Smith, Petitioner was

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testimony stating that he acted alone with regard to the murder and robbery is

newly-discovered evidence establishing that Petitioner is actually innocent that

entitles Petitioner to equitable tolling [Doc. 11-2 p. 15-17]. In the alternative,

Petitioner asserts that he is entitled to equitable tolling because his attorney told

him that he was pursuing an action in federal court based on the denial of the writ

of error coram nobis and/or that Petitioner could do so himself [Id. at 17-18].

Petitioner also sets forth a freestanding claim of actual innocence based on Shears'

affidavit and testimony and other claims for relief under § 2254 in his petition [Id.

at 5-12].

B. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified in 28

U.S.C. § 2254, et. seq., a district court may not grant habeas corpus relief for a

claim that a state court adjudicated on the merits unless the state court's

adjudication of the claim:

*3 (1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was 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)(1)—(2).

The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654

F.3d 668, 676 (6th Cir. 2011) (noting that"§ 2254(d), as amended by AEDPA, is a

purposefully demanding standard ... 'because it was meant to be' ") (quoting

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) ). Further, where the record

supports the state court's findings of fact, those findings are entitled to a

presumption of correctness which may be rebutted only by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

C. ANALYSIS

1. Equitable Tolling

a. Actual Innocence

As set forth above, Petitioner first asserts that a 2015 affidavit and testimony from

Shears establishes Petitioner's actual innocence of the murder and robbery

underlying his convictions and therefore entitles him to equitable tolling of the

AEDPA statute of limitations for his § 2254 claims [Doc. 11-2 p. 17]. The AEDPA

statute of limitations is not jurisdictional and is subject to equitable tolling. Holland

v. Florida, 560 U.S. 631, 645 (2010); Perkins v. McQuiggin, 670 F.3d 665, 670 (6th

Cir. 2012). One way that a petitioner can demonstrate that he is entitled to

equitable tolling of the AEDPA statute of limitations is by presenting "a credible

claim of actual innocence." Cleveland v. Bradshaw, 693 F.3d 626, 632-33 (6th Cir.

2012) (citing Souter v. Jones, 395 F.3d 577, 601 (2005)). In order to establish

such a claim:

a petitioner must show that it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt. The Court has

noted that "actual innocence means factual innocence, not mere legal

insufficiency." Bousley v. United States, 523 U.S. 614, 623 [ ] (1998). "To be

credible, such a claim requires petitioner to support his allegations of

constitutional error with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

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Bough y. Settles | WestlawNext

evidence—that was not presented at trial," Schlup [v. Delo, 513 U.S. 298, 324

(1995) ]. The Court counseled however, that the actual innocence exception

should "remain rare" and "only be applied in the 'extraordinary case. Id. at 321

/ tt

[•]

Souter, 395 F.3d at 590. Thus, the threshold inquiry in assessing whether a claim

of actual Innocence is credible is "whether new facts raise sufficient doubt about the

petitioner's guilt to undermine confidence in the result of the trial." Id. (citing

Schlup, 513 U.S. at 316).

In Shears' affidavit and testimony upon which Petitioner relies to support his claim

of actual innocence, Shears recants the testimony he gave at his own criminal trial

regarding Petitioner's participation in the murder and robbery and now states that

Petitioner was not present during these events [Docs. 11-1 and 12-45]. Courts,

however, generally view recantation testimony with great suspicion. United States

v. Willis, 257 F.3d 636, 645 (6th Cir. 2001) (noting that "affidavits by witnesses

recanting their trial testimony are to be looked upon with extreme suspicion"). The

timing and circumstances surrounding such recantations is also relevant to

determining their credibility. See McQuiggin, 133 S. Ct. at 1935-36 (noting that the

timing of newly discovered evidence of innocence is relevant to its reliability);

Freeman v. Trombley, 483 F. App'x 51, 61-64 (6th Cir. 2012) (finding that

recantation evidence presented ten years after the witness first testified under oath

was insufficient to support gateway actual innocence claim where there was no

explanation for the significant delay).

*4 Petitioner repeatedly asserts that Shears’ new testimony regarding his

innocence is credible, but does not explain Shears' significant delay in coming

forward with these new allegations. Moreover, the trial court correctly found that

even if Shears had testified at Petitioner's trial that Petitioner was not involved in or

present at the scene of the murder and robbery at Petitioner’s trial in a manner

consistent with his 2015 affidavit, any such testimony would have lacked credibility

due to Shears' prior testimony under oath at his own trial that Petitioner, not

Shears, had committed the murder and robbery, as well as the substantial other

evidence of Petitioner's involvement in the murder and robbery. Further, the coram

nobis court specifically found that Shears' testimony at the evidentiary hearing was

not credible and habeas courts generally defer to trial court credibility findings, as

the trial court is in the best position to determine witness credibility. Miller-El v.

Cockrell, 537 U.S. 322, 339 (2003); see also Marshall v. Lonberger, 459 U.S. 422,

434 (1983) (holding that § 2254 does not give habeas courts "license to

redetermine credibility of witnesses whose demeanor has been observed by the

state trial court, but not by them").

In short, nothing in the record allows the Court to overcome its great suspicion

about Shears' decision to recant his testimony under oath approximately fifteen

years after he gave that testimony or to find that Shears' affidavit and testimony

raise doubts about Petitioner's innocence that undermine confidence in the jury's

finding that Petitioner is guilty. As such, Petitioner has not met his burden of

establishing that newly-discovered evidence of his actual innocence entitles him to

equitable tolling of the AEDPA statute of limitations.

b. Attorney Negligence

Petitioner also argues that he is entitled to equitable tolling of the statute of

limitations because his attorney2 misled him by stating that he was pursuing

Petitioner's case in federal court and/or that Petitioner could file a motion in federal

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court based upon the denial of the petition for a writ of error coram nobis [Doc.

11-2 p. 17].

A habeas petitioner may be entitled to equitable tolling of the statute of limitations

if he establishes that he has been "pursuing his rights diligently" and "some

extraordinary circumstance stood in his way and prevented timely filing." Hall v.

Warden, 662 F. 3d 745, 749 (6th Cir. 2011) (quoting Holland v. Florida, 130 S. Ct.

2549, 2562 (2010) ). "The doctrine of equitable tolling is applied sparingly by

federal courts," and is typically used "only when a litigant's failure to meet a

legally-mandated deadline unavoidably arose from circumstances beyond that

litigant's control." See Vroman v, Brigano, 346 F.3d 598, 604 (6th Cir. 2003)

(citations and internal quotations marks omitted).

Even if the Court assumes that Petitioner's allegations regarding his attorney's

actions are true, they do not entitle Petitioner to equitable tolling, as Petitioner's

time to file his § 2254 petition had run out long before those events occurred. The

AEDPA provides a one-year statute of limitations for the filing of an application for a

federal writ of habeas corpus that begins to run when the judgment became final at

the conclusion of direct review. 28 U.S.C. § 2244(d)(1).

Petitioner's AEDPA clock began to run on August 22, 2005, ninety days after the

day after the Tennessee Supreme Court declined to review the TCCA's order

affirming Petitioner's convictions, as that is the last day on which Petitioner could

have filed an application for the United States Supreme Court to review his

convictions. The clock ran for two-hundred and sixty-nine days until May 18, 2006,

at which time Petitioner paused the clock by filing his petition for post-conviction

relief [Doc. 12-28 p. 4, 58], The clock then began to run again on February 26,

2008, the day after the Tennessee Supreme Court denied Petitioner's application

for permission to appeal the TCCA's denial of Petitioner's post-conviction petition.

At that point, Petitioner had ninety-six days to file a § 2254 petition or to pause the

clock by properly filing any other application for collateral relief from the state

court. As the ninety-sixth day was a Sunday, however, Petitioner's AEDPA statute

of limitations did not expire until ninety-seven days later on June 2, 2008.

*5 Petitioner, however, did not file his petition for a writ of error coram nobis with

the state court until March 7, 2016 [Doc. 12-44 p. 4]. As such, none of Petitioner's

attorney's actions regarding this filing could have affected the AEDPA statute of

limitations. See Vroman, 346 F.3d at 602 (holding that while a properly filed

application for state post-conviction or other collateral relief may toll the statute of

limitations, it "does not... 'revive' the limitations period (i.e., restart the clock at

zero); it can only serve to pause a clock that has not yet fully run").

Thus, even accepting Petitioner's allegations regarding his attorney's actions with

regard to the petition for a writ of error coram nobis as true, nothing in the record

indicates that Petitioner was pursuing his rights diligently and some extraordinary

circumstance prevented him from timely filing a § 2254 petition. As such, Petitioner

is not entitled to equitable tolling of the AEDPA statute of limitations based on these

allegations.

2. Freestanding Claim of Actual Innocence

Petitioner also alleges that he Is entitled to relief under § 2254 based on a

"freestanding" claim of actual innocence as established by the newly-discovered

evidence from Shears. "Claims of actual innocence based on newly discovered

evidence have never been held to state a ground for federal habeas relief absent an

independent constitutional violation in the underlying state criminal proceeding,"

however. Herrera v. Collins, 506 U.S. 390, 400 (1993) (citing Townsend v. Sain,

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372 U.S. 293, 317 (1963) ); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007)

(holding that a free-standing innocence claim is not cognizable without allegations

of constitutional error at trial). Moreover, even if such a claim were cognizable in

this action, the newly-discovered evidence from Shears is not credible and does not

undermine the Court's confidence in the jury's finding that Petitioner is guilty for

the reasons set forth above. As such, Petitioner has not made the "extraordinarily

high" threshold showing of actual innocence that such a claim would require.

Herrera, 506 U.S. at 417.

D. CERTIFICATE OF APPEALABILITY

Finally, the Court must consider whether to issue a certificate of appealability

("COA") should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and

(c), a petitioner may appeal a final order in a habeas proceeding only if he is issued

a COA, and a cpA may only be issued where a Petitioner has made a substantial

showing of the denial of a constitutional right. When a district court denies a

habeas petition on a procedural basis without reaching the merits of the underlying

daim(s), a COA should only issue if "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." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also

Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017).

In this case, reasonable jurists would not debate the correctness of the Court's

decision that Petitioner is not entitled to equitable tolling of the statute of

limitations and to dismiss the § 2254 petition as time-barred. Accordingly, the

Court will DENY issuance of a COA and CERTIFIES that any appeal from this

action would not be taken in good faith and would be totally frivolous. See 28

U.S.C. § 2253; Fed. R. App. P. 22(b), 24(a)(1), 24(a)(4).

III. CONCLUSION

*6 For the reasons set forth above:

1. Petitioner's motion to amend/revise his petition [Doc. 11] will be GRANTED;

2. Respondent's Motion to Dismiss [Doc. 13] will be GRANTED;

3. This action will be DISMISSED;

4. No COA shall issue; and

5. The Court CERTIFIES that any appeal from this action would not be taken in

good faith.

AN APPROPRIATE ORDER WILL ENTER.

All Citations

Slip Copy, 2019 WL 430906

Footnotes

1

Unless otherwise noted, the background facts are taken from the

Tennessee Court of Appeals' ("TCCA") opinion affirming the denial of

Petitioner's petition for a writ of error coram nobis, in which the TCCA

quoted the Tennessee Supreme Court's opinion summarizing the facts of

the case. Bough v. State, No. E2017-00015-CCA-R3-ECN, 2017 WL

3017289, at * 1-2 (Tenn. Crim. App. July 17, 2017), perm. app. denied

(Tenn. Oct. 3, 2017).

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2

While it Is somewhat unclear, it appears that Petitioner is referring to his

counsel for the petition for a writ of error coram nobis.

End of

Document

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