Jones v. Pounds

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
HENRY LEE JONES,
Petitioner,
v.
KENNETH NELSEN, Warden,1
Respondent.
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No. 3:23-cv-01063
Judge Aleta A. Trauger
CAPITAL CASE
MEMORANDUM
Former Magistrate Judge Alistair Newbern filed a Report and Recommendation (“R&R”)
(Doc. No. 30), which recommends (1) that petitioner Henry Lee Jones’s Renewed Motion to Stay
and Abey Proceedings (“Motion to Stay”) (Doc. No. 26) be granted and that Jones’s Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. No. 1) be held in abeyance while Jones
exhausts his post-conviction remedies in state court, as required by the Antiterrorism and Effective
Death Penalty Act (AEDPA), and (2) that the respondent’s request either to dismiss Jones’s § 2254
petition without prejudice or transfer it to the United States District Court for the Western District
of Tennessee be denied.
The respondent opposed Jones’s Motion to Stay (Doc. No. 27) and has now filed an
Objection to the R&R (Doc. No. 33) in which he continues to argue that the court should dismiss
Jones’s petition rather than hold it in abeyance and, alternatively, that the petition should be
1 The court takes judicial notice that Kenneth Nelsen is currently the Warden of Riverbend
Maximum Security Institution where the petitioner is currently incarcerated. Because the former
Warden was sued in his official capacity only, Kenneth Nelsen, the present Warden, is
automatically substituted as the appropriate respondent in this action, pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure.
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transferred to the Western District. Jones, through appointed counsel, has filed a Response to the
Objection. (Doc. No. 34.)2
For the reasons set forth herein, the court will reject the R&R, deny the Motion to Stay,
and dismiss this case without prejudice.
I. 	LEGAL STANDARDS
When a party files timely objections to a magistrate judge’s ruling on a dispositive matter,
the district court must review de novo any portion of the report and recommendation to which
objections are “properly” lodged. Fed. R. Civ. P. 72(b) (3); 28 U.S.C. § 636(b)(1)(B) & (C). In
conducting its review, the district court “may accept, reject, or modify the recommended
disposition; 	receive 	further 	evidence; 	or 	return 	the matter 	to 	the 	magistrate judge 	with
instructions.” Fed. R. Civ. P. 72(b)(3).
The Magistrate Judge recognized that the disposition of a stay-and-abey motion can be
dispositive of habeas petitions and, therefore, addressed the motion by report and recommendation
rather than an order. Accord Brian R. Means, Federal Habeas Manual § 9C:70 (2024 ed.) (“Without
consent of the parties, magistrate judges lack jurisdiction to deny motions to stay and abey § 2254
proceedings to allow the prisoner to exhaust state court remedies.”). The respondent seeks de novo
review of the R&R, and the petitioner does not address the appropriate standard of review. The
court finds that de novo review of the legal issues raised by the respondent’s Objection is
2 More recently, Jones has also filed a pro se Notice “RE: Defendant Henry Lee Jones[’]
request for application – form T.C.A. § 40-26-105(A)(B) Writ of Error Coram Nobis.” (Doc. No.
35.) Jones appears to take issue with his state post-conviction counsel’s purported refusal to file a
Writ of Error Coram Nobis in the state court on his behalf, in order to raise an issue of newly
discovered exculpatory records. Because the petitioner is represented by counsel and because the
issue raised is one that must first be presented to the Tennessee state courts, this court will not
consider Jones’s Notice.
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appropriate, irrespective of whether the underlying motion is characterized as dispositive or
nondispositive.
II. 	PROCEDURAL HISTORY
In 2003, Jones robbed and murdered an elderly couple in their home near Memphis. In
2009, he was convicted of two counts of first degree premeditated murder and two counts of first
degree felony murder. The jury imposed the death penalty on all four counts. The trial court merged
each of the felony murder convictions into the corresponding premeditated murder conviction and
imposed two death sentences. The Tennessee Supreme Court reversed and remanded based on a
prejudicial evidentiary ruling. State v. Jones, 450 S.W.3d 866 (Tenn. 2014). Jones was retried in
May 2015 and again convicted and sentenced to death. The Tennessee Supreme Court affirmed,
and the U.S. Supreme Court denied review on October 7, 2019. State v. Jones, 568 S.W.3d 101
(Tenn.), cert. denied, 589 U.S. 980 (2019).
Jones, assisted by the Office of the Post-Conviction Defender (“OPCD”), filed a pro se
petition for post-conviction relief in the state court on December 26, 2019, less than three months
after the Supreme Court denied review. Jones v. State, No. W2020-01347-CCA-R10-PD, 2022
WL 601074, at *1 (Tenn. Crim. App. Mar. 1, 2022). Finding that the pro se petition stated
colorable claims, the post-conviction court appointed the OPCD to represent Jones and directed it
to file an amended petition within thirty days. Shortly thereafter, the effects of the COVID-19
pandemic began to “impact and impede the day-to-day operations of parts of the Tennessee court
system.” Id. at *1. In September 2020, after the OPCD had already been granted several extensions
of the deadline to file an amended petition, the post-conviction court, sua sponte, removed the
OPCD as petitioner’s counsel for failing to timely file an amended petition and appointed two local
private attorneys to represent Jones in the post-conviction proceedings. See id. at *3. Jones sought
and was granted an extraordinary appeal, and, in March 2022, the Tennessee Court of Criminal
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Appeals reversed, reinstated the OCPD as counsel of record for Jones, and remanded the case for
further proceedings, expressly directing the OCPD that it was “time to get busy.” Id. at *10. It
appears that no amended petition had been filed by that time.
In April 2023, the Tennessee General Assembly passed 2023 Tenn. Pub. Acts ch. 182 (“the
Act”), which, as now codified, gives the Tennessee Attorney General “exclusive control over the
state’s defense of the request for collateral review” in all “cases where a defendant has been
sentenced to death and is seeking collateral review of a conviction or sentence.” Tenn. Code Ann.
§ 40-30-114(c)(1). Jones and the District Attorney for Shelby County filed motions to disqualify
the Tennessee Attorney General’s Office from representing the state in Jones’s post-conviction
proceedings, arguing that the Act violated the federal and state constitutions. Jones v. State, No.
W2025-01838-CCA-R10-PD, 2026 WL 289263, at *2 (Tenn. Crim. App. Feb. 4, 2026).
It appears that the OPCD still had not filed an amended petition by that time, but the post-
conviction court stayed Jones’ proceedings pending the outcome of an interlocutory appeal in
another case challenging the Act on similar constitutional grounds. Id. In October 2024, the
Tennessee Court of Criminal Appeals ruled in the other case that the Act did not “violate Article
VI, § 5 [of the Tennessee Constitution] by transferring representation of the State in trial-level
capital collateral review proceedings from the locally elected district attorney to the Attorney
General.” Id. (quoting McKay v. State, No. W2023-01207-CCA-R9-CO, 2024 WL 4404318, at
*12 (Tenn. Crim. App. Oct. 4, 2024), vacated in part, 706 S.W.3d 338 (Tenn. 2025)). Following
that ruling, the post-conviction court held a hearing in July 2025 to address Jones’s and the Shelby
County District Attorney’s additional challenges to the Act that had not been resolved in McKay.
Id. In August 2025, the court denied the disqualification motions and then, in October 2025, denied
the petitioner’s motion for permission to seek an interlocutory appeal. Id. In November 2025, Jones
filed an application for an extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate
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Procedure. The Tennessee Court of Criminal Appeals denied that application on February 4, 2026.
Id. at *5.
Regardless, apparently dissatisfied with the pace of proceedings in the state courts, Jones
filed his pro se § 2254 petition in this court on October 11, 2023 (while his post-conviction case
in Shelby County Criminal Court was stayed pending the interlocutory appeal in McKay). (Doc.
No. 1.) On the same date, in the same envelope, Jones filed a separate Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2241, raising essentially the same challenges as those asserted in his
§ 2254 petition. That case was terminated and the § 2241 petition was refiled in this case as a
supplemental petition. (See Doc. No. 12.)
Jones asserts the following grounds for relief in his § 2254 petition: (1) “Jurisdiction
violation (fast speedy trial U.S. 6th Amend. violation) Failure to hold a trial within 180 days”; and
(2) “Jurisdiction violation.” (Doc. No. 1 at 5.) He does not state any facts in support of his
“Jurisdiction violation” claim and instead simply reiterates “Jurisdiction violation.” (Id.) He asserts
that neither of these claims was raised on direct appeal. (Id. at 5–6.)3 In the construed supplemental
petition, he asserts the same “speedy trial” claim, as well as claims that Tennessee’s failure to try
him within 180 days violated the state’s extradition agreement with Florida. (Doc. No. 12 at 6.)
He also asserts that he was arrested without a warrant, that the state failed to “handover the crime
scene 911 dispatcher discovery record of the state witness who found the crime scene” or the
“Bartlett[, Tennessee] police first responder (Officer Phillips Devers) 911 crime scene discovery
3 The Tennessee appellate decisions indicate that these claims were not raised in his direct
appeal to the Tennessee Court of Criminal Appeals or the Tennessee Supreme Court.
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records,” and that his appellate counsel failed to raise any of these issues on appeal, despite the
petitioner’s request. (Id. at 8.)
In February 2024, the court appointed the Federal Public Defender to represent the
petitioner. (Doc. No. 15). The court administratively terminated the petitioner’s first Motion to
Stay and Abey Proceedings, with leave to refile, based on the petitioner’s failure to support the
motion with a memorandum of law. (Doc. Nos. 18, 21.) The petitioner thereafter filed his Renewed
Motion to Stay with a supporting Memorandum. (Doc. Nos. 26, 26-1.) The respondent filed a
Response opposing the motion and asking the court to dismiss the petition as premature and,
alternatively, to transfer it to the Western District of Tennessee. (Doc. No. 27.) The petitioner filed
a Reply brief in further support of his Motion to Stay (Doc. No. 28). As noted above, the R&R
recommends that the case be stayed and that the respondent’s requests for dismissal, and
alternatively transfer, be denied. The respondent’s Objection raises the same arguments as his
Response to the Motion to Stay.
III. 	DISCUSSION
A. 	Whether this Court Has the Discretion to Stay and Abey Proceedings
It is well established as a general matter that a § 2254 habeas petition “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). In Rose v. Lundy, 455 U.S. 509, 510 (1982), the Supreme Court
construed this provision as imposing a “total exhaustion requirement,” meaning that district courts
were required to dismiss petitions that contained any unexhausted claims. When Lundy was issued,
however, “there was no statute of limitations on the filing of federal habeas corpus petitions. As a
result, petitioners who returned to state court to exhaust their previously unexhausted claims could
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come back to federal court to present their perfected petitions with relative ease.” Rhines v. Weber,
544 U.S. 269, 274 (2005).
The enactment of AEDPA in 1996 “dramatically altered the landscape” by establishing a
one-year statute of limitations for habeas petitions under § 2254. Id. As the court explained in
Rhines, “[a]s a result of the interplay between AEDPA’s 1-year statute of limitations and Lundy’s
dismissal requirement, petitioners who come to federal court with ‘mixed’ petitions”—petitions
containing both exhausted and unexhausted claims—“run the risk of forever losing their
opportunity for any federal review of their unexhausted claims.” Id. at 275. Confronted with this
issue in Rhines, the Supreme Court held that, under certain circumstances, district courts have the
discretion to stay and hold mixed petitions in abeyance to allow petitioners to exhaust their
unexhausted claims in state court and then return to federal court. Id. at 275–77. The Court
cautioned against overuse of the stay-and-abey procedure, recognizing its potential to undermine
AEDPA’s purposes of encouraging finality and streamlining that process by requiring total
exhaustion. Id. at 277. Accordingly, the Court held that the process may be used only if the
petitioner can show good cause for his failure to exhaust all claims, that the unexhausted claims
have some possible merit, and that the petitioner was not intentionally delaying proceedings. Id.
at 277–78; see id. at 278 (“[I]t likely would be an abuse of discretion for a district court to deny a
stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”).
Rhines did not confront the precise issue presented here—whether a district court has
discretion to stay and hold in abeyance a habeas petition containing only unexhausted claims.
However, at least four federal appellate courts have held that district courts retain such discretion
in that context as well. See Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016); Doe v. Jones, 762
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F.3d 1174, 1177 (10th Cir. 2014); Heleva v. Brooks, 581 F.3d 187, 191 (3d Cir. 2009); Dolis v.
Chambers, 454 F.3d 721, 724 (7th Cir. 2006).
The Sixth Circuit has not expressly addressed the issue, but it has suggested that it would
approve the procedure. In Robinson v. Horton, the court recognized that other circuit courts have
“found it appropriate” to apply the “stay and abeyance” procedure approved in Rhines “for
petitions containing solely unexhausted claims.” 950 F.3d 337, 347 (6th Cir. 2020). In Robinson,
the court was presented with a petition that was “initially a mixed petition” containing several
exhausted and one unexhausted claim. Id. The district court dismissed all claims, including the
unexhausted claim, and the Sixth Circuit issued a Certificate of Appealability with respect only to
the unexhausted claim. Id. at 342. Thus, for purposes of the appeal, the petition contained “just
one unexhausted claim, since all of the other claims ha[d] previously been dismissed.” Id. at 347.
Because the remaining claim was plainly meritorious, and there was still an avenue open to the
petitioner for exhausting it in the state courts, the Sixth Circuit remanded to the district court with
instructions 	to 	consider 	whether 	“to 	dismiss 	[the] 	petition 	(now 	consisting 	of 	only 	the
[unexhausted] sentencing claim) without prejudice for failure to exhaust, or to stay the petition and
hold it in abeyance while [the petitioner] returns to state court to exhaust that claim.” Id. The court
specifically noted that abeyance “is appropriate only ‘when the district court determines there was
good cause for the petitioner’s failure to exhaust his claims first in state court’ and when the claims
are not ‘plainly meritless.’” Id. (quoting Rhines, 544 U.S. at 277).4 The court did not suggest that
4 On remand, the district court exercised its discretion to stay the case and hold the petition
in abeyance while the petitioner properly exhausted his sentencing claim in the state courts.
Robinson v. Horton, No. 2:16-CV-12721, 2020 WL 9065824, at *1 (E.D. Mich. May 18, 2020).
The decision to stay the case was largely based on the court’s concern that “a second, exhausted
habeas petition would be time barred by the AEDPA’s statute of limitations”; the court also found
that the failure to exhaust could be attributed to the ineffective assistance of appellate counsel and
that the claim was not “plainly meritless.” Id. at *1–2 (quoting Wagner v. Smith, 581 F.3d 410,
419 (6th Cir. 2009)).
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the outcome would have been any different if the petitioner, from the outset, had only brought the
unexhausted claims. See also Hickey v. Hoffner, 701 F. App’x 422, 427 (6th Cir. 2017) (reaching
the same conclusion in a similarly postured case).
The respondent in this case argues that “there is no binding authority that dictates Rhines
applies to wholly unexhausted petitions” and that the Sixth Circuit has “only vaguely indicated
that Rhines may apply in the case of a petition containing only unexhausted claims.” (Doc. No. 33
at 3, 4.) As indicated above, the respondent is correct that Sixth Circuit does not appear to have
squarely addressed the situation presented here—whether to apply Rhines to a petition in which
all of the claims presented in the petition are unexhausted. Those circuit courts that have addressed
this issue, however, have uniformly concluded that district courts have the discretion to grant such
stays, and this court finds their reasoning persuasive. As the Supreme Court noted in Rhines, and
the Ninth Circuit emphasized in Mena, “[d]istrict courts do ordinarily have authority to issue stays
where such a stay would be a proper exercise of discretion.” Mena, 813 F.3d at 910 (quoting
Rhines, 544 U.S. at 276). Moreover, “AEDPA does not eliminate district courts’ authority to issue
stays in habeas proceedings, but rather—at least in cases of mixed petitions—limits it to when ‘the
petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation
tactics.” Id. (quoting Rhines, 544 U.S. at 278). Like the Ninth Circuit, this court finds “no authority
eliminating the district courts’ presumed discretion to issue stays in cases of fully unexhausted
petitions” and presumes that the “limits on that discretion . . . set forth in Rhines” would also apply
in the context of unexhausted petitions. Id.
The Supreme Court’s decision in Pace v. DiGuglielmo, 544 U.S. 408 (2005), further
substantiates that conclusion, as the Ninth Circuit also recognized. In Pace, the Supreme Court
decided that AEDPA’s one-year statute of limitations is not tolled when a petitioner files an
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untimely state court post-conviction petition. 544 U.S. at 414. The Court went on to conclude that
a prisoner seeking postconviction relief might avoid the possibility that his federal habeas petition
will be time-barred based on this lack of tolling by
filing a “protective” petition in federal court and asking the federal court to stay
and abey the federal habeas proceedings until state remedies are exhausted. A
petitioner’s reasonable confusion about whether a state filing would be timely will
ordinarily constitute “good cause” for him to file in federal court.
Id. at 416 (internal citation omitted). The Ninth Circuit found it important that the petition at issue
in Pace “was not mixed, and the Court gave no indication that its statement applied only to mixed
petitions.” Mena, 813 F.3d at 910–911 (citing Heleva, 581 F.3d at 191). And, that court concluded:
[i]t would be odd, to say the least, for the Supreme Court to suggest a stay procedure
to a petitioner who could not have used it, and to recommend this course of action
without any mention that it could apply only to a mixed petition. We can only
conclude that the Court expected Rhines to apply to fully unexhausted petitions.
Id. at 911 (alterations, internal quotation marks, citations, and footnote omitted).
In sum, it is clear to this court that it has the discretion to stay and abey a wholly
unexhausted § 2254 petition. Whether the court should exercise its discretion to stay, rather than
to dismiss without prejudice, is a wholly different question.
B. 	Whether It Is Appropriate to Stay and Abey in this Case
In the opinions finding that district courts have authority to stay and abey habeas petitions
containing unexhausted claims, the appellate courts have focused on avoiding situations in which
“petitioners who are denied stays run the risk of forever losing federal review of their claims.”
Mena, 813 F.3d at 911; see also Doe, 762 F.3d at 1181 (“Whether they have mixed or unmixed
petitions, petitioners with little chance of exhausting their claims in state court and returning to
federal court before the limitations period runs should not be foreclosed from the very mechanism
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designed to protect against such risk if they can satisfy the Rhines standards.”). In that situation,
as Pace suggests, it may be appropriate to file a “protective” petition. Pace, 544 U.S. at 416.
In this case, the court takes notice that Jones has no valid statute of limitations concerns—
and no reasonable confusion about the running of the statute of limitations—that necessitate the
filing of a “protective” petition and invoking the stay-and-abey procedure. For purposes of the
running of the statute of limitations to file a habeas petition under 28 U.S.C. § 2254, Jones’s
conviction became final on the date the U.S. Supreme Court denied review, October 7, 2019. See
28 U.S.C. § 2244(d)(1)(A) (“The limitation period shall run from the latest of . . . the date on which
the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review[.]”). Although more than six years have passed since that date, “[t]he time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.” Id. § 2244(d)(2).
In this case, the record indicates that Jones filed his timely initial post-conviction petition,
with the assistance of the OCPD, on December 26, 2019, less than three months after his conviction
became final. See Jones, 2022 WL 601074, at *1. That petition has never been ruled on, and it is
clear that the statute of limitations has been tolled ever since that date—meaning that Jones will
still have more than nine months (of the original one-year period) to file his federal § 2254 petition
after termination of his state post-conviction proceedings. Given this circumstance, Jones cannot
establish any confusion about the statute of limitations or “good cause” for failing to exhaust state
remedies before filing his habeas petition in this court. While the state proceedings have followed
an unusually protracted course—with counsel’s substantial delay in filing the amended petition,
an interlocutory appeal that entailed a lengthy stay of the proceedings in the post-conviction court,
and another stay while the post-conviction court awaited the resolution of an appeal in McKay—
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the only reason Jones has not exhausted any claims is because he has not allowed his post-
conviction proceedings to play out. There is no need to consider whether Jones should “return” to
state court to attempt to exhaust his claims, because he has never left the state court.
In other words, although Jones’ state post-conviction proceedings are taking an unusually
long time, his case is otherwise a mill-run case in which the petitioner should simply fully pursue
his post-conviction remedies through any final appeal before seeking habeas relief in federal court.
The statute of limitations concerns raised in both Rhines and Pace, as well as the other opinions
finding that district courts have discretion to stay and abey habeas proceedings—whether they
raise “mixed” claims or wholly unexhausted claims—are not at issue here, and there is no equitable
need or reason to stay this case. Jones’s post-conviction process is not likely to conclude anytime
soon, and there is simply no reason for this court to hold his petition in abeyance for, potentially,
many years. To be sure, it is unclear at this juncture whether Jones’s post-conviction petition raised
the claims Jones has articulated in his present petition. If not, those claims may never be exhausted,
but that does not provide a reason to stay the present proceedings.
Accordingly, the court will reject the R&R’s recommendation that this case be stayed and
held in abeyance while the petitioner exhausts his state post-conviction remedies. The court will,
instead, exercise its discretion to dismiss the petition in its entirety without prejudice. Accord
Harris v. Lafler, 553 F.3d 1028 (6th Cir. 2009) (identifying dismissal of the entire petition without
prejudice as an option for courts presented with unexhausted claims (citing Rhines, 544 U.S. at
274)). Having reached that conclusion, the court has no need to address whether the case should
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be transferred to the Western District of Tennessee (consistent with the uniform practice of
Tennessee district courts).
IV. 	CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases requires a district court to issue or
deny a certificate of appealability (“COA”) when it enters a final order adverse to a petitioner. A
petitioner may not appeal the denial of a habeas petition unless a circuit justice or judge issues a
COA. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A COA may issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where the court denies relief on procedural grounds without reaching the merits of a particular
claim, a petitioner seeking a COA must demonstrate 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).
Because the correctness of dismissal without prejudice in this case is not reasonably
debatable, the court declines to issue a COA.
V. 	CONCLUSION
For the reasons set forth herein, the court will reject the R&R (Doc. No. 30), deny the
Renewed Motion to Stay and Abey Proceedings (Doc. No. 26), and dismiss this case without
prejudice, without issuance of a COA.
An appropriate Order is filed herewith.
ALETA A. TRAUGER
United States District Judge
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