Nelson v. Fitz

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JARAME NELSON,
a/k/a Tarence Nelson,
Petitioner,
v. Case No. 2:20-cv-02557-MSN-tmp
JOHNNY FITZ,
Respondent.
ORDER GRANTING RESPONDENT’S MOTIONS TO SUBSTITUTE ATTORNEY
(ECF NO. 72) AND TO FILE A RESPONSE (ECF NO. 73), DIRECTING THE CLERK
TO MODIFY DOCKET, DENYING PETITIONER’S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(B)(6) (ECF
NO. 70), TRANSFERRING MOTION (ECF NO. 70) TO THE SIXTH CIRCUIT AS A
SECOND OR SUCCESSIVE PETITION, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
APPEAL
Before the Court is Petitioner Jarame Nelson’s1 pro se Motion for Relief from Judgement
Pursuant to Federal Rule of Civil Procedure 60(b) (ECF No. 70), filed August 27, 2026. Petitioner
asks the Court to reconsider its March 31, 2025, order (ECF No. 61) denying his Petition for Writ
of Habeas Corpus (ECF No. 1). Also before the Court are Respondent’s Motion to Substitute
Attorney (ECF No. 27); Motion to for Leave to File a Response (ECF No. 73); and Response to
the Rule 60(b) Motion (ECF No. 74). For good cause shown, Respondent’s Motions (ECF No.
72 & 73) are GRANTED. The Clerk SHALL terminate Senior Assistant Attorney General
Nicholas S. Bolduc as counsel of record for Respondent and designate Deputy Attorney General
1 Petitioner is in the custody of the Tennessee Department of Correction (“TDOC”)
(prisoner number 352541). He is incarcerated at the West Tennessee State Penitentiary
(“WTSP”) in Henning, Tennessee.
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John Bledsoe in his place. For the reasons below, Petitioner’s Rule 60(b) Motion (ECF No. 70)
is DENIED and TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for
further consideration as a proposed second or successive § 2254 petition.
BACKGROUND
Petitioner is serving two consecutive life sentences for the murders of Tonya Johnson and
their unborn child; Ms. Johnson was eight months pregnant with Petitioner’s child when she died.
See State v. Nelson, No. W2011-02222-CCA-R3-CD, 2013 WL 12185279, at *1 (Tenn. Crim.
App. May 24, 2013). The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the denial
of Petitioner’s state post-conviction petition. See Nelson v. State, No. W2017-02063-CCA-R3-
PC, 2019 WL 3777030 (Tenn. Crim. App. Aug. 12, 2019).
At the post-conviction evidentiary hearing, Petitioner testified that he hid his 9-millimeter
handgun, the victim’s Sig Sauer handgun, the victim’s cell phone, and the victim’s computer under
a shed in Murfreesboro, Tennessee. Id. at *6. Petitioner told trial counsel where these items
were located, and counsel retrieved two firearms. Id. Petitioner testified that his 9-millimeter
handgun had a hair trigger and that counsel should have obtained ballistics testing to determine
whether the retrieved gun had a hair trigger. Id. On post-conviction appeal, the TCCA rejected
Petitioner’s claim that counsel was ineffective for not submitting the handgun to ballistics testing.
Id. at *9–10.
Petitioner then returned to state court, filing three error coram nobis petitions, two motions
to reopen his post-conviction proceedings, and one petition for post-conviction fingerprint
analysis. While these actions were ongoing, Petitioner disclosed—a decade after the offense
occurred—that the Sig Sauer handgun allegedly used by the victim, as well as its magazines, were
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inside his desktop computer, which was in police custody. When the items were located inside
the computer, no latent fingerprints and no usable DNA evidence were found. See Nelson v. State,
W2024-01516-CCA-R3-ECN, 2025 WL 1013955, at *1-3 (Tenn. Crim. App. Apr. 3, 2025).
Petitioner filed his § 2254 Petition in this Court on July 30, 2020. (ECF No. 1.) Relevant
here, Petitioner raised four ineffective assistance claims based on counsel’s conduct regarding the
firearms found under the shed (Claims 4, 5, 6, and 9). The Court denied Petitioner’s § 2254
Petition on March 31, 2025. (ECF No. 61.) The Court concluded that Claims 4, 5, and 6 were
procedurally defaulted. (Id. at PageID 2382–88.) The Court denied Claim 9 on the merits,
deferring to the TCCA’s factual determination that, despite the trial court’s finding to the contrary,
the 44-millimeter handgun found under the shed was not proven to be the handgun Petitioner used
to shoot the victim. (Id. at PageID 2401–03.)
Petitioner subsequently appealed, and the Sixth Circuit denied his application for a
certificate of appealability (“COA”) on January 14, 2026. (ECF No. 68.) Petitioner’s petition
for writ of certiorari to the United States Supreme Court remains pending. (ECF No. 71.)
THE RULE 60(b) MOTION
Petitioner returned to this Court on August 26, 2026, with his Rule 60(b) Motion. (ECF
No. 70.) Petitioner seeks relief under Rule 60(b) “on the grounds that this Court’s March 31,
2025[,] order was based on a fundamental misapprehension of the state court record.” (Id. at
PageID 2451.) Specifically, Petitioner argues:
[T]he Court’s denial of [his] claims [were] predicated on two demonstrable factual
errors: (1) the Court’s erroneous finding that [Petitioner’s] trial counsel did not
possess the murder weapon, which is directly contradicted by the Shelby County
Post-Conviction Court’s explicit finding that counsel did possess the murder
weapon; and (2) the Court’s failure to consider the 2023 recovery of the victim’s
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firearm (a Sig Sauer P229) from state custody, an event that was documented in the
state court record before this Court.
(Id.) Petitioner asserts that the Sixth Circuit’s denial of a COA “compounded this Court’s factual
errors by stating that [Petitioner] ‘fails to show the gun actually was found’—a conclusion that is
plainly contradicted by the state court record.” (Id. at PageID 2458.) According to Petitioner,
“[t]his cascading factual misapprehension . . . demonstrates a systemic defect in the integrity of
the federal habeas proceedings.” (Id.) He argues that these errors were not harmless because
“they formed the sole basis for the denial of [his] ineffective assistance of counsel claims.” (Id.)
As relief, Petitioner asks that the Court grant his Rule 60(b) Motion, vacate its March 31, 2025,
order, and reconsider his claims “in light of the correct state court record.” (Id. at PageID 2460.)
Petitioner also asks that the Court “grant an evidentiary hearing to resolve the material factual
conflicts regarding the firearms.” (Id.)
In response, Respondent argues that to the extent Petitioner’s motion concerns the Court’s
rejection of Claim 9 on the merits, “the Court should treat the motion as a second or successive
habeas corpus petition and transfer it to the United States Court of Appeals for that court’s
consideration on whether to authorize a second or successive petition.” (ECF No. 74 at PageID
2480.) To the extent the motion concerns the Court’s resolution of Claims 4, 5, and 6, Respondent
argues the Court should deny the motion “because the [motion] is untimely and [Petitioner] has
not proven extraordinary circumstances for post-judgment relief.” (Id.)
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ANALYSIS
Federal Rule of Civil Procedure 60(b) provides:
On motion and just terms, the court may relief a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under [Fed. R. Civ. P] 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “As a prerequisite to relief under Rule 60, a party must establish that the
facts of its case are within one of the enumerated reasons contained in Rule 60(b) that warrant
relief from judgment.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004) (quoting
Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993)).
Here, Petitioner brings his motion pursuant to Rule 60(b)(6)—the catchall provision. This
provision applies only in “exceptional and extraordinary circumstances where principles of equity
mandate relief.” Miller v. Mays, 879 F.3d 691, 698 (6th Cir. 2018) (citation modified). “Such
circumstances will rarely occur in the habeas context.” Gonzalez v. Crosby, 545 U.S. 524, 535
(2005); see also Tanner v. Yukins, 776 F.3d 434, 446 (6th Cir. 2015). “In addition to exceptional
circumstances, principles of equity [must] mandate relief for subsection (b)(6) to apply.
Accordingly, the movant must show: (1) lack of prejudice to the non-moving party; (2) a
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meritorious defense; and (3) lack of culpability for the adverse judgment.” Travelers Cas. and
Sur. of Am. v. J.O.A. Constr. Co., Inc., 479 F. App’x 684, 690 (6th Cir. 2012) (citation modified).
Because public policy favors the finality of judgments, relief under Rule 60(b)(3) or Rule 60(b)(6)
requires clear and convincing evidence. See id.
“When faced with a Rule 60(b) motion filed in response to the denial of an application for
habeas relief, the district court must first determine whether the petitioner is only seeking Rule
60(b) relief or is attempting to file a second or successive habeas application.” Webb v. Davis,
940 F.3d 892, 897 (5th Cir. 2019) (citing Gonzalez, 545 U.S. at 531–32). The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241 et seq., limits the
circumstances under which a state prisoner may file a second or successive application for habeas
relief, and requires that the prisoner first “move in the appropriate court of appeals for an order
authorizing the district court to consider” a second or successive habeas application. 28 U.S.C. §
2244(b)(3)(A). Under the AEDPA, a district court does not have jurisdiction to consider a
petitioner’s “second or successive” habeas petition unless the petitioner first obtains authorization
from the appropriate Court of Appeals. Burton v. Stewart, 549 U.S. 147, 152–53 (2007). “A
motion under Rule 60(b) may be treated as a second or successive habeas petition if necessary to
enforce the requirements of the AEDPA.” Tyler v. Anderson, 749 F.3d 499, 506 (6th Cir. 2014).
That necessity arises when the motion “asserts a federal basis for relief from the state court's
judgment of conviction by seek[ing] to add a new ground for relief or attack[ing] the federal court’s
previous resolution of a claim on the merits.” Id. (citation modified).
Here, Respondent argues that Petitioner’s “primary request from this Court is a reopening
of his judgment and then relitigation of this Court’s merits-rejection of his ineffective-assistance
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claim asserted in Claim 9.” (ECF No. 74 at PageID 2489.) The Court agrees with Respondent’s
characterization. Petitioner takes issue with the Court’s repeated conclusions that “trial counsel
did not possess the murder weapon,” arguing that these findings “are directly contradicted by the
Shelby County Post-Conviction Court’s factual finding” that trial counsel did possess the weapon
used to murder the victims. (ECF No. 70 at PageID 2456.) Petitioner argues that the Court “did
not simply disregard the state court’s finding; it affirmatively contradicted it without
acknowledging the discrepancy or explaining why the presumption of correctness was overcome.”
(Id. at PageID 2457.)
Petitioner is correct that in its order denying post-conviction relief, the post-conviction
court stated: “The gun used to kill the victim was still in the possession of the attorney at the time
of the hearing, as he had been told where it had been hidden by the petitioner after the killing . . .
.” (ECF No. 20-12 at PageID 1059.) Petitioner, however, overlooks the opinion issued by the
TCCA affirming the denial of his post-conviction petition. The TCCA explicitly noted:
While we agree the petitioner has failed to meet his burden, we also note that the
record does not support the trial court’s factual determination concerning whether
trial counsel possessed the murder weapon. At the hearing, the petitioner testified
that the firearm in trial counsel’s possession after searching under the shed was a
“HK USP 9 millimeter,” the same firearm used to shoot the victim. Contrastingly,
trial counsel testified the two firearms he found were a “44 millimeter handgun”
and a “12 gauge shotgun.” Trial counsel also testified the firearm he retrieved and
tested did not have a “hair trigger,” an alleged characteristic of the firearm the
petitioner used to shoot the victim. Based on the conflicting testimony and the fact
the firearm at issue was not introduced, the petitioner failed to prove his factual
allegation, that trial counsel possessed the murder weapon, by clear and convincing
evidence. Thus, the evidence preponderates against the post-conviction court’s
finding of fact.
Nelson, 2019 WL 3777030, at *10. Here, because the TCCA was the last state court to issue a
reasoned opinion on this issue, the post-conviction court’s opinion was not determinative for this
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Court’s habeas review. See Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991); Willoughby v.
White, 786 F. App’x 506, 510 (6th Cir. 2019).
Petitioner also faults this Court for not “consider[ing] the 2023 recovery of the victim’s
firearm (a Sig Sauer P229) from state custody, an event that was documented in the state court
record before this Court.” (ECF No. 70 at PageID 2451.) According to Petitioner, the recovery
of this firearm “physically corroborates [his] long-maintained account of self-defense—that the
victim pointed a firearm at him before he fired.” (Id. at PageID 2457.) Petitioner suggests that
the Court’s “failure to consider this dispositive evidence in its prejudice analysis constitutes
another defect in the integrity of the federal proceedings, as the [C]ourt evaluated [his] claims
without accounting for key evidence that was present in the record before it.” (Id. at PageID
2458.) In support of this argument, Petitioner references the Shelby County Criminal Court’s
September 17, 2024, order, which stated that the Sig Sauer was discovered concealed inside a
computer and submitted to the Tennessee Bureau of Investigation (“TBI”) for testing. (Id. at
PageID 2457.)
A Rule 60(b) motion that “seek[s] leave to present ‘newly discovered evidence’ . . . in
support of a claim previously denied” is, in substance, “a successive habeas petition and should be
treated accordingly.” Gonzalez, 545 U.S. at 531. Likewise, a Rule 60(b) motion asserts a new
claim for relief if it “attacks the federal court’s previous resolution of a claim on the merits, since
alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable
from alleging that the movant is, under the substantive provisions of the statute, entitled to habeas
relief.” Id. at 532. Here, Petitioner seeks relief from judgment on Claim 9 by both presenting
newly discovered evidence and attacking the Court’s merits resolution. Petitioner’s Rule 60(b)
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Motion “is in substance a successive habeas petition” reasserting his previously rejected Claim 9,
and “should be treated accordingly.” Id. at 531.
Respondent also argues that Petitioner cannot satisfy “the narrow requirements of Rule
60(b)” to seek post-judgment relief on Claims 4, 5, or 6. (ECF No. 74 at PageID 2491.)
According to Respondent, even though Petitioner relies on the catchall provision in 60(b)(6), his
motion should be construed as seeking relief under 60(b)(1), which provides for relief due to
“mistake, inadvertence, surprise, or excusable neglect,” and/or 60(b)(2), which provides for relief
based on “newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b).” (Id.) To the extent Petitioner’s
Rule 60(b) Motion is brought under these two subsections, it is untimely. Motions under
subsections (1), (2), and (3) must be brought “no more than a year after the entry of the judgment
or order or the date of the proceeding.” See Fed. R. Civ. P. 60(c). The Court entered judgment
on March 31, 2025, and Petitioner filed his Rule 60(b) Motion more than one year after.
Nor is Petitioner entitled to relief under Rule 60(b)(6) because he fails to demonstrate that
extraordinary circumstances exist to warrant such relief. Petitioner was well aware of the
TCCA’s factual determination regarding the finding of the firearm before he filed his motion.
Likewise, of the three exhibits Petitioner has attached to his Rule 60(b) Motion, two were filed in
this Court prior to the denial of his § 2254 Petition. (See ECF Nos. 45, 56-2, 70-1.) And
Petitioner had access to the third document while the § 2254 Petition was pending before the Court
and provides no explanation for his failure to submit it at that time.
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CONCLUSION
Petitioner’s attack on the Court’s ruling on the merits of Claim 9 is not properly presented
as a Rule 60(b) motion but is instead a second or successive habeas claim requiring authorization
from the Sixth Circuit to pursue. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not obtained that
authorization. The Rule 60(b) Motion (ECF No. 70) is therefore TRANSFERRED to the Sixth
Circuit for further consideration as a proposed second or successive § 2254 petition. To the extent
Petitioner properly seeks post-judgment relief under Rule 60(b), the Motion (ECF No. 70) is
DENIED.
APPELLATE ISSUES
A certificate of appealability (“COA”) is required “not only to appeal the initial denial of
a writ of habeas corpus, but also to appeal from the denial of a motion brought pursuant to Rule
60(b).” Johnson v. Bell, 605 F.3d 333, 336 (6th Cir. 201); see 28 U.S.C. § 2253(c)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right, and the COA must indicate the specific issue or issues that satisfy the required showing.
See 28 U.S.C. § 2253(c)(2)–(3). A “substantial showing” is made when the petitioner
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
[motion] should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Here, reasonable jurists could not debate the correctness of the Court’s decision to deny
Petitioner’s Rule 60(b) motion on the ground that it lacks merit. Because any appeal by Petitioner
does not deserve attention, the Court DENIES a COA.
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Additionally, Federal Rule of Civil Procedure 24(a)(1) provides that a party seeking pauper
status on appeal must first file a motion in the district court, along with a supporting affidavit.
However, if the district court certifies that an appeal would not be taken in good faith, or otherwise
denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in forma
pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5). Here, for the same reasons the
Court denies a COA, the Court determines that any appeal would not be taken in good faith. It is
therefore CERTIFIED, pursuant to Rule 24(a), that any appeal in this matter would not be taken
in good faith and leave to appeal in forma pauperis is DENIED.2
IT IS SO ORDERED, this 15th day of October, 2026.
s/ Mark S. Norris
MARK S. NORRIS
UNITED STATES DISTRICT JUDGE
2 If Petitioner files a notice of appeal, he may pay the full appellate filing fee or file a
motion for leave to proceed in forma pauperis and supporting affidavit in the United States Court
of Appeals for the Sixth Circuit within 30 days of the date of entry of this Order. See Fed. R.
App. P. 24(a)(5).
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