Vaughn v. Nelsen

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DONALD JAY VAUGHN,
Petitioner,
v.
KENNETH NELSEN,
Respondent.
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Case No. 3:23-cv-00580
Judge Aleta A. Trauger
MEMORANDUM
Before the court are petitioner Donald Vaughn’s Objections to Magistrate Judge’s Ruling
on Motion to Amend (Doc. No. 76), objecting to that portion of the Magistrate Judge’s Order (“MJ
Order”) (Doc. No. 74) denying in part the petitioner’s Motion to Amend (Doc. No. 68). The
respondent, Kenneth Nelson in his official capacity as the Warden of Riverbend Maximum
Security Institution, where the petitioner is incarcerated, has filed a Response arguing that the
Order should be affirmed in its entirety. (Doc. No. 79.) The petitioner filed a Reply. (Doc. No.
81.)1 For the reasons set forth herein, the MJ Order will be affirmed in part and modified in part.
1 Although the Magistrate Judge entered the Order granting in part the Motion to Amend,
neither the Clerk nor the petitioner filed the proposed Amended Petition as a stand-alone docket
entry. The respondent nonetheless considered the Amended Petition as filed as of the entry of the
Order. He filed a Supplemental Answer after seeking and being granted an extension of the
deadline for filing a supplemental answer to the Amended Petition. (Doc. Nos. 78, 80, 82.) The
petitioner then filed an unauthorized and inappropriate “Reply in Support of Amended Petition”
(Doc. No. 83), which the court has not considered in ruling on the present Objections.
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I. 	BACKGROUND
Vaughn pleaded guilty in the Criminal Court for Davidson County, Tennessee to two
counts of aggravated rape and received a total sentence of forty-eight years of incarceration.
Judgment was entered on March 14, 2011. (Doc. No. 12-1 at 26.) After the denial of his Motion to
Withdraw Guilty Plea, his conviction and sentence were affirmed by the Tennessee Court of
Criminal Appeals. State v. Vaughn, No. M2011-00937-CCA-R3CD, 2013 WL 1461774 (Tenn.
Crim. App. Apr. 11, 2013). The state court later denied post-conviction relief. Vaughn v. State,
No. M2021-01180-CCA-R3-PC, 2022 WL 2719783, at *9 (Tenn. Crim. App. July 14, 2022),
2022), perm. app. denied (Tenn. Dec. 14, 2022).
The petitioner now seeks relief in this court under 28 U.S.C. § 2254. He filed his original
pro se Petition on June 7, 2023. (See Doc. No. 1.) Counsel first entered an appearance for the
petitioner on January 18, 2024. (Doc. No. 50.) That attorney was granted permission to withdraw
on June 10, 2024 (Doc. No. 58), and current counsel entered an appearance on July 8, 2024 (Doc.
No. 59). On August 15, 2024, the petitioner, through counsel, filed the Motion to Amend that is
the subject of the current Objections, along with the proposed Amended Petition. The respondent
opposed the motion (Doc. No. 71), and the petitioner filed a Reply (Doc. No. 72).
The MJ Order granted in part and denied in part the Motion to Amend. (Doc. No. 74.) As
the Magistrate Judge recognized, by the time the Motion to Amend was filed, the one-year statute
of limitations governing petitions under § 2254 had expired, so the claims in the proposed
Amended Petition are time-barred unless they relate back to the original Petition. (Doc. No. 74 at
3.) The Magistrate Judge found that the first proposed amended claim for ineffective assistance of
counsel “merely supplements the same argument raised in [the] original petition”; he therefore
granted the petitioner leave to amend his Petition with respect to this claim. (Id. at 4–5.) Neither
party objects to that part of the MJ Order.
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The petitioner’s second proposed amended claim alleges that the prosecution violated the
petitioner’s Fourteenth Amendment right to due process when it failed to disclose exculpatory
evidence, in violation of Brady v. Maryland, 373 U.S. 93 (1963). The Magistrate Judge found that
this claim was not raised in the original Petition, does not relate back, and is now time-barred.
(Doc. No. 74 at 6–7.) The Magistrate Judge also found that the petitioner does not meet the
“‘demanding’ actual-innocence standard,” so the untimeliness of the claim cannot be excused on
that basis. (Id. at 7.) Accordingly, the Magistrate Judge denied the petitioner leave to amend his
petition to add this claim on the grounds of futility. (Id. at 10.)
The petitioner’s third proposed amended claim is a claim of ineffective assistance of
appellate counsel. The Magistrate Judge found this claim, too, to be time-barred, and he rejected
the petitioner’s argument that the untimeliness should be excused by his actual innocence. The
Magistrate Judge denied leave to amend the Petition to add this claim.
The petitioner’s Objections assert that this court should conduct a de novo review of his
Motion to Amend and should grant leave to add all three of the proposed new claims. (Doc. No.
76.) The respondent contends that the standard that applies to non-dispositive magistrate judge
orders applies here and that the petitioner fails to show, under that standard, that the Order should
be set aside. (Doc. No. 79.) The petitioner filed a Reply, again asserting that de novo review applies
and pointing out that both the Magistrate Judge and the respondent apparently overlooked language
in his “Attachment” filed in support of the habeas Petition (“Attachment”), in which the plaintiff
asserted that certain “photos taken by the detectives immediately after the alleged rape were made
available for the first time to post-conviction counsel ten years after the alleged . . . rape.” (Doc.
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No. 81 at 1–2 (quoting Doc. No. 1-13 at 34)2.)
II. 	STANDARD OF REVIEW
When a magistrate judge issues an order on a nondispositive matter or recommends
disposition of a dispositive motion, any party has fourteen days within which to “serve and file
objections” to the order or recommended disposition. Fed. R. Civ. P. 72(a), (b)(2). The district
court’s resolution of such objections differs somewhat depending upon whether the matter is
dispositive 	or 	nondispositive. 	The 	district 	court 	“must 	consider 	timely 	objections” 	to 	a
nondispositive order and “modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” Fed. R. Civ. P. 72(a). But the court must “determine de novo any part of the
magistrate judge’s [recommended] disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). The parties here appear to dispute the standard of review that should be applied to the
Magistrate Judge’s Order (styled as an Order rather than a Report and Recommendation) denying
in part the petitioner’s Motion to Amend. The petitioner asserts, without discussion (but citing 28
U.S.C. § 636(b)(1)(A), which pertains to nondispositive pretrial motions), that the court should
conduct de novo review. (Doc. No. 76 at 1.) The parties agree, however, that where, as here, the
issue is one of law, this court’s review is de novo. The court therefore conducts a de novo review
of those portions of the MJ Order to which the petitioner objects.
III. 	DISCUSSION
A. 	Brady Claim
The petitioner argues that the Magistrate Judge erred as a matter of law in concluding that
the relation back doctrine did not apply to his proposed new claim under Brady v. Maryland, 373
2 The Attachment is effectively a memorandum in support of the habeas Petition and
comprises pages 18–60 of Doc. No. 1-13. The court cites herein to the CM/ECF pagination of the
Attachment.
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U.S. 83 (1963), that the prosecution withheld material evidence. The court reviews this issue de
novo.
The Antiterrorism and Effective Death Penalty Act imposes a “1-year period of limitation”
on the filing of an application for the writ of habeas corpus by a state prisoner who seeks to
challenge his state convictions in federal court. 28 U.S.C. § 2244(d)(1). Such applications “may
be amended or supplemented as provided in the rules of procedure applicable to civil actions.” Id.
§ 2242; Mayle v. Felix, 545 U.S. 644, 654 (2005).
“Federal Rule of Civil Procedure 15 sets forth those procedural rules.” Watkins v.
Stephenson, 57 F.4th 576, 579 (6th Cir.), cert. denied sub nom. Watkins v. Chapman, 144 S. Ct.
222 (2023). Rule 15 generally permits a party to amend a civil complaint or a habeas petition with
“leave” of a district court and directs the court to “freely give leave when justice so requires.” Id.;
Fed. R. Civ. P. 15(a)(2).
However, when an amended petition is filed outside the one-year limitations period set
forth in 28 U.S.C. § 2244(d)(1), the amended petition will be timely only if, as relevant here, “the
amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B); Watkins,
57 F.4th at 579. This means that, as in ordinary civil cases, “[s]o long as the original and amended
petitions state claims that are tied to a common core of operative facts, relation back will be in
order.” Mayle, 545 U.S. at 664. The Court explained that, under this reading of Rule 15(c), relation
back will “ordinarily [be] allowed ‘when the new claim is based on the same facts as the original
pleading and only changes the legal theory.’” Id. at 664 n.7 (quoting 3 J. Moore et al., Moore’s
Federal Practice § 15.19[2] (3d ed. 2004)). However, “[a] claim that ‘asserts a new ground for
relief supported by facts that differ in both time and type from those the original pleading set forth’
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will not so relate back.” Howard v. United States, 533 F.3d 472, 476 (6th Cir. 2008) (quoting
Mayle, 545 U.S. at 650).
It is undisputed that the timeliness of claims in the Amended Petition depends on whether
they relate back. In the Attachment filed with his original Petition, the petitioner asserts that he
was denied “the effective assistance of counsel at all stages of the proceedings.” (Doc. No. 1-13 at
31.) In alleging the facts in support of this claim, the petitioner takes issue with his defense
counsel’s failure to “investigate the photos of the alleged injury to the victim,” specifically
referring to photographs that were made available to defense counsel, and the petitioner, prior to
his plea agreement. (Id. at 34.) In addition, however, the petitioner adds:
There were valid arguments that there were no bite marks or any physical injury to
the victim to begin with. In fact, photos taken by detectives immediately after the
alleged rape were made available for the first time to post-conviction counsel ten
years after the alleged . . . rape. The photos that were taken by the detectives
demonstrated that there were no injuries found on the victim’s body immediately
after the alleged rape. This is significant because the detective’s photographs
predated other photos taken weeks later by the victim’s mother [i.e., the photos the
petitioner saw prior to entering a plea and that allegedly showed injuries].
(Id. (emphasis added).)
In his proposed Amended Petition, the petitioner further develops these allegations:
37) As already mentioned, Vaughn was especially preoccupied with a defense
based on a lack of injury to the alleged victim. . . . However, not long before trial,
trial counsel showed Vaughn photos from the State, showing that the alleged victim
had a bite mark on her arm.
38) Bruising such as a bite mark would seem to constitute an injury. Therefore, in
light of this evidence, trial counsel basically felt that Vaughn had no plausible
defense.
39) Many years after sentencing—during postconviction—the detective disclosed
new photo(s) to the prosecutor. The new photos were only stored on the detective’s
own computer, never before turned over—not even to the prosecutor. The new
photo(s) depicted the alleged victim’s arm, and they were taken of the alleged
victim, shortly after the incident. They showed that her arm had no bite mark at all.
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(Doc. No. 68-1 ¶¶ 37–39 (internal citations to the record omitted).) Based on these factual
allegations (and others), the petitioner seeks to assert a claim that his rights under the Fourteenth
Amendment were violated by the state’s failure to produce exculpatory evidence material to guilt
or innocence, under Brady.
Construing the original pro se Petition liberally, the court finds that the new Brady claim
relates back to the filing of the original Petition, insofar as it is “based on the same facts as the
original pleading and only changes the legal theory.” Mayle, 545 U.S. at 664 n.7. While Count II
of the proposed Amended Petition obviously “asserts a new ground for relief,” it is supported by
facts that do not differ in “time [or] type from those the original pleading set forth.” Id. at 650. It
is supported by facts alleged in the original Petition, though the Amended Petition adds a few
details and context. The court, therefore, will set aside the MJ Order insofar as it denied leave to
amend the Petition to add a Brady claim on the grounds that the claim would be time-barred.3
The MJ Order did not address the respondent’s alternative argument that the claim is also
procedurally defaulted, and the court declines to address that argument in the first instance. The
court will modify the MJ Order to grant the petitioner leave to pursue Count II, but the respondent
remains free to argue (as he did in response to the Motion to Amend) that the claim is procedurally
defaulted (as the petitioner himself acknowledges (see Doc. No. 68 at 2)) and that the procedural
default is not excused.
3 The MJ Order focuses on the petitioner’s failure to make a Brady “argument” and also
takes issue with his failure to “direct the Court to any language in his attachment to the petition
(Docket No. 1-13 at 18–102) making such an argument.” (Doc. No. 74 at 6.) The issue, however,
is whether the new claim (“argument”) arises from the same common nucleus of facts, and the
petitioner, in his Reply, responded to the respondent’s timeliness argument by citing the precise
language in his Attachment articulating the facts supporting his Brady claim. (See Doc. No. 72 at
3–4 (quoting Doc. No. 1-13 at 34).)
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B. 	Ineffective Assistance of Appellate Counsel
The petitioner also sought leave to amend his petition to add a new claim for ineffective
assistance of appellate counsel, on the basis that his counsel on direct appeal “failed to make any
argument in support of his contention that the trial court erred by denying [the petitioner’s] motion
to withdraw his guilty pleas.” (Doc. No. 68-1 at 27–28 (quoting State v. Vaughn, No. M2011-
00937-CCA-R3CD, 2013 WL 1461774, at *4 (Tenn. Crim. App. Apr. 11, 2013)).) The petitioner
admits that this claim was procedurally defaulted but asserts that he can show cause and prejudice
to excuse the default. (Id. at 29.)
The MJ Order denied leave to amend the Petition to add this claim on the grounds that it,
too, is untimely and that the untimeliness is not excused by the petitioner’s actual innocence. (Doc.
No. 74 at 9–10.) The petitioner’s Objections make no effort to argue that his claim of ineffective
assistance of appellate counsel relates back to his original Petition. Rather, he doubles down on
his argument that the untimeliness is excused by evidence of actual innocence.
The Sixth Circuit recognizes that “actual innocence, if proved, serves as a gateway through
which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of
the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (citations omitted).
However, “tenable actual-innocence gateway pleas are rare.” Id. To make a threshold showing of
actual innocence, a petitioner must “persuade[] the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
(citation omitted). This standard is “‘demanding’ and seldom met.” Id. (quoting House v. Bell, 547
U.S. 518, 538 (2006)). And, although not an absolute bar, a prisoner’s delay in raising an actual
innocence claim is “a factor in determining whether actual innocence has been reliably shown.”
Id. at 387.
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This court finds no error in the Magistrate Judge’s assessment of the petitioner’s actual
innocence claim. Under the standard articulated by the Supreme Court in Schlup v. Delo, 513 U.S.
298 (1995), there is a distinction between exculpatory evidence that casts doubt on the credibility
of a witness, thus weakening the case against the petitioner, and evidence that has the effect of
exonerating the petitioner. As the Sixth Circuit has explained
“[A]ctual innocence” means factual innocence, not mere legal insufficiency. . . .
This means that a petitioner may not pass through the equitable gateway by simply
undermining the state’s case. Rather, he must demonstrate that he factually did not
commit the crime. Of course, dismantling the state’s case is relevant and helpful to
the petitioner because it leaves a vacuum to be filled by an exonerative explanation;
but it is not sufficient in and of itself. This distinction between exonerating evidence
and impeachment evidence undergirds both of the Supreme Court's landmark
equitable-exception cases.
Hubbard v. Rewerts, 98 F.4th 736, 743 (6th Cir. 2024) (citing Schlup, 513 U.S. at 324; House, 547
U.S. at 552–53; other internal citations and quotation marks omitted).
As an example of this distinction, the Sixth Circuit pointed to the facts in House, in which
the petitioner’s murder conviction was based primarily on the “finding of [the victim’s] blood on
House’s jeans and House’s semen on [the victim’s] person.” Id. at 744. On collateral review, House
established conclusively that the blood got on his jeans “due to the negligent spillage of blood
from [the victim’s] autopsy in the same evidence box carrying his jeans” and that the semen found
on the victim was actually the victim’s husband’s semen. Id. Despite this new evidence that
“effectively dismantl[ed] the State’s entire case,” it was only “after House provided a credible
confession by [the victim’s] husband as the true perpetrator did the Court find that he met the
actual-innocence test to permit his [otherwise procedurally barred] claim to proceed.” Id. (citing
House, 547 U.S. at 548–53).
This example conclusively establishes that the petitioner in this case cannot overcome the
untimeliness of Count III through a showing of actual innocence. First, the petitioner argues only
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that “if the suppressed photos really show that the purported victim went so far as to bite her own
arm to fabricate a rape charge, then it is indeed plausible—even likely—that Vaughn can show
actual innocence.” (Doc. No. 72 at 4.) He attacks the MJ Order as “flawed . . . because anyone
who would manufacture a bite mark would easily lie about other injuries.” (Doc. No. 76 at 9.) In
other words, his purportedly new evidence serves to attack the credibility of the victim, but it does
nothing to actually exonerate the petitioner.
Second, 	the 	petitioner’s 	reference 	to 	plausibility 	and 	likelihood 	demonstrates 	his
misunderstanding of the demanding nature of Schlup—and he is simply wrong when he asserts
that the Schlup standard is “more lenient compared to the standard for insufficient evidence.” (Id.
(citing Schlup, 513 U.S. at 330).) Schlup, to the contrary, requires the petitioner to show that “it is
more likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” Schlup, 513 U.S. at 327. While this standard is lower than the “clear and convincing”
evidence required in other contexts, it is higher than the “sufficiency” standard required for a
constitutional conviction, as set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Hubbard, 98
F.th at 744. That is, “Jackson asks whether sufficient evidence exists such that the government
could constitutionally convict. Schlup asks whether the petitioner actually committed the crime.”
Id.
In short, the petitioner’s purported new evidence is not sufficient to establish actual
innocence. Consequently, he cannot use actual innocence to excuse the untimeliness of his claim
of ineffective assistance of appellate counsel. Because the petitioner has failed to show that the MJ
Order reaching that conclusion is contrary to law, his Objections to that part of the MJ Order will
be overruled.
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IV. 	CONCLUSION
For the reasons set forth herein, the petitioner’s Objections will be overruled in part, and
the MJ Order will be affirmed in part and modified in part. The court will set aside that portion of
the MJ Order finding the petitioner’s proposed Brady claim to be untimely and denying the Motion
to Amend insofar as it seeks to amend the original Petition to bring that claim. The MJ Order will
be modified to provide that the petitioner may file his Amended Petition, with the understanding
that Count III of the Amended Petition is time-barred, and the respondent remains free to argue
that Count II is procedurally barred.
An appropriate Order is filed herewith.
ALETA A. TRAUGER
United States District Judge
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