Nash v. Attorney General of the State of Tennessee

Filing 24

MEMORANDUM AND OPINION. Petitioner has filed a motion to ascertainstatus of the case [Doc. 20] that will be GRANTED to the extent that this memorandum opinion and a judgment order will enter and Respondent filed a motion to substitu te attorney [Doc. 21] that will be GRANTED for good cause shown therein. For the reasons set forth below, however, Petitioners § 2254 petition [Doc. 1] will be DENIED and this action will be DISMISSED WITH PREJUDICE. Petitioners most recent motion to substitute party [Doc. 23] will be GRANTED Signed by District Judge Harry S Mattice, Jr on 9/7/2017. (BDG, ) Memorandum mailed to Nash.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

CHARLES NASH,

)
)
)
)
)
)
)
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Petitioner,
v.
SHAWN PHILLIPS,1
Respondent.

No. 1:14-CV-246-HSM-SKL

MEMORANDUM OPINION
This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Doc. 1]. Respondent filed a response in opposition thereto, as well as a copy of the state record
[Docs. 11 and 12]. Petitioner filed a reply [Doc. 18]. Petitioner has also filed a motion to ascertain
status of the case [Doc. 20] that will be GRANTED to the extent that this memorandum opinion
and a judgment order will enter and Respondent filed a motion to substitute attorney [Doc. 21] that
will be GRANTED for good cause shown therein. For the reasons set forth below, however,
Petitioner’s § 2254 petition [Doc. 1] will be DENIED and this action will be DISMISSED WITH
PREJUDICE.
I.

PROCEDURAL HISTORY
On October 26, 2007, a Hamilton County jury found Petitioner guilty of two counts of first

degree murder and one count of especially aggravated robbery [State Court Record, Attachment 1
p. 101]. Petitioner appealed this conviction, raising only the argument that the trial court should

1

As Petitioner is now incarcerated at the Morgan County Correctional Complex, the proper
Respondent is Warden Shawn Phillips. As such, Petitioner’s most recent motion to substitute party
[Doc. 23] will be GRANTED and the Clerk will be DIRECTED to substitute Shawn Phillips as
Respondent in this matter.

have suppressed his statement to police, as Petitioner asserted that the statement violated his Fifth
Amendment right against self-incrimination because he had invoked his right to counsel before
giving the statement. State v. Nash, No. E2008-00951-CCA-R3-CD, 2009 WL 2461178, at *1
(Tenn. Crim. App. Aug. 12, 2009), perm. app. denied (Tenn. Jan 25, 2010). The Tennessee Court
of Criminal Appeals (“TCCA”) confirmed Petitioner’s conviction. Id. at 5.
Petitioner later filed a petition for post-conviction relief and an eighty-four page
memorandum in support thereof, which the state post-conviction court denied [State Court Record
Attachment 182 p. 2–86]. In his appeal of this denial, Petitioner argued that trial counsel was
ineffective for failing to pursue suppression of Petitioner’s statement, not objecting to certain
statements during the prosecution’s closing argument, and failing to develop duress as a defense
for Petitioner.3 Nash v. State, No. E2012-02511-CCA-R3, 2013 WL 5314599, at *5–8 (Tenn.
Crim. App. Sept. 20, 2013), perm. app. denied (Tenn. Feb. 12, 2014). The TCCA affirmed the
post-conviction court’s denial of relief. Id. at *8.
II.

BACKGROUND

The following factual background is taken from the TCCA’s opinion on direct appeal of
Petitioner’s conviction and it is limited only to the issue raised therein:

2

While the Court cites Petitioner’s pro se appellate brief, it appears from the Court’s
reading of the record as a whole that this was likely the same brief filed with the post-conviction
trial court [State Court Record, Attachment 17 p. 46–49 and Attachment 18].
3

While Petitioner’s post-conviction appointed counsel only raised the three issues listed
above in his brief, Petitioner filed a pro se brief setting forth all of the arguments from his original
post-conviction petition [State Court Record, Attachment 18],. See Nash v. State, No. E201202511-CCA-R3, 2013 WL 5314599, at *5 (Tenn. Crim. App. Sept. 20, 2013). The Tennessee
Court of Criminal Appeals deemed the issues raised only by Petitioner in his pro se brief as waived,
however, relying on Rules 27 (a) and 10(b) of the Tennessee Rules of Appellate Procedure, as well
as well-established Tennessee case law. Id.
2

At the hearing on the defendant’s first motion to suppress, Detective
Ralph Kenneth Freeman with the Chattanooga Police Department
testified that on February 25, 2006, he was investigating both Ms.
Brown’s death and another robbery and that the defendant’s “name
came up” in connection with both offenses. The defendant’s father
told Detective Freeman where the defendant would be found; after
Detective Freeman found the defendant, he transported the
defendant to the police station. The two men spoke on the way to
the station, but they did not talk about either of the pending
investigations.
Some thirty to forty-five minutes after the defendant arrived at the
police station, Detective Freeman and Detective Joe Shaw
interviewed the defendant. The interview began, in pertinent part,
as follows:
[DET. FREEMAN]: Charles, before I ask you any questions[,] you
must understand your rights:
[Reading from the rights waiver form:] You have the right to remain
silent.
Anything you say can be used against you in court.
You have the right to talk to an [sic] lawyer for advice before we ask
you any questions and to have him or her with you during
questioning.
If you cannot afford a lawyer one will be appointed for you before
any questioning if you wish.
If you decide to answer questions now without a lawyer present you
will still have the right to stop answering questions at any time.
You also have the right to stop answering questions at any time until
you talk to a lawyer.
Do you understand your rights? Can you read and write? Answer
yes for me if ... if you understand your rights.
[DEFENDANT]: Yes.
[DET. FREEMAN]: Okay, can you read and write?
[DEFENDANT]: Yes.
[DET. FREEMAN]: What’s your education Charles?
[DEFENDANT]: Hmm, two (2) years of college.
[DET. FREEMAN]: Two (2) years of college. Here’s the rights
waiver form showing you, just read over that like I just read it and
if you want to talk to me just initial every place right there and then
sign and date it right there.
(silence )
[DET. FREEMAN]: I explained to you also that we were gonna
fingerprint you and take your pictures and stuff like that, right?
Okay. And you stated that you would like to do that first? Or do you
want to continue with this right now?
3

[DET. SHAW]: Hey, I want to go to the john first.
[DET. FREEMAN]: Okay. Hold on just a second, let me see if he’s
gonna sign that Rights Waiver Form.
[DEFENDANT]: Is it ... uh ... it ain’t possible that I could have a
lawyer?
[DET. FREEMAN]: Yeah, That’s ... and if you want to answer some
questions now you can always get a lawyer then or now, whatever,
just like what it’s saying here but if you want to start talking and
then if you decide if you want to stop that’s fine too.
[DEFENDANT]: I just want to get on tape that I ain’t kill that lady.
[DET. FREEMAN]: Okay. Well, I would like for you to initial and
... and then sign first.
[DEFENDANT]: Uh ...
[DET. SHAW]: The way ... the way this law works, it’s called the
Miranda Law, okay.
[DEFENDANT]: Uh-hum (yes).
[DET. SHAW]: This guy that got arrested ... he confessed to a crime
and then when it came time for court he said well I didn’t know I
didn’t have to say anything so that's why they make us read this to
you now.
[DEFENDANT]: Yeah.
[DET. SHAW]: Just so you understand that basically you don’t have
to answer every question that we ask you. You can answer some of
them and not others. You don’t have to answer any questions if you
don’t want but if you want to answer some of them and not others
or if you want to tell your side of the story and not answer any
questions you can do that too. But before we can listen to you or
anything else you have to sign saying you understand what your
rights are and you’re willing to speak about it even if it’s just to tell
your side of the story and not to answer questions that’s your ...
prerogative.
The defendant then signed the rights waiver form and spoke with
police. During the interview, he admitted his involvement in the
robbery and shooting at the convenience store.
On cross-examination, Detective Freeman testified that he did not
interpret the defendant’s comment, “it ain’t possible that I could
have a lawyer,” as an indication that the defendant did not
understand his rights. He also claimed that the defendant said that
he understood his rights. Furthermore, Detective Freeman said that
Detective Shaw’s statement, “before we can listen to you or
anything else you have to sign,” did not mean that the defendant had
to sign the form even if he did not wish to waive his rights. Detective
Freeman said that the defendant “didn’t indicate to me that he
wanted a lawyer at that time, he indicated to me he wanted to answer
4

questions without a lawyer.” The detective said that had the
defendant requested counsel, the interview would have ended.
At the conclusion of the first suppression hearing, the trial court
denied the defendant’s motion. Although the defendant did not
argue during the first suppression hearing that he unequivocally
requested counsel, the trial court commented that the defendant’s
statement regarding a lawyer “certainly does look equivocal,
because it does look like Detective Freeman and Detective Shaw did
make it clear to him that he didn’t have to answer anything.” In its
written order denying the defendant’s second motion to suppress,
the trial court stated,
Clearly the defendant ... did not make an unequivocal
request for an attorney as is required under the
United States and Tennessee Constitutions and as
such the Chattanooga Police [o]fficers were free to
continue to talk to him and any subsequent statement
given by the defendant, Charles Nash, was freely and
voluntarily given.
State v. Nash, 2009 WL at *1–3.
The following factual background is taken from the TCCA’s opinion on appeal of
Petitioner’s petition for post-conviction relief:
A jury convicted the Petitioner of first degree murder and especially
aggravated robbery in October 2007. These charges arose out of the
Petitioner’s February 2006 armed robbery of the Okie Dokie Market
in Chattanooga in which the clerk was shot and killed. The trial court
sentenced the Petitioner to life imprisonment for the murder
conviction and to a concurrent term of twenty-five years for the
especially aggravated robbery conviction. This Court affirmed the
Petitioner’s convictions and sentence on direct appeal. See State v.
Charles Nash, No. E2008–00951–CCA–R3–CD, 2009 WL
2461178, at *5 (Tenn.Crim.App. Aug.12, 2009), perm. app.
denied (Tenn. Mar. 1, 2010).
Because the direct appeal addressed only the trial court’s denial of
the Petitioner’s motion to suppress, this Court’s opinion does not
contain a summary of the proof adduced at trial. The record of the
trial is before us, however, and contains the Petitioner’s statement
to the police, which was admitted into evidence. The Petitioner
explained that he robbed the store because a drug dealer had
threatened to kill his grandmother if the Petitioner did not pay him
5

$10,000. During the robbery, he placed his gun on the store counter,
and the clerk “tried to grab it.” The Petitioner stated that the gun
then “started going off,” and he asserted that he “didn’t even know
the gun was loaded.” The Petitioner thought the gun fired twice. He
stated that he had had no intention of harming the clerk but that he
just intended to rob the store. The record also includes testimony by
Dr. Amy McMaster, who performed the autopsy on the store clerk
shooting victim. Dr. McMaster testified that the victim had died as
the result of multiple gunshot wounds: three that entered her back,
one that entered her abdomen, and one that entered her left elbow.
The three gunshots that entered the victim’s back were fatal wounds.
After his convictions were affirmed on direct appeal, the Petitioner
filed the instant petition for post-conviction relief in August
2010. At the ensuing evidentiary hearing, the following proof was
adduced:
The Petitioner’s trial counsel (“Counsel”) testified that he was
licensed to practice law in both Tennessee and Georgia and that his
practice consisted of “insurance defense litigation, business
litigation and criminal defense work.” As of the time of the hearing
in 2012, he had been licensed for twenty years. At the time he was
appointed to represent the Petitioner, he had participated in over one
hundred trials.
Counsel was appointed to represent the Petitioner after the Petitioner
developed a disagreement with his initial lawyer. Counsel obtained
the Petitioner’s file, including discovery, and gave copies of
everything to the Petitioner to review while the Petitioner was in
custody.
Counsel recalled that the Petitioner claimed to have committed the
robbery in order to repay a debt. However, Counsel “never got to
the point of being able to establish that as a factual matter.” Counsel
also was concerned that the debt resulted from illegal conduct,
information which might prove harmful to the Petitioner’s case in
the jury’s eyes.
On cross-examination, Counsel acknowledged that the Petitioner’s
statement to the police was “damning” and stated that it “dictated
everything [they] did at trial.” For that reason, he filed a motion to
suppress, which was the second motion to suppress because the
Petitioner’s initial lawyer also had filed a motion to suppress.
Counsel raised as grounds for suppression that, during the custodial
interrogation, the Petitioner had requested counsel, but the
interrogation nevertheless had continued.

6

Counsel stated that he was familiar with the United States Supreme
Court case that ruled unconstitutional the police practice of
interrogating suspects in custody before issuing Miranda warnings
and then, after issuing the Miranda warnings, obtaining a second
incriminating statement. Counsel also was aware that this practice
had been used by the local police department. Counsel did not recall
the Petitioner telling him that he had been interrogated while in
custody before being given his Miranda warnings.
Counsel
testified, “it would shock me that [the Petitioner] had discussed a
fact scenario just like that one in the Supreme Court and I had just
walked away from it. It would shock me.” Counsel added, “I can’t
believe I would have had that conversation and not taken note of that
issue.” Counsel explained that he was well aware of this issue
because another police officer “does exactly that.” Later in his
testimony, Counsel reiterated, “I don’t recall [the Petitioner] ever
having discussion with me about him giving an inculpatory
statement on the way to the police station, an un-Mirandized
[statement].” Counsel acknowledged such a discussion could have
occurred but asserted, “I was aware of the issue at the time and it
boggles my mind to believe that I would have been told that and
ignored the issue.[”]
Counsel agreed that the prosecutor’s argument to the jury that it was
“time to tell [the Petitioner] that, [they], as a community, are not
going tolerate this kind of behavior” was objectionable. Counsel
also agreed that the prosecutor’s argument that it was time for the
jury “to tell [the Petitioner] that he is a murderer and a robber, the
voice of this county, Hamilton County, the voice of St. Elmo, these
actions are against the law and unacceptable” was objectionable.
Counsel agreed that argument aimed at inflaming the jury was
improper. Counsel acknowledged that he did not raise many
objections during the prosecutor’s closing argument, explaining that
he was “more conservative with [his] objections than a lot of other
criminal lawyers.” Asked about other specific statements the
prosecutor made during closing arguments, Counsel responded,
You know, these things, you deal with them as you
hear them. You hear it, you figure out what you think
you need to do about it, how you can deal with it most
effectively. In each instance, I dealt with what I
heard in the way that I felt I was being most effective
in his case.
Counsel agreed that he began the defense’s closing argument “by
pointing out that the [prosecution’s] attempt to elicit emotion
showed holes in the State’s case.”
7

Counsel stated that the defense strategy was to pursue a conviction
of a lesser-included offense of first degree murder. He recalled
discussing the potential defense of duress with the Petitioner. He
anticipated proof of the Petitioner’s claim that he committed the
crime in response to threats to be admitted through the Petitioner’s
statement. He was not aware of other proof available to substantiate
the Petitioner’s claim. He did not recall discussing with the
Petitioner the possibility of hiring a defense expert to “explicate to
the jury how drug dealers operate when they’ve been ripped off or
some of the power dynamics and potential threats relating to ripping
off drug dealers.” Counsel explained, “I understood what [the
Petitioner] was saying and I understood what he wanted the jury to
hear, but the fact of the matter is that as a legal defense, he wasn’t
close to duress.” Counsel added, “I was not going to put myself in
a position of establishing his role as a drug dealer by calling
witnesses to that effect to present a legally unsustainable defense.”
Counsel testified that he did not request a jury instruction on duress
because “[t]here was not factual proof in the record to support duress
and [he] didn’t introduce proof to support duress because it couldn’t
be legally supported.” As to the elements of the duress defense,
Counsel stated, “There certainly wasn’t an immediate threat.”
The Petitioner testified that, after he determined to turn himself in,
he was picked up by Detective Freeman in an unmarked car. Det.
Freeman handcuffed the Petitioner, placed him in the car, and then
transported the Petitioner to the police station, a trip that lasted thirty
to forty minutes. The Petitioner claimed that, during the drive, Det.
Freeman questioned him both about his personal life and “regarding
[the Petitioner’s] activities in the case.” Det. Freeman had not given
the Petitioner his Miranda warnings.
The Petitioner testified that Det. Freeman first asked him about a
previous robbery and whether he went into that store with a gun.
The Petitioner told him that he had participated in a previous robbery
and that he had been by himself. Det. Freeman then asked him about
the instant robbery and whether the Petitioner had gone into the store
with a gun. The Petitioner told him that he did not remember. Det.
Freeman then asked him if he had left a water bottle on the counter
of the store, and the Petitioner told him that he had. Det. Freeman
continued to question him about the instant robbery, and the
Petitioner “told him that [he] did commit the robbery.” He also told
the detective that he had had a gun. Det. Freeman asked the
Petitioner about shooting the victim, and the Petitioner told him that
he shot the victim twice. Upon further questioning, the Petitioner
told Det. Freeman that he took the cash register and the surveillance
tape out of the store; that he was wearing the clothes in which he
8

committed the robbery; and that he would give Det. Freeman the
gun and the items he had taken out of the store. Once they arrived
at the police station, Det. Freeman told him that he “needed ... to just
repeat everything that [he] had said ... inside the car.” Inside the
station, the Petitioner was given his Miranda warnings, and he
signed a waiver.
The Petitioner testified that he told Counsel about the initial
questioning during the car ride. According to the Petitioner,
Counsel did not ask him if he had been “Mirandized ” but said, “oh,
that’s something we might have to look into.”
The Petitioner testified that, prior to the two robberies he committed,
a drug dealer had put a $10,000 bounty on him. He told Counsel
about this and also provided the names of several persons who could
corroborate this information to Counsel's private investigator. None
of those persons were called to testify on his behalf.
On cross-examination, the Petitioner testified that he also told his
first trial lawyer about Det. Freeman questioning him during the car
ride. He stated that he did not know the name of the person who had
put a bounty on him. He explained that the person threatened him
directly but that he did not know the person’s name. The threat was
made within a month prior to the robbery.
Alex Freeman, a long-time friend of the Petitioner’s, testified that,
prior to the Petitioner’s trial, Counsel’s private investigator spoke
with him about the Petitioner’s charges. Freeman told the
investigator the following:
I heard from guys that was coming in the detention
center [where Freeman was] and from several phone
calls that I was making on the streets or whatever that
[the Petitioner] was in trouble with a guy from ... the
south area of the city where his grandma stayed at
and he owed a lot of money and that if he don’t pay
the money back, that they going to kill his grandma,
set the house on fire while she’s in there, and then
they were going to get him.
Freeman stated that he advised the Petitioner about these threats
about two to three weeks before the robbery. The Petitioner told
him, “I got to get this money because I love my grandmama.”
Freeman explained that the Petitioner’s grandmother had raised him.
The Petitioner sounded “scared.” The investigator told Freeman that

9

they would contact him if they wanted him to testify, but they never
did. Freeman stated that he had been willing to testify.
On cross-examination, Freeman stated that he did not know who
was behind the threats, but “the guy that supposedly had the threat
was like, not going to say wealthy, but he had enough money to
make things happen if he wanted them to happen.”
At the conclusion of proof, the post-conviction court took the matter
under advisement and subsequently issued a comprehensive written
order denying relief. As to the Petitioner’s claim that Counsel was
ineffective for failing to pursue the suppression of the Petitioner’s
statement on the grounds that it was taken in violation of Missouri
v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004),
the post-conviction court specifically refused to accredit the
Petitioner's testimony that he told Counsel that Det. Freeman had
questioned him in the car prior to advising the Petitioner about
his Miranda rights.
Accordingly, the post-conviction court
concluded that the Petitioner had failed to establish by clear and
convincing evidence that Counsel had performed deficiently in this
regard. As to the Petitioner’s claim that Counsel was ineffective in
failing to object to portions of the State’s closing arguments, the
post-conviction court concluded that the Petitioner had established
neither deficient performance nor prejudice. As to the Petitioner’s
claim that Counsel performed deficiently in failing to adduce proof
that the Petitioner had acted under duress, the post-conviction court
determined that this defense had not been available at trial and,
therefore, that prejudice had not been established.
Nash v. State, 2013 WL at *1–4 (footnotes omitted).
III.

STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28

U.S.C. § 2254, et. seq., a court considering a habeas claim must defer to any decision by a state
court concerning the claim, unless the state court’s judgment: (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).
10

The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (noting that Ҥ 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 findings of fact are supported by the record, they are entitled to a
presumption of correctness which may be rebutted only by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
IV.

ANALYSIS
Petitioner’s § 2254 habeas corpus petition [Doc. 1] raises various grounds for relief, some

of which Petitioner has procedurally defaulted. The Court will address the procedurally defaulted
claims before addressing the remaining claims in turn.
A. Procedurally Defaulted Claims
First, Respondent argues that many of Petitioner’s arguments are procedurally defaulted
because Petitioner did not properly raise the claims in his direct appeal or in his appeal of the denial
of his post-conviction relief. Specifically, Respondent alleges that Petitioner has procedurally
defaulted the following ineffective assistance of counsel claims by not properly raising them in his
appeal of the denial of his petition for post-conviction relief:
1. Trial counsel failed to properly investigate the background of one of the state’s
witnesses;
2. Trial counsel failed to withdraw a motion to consolidate;
3. Trial counsel failed to give Petitioner informed advice as to whether Petitioner
should testify in his own defense;
4. Trial counsel failed to request the trial court to instruct the jury as to voluntary
manslaughter and failed to properly raise this issue in motion for new trial; and
5. Trial counsel failed to raise the prosecution’s suppression of the videotape of
another robbery at a nearby store minutes before the robbery at issue.

11

[Doc. 12 p. 20–25]. Respondent also asserts that Petitioner’s claims regarding prosecutorial
misconduct were procedurally defaulted because Petitioner failed to raise them in his direct appeal
and/or his appeal for post-conviction relief [Doc. 12 p. 25]. Respondent further argues that
Petitioner procedurally defaulted his claim for ineffective assistance of post-conviction counsel
based on counsel’s failure to raise claims for ineffective assistance of trial counsel in his appeal of
the denial of post-conviction relief [Id. at 27].
A petitioner who fails to raise his federal claim in the state courts and who is now barred
by a state procedural rule from returning with the claim to those courts has committed a procedural
default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). A procedural default forecloses
federal habeas review, unless a petitioner can show cause to excuse his failure to comply with the
state procedural rule and actual prejudice resulting from the alleged constitutional violation. Id. at
732. If a 2254 petitioner failed to raise a claim on appeal and thereby violated a state procedural
rule, “that claim is subject to procedural default and will not be reviewed by federal courts unless
the petitioner demonstrates cause and prejudice for the default.” West v. Carpenter, 790 F.3d 693,
697 (6th Cir. 2015).
An attorney’s ineffective assistance in post-conviction proceedings generally does not
establish “cause” to overcome procedural default of claims. Coleman, 501 U.S. at 755(1991).
Where a 2254 petitioner could only raise a claim for a trial attorney’s ineffective assistance of
counsel for the first time in post-conviction proceedings, however, ineffective assistance of postconviction counsel may be “cause” to excuse the procedural default of such a claim. Wallace v.
Sexton, 570 F. App’x 443, 452–53 (6th Cir. 2014); Trevino v. Thaler, 133 S.Ct. 1911, 1918–21
(2013); Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). This exception applies to post-conviction
proceedings in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir. 2014). A petitioner

12

cannot use this exception to establish cause to excuse his default of an ineffective assistance of
counsel claim where the alleged ineffective assistance of post-conviction counsel occurred on
appeal of the post-conviction petition, however, as that was not the first occasion in which the
petitioner could have raised the ineffective assistance of counsel claim. Wallace, 570 F. App’x at
453.
As set forth above, Petitioner did not properly raise the above-listed claims for ineffective
assistance of counsel in his appeal of the denial of his post-conviction petition. Petitioner likewise
did not raise his prosecutorial misconduct claims in his direct or post-conviction appeals. Also,
the Martinez exception does not apply to Petitioner’s claim for ineffective assistance of postconviction counsel in his appeal of the denial of his petition for post-conviction relief.
Accordingly, Petitioner’s above-listed claims for ineffective assistance of trial counsel, claims for
prosecutorial misconduct, and claim for ineffective assistance of post-conviction counsel are
procedurally defaulted and they will be DISMISSED.
B. Suppression of Petitioner’s Statement to Police
In this claim, Petitioner asserts that his statement to police was obtained in violation of the
Fifth Amendment’s protection against self-incrimination because he “unequivocally invoked his
right to counsel before beginning that statement” [Doc. 1 p. 5]. As set forth above, the relevant
portion of the state court record establishes that the following colloquy took place between
Petitioner and police prior to Petitioner giving police a statement in which he incriminated himself
with regard to the charges against him:
[DET. FREEMAN]: . . . . Here’s the rights waiver form showing
you, just read over that like I just read it and if you want to talk to
me just initial every place right there and then sign and date it right
there.
(silence )

13

[DET. FREEMAN]: I explained to you also that we were gonna
fingerprint you and take your pictures and stuff like that, right?
Okay. And you stated that you would like to do that first? Or do you
want to continue with this right now?
[DET. SHAW]: Hey, I want to go to the john first.
[DET. FREEMAN]: Okay. Hold on just a second, let me see if he’s
gonna sign that Rights Waiver Form.
[DEFENDANT]: Is it ... uh ... it ain’t possible that I could have a
lawyer?
[DET. FREEMAN]: Yeah, That’s ... and if you want to answer some
questions now you can always get a lawyer then or now, whatever,
just like what it’s saying here but if you want to start talking and
then if you decide if you want to stop that’s fine too.
[DEFENDANT]: I just want to get on tape that I ain’t kill that lady.
[DET. FREEMAN]: Okay. Well, I would like for you to initial and
... and then sign first.
[DEFENDANT]: Uh ...
[DET. SHAW]: The way ... the way this law works, it’s called the
Miranda Law, okay.
[DEFENDANT]: Uh-hum (yes).
[DET. SHAW]: This guy that got arrested ... he confessed to a crime
and then when it came time for court he said well I didn’t know I
didn’t have to say anything so that's why they make us read this to
you now.
[DEFENDANT]: Yeah.
[DET. SHAW]: Just so you understand that basically you don’t have
to answer every question that we ask you. You can answer some of
them and not others. You don’t have to answer any questions if you
don’t want but if you want to answer some of them and not others
or if you want to tell your side of the story and not answer any
questions you can do that too. But before we can listen to you or
anything else you have to sign saying you understand what your
rights are and you’re willing to speak about it even if it’s just to tell
your side of the story and not to answer questions that’s your ...
prerogative.
State v. Nash, No. E2008-00951-CCA-R3-CD, 2009 WL 2461178, at *2 (Tenn. Crim. App. Aug.
12, 2009). The TCCA found that Petitioner’s question of whether “it ain’t possible that I could
have a lawyer?” was not an unequivocal invocation of his right to counsel and therefore the
admission of the subsequent statements from Petitioner did not violate Petitioner’s constitutional
rights, relying on both Tennessee and Supreme Court law. Id. at 4–5.

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The Fifth Amendment guarantees that an individual has the right to not be “compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. Accordingly, the
Supreme Court has held that any suspect must be informed of his Fifth Amendment right against
self-incrimination, among other rights, prior to custodial interrogation by police. Miranda v.
Arizona, 384 U.S. 436, 478–89. Further, once a suspect asserts his right to counsel, he may not be
interrogated outside counsel’s presence “unless the accused himself institutes further
communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). In Davis v. United States, however, the Supreme Court clarified that nothing
prevents police from questioning a suspect “when the suspect might want a lawyer. Unless the
suspect actually requests an attorney, questioning may continue.” Davis v. United States, 512 U.S.
452, 462 (1994). Accordingly, the Davis Court affirmed the lower courts’ findings that a suspect’s
statement that “‘[m]aybe I should talk to a lawyer’—was not a request for counsel.” Id.; see also
Rogers v. Kerns, 485 F. App’x 24, 31 (6th Cir. 2012) (holding that a suspect’s question of “I can’t
write this with a lawyer or anybody[?]” would lead a reasonable police officer to understand only
that the suspect might be invoking his right to counsel, especially in light of the suspect’s
subsequent statement that he was “just asking” and therefore affirming the state court’s denial of
§ 2254 relief to the suspect).
Like the statements of the suspects in Davis and Rogers, Petitioner’s question asking
whether it was possible for him to have a lawyer did not unequivocally invoke his right to counsel
prior to questioning. Moreover, Petitioner’s follow-up statement that he just wanted “to get on
tape that [he] ain’t kill that lady” was a clear indication that Petitioner did wish to speak to police,
and the police explained that he could do so without answering questions if he wished.
Accordingly, the state courts reasonably determined that Petitioner did not unequivocally request

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counsel, that Petitioner’s statement to police did not violate Petitioner’s Fifth Amendment right
against self-incrimination, and that Petitioner therefore was not entitled to suppression of his
confession on this ground and Petitioner is likewise not entitled to § 2254 relief on this claim.
C. Ineffective Assistance of Counsel
Petitioner also asserts claims for ineffective assistance of trial counsel arising out of the
assertions that trial counsel failed to investigate and properly argue his motion to suppress
Petitioner’s statement to police, failed to object to or request a mistrial because of prosecutorial
misconduct and statements, and failed to present duress/necessity as a defense.
The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective
assistance of counsel:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland, 466 U.S. at 687. Petitioner has the burden of showing both deficient performance and
prejudice. Smith v. Robbins, 528 U.S. 259, 285–86 (2000).
Under the first prong of the test, the appropriate measure of attorney performance is
“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. A defendant
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asserting a claim of ineffective assistance must “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690. The
evaluation of the objective reasonableness of counsel’s performance must be made “from
counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the
standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong requires the petitioner to show that counsel’s deficient performance
prejudiced the defense. Thus, “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. In order to prevail on a claim of prejudice, a petitioner
must show “there is a reasonable probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Id. at 695. While both prongs must be established to meet a
petitioner’s burden, if “it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” Id. at 697.
Review of a Strickland claim under § 2254(d)(1) is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420 (2009). Further, “[w]hen § 2254(d) applies,
the question is not whether counsel’s actions were reasonable,” but instead “whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v.
Richter, 131 S.Ct. 770, 788 (2011).
The Court will address Petitioner’s remaining ineffective assistance of counsel claims in
turn, applying the above standard.
1. Motion to Suppress
In this claim, Petitioner asserts that trial counsel failed to argue that Petitioner’s statement
to police should have been suppressed under Missouri v. Seibert, 542 U.S. 600 (2014) due to

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Petitioner’s assertion that he was questioned and confessed before officers gave Petitioner
Miranda warnings [Doc. 1 p. 6]. In Seibert, the Supreme Court found that a police officer’s act of
interrogating a suspect prior to giving Miranda warnings, giving the suspect Miranda warnings
“midstream,” and then asking similar questions to have the suspect restate his pre-Miranda
admissions was improper. Seibert, 542 U.S. at 604. Accordingly, the Court held that, in such
situations, all pre-and post-Miranda statements must be suppressed. Seibert, 542 U.S. at 608–9,
617.
As set forth above, the state post-conviction court held a hearing on this claim at which
both Petitioner and his attorney testified as to their recollections of Petitioner’s statements to
counsel regarding this alleged pre-Miranda questioning, if any [State Court Attachment 17 p. 52,
54–55; Attachment 20 p. 29–34, 94–104]. Nash v. State, No. E2012-02511-CCA-R3, 2013 WL
5314599, at *2–3, 7 (Tenn. Crim. App. Sept. 20, 2013). In determining that Petitioner was not
entitled to relief on this claim, the post-conviction court examined the record, including Petitioner
and counsel’s testimony, and found that counsel was not deficient for failing to seek suppression
of Petitioner’s statement under Seibert [State Court Attachment 17 p. 60]. Id. at 7. It is apparent
from the post-conviction court’s memorandum findings on this claim that the court found that
Petitioner’s statements that he had told his counsel about this pre-Miranda questioning were not
credible in light of the record as a whole [State Court Attachment 17 p. 60]. Id.
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”). Even where reasonable minds could disagree about the

18

credibility of a witness, that reasonable disagreement is not sufficient to allow the habeas court to
override the trial court’s determination as to credibility. Rice v. Collins, 546 U.S. 333, 341–42
(2006). A habeas court may, however, overturn a trial court’s credibility determination where the
evidence is so powerful that the only possible conclusion is that the trial court was incorrect.
Miller-El v. Dretke, 454 U.S. 231, 265 (2005).
As the record supports the trial court’s finding that counsel was not deficient for not seeking
suppression of Petitioner’s statement pursuant to Seibert and the Court is not in a position to
second-guess the post-conviction court’s determinations on witness credibility, Petitioner is not
entitled to relief on this ineffective assistance claim.
2. Failure to Object to and/or Request a Mistrial Based upon Prosecutorial
Statements
In this claim, Petitioner asserts that counsel was deficient for not objecting to and/or
requesting a mistrial due to various statements of the prosecutor during closing statements. The
record demonstrates as follows regarding counsel’s testimony about this claim at the postconviction hearing:
Counsel agreed that the prosecutor’s argument to the jury that it was
“time to tell [the Petitioner] that, [they], as a community, are not
going tolerate this kind of behavior” was objectionable. Counsel
also agreed that the prosecutor’s argument that it was time for the
jury “to tell [the Petitioner] that he is a murderer and a robber, the
voice of this county, Hamilton County, the voice of St. Elmo, these
actions are against the law and unacceptable” was objectionable.
Counsel agreed that argument aimed at inflaming the jury was
improper. Counsel acknowledged that he did not raise many
objections during the prosecutor’s closing argument, explaining that
he was “more conservative with [his] objections than a lot of other
criminal lawyers.” Asked about other specific statements the
prosecutor made during closing arguments, Counsel responded,
You know, these things, you deal with them as you
hear them. You hear it, you figure out what you think
you need to do about it, how you can deal with it most
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effectively. In each instance, I dealt with what I
heard in the way that I felt I was being most effective
in his case.
Counsel agreed that he began the defense’s closing argument “by
pointing out that the [prosecution’s] attempt to elicit emotion
showed holes in the State’s case.”
[State Court Attachment 20 p. 35–60]; Nash v. State, 2013 WL at *2–3.
The parties disagree about the legal standard the Court should apply to this claim.
Specifically, Petitioner asserts that the Sixth Circuit’s analysis in Hodge v. Hurley, 426 F.3d 368,
385–389 (6th Cir. 2005) should guide the Court’s analysis of this claim [Doc. 18 p. 10–11], while
Respondent relies on Searcy v. Berguis, 549 F. App’x 357, 362 (6th Cir. 2013) [Doc. 12 p. 18–
19]. In Hodge, the Sixth Circuit applied the Strickland standard to counsel’s failure to object to
the prosecution’s closing statement and found that counsel’s failure to do so amounted to
ineffective assistance of counsel. Hodge, 426 F.3d at 375–389. In Searcy, on the other hand, the
Sixth Circuit noted that, although the petitioner’s counsel did not object to questionable statements
in the prosecution’s closing argument, counsel did address the objectionable statements in his
closing argument. Searcy, 549 F. App’x at 362. Accordingly, the Searcy court held that they
would not second-guess that strategy and that the petitioner would not be entitled to relief on this
claim. Id.
The Court finds that Searcy is more applicable to the instant case, as in both Searcy and
the case at bar, counsel chose to address objectionable conduct of the prosecution in its closing
argument in his closing argument, rather than in objections. Even if the Court relies upon the
analysis of the Hodge court as requested by Petitioner, however, Petitioner has not established that
counsel was deficient, as this case is substantively distinguishable from Hodge.

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Specifically, in Hodge, the Sixth Circuit held that where the following occurred in the
prosecution’s closing, counsel’s failure to object thereto established that the defendant was entitled
to § 2254 relief:
the prosecutor accused [the defendant] of “lying”; stated that the
complaining witness was “absolutely believable”; accused Dr.
Steiner of testifying “wrongfully” and “unethically,” and telling “a
lie”; stated that defense counsel was telling “a lie”; severely
misrepresented the testimony of Dr. Omley, the examining
physician; stated (incorrectly) that a finding in favor of Hodge
required a finding that Fenn’s great-grandmother and great-aunt
were “absolute liars”; suggested (without any evidence) that Hodge
was a frequent underage drinker; insinuated (without any evidence)
that Hodge wanted to get part of the prosecutor’s family’s Social
Security checks; suggested that Hodge was the type of person the
jury should fear running into at night; and generally argued that the
jury should convict Hodge on the basis of his bad character.
Hodge, 426 F.3d at 386. The Sixth Circuit found that the non-bad character statements listed above
were harmful to the petitioner’s case “because they were false, unsupported, or misleading” and
that the bad character statements were “sufficiently egregious to warrant, at a minimum, an
objection at the bench following the conclusion of the prosecution’s rebuttal argument.” Id. at
387. The petitioner’s counsel, however, “sat idly by” while these comments were made. Id. at
372. As such, the Sixth Circuit found that the comments established both deficient performance
and prejudice and that the trial court’s decision that the petitioner was not entitled to relief based
thereon was objectively unreasonable. Id. at 387–88. Nothing in the Hodge opinion suggests that
the petitioner’s counsel made any attempt to discount or address these objectionable statements in
his closing argument or otherwise.
While the comments of the prosecution in this case were objectionable, they did not reach
the level of those at issue in Hodge. Specifically, unlike the comments of the prosecutor in Hodge,
the comments of the prosecutor in the case at bar did not impugn the credibility of witnesses based

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on the implied notion that the prosecutor had personal knowledge thereof, nor did the comments
set forth unsupported factual assertions about Petitioner. Moreover, although the comments of the
prosecution at issue were emotional arguments that were likely objectionable, the state courts’
determination that counsel’s decision to point out that the emotional appeals demonstrated holes
in the prosecution’s case in his closing statement, rather than object, was not deficient or
prejudicial was not objectively unreasonable. Rather, the record supports finding that counsel’s
decision to discount these statements in closing argument, instead of through objections, may have
been sound trial strategy, which the Court declines to second-guess. Searcy, 549 F. App’x at 362.
Accordingly, the Court finds that Petitioner is not entitled to relief on this ineffective
assistance of counsel claim.
3. Failure to Present Duress/Necessity Defense
In this claim, Petitioner asserts that counsel was deficient for not asserting a defense of
duress based upon Petitioner’s statements to counsel that he committed the subject burglary only
because he owed a local drug dealer money and the drug dealer had threatened Petitioner’s
grandmother’s life if he did not pay the debt [Doc. 1 p. 10]. Tenn. Code Ann. § 39-11-504 sets
forth when this defense is available:
(a) Duress is a defense to prosecution where the person or a third
person is threatened with harm that is present, imminent, impending
and of such a nature to induce a well-grounded apprehension of
death or serious bodily injury if the act is not done. The threatened
harm must be continuous throughout the time the act is being
committed, and must be one from which the person cannot withdraw
in safety. Further, the desirability and urgency of avoiding the harm
must clearly outweigh the harm sought to be prevented by the law
proscribing the conduct, according to ordinary standards of
reasonableness.
At the post-conviction hearing, both Petitioner and a friend of his testified as to the threat against
Petitioner arising out of the alleged debt [State Court Attachment 20 p. 106–11, 150–58]. The
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relevant testimony of Petitioner’s friend was that he had heard from others that Petitioner’s
grandmother would be killed if Petitioner did not pay the debt, that he communicated this threat to
Petitioner, and that Petitioner sounded scared [Id. at 151–54]. Further, Petitioner testified in
relevant part that the communication of this threat from his friend and others made him afraid for
his life and his grandmother’s life [Id. at 109–11].
Nothing in the record suggests, however, that the threatened harm on which this claim was
based was present, imminent, impending, or continuous as required to establish the duress defense
under Tennessee law. Accordingly, the Court finds that Petitioner has not established that this
defense was available to him or that counsel was deficient for not presenting this defense and he
is not entitled to relief on this claim for ineffective assistance.
D. Ineffective Assistance of Appellate Counsel
Petitioner also asserts that appellate counsel was ineffective for not raising the issue of
prosecutorial misconduct on appeal. The TCCA held that Petitioner was not entitled to relief on
this claim, as he had not demonstrated that he was prejudiced by appellate counsel’s failure to
bring this argument, nothing suggested that the improper statements affected the verdict, and
Petitioner therefore would not have been entitled to relief on such a claim. Nash v. State, No.
E2012-02511-CCA-R3, 2013 WL 5314599, at *7 (Tenn. Crim. App. Sept. 20, 2013).
In accordance with the Court’s above finding that trial counsel’s choice to address the
objectionable statements in his closing statement, rather than through objections, may have been
sound strategy, the Court finds that Petitioner has not met his burden to establish that appellate
counsel was deficient for not setting forth an ineffective assistance of claim based thereon. As
such, the state court’s determination of this issue was objectively reasonable and Petitioner is not
entitled to relief on this claim for ineffective assistance.

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V.

CONCLUSION
As set forth above, Petitioner’s motion to ascertain status of the case [Doc. 20] will be

GRANTED to the extent that this memorandum opinion and a judgment order will enter.
Likewise, Respondent’s motion to substitute attorney [Doc. 21] will be GRANTED for good cause
shown therein and Petitioner’s motion to substitute part [Doc. 23] will be GRANTED.
For the reasons set forth above, however, the Court finds that none of Petitioner’s claims
warrant issuance of a writ. Therefore, Petitioner’s petitions for a writ of habeas corpus [Doc. 1]
will be DENIED and this action will be DISMISSED WITH PREJUDICE.
VI.

CERTIFICATE OF APPEALABILITY
The Court must consider whether to issue a 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 COA may only be issued where a Petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court
denies a habeas petition on a procedural basis without reaching the underlying claim, 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). Where the court dismissed a claim on the merits, but reasonable jurists could conclude
the issues raised are adequate to deserve further review, the petitioner has made a substantial
showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 336
(2003); Slack, 529 U.S. at 484.
After reviewing each of Petitioner’s claims, the Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right as to any claims. Specifically, as the

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procedurally defaulted claims, jurists of reason would not debate the Court’s finding that the claims
are procedurally defaulted. Further, as to the claims that Petitioner did not procedurally default,
Petitioner has not shown that admission of his statement to police violated his Fifth Amendment
right against self-incrimination or that counsel was deficient at trial and/or on appeal. Accordingly,
a COA SHALL NOT ISSUE.
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
ENTER:

/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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