Kendricks v. Phillips
Filing
33
MEMORANDUM OPINION: For the reasons set forth above, Petitioner's petition for a writ of habeas corpus [Doc. 1] will be DENIED and this action will be DISMISSED. Reasonable jurists would not disagree that Petitioner procedural ly defaulted his claims, nor would they disagree that neither Petitioner's trial nor appellate counsel was constitutionally ineffective. Accordingly, a COA SHALL NOT ISSUE. AN APPROPRIATE ORDER WILL ENTER. Signed by District Judge J Ronnie Greer on 09/30/2019. (Copy of Memorandum mailed to Edward Kendricks) (AMP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
EDWARD THOMAS KENDRICKS,
Petitioner,
v.
SHAWN PHILLIPS,
Respondent.
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No. 1:16-CV-00350-JRG-SKL
MEMORANDUM OPINION
Before the court is a pro se prisoner’s petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2254 [Doc. 1]. Respondent has filed a response in opposition [Doc. 15], as well as
the state court record [Doc. 14]. Petitioner filed a reply [Doc. 30]. After reviewing all of the
relevant filings, the Court has determined that Petitioner is not entitled to relief under §2254 and
no evidentiary hearing is warranted. See Rules Governing § 2254 Cases, Rule 8(a) and Schirro v.
Landrigan, 550 U.S. 465, 474 (2007). For the reasons set forth below, the §2254 Petition is
DENIED and this matter will be DISMISSED.
I. PROCEDURAL HISTORY
In 1994, a Hamilton County jury convicted Petitioner of first-degree murder for shooting
and killing his wife [Doc. 14 Attachment 1 at 24]. Petitioner appealed on several grounds including
that the evidence was insufficient to support the finding of guilt by the jury, that the trial court
erred in allowing and disallowing various pieces of evidence, and that the State had violated
Brady v. Maryland by failing to disclose exculpatory information [Doc. 14 Attachment 9]. The
Tennessee Court of Criminal Appeals (“TCCA”) affirmed his conviction [Doc. 14 Attachment
11]. Petitioner then applied for permission to appeal to the Tennessee Supreme Court, but his
application was denied [Doc. 14 Attachments 12, 15].
Next, Petitioner filed a motion for post-conviction relief alleging various grounds of
ineffective assistance of counsel and various instances of prosecutorial misconduct [Doc. 14
Attachment 15 at 3 – 12]. His petition was summarily dismissed [Doc. 14 Attachment 16 at 63 –
64]. Thereafter, Petitioner amended his petition for post-conviction relief which was dismissed as
untimely filed [Doc. 14 Attachment 16 at 65 – 81; 84]. Petitioner immediately appealed and the
TCCA reversed in part and remanded for further proceedings on Petitioner’s ineffective assistance
of counsel claims, with specific instructions for the post-conviction court to allow Petitioner to
amend his petition [Doc.14 Attachment 20].
Petitioner filed an amended petition in 2000, and over the next several years filed various
amendments, with and without the assistance of counsel [Doc. 14 Attachments 21 at 5 – 114; 21
at 115 – 131; 21, at 140 – 141; 22 at 127 – 23 at 87; 23 at 88 – 123; 28 at 71 – 106; 28 at 107 – 29
at 5 1]. In 2011, after hearings spanning various days in February and March, the post-conviction
court dismissed the petition [Doc. 14 Attachment 29 at 6 – 72]. Petitioner then appealed to the
TCCA again, which resulted in the TCCA reversing the judgment of the post-conviction court,
vacating Petitioner’s conviction, and remanding for further proceedings, based on two of
Petitioner’s ineffective assistance of counsel claims: (1) failure to adduce expert proof about a
defective trigger mechanism design in Petitioner’s rifle, and (2) failure to use the excited utterance
exception to hearsay to admit the prior statements of an officer in the case [Doc. 14 Attachment
48].
The State appealed to the Tennessee Supreme Court (“TSC”), which found no ineffective
assistance of counsel on either claim, reversed the TCCA’s judgment, and remanded the case to
the TCCA to address Petitioner’s pretermitted claims [Doc. 14 Attachments 49, 60]. Petitioner
1
For the sake of brevity this includes only Petitioner’s amended petitions and not his vast Memoranda of
Law, spanning hundreds of pages, which accompanied them and are separately labeled in the record.
2
then moved for a rehearing in the TSC which was denied [Doc.14 Attachments 61, 62]. He also
filed a writ of certiorari with the United States Supreme Court which was also denied [Doc. 14
Attachments 63, 64]. Later, the TCCA evaluated Petitioner’s remaining claims as directed by the
TSC and affirmed the judgment denying petitioner post-conviction relief [Doc. 14 Attachment 72].
Petitioner filed an application for permission to appeal with the TSC, which was denied [Doc. 14
Attachments 73, 75]. Finally, in 2016 Petitioner filed for a writ of habeas corpus with this Court
[Doc.1].
II. BACKGROUND
A. Trial
On Direct Appeal, the TCCA summarized the facts of this case as follows:
On March 6, 1994, at approximately 10:00 p.m., the
defendant drove to the gas station at which Lisa Kendrick, his wife
and the victim, worked. With him in the car were their four-year-old
daughter and three-year-old son. These children were sitting in car
seats in the back seat of the station wagon the defendant was driving.
Also in the car, on the front passenger floorboard, was the
defendant’s loaded 30.06 hunting rifle.
The defendant pulled into the station, parked, and went into
the market portion of the station where his wife worked as a cashier.
He asked her to come outside, which she did. She and the defendant
went to the car where she spoke briefly to the children. The
defendant retrieved the rifle from the front passenger floorboard and
carried it to the back of the car. At that point, the weapon fired once,
the bullet striking the victim in her chest and killing her almost
instantly.
After the victim fell to the parking lot, the defendant briefly bent
over her body, put the gun back in the car, and drove toward the
airport a short distance away. On the way, he threw the rifle out of
the car. Once he arrived at the airport, he called 911 and reported
that he had shot his wife. Before the defendant left the gas station,
he took no action to assist the victim in any way.
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Timothy Shurd Benton, a customer, was in the market when the
defendant entered. He testified that the defendant had asked the
cashier “to step outside, he had something to show her.” Benton left
the market, got in his car and started to leave the parking lot. He
testified that, as he had begun to leave, he heard an “explosion.” He
looked over his shoulder out the window of his car and saw the
defendant holding a rifle “pointed straight up in the air.” He also saw
the victim lying on her back on the parking lot. After deciding that
another person in the market was aware of the situation and would
call for help, Benton followed the defendant to the airport, where he
contacted an airport police officer.
Lennell Shepheard was also in the market at the time the
defendant entered. He testified that he had seen the defendant and
his wife leave the store, that the defendant had not appeared angry
or hostile, and that the victim had shown no signs of fear when she
went outside at the defendant’s request. Shepheard remained in the
store until he heard the rifle shot. At that point, he opened the market
door and looked outside to see what had happened. He testified that
he had seen the defendant shut the back passenger door and then
lean over the victim’s body and state, “I told you so” approximately
six times.
Endia Kendrick, the defendant’s four-year-old daughter,
testified on direct examination that she had seen her father shoot her
mother and that her mother had had her arms up at the time.
However, on cross-examination, Endia admitted that she hadn’t
actually seen the shooting.
Dr. Frank King, the Hamilton County Medical Examiner,
testified that the victim had died of a single gunshot wound to the
chest that entered her body in the left chest at forty-nine inches
above the heel and exited her body at the left back at forty-nine and
one-half inches above the heel.
The defendant testified that he had been moving the rifle from
the front of the car to the back at the request of the victim and that it
had discharged accidentally. He testified that he had been shifting it
from one hand to the other when it went off. He testified that he had
not pulled the trigger. He steadfastly denied that he had intended to
shoot the victim, and claimed that he had been carrying the rifle in
the car because he sometimes cleaned apartments near an area where
he felt a gun was necessary for personal protection. He also denied
making any statements as he bent over the victim, and testified that
he had taken no action to assist her because he knew she was dead.
The defendant also testified that he and the victim had agreed on an
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irreconcilable differences divorce, that an attempted reconciliation
had recently failed, and that he suspected that she had had or was
having an affair. He denied that he was upset or angry at his wife
about the status of their relationshiat
In support of his contention that the rifle fired accidentally, the
defendant relied on the testimony of Officer Steve W. Miller.
Officer Miller testified that he had shot himself in the foot with the
rifle when he was removing it from the trunk of his car after
recovering it from where the defendant had thrown it. Officer Miller
testified that he had shot himself accidentally. He further testified
that he could not recall whether or not his finger had been on the
trigger of the gun when it fired.
[The state’s expert witness,] Kelly Fite, a firearms examiner,
testified that he had examined and tested the rifle and that, in his
opinion, “[t]he only way that you can fire this rifle without breaking
it is by pulling the trigger.”
After the defense closed its proof, the State called Martha Kay
Maston as a “rebuttal” witness. Maston testified that she had been
working as a public safety officer for the Chattanooga Metropolitan
Airport Police on the night of the shooting. On finding the defendant
at the airport, she saw the two children in the back seat of the car.
She testified that she had gotten the children out and that they were
both “very upset and hysterical.” She further testified that “when I
got [the little girl] out of the car, she just put her arms around me
and she stated that she had told daddy not to shoot mommy but he
did and she fell.” Maston testified that the defendant’s daughter had
not made any other statements and that his son had not said anything.
State v. Kendricks, 947 S.W.2d 875, 878 – 79 (Tenn. Crim. App. 1996).
B. Post – Conviction
As stated above, the post-conviction trial court conducted hearings over several days in
February and March of 2011. In its second opinion addressing the dismissal of Petitioner’s postconviction petition, the TCCA summarized the evidence adduced at these hearings as follows:
Henry Jackson Belk, Jr., a gunsmith, testified that, earlier
that morning in the clerk’s office, he examined the gun, a Remington
Model 7400 30.06 autoloading rifle, that shot and killed the victim.
He stated that he was familiar with the trigger mechanism inside the
rifle, describing it as “a common trigger mechanism that is
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contained within a wide variety of firearms, shotguns, rim fires and
center fire rifles.” He added, “Generally speaking, all pumps and
automatics manufactured after 1948 by Remington contain this
trigger mechanism.” Belk testified that the trigger mechanism is
referred to as the “Remington Common Fire Control” (“the
Common Fire Control”).
Belk stated that the Common Fire Control was first used in
the automatic shotgun in 1948, then in the pump shotgun in 1950,
and then in the automatic rifle in 1951. The Common Fire Control
is currently used in 23 million firearms. Because the Common Fire
Control is used in different firearms, any “issue” with the trigger
mechanism would not be limited to one specific type of firearm.
According to Belk, the Common Fire Control is a “defective
mechanism.”
As to the rifle in this case, Belk stated that it had “the normal
dirt, dried oil and residue common to a gun that has not been
cleaned.” After removing the trigger mechanism while he was on
the witness stand, Belk examined the rifle and stated that “the action
spring is sticky.” He explained that the “action spring . . . supplie[d]
the energy for the bolt to return back forward.” Because the action
spring was “sticky,” the bolt was “not going forward as freely as it
should.” Belk explained that the action spring’s condition was
consistent with a firearm that had not been cleaned.
Turning his attention to the trigger mechanism, Belk testified
about how it could malfunction:
The general description here is this is a swing
hammer mechanism; in other words, it fires by a
hammer going forward and hitting a firing pin that’s
contained in the bolt inside the housing. The sear is
the part that retains the hammer. The sear is what
holds the hammer back, does not fire. On this
particular mechanism, on all these Remington
mechanisms, that sear is an independent part, is right
here. That is an independent part, not on the end of
the trigger like a Browning design is.
For that reason, and the fact that the safety
only blocks the trigger, it does not block the action
of the sear or the hammer, it only blocks the trigger,
any debris that is captured between the sear and the
slot that it is housed in, which is the housing, any
debris that is caught between the bottom or the tail of
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the sear and the stock surface inside the housing, any
debris that gathers there, any debris that gathers
between the trigger yoke and the rear pivot pin and
the trigger pusher arm and the bottom of the sear, any
debris in any of those places, alone or in concert, can
cause an insecure engagement between the hammer
and the sear itself.
So even with a gun on safe, which it is now,
it can still fire, which it just did. Without pulling the
trigger, on safe.
Responding to questions by the court, Belk clarified: “I can pull the
trigger and make it fire, just like that (indicating), or I can put it on
safe without the trigger being pulled and fire it just by manipulation
of the sear.”
Belk continued:
The notch in the hammer determines how much
debris it takes to make it fail. The notch in the
hammer is about 18,000 of an inch deep, about the
thickness of a matchbook cover. . . . [A]nything that
totals that amount of distance can make a gun fail.
....
Any of those other locations, it takes about 18,000ths
in order to interfere with the secure engagement of
the hammer and the sear.
Belk clarified that there were five locations in the trigger mechanism
that made the mechanism “weak” and that could collect the requisite
amount of debris to cause a misfire. Moreover, of the five “weak
spots,” “the clearance between the sear and the housing itself is
usually about 4,000ths, so it would take less debris captured between
those places to retard the proper motion of the sear and would also
cause it to fail. So it wouldn’t necessarily take as much as
18,000ths.”
Belk also testified that “[t]he Remington Common Fire
Control has a history of firing under outside influences other than a
manual pull of the trigger. Vibration is one way that can happen.
Impact. Even in one case the simple act of grabbing the gun by [the
forward part of the stock] caused it to fire.” Belk reiterated that the
Common Fire Control “fires without the control of the trigger. It can
fire out of the control of the shooter. It can discharge without any
hand being on the stock.”
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Belk stated that, if debris caused the gun to fire
unintentionally, the debris could be dislodged during the discharge.
He added,
On this semi-automatic, each time the gun is fired,
the hammer goes forward, and then under great
pressure and speed, the hammer is forced back again
into position. So there’s a lot of cycling going on.
There’s also the disconnector here, there’s a lot of
movement in the
mechanism itself during firing and during
manipulation after firing. And that movement, many
times, dislodges the debris that actually was the
causation.
Belk acknowledged that debris also can be dislodged through a gun
being dropped or “banged around.” He acknowledged that a drop
test “many times[] destroys any evidence that was there.” He
explained that the standardized tests of dropping a firearm “on a
hundred durometer rubber pad from a certain distance in certain
orientations . . . does nothing whatsoever to analyze the mechanism
and how it can fail. So the . . . drop test in itself can be destructive
[by dislodging debris] without actually showing anything.” He
added, “[T]his particular mechanism has what is called a recapture
angle. So, impact, as in dropping it on the floor, will actually
recapture the sear engagement rather than dislodge it. So the . . .
drop test on this particular gun is pretty much useless.”
Belk opined that the rifle which shot and killed the victim “is
capable of firing without a pull of the trigger, whether the safety is
on or off.”
Belk testified that he was first hired to work on a case
involving the Common Fire Control in 1994, and he agreed that, “if
someone had done some research, they would have potentially been
able to find [him].” He also testified that problems with Remington
firearms could be reported to the manufacturer, which maintained
“some” records of complaints. According to Belk, people were
complaining prior to his initial involvement. He testified that he
“first identified the problem with the Remington Common Fire
Control in 1970.” When a “co-shooter” on a skeet-range complained
of trigger problems, Belk disassembled the trigger mechanism and
“found a section of lead shot debris stuck in the sear notch of the
hammer.” He added, “That was the first identification that [he] had
of a bad mechanism, that it could fire without a trigger being
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pulled.” Since then, he had consulted with “many, many attorneys.”
One case involved a Remington 7400 that fired while it was being
cleaned with an air hose. The safety on that gun had been engaged.
Another gun fired while being wiped with a rag. Another gun fired
when the butt-end of the stock was placed on the floor.
On cross-examination, Belk admitted that, while the trigger
assembly was in the Petitioner’s rifle, the rifle had not misfired
during Belk’s handling of it. He also admitted that he could not
opine about the cleanliness of the gun in March 1994. He stated that
he testified in a case involving a Remington 7400 in 1997 or 1998.
On redirect examination, Belk testified that he was familiar
with a case in which a Remington shotgun containing the Common
Fire Control fired while it was in a locked case and with the safety
engaged. The gun was strapped to the handlebars of an ATV that
had been left idling. The vibrations caused the gun to fire. Belk
stated that he had been consulted on “probably two dozen” cases
involving the Common Fire Control in which the gun discharged
and injured someone.
On re-cross examination, Belk maintained that he had
previously been able to induce a misfire by “artificially introducing”
debris in “any” of the previously identified “weak spots.” He
clarified that he induced these misfires in “cutaway” guns.
Sergeant Steve Miller of the Chattanooga Police Department
(“CPD”) testified that, on the night the victim was killed, he was
assigned to the case as a crime scene investigator. He testified that
the firearm was not located at the scene of the shooting. When a
“[c]all came across the police radio that a gun had been located
down Airport Road,” Sgt. Miller went to locate the firearm. He
located the rifle on the side of Airport Road and noted that there was
no clip in it. He photographed the rifle and collected it for evidence,
placing it in the trunk of his patrol car. Sgt. Miller transported the
rifle back to the police service center on Amnicola Highway.
Sgt. Miller agreed that he was handling the rifle carefully in
order to preserve fingerprints. He also acknowledged that he
testified at trial that he had a jacket in his left hand and that he
“grabbed” the rifle from the trunk of his patrol car with his right
hand and “pointed it in a downward motion” towards the pavement.
When Sgt. Miller pointed it in the downward motion, the rifle
discharged, injuring his left foot. Sgt. Miller testified that he “can’t
say with a hundred percent accuracy” whether his fingers were
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anywhere near the trigger but stated that “[t]hey shouldn’t have
been.”
Sgt. Miller acknowledged his signature on the bottom of a
report prepared by Michael Taylor on March 7, 1994 (“the Taylor
report”). The Taylor report, admitted into evidence, reflected that
James Gann was the first officer to respond to Sgt. Miller’s injury,
and Sgt. Miller’s recollection at the post-conviction hearing was
consistent: that Officer James Gann came out of the service building
to see what had happened after Sgt. Miller shot himself. Sgt. Miller
also acknowledged that the Taylor report indicated that he told the
“initial officer that he had both hands on the rifle and did not have
his finger near the trigger.” Sgt. Miller testified that he suffered “a
massive foot injury” that was “extremely painful.” Sgt. Miller
agreed that the wound also was stressful.
On cross-examination, Sgt. Miller agreed that he was called
by the State as a witness at the Petitioner’s trial. He agreed that
defense counsel questioned him at the trial and asked questions
about where his fingers were with respect to the trigger when he shot
himself. He also remembered that defense counsel’s crossexamination was “tough.”
On redirect examination, Sgt. Miller testified that defense
counsel did not interview him prior to the trial.
Glenn Sims, retired from the CPD, acknowledged that he
prepared a police report in connection with Sgt. Miller’s incident,
but he did not recall speaking with Sgt. Miller. He acknowledged
that, according to his report, Sgt. Miller “was taking the firearm . . .
that he had collected into evidence, out of the truck of the vehicle
[and] it discharged[.]” The report further reflected that “the rifle
swung down, [Sgt. Miller] wasn’t sure if it hit his foot or the ground,
but it went off, hitting Miller in the left inside foot.” Sims agreed
that the report reflected that the rifle “just went off.”
James A. Gann testified that he was employed by the CPD
in 1994 and that he was one of the officers who investigated Sgt.
Miller’s incident. He stated that he was in the office when he heard
“a loud recoil of a gun.” Gann went outside to investigate and saw
that Sgt. Miller was shot in the foot. Gann radioed for an ambulance
and alerted the appropriate people who “had to be advised on a
shooting.” Gann stated that Sgt. Miller was “in a lot of pain,
bleeding, and starting to go into shock.” Gann could not recall
whether he spoke to Sgt. Miller about what had happened,
explaining that he “was more concerned with his foot, he was
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bleeding.” Referring to a police report that Sgt. Glenn Sims had
prepared, Gann acknowledged that Sgt. Miller had told Gann that,
while Sgt. Miller was taking the rifle out of the trunk, the gun “just
went off.” Gann also testified that he was not contacted by anyone
from the public defender’s office before the Petitioner’s trial.
Officer Michael Holbrook of the CPD testified that he was
dispatched to Erlanger Hospital to respond to an accident involving
Sgt. Miller. Officer Holbrook spoke to Sgt. Miller at the hospital and
prepared a report regarding their conversation. Officer Holbrook
testified that Sgt. Miller told him that “as he was taking the rifle out
of the trunk of his patrol car, the rifle went off and shot him in the
foot.” Sgt. Miller also told Officer Holbrook that his hands were not
on the rifle’s trigger. Officer Holbrook’s report was consistent with
his testimony and contained the following narrative: “As he was
lifting out the rifle, the weapon went off and struck him in the left
foot. [Sgt.] Miller states that he picked it up with both hands and his
finger was not near the trigger.” Officer Holbrook’s report, dated
March 7, 1994, was admitted as an exhibit.
The Petitioner’s trial lawyer (“Trial Counsel”) testified that
he worked for the public defender’s office in 1994 and represented
the Petitioner at trial. He stated that two investigators assisted him
in investigating the case. Trial Counsel agreed that the Petitioner’s
appointed counsel in general sessions waived the preliminary
hearing in exchange for “an open file policy.”
Trial Counsel testified that, from the beginning, the
Petitioner maintained that the rifle accidentally discharged. He also
testified that Sgt. Miller had made statements indicating that “he was
not holding the gun anywhere near the trigger housing and it
discharged, shooting him in the foot.” Trial Counsel stated that he
never looked for an expert witness to support the Petitioner’s
accidental discharge claim. He testified that the public defender’s
office informally consulted with a gunsmith who was a former Red
Bank police officer, but he did not remember whether he spoke to
him about this case. Trial Counsel also agreed that he performed no
research regarding the trigger mechanism in the Remington 7400
rifle. He added, “[a]s a matter of fact, when I heard on NPR, a year
or so ago, that the Remington trigger mechanism was faulty and
[there had] been several apparent accidental deaths as a result of it,
you’re the first person I contacted, because I thought, I remembered
it was a Remington and I thought it was something very important.”
Trial Counsel generally recalled that the State’s expert, Kelly Fite,
performed a “drop test” on the rifle. He agreed that Fite’s report did
not indicate that Fite inspected the trigger mechanism.
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Asked whether it would have been beneficial for an expert
to testify on the Petitioner’s behalf about the trigger mechanism,
Trial Counsel answered, “In hindsight, especially with the
knowledge now that there have been so many problems with the
Remington trigger mechanism, yeah.” Asked about his knowledge
of any discussions in the industry regarding the trigger mechanism
misfiring, Trial Counsel responded:
I wasn’t aware of any. And I will point out, at the
time, I was the only public defender in Division II,
and in that period of time in little over four years, I
probably tried, literally, 40 first degree murder cases,
settled another 40 to 50, and I will concede I didn’t
put nearly as much time in on his case or any other
cases that I tried as I do now in my private practice,
because I’ve got a lot more time. My average
caseload every Thursday for settlement day was
between 20 and 30 defendants. My average month
included at least 2 if not 3 trials. So I wasn’t aware
of the issue with the trigger pull.
Trial counsel also added that, although he had “a fundamental
knowledge of firearms, [he] was not aware of it and . . . [he] didn’t
know it and [he] didn’t get an expert.” He also explained,
I thought [Sgt.] Miller would testify
consistently with what I knew to be his statements,
and I thought that would come in and I thought
that when that did come in, I could use that
very effectively to say, okay, if [the Petitioner]
can’t accidentally have that gun [go] off, neither
can [Sgt.] Miller, so, therefore, you got to presume
that [Sgt.] Miller shot himself in the foot on
purpose. That was my whole line of reasoning in
this case.
Trial Counsel testified that he “was not prepared for [Sgt.]
Miller to say he couldn’t remember, because there was not any doubt
in [Trial Counsel’s] mind, at least, when [they] started trying this
case, that he was going to stick to his prior statements.”
Accordingly, Trial Counsel had no “backup plan” to call other
officers to testify about what Sgt. Miller had told them after he shot
himself. Trial counsel felt “sandbagged” by Sgt. Miller’s trial
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testimony. He recalled the trial court refusing to allow him to
introduce one of the reports generated about Sgt. Miller’s injury in
which Sgt. Miller reported that his hands had not been near the
rifle’s trigger when it misfired. He did not request to make an offer
of proof. He also did not attempt to introduce Sgt. Miller’s
statements as excited utterances, explaining, “[i]n the heat of the
trial, I didn’t see that.”
Trial Counsel agreed that both Lennell Shepheard and Sgt.
Miller’s testimony at trial differed from their statements that the
State provided the defense during discovery. Trial Counsel stated
that the first time he heard Shepheard claim the Petitioner stated “I
told you so” was during Shepheard’s testimony. Trial Counsel
agreed that he was never provided notice by the State prior to these
two witnesses testifying that the substance of their pretrial
statements had changed materially. Trial counsel also stated that,
although he was not the Petitioner’s counsel at the preliminary
hearing stage, he would expect “in exchange for the waiver of a
preliminary hearing, especially in a first degree murder case, that
there would be some extra benefit to come to the defendant through
the discovery process.” He added, “if [Sgt.] Miller was going to
change his story, we should have been made aware of that, if Mr.
Shepheard was going to add to his story, we should have been made
aware of that.”
On cross-examination, Trial Counsel stated that he began
practicing law in Tennessee in April 1978 and had been in
continuous practice since that time. At the time of the Petitioner’s
trial, Trial Counsel had been practicing law for sixteen years,
primarily in criminal defense. Trial Counsel also stated that he was
employed at the public defender’s office at the time of the
Petitioner’s trial and had worked in that capacity for approximately
five years. Trial Counsel had tried at least sixty to seventy cases by
1994, including murder cases, less-serious cases, and death penalty
cases. He stated that he tried in excess of forty murder cases prior to
this case. Trial Counsel testified that he was assigned this case at
arraignment.
Before meeting with the Petitioner, Trial Counsel stated that
the Petitioner completed an “intake sheet” wherein he wrote out his
“side of the story.” Trial Counsel testified that the Petitioner was on
bond when he was assigned to the Petitioner’s case and that he
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remained on bond throughout his representation of him. The offense
occurred in March 1994, and the Petitioner’s trial was in November
1994. Trial Counsel agreed that this was a “little quick.” Trial
Counsel could not recall whether the Petitioner had desired that the
case proceed to trial quickly.
Trial Counsel acknowledged that he and the Petitioner
discussed the strategy in the case. He stated, again, that the
Petitioner maintained from the beginning that the rifle
accidentally discharged and that there was “no real animosity”
between him and the victim. Trial Counsel also stated that, in his
preparation for the trial, he reviewed documents provided to the
defense by the State. Trial Counsel testified that he typically
would meet at the district attorney’s office to review documents
the State provided him in a case. He could not recall particularly
whether he had a meeting in the district attorney’s office in this
case but stated that was his “standard operating procedure.” He
added, “I’m sure we met on it several times, not just one time.”
Trial Counsel stated that he was “confident” that the standard
discovery motions were filed in this case although he could not
specifically recall filing them. He stated that he filed the
“standard motions” with every appointment he received.
Pursuant to those discovery motions, Trial Counsel stated that
he received documents from the State in this case and that he
reviewed them to prepare for the trial. He also stated that the
documents included the names of witnesses, and he agreed that
the documents also included witness statements “in theory.”
Trial Counsel recalled discussing the Petitioner’s
testimony with him prior to trial. He was “pretty confident” that
he and the Petitioner “went through sit-downs where [Trial
Counsel] cross-examined” the Petitioner. He added that, for
every trial in which the defendant was going to testify, he would
“sit down and grill them” so that they could anticipate what
cross-examination would be like.
Trial Counsel did not recall specifically “familiarizing
[him]self with the schematic of the [rifle]” prior to the trial, but
stated that he was “relatively familiar with guns.” Although Trial
Counsel could not recall specifically looking at the rifle before the
trial, he stated, “I’m sure I did. . . . I’m sure I looked at it in your
office too.” Trial Counsel also could not recall specifically his cross14
examination of Sgt. Miller. However, he stated, “I try to be vigorous
[in cross-examination] especially when I think somebody’s not
telling the truth, and I thought that he wasn’t telling the truth.” He
also recalled calling Sgt. Miller to testify during the defense’s proof.
He acknowledged that he recalled Sgt. Miller with the purpose of
trying to impeach him with prior inconsistent statements.
Richard Mabee testified that, as of the time of the postconviction hearing, he had been an assistant public defender for
approximately nineteen years. He represented the Petitioner at the
Petitioner’s preliminary hearing. Mabee testified regarding the
“one-time sheet” for the Petitioner’s case, which was admitted as an
exhibit at the hearing. According to Mabee, a one-time sheet lists
basic information about the defendant, identifies the judge and the
charges, and the disposition of the case at the general sessions level.
According to Mabee, the disposition on the Petitioner’s one-time
sheet provided, “waived to grand jury, $50,000 bond. DA agreed to
show everything.” Mabee testified that this latter notation indicated
that he had talked to the district attorney assigned to the case, and
the district attorney had said, “[I]f you’ll waive preliminary hearing,
we’ll show you everything in our file.” Mabee stated that he then
would have presented this information to the Petitioner and that it
would have been up to the Petitioner to decide whether to waive the
preliminary hearing.
On cross-examination, Mabee agreed that the notations
on the Petitioner’s one-time sheet appeared to be his
handwriting. Mabee explained that, when public defenders get
appointed in general sessions, they “open up a one-time sheet”
which means that the public defender represented that defendant
one time at the preliminary hearing. Mabee also clarified that
the judge previously would have signed the order of
appointment at the bottom of the one-time sheet prior to the
public defender’s notations regarding the disposition of the case.
On re-direct examination, Mabee stated that he made the
notation, “[W]e’ll show you everything in our file,” because “that’s
exactly the words the [district attorney] said to [him].” Mabee added
that, after his representation of someone, he would take the one-time
sheet back to the public defender’s office where it was placed in a
“big drawer of one-time sheets.” He stated, “[A]fter someone [was]
15
appointed in a higher court, they may or may not get that one-time
sheet.”
The Petitioner testified that the first time Trial Counsel met
with him was at the county jail. During this initial meeting, the
Petitioner completed an “intake sheet” and told Trial Counsel that
the rifle had “accidentally discharged.” Trial Counsel informed
the Petitioner that Sgt. Miller had shot himself with the
Petitioner’s rifle and told the Petitioner that Sgt. Miller’s
incident supported the Petitioner’s account of what had
occurred.
The Petitioner recalled only two meetings with Trial Counsel
after he was released on bond: one meeting occurred on or around
June 1, 1994, and the second meeting occurred two or three months
before trial. The Petitioner agreed that they discussed “trial strategy”
during these meetings and their defense that the rifle accidentally
discharged. During one of their meetings, Trial Counsel asked the
Petitioner what had happened on the day of the incident, and the
Petitioner informed him what he did that day. The Petitioner denied
that Trial Counsel ever told him “that any evidence in this case
would be damning to [him],” including the fact that he threw the
rifle out of his car window. He also did not recall that Trial Counsel
“went through a cross-examination of [him].”
The Petitioner stated that he got the rifle at least ten years
before the killing and that he had shot it numerous times. The
Petitioner testified that, although he wiped down the outside of the
rifle, he never did “any maintenance in regards to the inside” of it
because he did not know he was supposed to. He agreed that he
testified at trial that he had never had a problem with the rifle
accidentally discharging during the time he owned it.
The State asked the Petitioner whether it was Trial Counsel’s
“idea to use accidental discharge as the theory of the case[.]” The
Petitioner responded, “I mean he’s the lawyer, I mean he makes the
ultimate decision, so I guess I have to say so, yes, based upon . . .
his investigation and everything, yeah, I’d say it was.”
16
Kendrick 2 v. State, No. E2011-02367-CCA-R3-PC, 2013 Tenn. Crim. App. LEXIS 539, at *7 –
31 (Tenn. Crim. App. 2013). Due to the extraordinary length of the record in this case, many of
the facts relevant to Petitioner’s claims are not discussed here and will instead be addressed in the
analysis below.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28
U.S.C. §2254, a district court may not grant habeas corpus relief for a claim that a state court
adjudicated on the merits unless the state court’s adjudication of the claim:
(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) and (2). This standard is intentionally difficult to meet. Woods v. Donald,
135 S. Ct. 1372, 1376 (2015) (quotation marks omitted). Under the unreasonable application
clause, the proper inquiry is whether the state court’s decision was “objectively unreasonable,”
and not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 409 – 11 (2000). The
AEDPA likewise requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d
1131, 1134 (6th Cir. 1998). Where the record supports the state court’s findings of fact, those
findings are entitled to a presumption of correctness which may be rebutted only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
2
In his habeas petition, Petitioner lists his name as Edward Thomas Kendricks, III, but in many pleadings
lists his last name as Kendrick. The state courts vary in which name is they adopt, this Court will use Kendricks.
17
IV. ANALYSIS
A. Exhaustion and Procedural Default
In his §2254 petition, Petitioner raises forty-eight claims for relief that he classifies in five
broad categories: (1) ineffective assistance of counsel, (2) ineffective assistance of new trial and
appellate counsel, (3) prosecution suppression of evidence, (4) new evidence, and (5) a singular
claim that the AEDPA is an unconstitutional extension of Congressional power. Respondent
argues that many of the claims set forth in Petitioner’s federal habeas corpus petition have been
procedurally defaulted and may not now be addressed on the merits. Petitioner first suggests that
his claims have not been procedurally defaulted, and second offers multiple alternative grounds
for which to excuse any procedural default. This Court finds that Petitioner’s claims raised only
in his pro se briefs were abandoned on appeal and have been procedurally barred. As there is no
valid cause for the court to address these claims, the Court will only address the eighteen claims,
spanning eleven issues, Petitioner now raises which were properly included in the appellate briefs
filed by counsel.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must first
exhaust the remedies available in state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims to
state courts to ensure states have a “full and fair opportunity to rule on the petitioner’s claims.”
Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990); see O’Sullivan, 526 U.S. at 842.
Generally, to fulfill the exhaustion requirement, each claim must have been presented to all levels
of the state appellate system, including the state’s highest court. Duncan v. Henry, 513 U.S. 364,
365-66 (1995); Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). The Tennessee Supreme
Court has established, however, that when the Tennessee Court of Criminal Appeals has denied
18
relief on a claim, it is exhausted regardless of appeal to the Tennessee Supreme Court. Tenn. S.
Ct. Rule 39 (Supp. 2001). Nevertheless, if there are no further state court remedies available to
the petitioner, lack of exhaustion will not foreclose merits review. Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994).
When a claim was never presented to the highest available state court and is now barred
from such presentation by a state procedural rule, the claim may be considered “exhausted, but
procedurally barred from habeas review.” Wallace v. Sexton, 570 Fed. Appx. 443, 449 (6th Cir.
2014). Procedural default may also occur when a state court is prevented from “reaching the merits
of the petitioner’s claim” because petitioner failed to comply with an applicable state procedural
rule, which is regularly enforced and is an “adequate and independent” state ground, and Petitioner
“cannot show cause and prejudice to excuse his failure to comply.” Id. at 449 (citing Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986)); Seymour v. Walker, 224 F.3d 542, 549-550 (6th Cir.
2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84 87 (1977)). In determining whether a
state procedural rule was applied to bar a claim, a reviewing court looks to the last reasoned statecourt decision disposing of the claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803; Guilmette v.
Howes, 624 F.3d 286, 291 (6th Cir. 2010).
On Petitioner’s direct appeal, he raised twelve issues, three pertaining to the sufficiency of
the evidence, eight questions of trial court error, and one question of prosecution suppression
regarding the testimony of Martha Maston as a surprise witness [Doc. 14 Attachment 9]. Later,
on his first appeal of the dismissal of his state petition for post-conviction relief, Petitioner raised
six issues of trial court error, all relating to the summary dismissal of his post-conviction petition
[Doc. 14 Attachment 17]. On his second appeal, in an opening brief appealing the denial of postconviction relief, Petitioner’s counsel raised two issues – (1) that the post-conviction trial court
19
had used the wrong standard in evaluating Petitioner’s claims, and (2) that the cumulative effect
of trial counsel’s deficient performance was sufficiently prejudicial to warrant relief [Doc. 14
Attachment 45]. 3 After what appears to be a significant amount of tension between counsel and
Petitioner regarding counsel’s filing of the brief prior to Petitioner’s approval and Petitioner’s
concern that counsel had waived many of his issues by omission, counsel attempted to withdraw
from representation and asked the TCCA to issue a new briefing schedule, both of which were
denied [Doc. 1 Attachments 1, 4]. At this time, counsel attempted to incorporate Petitioner’s
previously raised claims by reference in the reply brief [Doc. 14 Attachment 47]. In its opinion,
the TCCA briefly outlined Petitioner’s issues but did not expressly state which it would be
considering; instead, it granted Petitioner relief on two sub-issues included within the claim of
ineffective assistance of trial counsel – counsel’s failure to adduce proof regarding a defective
trigger mechanism design related to the propensity of Petitioner’s rifle for accidental discharge,
and counsel’s failure to introduce the testimony of Officer Steve Miller’s pretrial statements as
excited utterances – and noted that it was pretermitting others [Doc.14 Attachment 48].
The State appealed to the TSC, claiming error by the TCCA regarding both of the findings
that Petitioner was entitled to post-conviction relief [Doc. 14 Attachment 52]. In a pro-se response,
Petitioner attempted to include most, if not all, of the claims he had previously litigated in the postconviction trial court, including those not addressed or outlined by the TCCA [Doc. 14
Attachments 56, 57]. Counsel filed a supplemental brief responding only to the two issues set out
by the State in their opening brief [Doc. 14 Attachment 58]. The TSC addressed only the two
issues identified by the State and reversed on both grounds, remanding the case to the TCCA to
3
This claim encompassed both a legal and factual analysis of several of the claims of ineffective assistance
of trial counsel and appellate counsel Petitioner litigated in the post-conviction trial court below and raises now in his
federal habeas corpus petition.
20
address Petitioner’s remaining claims [Doc. 14 Attachment 60]. Petitioner filed a motion for
supplemental briefing before his pretermitted claims were considered, which the TCCA denied
[Doc. 14 Attachments 65, 70]. In its opinion on remand, the TCCA clarified the pretermitted
issues as: (1) ineffective assistance of trial counsel for waiving Petitioner’s attorney-client
privilege with his divorce attorney, (2) ineffective assistance of trial counsel for failing to call the
Petitioner’s cousin as a witness, (3) ineffective assistance of trial counsel for “opening the door”
to Petitioner’s prior convictions, (4) ineffective assistance of trial counsel for failing to adequately
challenge Lennell Shepheard’s testimony, (5) ineffective assistance of trial counsel for failing to
call Officer Lapointe to testify to Petitioner’s state of mind after the crime, (6) ineffective
assistance of trial and appellate counsel for failure to object to Detective Rawlston’s use of
Petitioner’s volunteered testimony after arrest, (7) ineffective assistance of trial counsel for failure
to seek curative measures for the surprise testimony of Martha Maston, and (8) whether the
cumulative impact of counsels’ errors entitle him to relief. The TCCA stated that all other claims
had been abandoned on appeal [Doc. 14 Attachment 72 at 5]. 4
Due to Tennessee’s one-year statute of limitations and one petition rule, state remedies are
foreclosed to Petitioner and lack of exhaustion will not prevent federal habeas review of his claims.
Rust, 17 F.3d at 160; see Tenn. Code Ann. § 40-30-102. However, while Petitioner posits that all
of his current claims have been fairly presented to either the TCCA or the TSC, presumably relying
first on the incorporation by reference in his reply brief presented to the TCCA on his secondappeal of the dismissal of his post-conviction relief, and second on his “unchallenged” pro se
4
“While it is true that the Petitioner raised an additional forty-one issues of ineffective assistance of trial
counsel, twenty-two claims of ineffective assistance of appellate counsel on direct appeal, and twelve claims of
prosecutorial misconduct, many of these claims have been abandoned on appeal. Accordingly, we will focus only on
those issues raised by the Petitioner in his appellate brief. See Tenn. R. App. P. 13(b) (‘Review generally will
extend only to those issues presented for review.’)” Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *10 – 11.
21
response brief to the TSC [Doc. 2 at 8], a majority of the claims he now raises were procedurally
defaulted and will not be reviewed on their merits. 5 The state courts were prevented from reaching
the merits of Petitioner’s claims because they found that his claims were abandoned on appeal
[Doc. 14 Attachment 72 at 5]. Petitioner appears to argue that this finding is the result of the
misapplication or arbitrary application of procedural law [Doc. 2 at 11]. However, although the
state court offered no explanation for its finding of abandonment, this Court finds that it had
adequate and independent, regularly enforced, state grounds to find that Petitioner’s claims had
not been fairly presented. See Wallace, 570 Fed. Appx. at 449 (6th Cir. 2014) (citing Maupin,
785 F.2d at 138 (6th Cir. 1986)).
Specifically, Petitioner’s claims were not fairly presented to an appropriate state court
because a Tennessee procedural rule barred consideration of his pro se briefs. 6 “In Tennessee, a
petitioner represented by either retained or appointed counsel may not file pro se briefs.” Wallace,
570 Fed. Appx. at 451 (citing State v. Burkhart, 451 S.W.2d 365, 371 (Tenn. 1976)); Williams v.
State, 44 S.W.3d 464, 469 (Tenn. 2001) (barring defendants from “representing themselves while
simultaneously being represented by counsel”)). This rule is an adequate and independent state
ground, regularly enforced, sufficient to foreclose state review of Petitioner’s claims and
procedurally default said claims before a federal court. See Wallace, 570 Fed. Appx. at 451.
Further, in Wallace, the petitioner argued that his claims were fairly presented because counsel
5
In the event that Petitioner also intends to allege that the presentation of his claims in his Application for
Permission to Appeal or Motion to Rehear satisfy exhaustion requirements, we note that raising a claim “for the first
and only time in a procedural context in which its merits will not be considered unless there are special and important
reasons therefor, [does not] constitute fair presentation.” Olson, 604 Fed. Appx. 387, 402 (6th Cir. 2015) (quoting
Castille v. Peoples, 489 U.S. 346, 351 (1989)).
6
As in Wallace, “the state post-conviction appellate court did not explicitly state that it declined to consider
[Petitioner]’s supplemental pro se brief. However, it responded in detail to claims raised by [] counsel, […] without
even mentioning [Petitioner’s] supplemental brief or any of the claims raised therein. We can infer only that the court
applied the Tennessee procedural rule barring consideration of pro se filings made by represented petitioners.” 570
Fed. Appx. 443, 452 (6th Cir. 2014).
22
attached his claims as an appendix to his own brief, yet the Court still found that Tennessee was
within its discretion to decline to address such claims. Id. at 452.
Here, counsel did not attach Petitioner’s claims but rather tried to incorporate them by
reference in her reply brief. Not only would the state court have been prevented from addressing
the pro se brief in conjunction with counsel’s brief, but this also improperly expanded counsel’s
reply brief. In Tennessee, “[a] reply brief is limited in scope to a rebuttal of the argument advanced
in the appellee’s brief.” Caruthers v. State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991). Counsel
could not add new arguments in her reply brief, by reference or otherwise, because to do so “would
be fundamentally unfair as the appellee may not respond to a reply brief.” Caruthers, 814 S.W.2d
at 69; see also Flinn v. Sexton, 2018 U.S. Dist. Lexis 36927 (E.D. Tn. 2018). Petitioner has not
demonstrated, and this Court cannot find, that the state courts arbitrarily enforced these rules to
find that Petitioner did not fairly present his claims.
Like the reply brief discussed above, Petitioner’s response brief on appeal to the TSC
involved issues of Petitioner’s brief being filed alongside a brief filed by counsel, although
admittedly Petitioner’s brief was filed first and counsel’s as a supplement. Again, the TSC did not
address Petitioner’s additional claims, but did consider the arguments made in counsel’s brief,
leading us to infer that Tennessee was enforcing its own procedural rule regarding pro se filings
from represented petitioners. Kendrick v. State, 454 S.W.3d 450, 475 – 76 (Tenn. 2015).
Moreover, even if Tennessee courts had looked to Petitioner’s brief, Petitioner did not
properly raise each of his previously litigated claims in his response. Petitioner correctly points to
case law that asserts that appellees may include issues in response briefs not included by the
appellant, as long as such is done in conjunction with the Tennessee Rules of Appellate Procedure.
See Mobley v. State, 397 S.W.3d 70, 103 – 104 (Tenn. 2013); Hodge v. Craig, 382 S.W.3d 325,
23
334 (Tenn. 2012). However, in Hodge, which Petitioner points to, the TSC clarified that TN. R.
App. P. 27(b) limits such new issues to those in which the appellee is “seeking relief from the
judgment” of the Court of Appeals. Hodge, 382 S.W.3d at 336 (Tenn. 2012). Petitioner cannot
be claiming to seek relief from the judgment of the TCCA on his additional claims when no such
judgment was made. See Id. Again, Petitioner has not demonstrated, and this Court cannot find,
that the state court arbitrarily enforced these rules to find that Petitioner did not fairly present these
claims.
Because Petitioner did not comply with various regularly-enforced state procedural rules,
which are adequate and independent grounds, the claims he presented only in his pro se briefs are
procedurally defaulted and may not now be addressed on the merits absent Petitioner’s
demonstration of cause and prejudice sufficient to excuse such default.
B. Cause and Prejudice
Petitioner next contends that any procedural default is excused for cause; specifically, he
alleges as cause: (1) the ineffective assistance of post-conviction counsel; (2) state court action or
inaction, including the arbitrary application of procedural law; (3) the respondent’s continued
failure to disclose exculpatory information; and (4) that equitable principles, as well as the due
process clause of the 14th Amendment and/or 6th Amendment demand that this Court can and
should hear critical constitutional claims [Doc. 2 at 3 – 11]. None of these are sufficient cause to
excuse Petitioner’s procedural default, and his defaulted claims will not be reviewed on their
merits.
The Courts have carved out a narrow set of circumstances in which procedural default may
be excused and defaulted claims may be evaluated on their merits. Procedurally barred claims
may be considered on their “merits only if the petitioner establishes (1) cause for his failure to
24
comply with the state procedural rule and actual prejudice from the alleged violation of federal
law or (2) demonstrates that his is ‘an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’” Wallace, 570 Fed. Appx. at
452 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)”; see House v. Bell, 547 U.S. 518,
536 (2006). To show sufficient “cause,” Petitioner must point to “some objective factor external
to the defense” that prevented him from raising the issue in his first appeal. Murray, 477 U.S. at
488. Where petitioner fails to show cause, the court need not consider whether he has established
prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Leroy v. Marshall, 757 F.2d 94, 100
(6th Cir. 1985).
In order to warrant review under the “actual innocence” prong, which is reserved for
fundamental miscarriages of justice, a habeas petitioner must demonstrate that a constitutional
error resulted in the conviction of one who is “actually innocent.” Dretke v. Haley, 541 U.S. 386,
388 (2004). A habeas petitioner asserting a claim of actual innocence must establish that in light
of new, reliable evidence – either eyewitness accounts, physical evidence, or exculpatory scientific
evidence – that it is more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt. House, 547 U.S. 518, 536 (2006) (citing Schlup v. Delo , 513
U.S. 298, 327 (1995)).
1. Ineffective Assistance of Counsel as Cause
Petitioner alleges the ineffectiveness of post-conviction counsel as a ground on which to
excuse the procedural default of his ineffective assistance of trial counsel and ineffective assistance
of counsel on motion for new trial and appellate counsel claims.
Ordinarily, there is “no constitutional right to an attorney in state post-conviction
proceedings,” so ineffective assistance in post-conviction proceedings does not qualify as “cause”
25
to excuse procedural default of constitutional claims. Coleman v. Thompson, 501 U.S. 722, 725,
755 (1991). However, the Supreme Court has carved out an exception to this rule for claims of
ineffective assistance of counsel when those claims may be raised for the first time in postconviction proceedings or “where a state procedural framework… makes it highly unlikely… that
a defendant [had] a meaningful opportunity to raise a claim of ineffective assistance of trial counsel
on direct appeal.” Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013) (citing Martinez v. Ryan, 132
S. Ct. 1309, 1320 (2012)). This exception applies in Tennessee. See Sutton v. Carpenter, 745
F.3d 787, 795 – 96 (6th Cir. 2014).
However, claims of ineffectiveness of post-conviction appellate counsel cannot constitute
cause to excuse procedural default because it is not an initial-review collateral proceeding.
Martinez, 132 S. Ct. at 1320.
Although Martinez and Trevino expanded the class of cases in which a
petitioner can establish cause to excuse the procedural default of ineffectiveassistance claims, the Supreme Court cautioned that the rule ‘does not extend to
attorney errors in any proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial.’
Wallace, 570 Fed. Appx. at 453 (quoting Martinez, 132 S. Ct. at 1320). The Sixth Circuit has only
applied the Martinez exception to claims of ineffective assistance of counsel, and declined to apply
it to suppressed evidence, prosecutorial misconduct, trial error, ineffective assistance of appellate
counsel, and cumulative error. See Abdur-Rahman v. Carpenter, 805 F.3d 710, 714, 716 (6th Cir.
2015). 7
Petitioner’s procedural default relates to his abandonment on appeal of the claims he now
raises, which were previously raised at the post-conviction trial court level. The ineffective
7
The Supreme Court likewise reiterated in Davila v. Davis, 137 S.Ct. 2058, 2062 (2017) that the Martinez
exception does not extend beyond claims of ineffective assistance of trial counsel, and specifically declined to apply
it to ineffective assistance of appellate counsel.
26
assistance of counsel at the post-conviction trial level cannot logically constitute cause for this
procedural default. The Martinez exception applies to ineffective assistance of counsel claims
which were not able to be pursued on direct appeal, and due to the ineffective assistance of counsel,
were not properly raised at the initial-review collateral proceeding. Martinez, 132 S.Ct. at 1309;
see also Wallace, 570 Fed. Appx. at 453. Here, Petitioner’s claims were in fact raised at the initialreview post-conviction proceeding and the ineffective assistance of post-conviction counsel on
appeal cannot excuse default. Petitioner expressly notes in his reply that he did not raise “the
application of Martinez to post-conviction appellate counsel” [Doc. 30 at22 ¶ 3]. 8 Regardless of
Petitioner’s intent, Wallace makes it clear that the Martinez exception does not apply to postconviction appellate counsel. Wallace, 570 Fed. Appx. at 453. Petitioner has not established cause
for which to excuse his procedural default under this theory.
2. State Court Inaction or Arbitrary Application of Law
Petitioner asserts inaction of the state courts as cause to excuse procedural default, stating
“the Supreme Court has long found state action and/or inaction of the state courts as being cause
to excuse [procedural default]” [Doc. 2 at 7]. Petitioner does not elaborate on this except to cite to
a myriad of cases, many of which are not jurisdictionally appropriate, and most of which relate to
the prosecution’s suppression of exculpatory evidence [Doc. 2 at 7 – 8]. Petitioner does not alert
the Court to any facts demonstrating how in this instance the state court would be responsible for
any such withholding. Petitioner later alleges the following of the state court’s behavior:
The Tennessee Courts further, through essentially a sham post-conviction process,
failed to apply, simply fabricated, arbitrarily applied and/or simply ignored facts,
interpretations and application of state and federal evidentiary, procedural and
governing law, i.e. law of the case doctrine, conflict of interest relative postconviction appellate attorneys, pro se representation and/or waiver and previous
8
Petitioner does argue other claims regarding the performance and decision-making of his post-conviction
appellate counsel, but rather than framing them as ineffective assistance of counsel claims raises that her actions were
such that equity demands this Court to address Petitioner’s procedurally defaulted claims.
27
determination, proper standards of review, concessions and objections on proof,
cumulative error review, and/or de novo review etc., as well as that relative other
positions set forth therein, in order to deny claims and/or otherwise procedurally
entrap the Petitioner.
[Doc. 2 at 11]. This is a lengthy and weighty set of accusations against the state courts, yet
Petitioner offers essentially no facts under which to evaluate these claims. The only actions, or
inactions, Petitioner seemingly points to on behalf of the state courts are the court’s denial of postconviction appellate counsel’s Motion to Withdraw as Counsel and denials of additional briefing.
As stated above, after significant disagreement between post-conviction appellate counsel
and Petitioner on how to proceed, counsel attempted to withdraw from her representation of
Petitioner, which the State did not oppose [Doc. 1 Attachments 1, 3, and 5]. Although criminal
defendants do have a right to self-representation under 28 U.S.C. § 1654, courts have broad
authority over who practices before them and are not required to permit hybrid representation,
representation both pro se and by counsel. United States v. Mosely, 810 F.2d 93, 98 (6th Cir.
1987). “When counsel has ‘performed in a highly competent and professional manner’ and the
defendant has been ‘given ample time to consult with his counsel over strategy,’ it is not an abuse
of a court’s discretion to prohibit hybrid representation.” Miller v. United States, 561 Fed. Appx.
485, 488 – 89 (6th Cir. 2014) (quoting Mosely, 810 F.2d at 98). In its order denying the motion to
withdraw, the TCCA found that counsel had substantially invested in her appellate brief and in
preparing for oral argument [Doc. 1 Attachment 4]. Because counsel had already filed briefs and
prepared for this case and would in the future be responsible for oral argument, the court was not
required to allow Petitioner “hybrid representation” and Petitioner cannot demonstrate cause for
his procedural default. See Id. Moreover, even if the TCCA’s action could constitute cause, it
would be exceedingly difficult for Petitioner to prove prejudice for the TCCA’s prohibition of
28
counsel’s withdrawal, when counsel was in fact successful in having Petitioner’s sentence vacated
by the same court. Kendrick, 2013 Tenn. Crim. App. Lexis 539.
Regarding Petitioner’s allegations that the TCCA’s denial of additional briefing or a new
briefing schedule constituted cause for his procedural default, again, the court holds broad
discretion over whether to allow additional briefing. It is apparent that Petitioner was seeking to
include his procedurally defaulted claims in his new brief and in some sense, the denial of
additional briefing kept him from doing so. However, to demonstrate cause in this regard by clear
and convincing evidence, Petitioner must show an external factor which “prevented him from
raising the issue in his first appeal.” Murray, 477 U.S. at 488. It was the decision of defense
counsel, attributable to Petitioner, to winnow his claims and she did so on Petitioner’s third trip
through the TCCA. The court was not required to permit additional briefing, in an already long
and procedurally complex case, to counteract the defense’s decision and this will not constitute
cause to excuse Petitioner’s procedural default.
3. Respondent’s Failure to Disclose Exculpatory Information
Petitioner also relies on the “continued failure of the Respondent to disclose… exculpatory
evidence” as cause to excuse his procedural default [Doc. 2 at 10]. Presumably, Petitioner relies
on this ground to excuse his procedural default of his “prosecution suppression” claims.
Prosecution suppression can serve as a ground to excuse procedural default when the
ongoing suppression sufficiently frustrates a petitioner’s ability to bring the claim and the
cumulative effect of the suppressed evidence was reasonably likely to have produced a different
result. See Kyles v. Whitley, 514 U.S. 419 (1995). However, as clarified above, Petitioner’s claims
are procedurally defaulted because he failed to raise them on appeal; he was, however, able to raise
these claims at the trial court level. While prosecution suppression may provide cause in some
29
cases, it does not logically follow that a Petitioner who did successfully raise his claims at the trial
court level was impeded by the prosecution from raising his claims on appeal. Further, Petitioner
has not established the factual basis for his claim that the prosecution did suppress substantial
cumulative evidence by clear and convincing evidence. Petitioner has not established cause to
excuse his procedural default.
4. Equitable Principles
Lastly, Petitioner argues that equitable principles, as well as Due Process, requires this
Court to hear critical constitutional claims [Doc. 2 at4]. Under this theme, and given the leniency
granted to pro se petitioners, Petitioner appears to raise two issues for which to find cause: (1) that
he was extraordinarily prevented from raising his claims due to the actions of post-conviction
appellate counsel, and (2) that he is actually innocent [Doc. 2 at 4 – 6, 9 – 10]. 9
Petitioner notes that he does not raise the actions of post-conviction appellate counsel as
ineffective assistance of counsel 10, rather he attempts to frame her actions as subjecting him to a
“particular injustice” which warrants court intervention [Id.]. Specifically, Petitioner argues that
post-conviction appellate counsel had a conflict of interest due to representation of another client
in a time-consuming case, such that she effectively abandoned of Petitioner and ceased to be his
agent, and that she, along with Respondent and the state court, actively misled Petitioner regarding
the raising of his claims [Id.]. 11 These claims are seemingly related to counsel’s decision to
winnow Petitioner’s claims on appeal and the court’s resulting decision to treat them as abandoned.
9
To the extent that he is instead attempting to state that this Court should circumvent the recognized rules
established by the Supreme Court regarding habeas petitions in order to hear his claims, such an action is beyond the
purview of this Court.
10
As set forth above, this claim would not provide cause to excuse his procedural default. Wallace, 570 Fed.
Appx. at 453.
11
Although Petitioner claims he was actively misled, the record and Petitioner’s own actions belie this
allegation. Petitioner’s intent to have counsel removed based on her waiver of his claims and continued requests for
additional briefing demonstrate that he was likely well aware that his claims had been abandoned on appeal.
30
While Petitioner does point to Maples v. Thomas, which holds that procedural default may be
excused when counsel has actually abandoned petitioner, Petitioner has not demonstrated by clear
and convincing evidence that counsel actually or effectively abandoned him where she filed a
timely, thorough 83-page brief on his behalf and is not alleged to have missed court appearances
or been otherwise unprepared. See Maples v. Thomas, 565 U.S. 266 (2012). This Court declines
to hold that counsel’s professional judgment that her client would be better served by winnowing
his claims constitutes abandonment in this context. See Jones v. Barnes, 463 U.S. 745 (1983).
Second, Petitioner cites to McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), which recognizes
“actual innocence as a gateway through which a petitioner may pass whether the impediment is a
procedural bar or expiration of a limitations period” [Doc. 2 at6]. This Court assumes that by
doing so Petitioner is suggesting that his new evidence claims should be admitted under the
“fundamental miscarriage of justice” exception to procedural default. Dretke, 541 U.S. at 388.
Petitioner raises two claims of new evidence: (1) new scientific evidence of actual innocence
regarding evidence of the common fire control mechanism’s ability to accidentally discharge, and
(2) evidence that the Petitioner was denied his 14th Amendment Right to Due Process because the
post-conviction process discriminates against “Afro American” petitioners [Doc. 1].
A habeas petitioner asserting a claim of actual innocence must establish that “in light of
new [credible] evidence, no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.” Schlup, 513 U.S. at 329. The Court must determine whether Petitioner has
shown actual innocence, by clear and convincing evidence, such that his conviction represents a
“fundamental miscarriage of justice.” See Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Here, the
Court is concerned with “factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998).
31
Petitioner first alleges that the evidence adduced at post-conviction hearings by Mr. Belk
is new scientific evidence of his actual evidence [Doc. 1]. While Petitioner did raise new evidence,
which was not raised at trial, and there are no issues alleged regarding the reliability of this
evidence, Petitioner cannot show that no reasonable juror would have found him guilty beyond a
reasonable doubt if provided with Mr. Belk’s testimony. See House, 547 U.S. at 536. Mr. Belk’s
testimony that the common fire control mechanism was defective in design did not definitively
establish that Petitioner’s gun discharged without a trigger pull; he merely suggested that it was
possible. Even given this information, the jury would have had to believe the testimony of
Petitioner that accidental discharge is factually what happened, and discredit the contradicting
proof presented by Agent Fite and even the testimony of Mr. Belk that he was not able to induce
Petitioner’s rifle to fire without a trigger pull. Both credibility determinations and determinations
of value are questions for the jury and this Court will not now speculate that no reasonable juror
could have found the State’s evidence more credible than the testimony of Mr. Belk. See United
States v. Griffin, 382 F.2d 823, 829 (6th Cir. 1967).
With regards to Petitioner’s second new-evidence claim, the Court finds that even if
Petitioner’s information regarding systematic discrimination in the post-conviction process was
determined to be “new evidence” and presented to be reliable, this would not be evidence of
Petitioner’s factual innocence. In other words, Petitioner could not show that because some habeas
petitioners face discrimination within the justice system, that no reasonable juror could have found
him guilty beyond a reasonable doubt.
Petitioner has failed to establish cause to excuse procedural default on this ground or any
other and his procedurally defaulted claims will not now be considered on their merits.
Accordingly, only Petitioner’s non-defaulted claims will be discussed in turn.
32
C. Merits Analysis
If a claim is exhausted before the state courts, and not procedurally defaulted, the federal court
may then evaluate the merits.
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), codified in 28 U.S.C. §2254, et. seq., a district court may not grant habeas corpus
relief for a claim that a state court adjudicated on the merits unless the state court’s adjudication
of the claim:
(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) and (2). This standard is “intentionally difficult to meet.” Woods, 135 S.
Ct. at 1376 (quotation marks omitted).
“A state court’s decision is ‘contrary to’ clearly established law ‘if the state court arrives
at a conclusion opposite to that reached by the Court on a question of law or if the state court
decides a case differently than the Court has on a set of materially indistinguishable facts.”
Wallace, 570 Fed. Appx. at 450 (quoting Williams, 529 U.S. at 413). Under the “unreasonable
application clause,” the proper inquiry is whether the state court’s decision was “objectively
unreasonable,” and not simply erroneous or incorrect. Williams, 529 U.S. at 409 – 11. As to a
claim that the state court’s decision was based on an unreasonable determination of the facts, the
AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131,
1134 (6th Cir. 1998). Where the record supports the state court’s findings of fact, those findings
are presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
33
All of Petitioner’s remaining claims are based on the ineffective assistance of trial or
appellate counsel. The Sixth Amendment entitles criminal defendants to the “reasonably effective
assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish that
counsel’s assistance was constitutionally ineffective, a defendant must prove (1) that counsel’s
performance was sufficiently deficient that he was no longer “functioning as the ‘counsel’
guaranteed under the Sixth Amendment[,]” and (2) that his “deficient performance prejudiced the
defense… so as to deprive the defendant of a fair trial” and undermined the reliability of trial
results. Id. To prove deficiency, the defendant must show “that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. To prove prejudice, the defendant must show
that he has been prejudiced by his counsel’s deficiencies by showing “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
The Supreme Court has clarified that when a federal court reviews a state court’s
application of Strickland, which sets its own high bar for claims, “establishing that a state court’s
application was unreasonable under §2254(d) is all the more difficult.” Harrington v. Richter, 562
U.S. 86, 105 (2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). “In those
circumstances, the question before the habeas court is ‘whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.’” Id.; see Jackson v. Houk, 687 F.3d 723,
740-41 (6th Cir. 2012) (stating the “Supreme Court has recently again underlined the difficulty of
prevailing on a Strickland claim in the context of habeas and AEDPA . . . .”).
1. Weapons Expert Testimony
Petitioner alleges that his trial counsel was ineffective for failing to adduce expert
testimony relating to a defective firing mechanism design, present in Petitioner’s rifle, that could
34
have caused the gun to discharge accidentally [Doc. 3 at6 – 25]. Respondent contends that trial
counsel was not ineffective because he did plan and employ tactics to introduce evidence on this
point and to controvert the evidence offered by the State [Doc. 15 at20 – 23]. The Court finds that
trial counsel was not ineffective in this respect.
The central theory of the defense was that the Petitioner’s rifle malfunctioned and fired
without Petitioner pulling the trigger. The State presented a firearms expert, Agent Fite, who stated
that after testing Petitioner’s rifle he concluded that the gun could not possibly fire without the
trigger being pulled or the gun being broken [Doc. 14 Attachment 60 at13]. Trial counsel
attempted to counter this testimony by first, discrediting Agent Fite as someone who believed
himself infallible and second, by attempting to cross-examine Agent Fite on issues present with
the Remington Model 742, a precursor to Petitioner’s rifle, although the trial court prohibited this
line of questioning. Kendrick, 454 S.W.3d at 475 – 476.
At post-conviction, trial counsel conceded that he did not interview the State’s firearms
expert prior to trial and did not recall conducting any legal or factual investigation into the gun’s
propensity to fire without the trigger being pulled and did not look for an expert on this matter. Id.
at 476. Instead, counsel planned to rely on the expected testimony of Officer Steve Miller to
contradict the proof presented by the State. Id. at 477. Officer Miller testified that he retrieved
the rifle from where Petitioner had thrown it and, when later removing the gun from the trunk of
his police vehicle, shot himself in the foot. Id. Before trial, Officer Miller made definitive
statements that his finger was not on the trigger, but at trial testified that he could not recall where
his finger had been, although he did physically demonstrate how he believed himself to be holding
the gun, notably without his finger on the trigger, and stated that officers are thoroughly trained to
not touch triggers of weapons they are not intending to shoot. Id.
35
At the post-conviction hearings, Petitioner presented the testimony of Henry Belk, Jr., a
firearms expert who testified that the common fire control mechanism, a trigger mechanism in the
Remington 7400 model weapon in question, had malfunctioned in several cases and caused guns
to fire without the trigger being pulled. Id. at 464. Mr. Belk testified that he first became aware
of the problem in 1970, but did not first serve as an expert on this issue until 1994, and had since
provided expert testimony in several courts regarding this defect, both in Remington 7400 models
and other models containing the defective mechanism. Id. He also testified that he had been
unable to cause Petitioner’s rifle to malfunction. Id. Still, the post-conviction trial court noted
that his testimony would have lent credence to Petitioner’s case at trial. Id. at 476.
On Petitioner’s second appeal of the denial of his post-conviction petition, the TCCA
reversed the post-conviction trial court’s holding on this issue. Kendrick, 2013 Tenn. Crim. App.
LEXIS 539. The TCCA found that trial counsel’s performance fell “below an objective standard
of reasonableness when trial counsel failed to adduce expert testimony about the rifle’s defective
trigger mechanism, which was known to cause accidental shootings, to rebut the State’s expert
testimony that the rifle could only be fired by pulling the trigger[.]” Kendrick, 454 S.W.3d at 476
(citing Kendrick, 2013 Tenn. Crim. App. LEXIS 539). The TCCA found this issue prejudicial,
particularly because they found that it was reasonably likely that the jury would have convicted
Petitioner of a lesser degree of homicide, which satisfied the test for prejudice. Kendrick, 2013
Tenn. Crim. App. LEXIS 539 at *51.
The TSC, however, later reversed the TCCA’s holding, finding that counsel’s decision to
“construct his ‘accidental firing’ defense” around anticipated testimony from Officer Miller
claiming that the specific gun in question did actually accidentally discharge was reasonable.
Kendrick, 454 S.W.3d at 477. The TSC went through a lengthy analysis of both Harrington and
36
Hinton, each of which apply the Strickland test for ineffective assistance of counsel. Kendrick v.
State, 454 S.W.3d at 468 – 475(analyzing Harrington, 562 U.S. 86; Hinton v. Alabama, 571 U.S.
263 (2014); Strickland 466 U.S. 668). The court notes that Harrington held that defense counsel
was not deficient for failing to hire expert testimony, even though such testimony may have been
useful, when counsel had a reasonable strategic reason for doing so and took other measures to
counteract the State’s evidence. Id. Notably here, the court points out that in Harrington,
counsel’s defense strategy not working as well as planned does not prove counsel incompetent.
Id.
The court then discussed Hinton which found that in some cases, the defense strategy relies
on expert evidence and hiring one will be necessary. Id. However, the court notes that even in
Hinton, counsel was held deficient for failing to appropriately research his ability to hire an expert,
not for failing to hire an expert. Id. The TSC found that “[d]espite Sergeant Miller’s memory
lapse, defense counsel’s performance on this issue indicated ‘active and capable advocacy,’” under
Harrington v. Richter, because at the time counsel was forming his trial strategy it was reasonable
to rely on this testimony, which was “not speculative[] and… did not involve other weapons” to
refute Agent Fite and cast reasonable doubt on Petitioner’s guilt. Id. at 477. The TSC further
stated that while it was likely best practice for trial counsel to seek out expert proof, failing to do
so was not objectively unreasonable when the defense did not hinge on expert proof. Id.
Additionally, the TSC pointed out that although Mr. Belk’s testimony may have been helpful, it
is doubtful that in 1994 counsel would have been given permission to hire an expert, 12 that it
remained unclear whether Mr. Belk could have been found at the time of Petitioner’s trial, and
12
Tennessee did not recognize until 1995 “that indigent non-capital criminal defendants had a constitutional
right to expert psychiatric assistance,” and even then it was limited to psychiatric experts. Kendrick v. State, 454
S.W.3d 450, 476 (Tenn. 2015) (citing State v. Barnett, 909 S.W.2d at 430 n.7).
37
lastly that even if Mr. Belk had been called, his testimony would not have been as useful when he
had not yet testified about the three instances of the 7400 model rifle misfiring. Id. at 476.
The Court cannot find that the TSC unreasonably applied federal law on this claim. The
TSC reasonably applied Harrington and Hinton to find that counsel was not constitutionally
deficient, because he had a reasonable strategy to introduce proof regarding Petitioner’s rifle’s
capacity for accidental discharge and did attempt to undermine the expert proof presented by the
State. Petitioner has also not demonstrated by clear and convincing evidence that Mr. Belk’s
testimony could have been found at the time of his trial. Because the case here did not rely solely
on expert testimony where the State presented much additional evidence, including eyewitness
testimony, counsel was not ineffective for failing to hire an expert. While Mr. Belk’s testimony
would certainly have been useful at trial, this Court does not find that it was unreasonable for the
TSC to conclude counsel was not deficient for failing to raise it. Petitioner is therefore not entitled
to §2254 relief on this claim.
2. Excited Utterances Exception for Officer Miller’s Testimony
Petitioner claims that trial counsel was ineffective for failing to utilize the Tennessee Rule
of Evidence regarding excited utterance hearsay exceptions to introduce the prior statements of
Officer Steve Miller [Doc. 3 at25 – 40]. 13 Respondent contends that even if Officer Miller’s
statements were excited utterances, it does not necessarily follow that counsel was ineffective for
failing to introduce them under this theory [Doc. 15, at 23]. Because counsel was thorough in his
attempts to introduce Officer Miller’s prior statements and impeach the witness, counsel’s
representation at trial was not deficient.
13
Petitioner also claims that this is in violation of the Sixth Amendment right to present a defense and a
violation of the confrontation clause, however, those claims are amongst those procedurally defaulted, and will not be
considered.
38
When attempting to remove Petitioner’s rifle from the trunk of his vehicle, Officer Steve
Miller shot himself in the foot. Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *16. After the
accident, Officer Miller made statements to Officers Holbrook, Sims, and Gann that he knew his
finger was not near the trigger when the gun discharged. Id. at *16 – 20. However, at trial, Officer
Miller testified that he could not recall where his finger was. Id. at *39 – 40. On crossexamination, trial counsel attempted to elicit from Officer Miller that his finger was not on the
trigger. Kendrick, 454 S.W.3d at 460 – 461. While Officer Miller never used those words, and
his answers did seem less than cooperative, trial counsel had him demonstrate how he recalled
picking up the gun, where Officer Miller demonstrated that his finger was not near the trigger. Id.
Counsel also led Officer Miller to concede that he knew the weapon was likely loaded, and had
been trained for many years to not pick up any gun with his finger near the trigger, much less a
loaded one. Id. Trial counsel also attempted to introduce Officer Miller’s prior statements under
the “prior inconsistent statements” rule, although the trial court did not allow him to do so.
Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *9 – 12.
Petitioner contends that because Officer Miller’s statements were made while “under the
stresses-pain of the event … [and] bear their own indicia of reliability,” they could have been
introduced under the excited utterances exception to hearsay and “been used as truth of the matter
asserted” [Doc. 3 at 26]. He claims that failure to include this information was prejudicial because
the statement that Officer Miller’s hands were nowhere near the trigger was crucial for the defense
[Doc. 3 at 27]. Because the theory of defense was accident, Petitioner contends that the gun had
discharged without Petitioner’s finger on the trigger and without any intent or action on his part,
and the only evidence outside of Petitioner’s word that could have controverted the proof of the
State’s expert were the words of Officer Miller [Doc. 3 at 27].
39
Both the TCCA and TSC addressed this claim. On his second appeal of the dismissal of
his post-conviction petition, the TCCA found that trial counsel’s performance fell below an
objective standard of reasonableness when he failed to seek the admission of Officer Miller’s
statements under the excited utterance hearsay exception. Kendrick, 2013 Tenn. Crim. App.
LEXIS 539, at *50. They found that this error was prejudicial as it was reasonably likely that
given this statement, the jury would have convicted Petitioner of a lesser degree of homicide.
Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *50. Accordingly, the TCCA used this as the
second ground on which to reverse the holding of the post-conviction trial court and vacate
Petitioner’s sentence. Id.
However, the TSC reversed, concluding that although the statements may have been
admissible under excited utterance doctrine, Petitioner could not establish that trial counsel was
deficient for failing to admit them under this rule because counsel took several alternative measures
to demonstrate that Officer Miller had not pulled the trigger. Kendrick, 454 S.W.3d, 480 – 81.
The court noted that, in this context, the question was not whether the statements were admissible,
but rather whether counsel was objectively unreasonable under Strickland, given the presumption
that counsel was adequate. Id. at 480 (citing Strickland, 466 U.S. at 688 and Mobley, 397 S.W.3d
at 80 – 81). The court found that while in some circumstances the “lack of familiarity with court
rules may provide grounds for a finding of ineffective assistance of counsel,” here, counsel closely
cross-examined Officer Miller, attempted to refresh his memory, attempted to use the incident
reports to impeach his testimony, 14 emphasized during both cross-examination and closing
argument that Officer Miller’s finger was not near the trigger when he demonstrated his own
posturing with the rifle, and elicited from Officer Miller that he was unlikely to pick up a rifle with
14
The TSC noted that these attempts failed due to the trial court’s error, not counsel’s.
40
his finger on the trigger, due to his training. Id. at 480 – 481. The TSC found that Petitioner being
able to point to one tactic counsel did not employ to introduce this evidence would not overcome
the presumption that counsel’s representation was adequate. Id. at 481. The TSC further clarified
that even if it had found deficiency by counsel, there was such sufficient other evidence, both for
the defense and the prosecution, that it could not determine that this one deficiency would
undermine confidence in the verdict. Id. at 481 (citing Strickland, 466 U.S. at 694).
As with all issues of ineffective assistance of counsel on habeas, there is double deference
here. Harrington, 562 U.S. at 105. The Court presumes both that counsel’s representation was
adequate and that the court’s finding of such is reasonable. Id. Even if Officer Miller’s statements
were admissible under the excited utterances exception, such failure on behalf of trial counsel must
be weighed against the many other actions counsel took to introduce this same testimony. Claims
of ineffective assistance of counsel are reserved for those errors so clear and egregious that counsel
was no longer functioning as guaranteed under the Sixth Amendment. Strickland, 466 U.S. at 687.
As detailed above, counsel took painstaking measures to introduce this important defense evidence
to the jury and to undermine the proof adduced by the State. Petitioner cannot then show that
counsel deficiently served his adversarial function, for failing to use one tactic, such that the results
of trial are undermined. See Id. The Court does not find that the state courts unreasonably applied
federal law to this claim; therefore, Petitioner is not entitled to §2254 relief on this claim.
3. Prior Convictions
Petitioner contends that counsel was ineffective because he “opened the door” to
Petitioner’s prior convictions, which were otherwise inadmissible, and failed to request a limiting
instruction after having done so [Doc. 3 at 40 – 46]. Respondent holds out that although this was
likely error on behalf of trial counsel, Petitioner cannot establish prejudice [Doc. 15 at 35 – 39].
41
At trial, counsel questioned Petitioner regarding his criminal history. He asked Petitioner:
Q. Do you have any history of violent crime?
A. No, sir.
Q. I almost forgot – do you have any history of any convictions for any kind
of crime?
A. Returned checks.
Kendrick v. State, No. E2011-02367-CCA-R3-PC, 2015 Tenn. Crim. App. LEXIS 887, at *68.
Before trial, counsel had prepared Petitioner for his testimony and told Petitioner that only his
conviction for writing bad checks was admissible. Id. Then on cross-examination, the State asked
Petitioner about an additional conviction for driving under the influence, which Petitioner admitted
to, as well as a conviction for possession of marijuana arising from the same incident. Id. at *69.
The State through cross-examination also established for the jury that as a result of these
convictions, Petitioner was driving without a valid driver’s license the night of the shooting. Id.
Trial counsel objected to this line of questioning but was overruled by the trial court. Id. Petitioner
likewise complained about the trial court’s allowance of this line of questioning on direct appeal,
but the TCCA held that trial counsel “opened the door” to this type of impeachment given the form
of his question and Petitioner’s response regarding only some of his prior convictions. Id. at *69
– 70.
Petitioner raised this issue on post-conviction as an ineffective assistance of counsel claim,
both for opening the door to the prior convictions and failing to request a limiting instruction after
doing so [Doc. 3 at 40 – 46]. The TCCA held that although counsel was deficient with regards to
the form of the question and should have requested a limiting instruction, it agreed with the postconviction court that these errors did not prejudice Petitioner. Id. at *71. The TCCA noted that
trial counsel attempted to limit the damage during closing arguments by explaining that the
convictions do not contribute to Petitioner’s honesty and truthfulness and alerting the jury to the
42
fact that Petitioner actually volunteered testimony about an additional charge. Id. at *71 – 72.
Additionally, the TCCA found that Petitioner’s defense did not rely solely on his own credibility,
rather it was better supported by the fact that Officer Miller also had an incident with the same
rifle that strongly indicated the rifle misfired. Id. at *72. Citing Strickland, the TCCA held that
because there was substantial other evidence against Petitioner, including eyewitness testimony,
the TCCA could not find that there was a reasonable possibility but for this error that the result of
the proceeding would have been different. Id. at *75.
The Court cannot find that the TCCA unreasonably applied Strickland with regard to this
error and Petitioner is not entitled to relief on this claim. While Petitioner correctly points to case
law that finds that counsel may be deficient for introducing inadmissible prior convictions, here
the state court did not find that counsel was not deficient, but rather that petitioner was not
sufficiently prejudiced by counsel’s error. See Byrd v. Trombley, 352 Fed. Appx. 6 (6th Cir. 2009).
Petitioner must show more than that counsel’s error has “some conceivable effect on the outcome,”
he must show that but for counsel’s error, it is reasonably likely that the outcome may have been
different. Strickland, 466 U.S. at 694. The TCCA held that although Petitioner’s credibility may
have been damaged, neither his defense, nor the prosecution, relied only on his credibility or lack
thereof. See Byrd, 352 Fed. Appx. 6. There was ample evidence in this case, both for and against
Petitioner, that did not turn on Petitioner’s credibility and the Court cannot find that there was no
reasonable basis on which the state court could determine that Petitioner was not sufficiently
prejudiced to undermine the reliability of the results of his trial. See Harrington, 562 U.S. at 105.
4. Testimony of Martha Maston
Petitioner claims that trial counsel was deficient for failing to properly object, request
curative instructions, or seek other curative measures in relation to the prosecution’s use of Martha
43
Maston as a rebuttal witness, without having provided notice, and for failing to offer surrebuttal to
Ms. Maston’s testimony [Doc. 3 at 46 – 59].
At trial the prosecution called Martha Maston, an airport security officer, to testify.
Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *100. Ms. Maston attested that she arrived at the
scene and removed Petitioner’s children from their car seats and when she did Petitioner’s fouryear old daughter wrapped her arms around Maston’s neck and while crying said that she “told
daddy not to shoot mommy but he did and she fell.” Id.
Petitioner complains that counsel did not properly object or request curative measures
regarding: (1) that he was not provided notice of Ms. Maston’s testimony in violation of the parties’
open file policy agreement and (2) that her testimony was offered in rebuttal. He also alleges that
counsel was deficient for failing to raise surrebuttal testimony on this point [Doc. 3 at 46 – 59]. 15
Under these complaints, Petitioner appears to argue not that counsel did not object to this
testimony, which would be factually incorrect, but instead argues that counsel’s ineffectiveness
was undergirded by a misunderstanding of the law that led counsel to incorrectly and ineffectively
challenge this testimony [Id.]. He argues that counsel demonstrated a misunderstanding of the law
when he: attempted to claim that the testimony did not fall within the excited utterances hearsay
exception, argued that the testimony was not proper rebuttal, argued the prejudice presented by the
testimony and not the prejudice created by the lack of notice, and suggested to the jury that they
could discredit this testimony without the court offering a similar instruction. Petitioner further
submits that trial counsel was ineffective for failing to move for various curative measures,
particularly “specific performance of the prosecution’s twenty-two year plea offer” [Id.].
15
Petitioner also attempts to raise that this testimony was brought after a violation of the sequestration order,
but that claim is among his procedurally defaulted claims and will not be considered here.
44
Regarding the “surprise” nature of Ms. Maston’s testimony, the TCCA on direct appeal
found that Petitioner was not prejudiced by the late notice, that the State was not granted undue
advantage, and that because Ms. Maston’s testimony had been discovered late, the State had not
acted in bad faith. Kendricks, 947 S.W.2d at 883. The TCCA agreed with Petitioner, however,
that Maston should have been called as part of the State’s case-in-chief and not in rebuttal, yet still
found that Petitioner was not prejudiced by the order in which Ms. Maston’s testimony was
adduced. Id. Finally, the court determined that because this testimony should have been part of
the State’s case-in-chief, no limiting instruction regarding the use of this testimony was needed.
Id.
On post-conviction appeal, the TCCA held that the issues regarding Martha Maston’s
testimony had been addressed on direct appeal, and were therefore not the proper subject for postconviction relief. Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *103.
The TCCA went on to note that although Petitioner alleges that trial counsel was deficient
for failing to request the State be ordered to execute specific performance of the plea agreement
for the violation of the open-file agreement, Petitioner pointed to no case law, and the court found
none, “where specific performance of a rejected plea offer was ordered following a breach of the
prosecution’s open-file discovery agreement.” Id. at *104. The TCCA also determined that the
post-conviction court had credited trial counsel’s testimony that the statement of Petitioner’s
daughter was “ambiguous and not necessarily inconsistent with a theory of accident,” and thus
declined to reweigh or reevaluate this issue to establish prejudice. Id.
The TCCA also found that Petitioner appears to argue that trial counsel should have called
him to testify to contradict Ms. Maston’s testimony and minimize the damage done by her
statement. Id. at *104 – 105. However, it determined the testimony given by Petitioner’s daughter
was already questionable and Petitioner had already contradicted her statements with his own
45
testimony. Id. at 105. The TCCA found that they could not say that trial counsel was deficient
for failing to call Petitioner to testify to a “fairly innocuous statement in surrebuttal.” Id.
Petitioner points to state cases pertinent to the principle that Tennessee disfavors “surprise”
witnesses [Doc. 3 at 49]. However, the question before us is whether there is any reasonable
argument by which the state court could have determined that trial counsel was not deficient in his
handling of Ms. Maston’s testimony. See Harrington, 562 U.S. at 105. The TCCA found that trial
counsel did challenge the lack of notice of this testimony, but the court did not find prejudice
resulting from Petitioner’s lack of notice or the fact that Maston’s testimony was characterized as
rebuttal. Without more, the Court will not hold that counsel is objectively unreasonable, here, for
making a losing argument.
Under the Tennessee Rules of Criminal Procedure, Petitioner was not entitled to discovery
of the contents of Ms. Maston’s expected statement and he fails to show how he was prejudiced
by not knowing her identity. Tenn. R. Crim. P. 16(a)(2). He likewise fails to show how he was
prejudiced by Ms. Maston’s testimony being provided in rebuttal. When faced with the surprise
witness, allowed by the court, counsel cross-examined her and sought to undermine her testimony.
The Court will likewise not find that counsel was no longer functioning as counsel within the
adversarial process for failing to request an order for specific performance of the plea deal.
Petitioner points to no case law ordering such performance for a breach of open file policy and
counsel is not deficient for failing to file a motion or assert a claim which has no merit. See O’Hara
v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007). Because counsel was not deficient and Petitioner
has not demonstrated prejudice, he is not entitled to relief on this claim.
46
5. Testimony of Lennell Shepheard
Petitioner argues that trial counsel was ineffective for failing to object to Lennell
Shepheard’s testimony as a discovery violation, failing to impeach Shepheard, and failing to object
to Shepheard’s reference of information outside the record or request a limiting instruction
regarding the testimony of Lennell Shepheard [Doc. 3 at 67 – 75]. The Court finds that trial
counsel was not ineffective.
At trial, Lennell Shepheard, an eyewitness who was acquainted with the victim through
their respective jobs, testified that after hearing the gunshot, he looked outside and saw Petitioner
standing over the victim’s body shouting “I told you so” roughly six times. Kendrick, 2015 Tenn.
Crim. App. LEXIS 887, at *76. Mr. Shepheard’s previous statements provided in discovery did
not contain this “I told you so” language. Id. Mr. Shepheard then stated that he made eye contact
with the Petitioner and saw the Petitioner reach for the rear passenger-side car door as if to go for
the rifle inside. Id. Trial counsel cross-examined Mr. Shepheard on these statements and elicited
Mr. Shepheard’s agreement that during a conversation prior to trial, Mr. Shepheard did not tell
trial counsel about any threats and stated that he did not view any aggressive behavior, that the
victim was not in fear of the Petitioner, and that he did not hear the couple arguing. Id. at 76 – 77.
Petitioner claims that Mr. Shepheard’s change in testimony was a violation of the rules of
discovery or the open file policy put into place by the parties and that trial counsel erred in failing
to object or request curative measures [Doc. 3 at 67 – 75]. 16 Trial counsel testified at postconviction hearings that he had not been made aware of Mr. Shepheard’s material change in
testimony as he would have expected, given the open file agreement in place, and that the first
16
Petitioner’s claims regarding the “breach” of the open-file policy are discussed in section (IV)(C)(6) below,
his claims regarding the discovery violations will be discussed here.
47
time he heard about Petitioner’s “I told you so” statements was during the direct examination of
Mr. Shepheard. Id. at 78.
The TCCA held that under the Tennessee Rules of Criminal Procedure, defendants are not
entitled to the statements of state witnesses and that even if counsel had objected to his lack of
notice with regards to this testimony, there is no guarantee that the trial court would have issued
curative measures. Id. at *79. The court further noted that counsel thoroughly cross-examined
Mr. Shepheard on this variation in testimony and ensured that the jury knew that the “I told you
so” statement was not included in Mr. Shepheard’s prior statements. Id. at *80. The court held
that Petitioner did not demonstrate what more counsel could have done to discredit Mr. Shepheard
had he been given more time. Id. at *81 – 82.
Petitioner next claims that trial counsel erred in not using Detective Mathis’s interview of
Lennell Shepheard, which was transcribed, to contradict the evidence offered by Shepheard at trial
[Doc. 3 at 67 – 75]. Trial counsel attempted to read part of Mr. Shepheard’s previous statement
during cross-examination, presumably to highlight the inconsistencies between his trial testimony
and the statements he made to Detective Mathis. Id. at *84. The State objected and claimed that
the statements were “consistent,” the trial court made no ruling, and defense counsel continued to
read from the statement. Id. When directly asked, Mr. Shepheard said that he did tell Detective
Mathis about the “I told you so” statement and counsel again tried to either impeach or “refresh
Shepheard’s memory” to which the State again objected. Id. at *84 – 85. During a bench
conference on this issue, the trial court said that the failure to make a statement is not “inconsistent”
to making that statement later and defense counsel said he would simply call Detective Mathis
regarding the statement. Id. at *86. However, he never called Detective Mathis to testify on this
point. Id. at *87.
48
On post-conviction, the TCCA points out first that trial counsel did attempt to impeach Mr.
Shepheard with his prior statement, but was not allowed to by the trial court. Id. at *87 – 88. The
TCCA found that even after this tactic was prohibited, counsel performed a thorough crossexamination and even noted the deficiencies with the testimony in his closing arguments. Id. at
*88 – 90. Petitioner argues that counsel should have called Detective Mathis to contradict
Shepheard and was ineffective for failing to do so, and also argues, in the alternative, that counsel
should have obtained the Mathis report for impeachment purposes and was ineffective for failing
to do so [Doc. 3 at 67 – 75]. However, the TCCA noted that Mathis was not even called to the
post-conviction hearings and had still given no testimony. Id. at *88. It applied Tennessee law to
clarify that it could not speculate on the potential contents of Mathis’s testimony and whether it
would have been favorable to petitioner and thus found that Petitioner had not established that trial
counsel was deficient. Id. at *90 – 91. The TCCA then ruled that Detective Mathis’s report was
redundant given Detective Rawlston’s testimony about the same information, and that counsel was
not deficient for seeking it out. Id. at *90.
Finally, Petitioner complains that trial counsel erred when he did not object or request
curative measures, including a limiting instruction, when Mr. Shepheard testified that he spoke to
Investigator Legg, and testified to the substance of that conversation, when such was outside of
evidence [Doc. 3 at 67 – 75]. At trial, Mr. Shepheard testified that he spoke to Mr. Legg, an
investigator from the district attorney’s office, roughly one week before trial and that he told Mr.
Legg about the “I told you so” remarks. Id. at *93. Counsel did object based on the Jenck’s Act,
which requires the government to produce written reports on statements made by government
witnesses, because the State had not provided any such statement to the defense. Id. at *94. Mr.
Shepheard said that Mr. Legg took notes during his statement but he was not sure whether the
49
interview had been transcribed in writing or otherwise recorded. Id. Later, Investigator Legg
testified outside of the jury’s hearing that there were no written or recorded notations of his
interview, which ended the discussion as the Jenck’s Act was no longer applicable. Id. at *94 – 95.
Petitioner alleges that trial counsel was ineffective for failing to request a limiting
instruction, instructing the jury that as a prior consistent statement, “the week-old statement [to
Mr. Legg] could only be used in connection with credibility” [Doc. 3 at 67 – 75]. The TCCA held
that Mr.
Shepheard’s testimony was a prior consistent statement and served permissible
rehabilitation purposes, however, it also noted that the deficiencies with this statement, including
the fact that it was only made one week before trial, were also made clear to the jury. Id. at *96 –
97.
The trial court did not issue specific jury instructions on prior consistent statements, but
the jury did receive instructions on prior statements generally, outlining their impact on credibility
and thus the weight the jury can give, or not give, to testimony. Id. at *97 – 99. The TCCA found
that to hold that trial counsel’s failure to request a limiting instruction on this matter was deficient
would be impermissibly judging counsel’s representation in hindsight. Id. at *99. The TCCA held
that counsel was not deficient, because requesting this instruction could have emphasized the
testimony, to the detriment of Petitioner, and counsel took many other measures to introduce the
evidence that Mr. Shepheard’s “I told you so” testimony was only delivered at the eleventh hour.
Id.
To prevail on these claims, Petitioner would have to demonstrate that the State court’s
finding that counsel was not constitutionally ineffective, even given the deference granted to
counsel’s actions, was not simply incorrect, but objectively unreasonable. Harrington, 562 U.S.
at 105. Mr. Shepheard’s testimony did indeed raise many issues for the defense, both in its
50
unexpected nature and through the difficulties counsel faced in impeaching Mr. Shepheard.
However, it is evident from the record that trial counsel diligently attempted to advocate for his
client in this regard, even though many of his attempts were thwarted. As clarified above, counsel
had no legal basis to argue a discovery violation based on this change in testimony, he diligently
attempted to impeach even after an incorrect ruling by the court, and attempted to limit Mr.
Shepheard’s testimony and his credibility. The Court will not find that counsel failed to serve his
adversarial role where he took extensive measures to introduce evidence and contradict the proof
offered by the State merely because such attempts were unsuccessful. Petitioner is not entitled to
relief under §2254(d) on this set of claims.
6. Bad Faith Use of Open File Policy
Petitioner alleges that both trial and appellate counsel were ineffective for failing to object
or request curative measures, again including specific performance of the State’s previous plea
deal, 17 regarding the State’s “bad faith” use of its open file policy, intended to induce him to waive
his preliminary hearing, which he did, and to interfere with his trial [Doc. 3 at 59 – 67]. Petitioner
claims that the State withheld the identity of Ms. Maston, whose name was not on the State’s
witness list, and the changes in the statements or expected testimony by Officer Miller and Mr.
Shepheard, which led to the ineffective assistance of his counsel at trial, appeal, and during his
plea deal, as counsel did not have all of the facts necessary to prepare for trial or to properly advise
Petitioner on the favorability of the plea deal [Id.]. 18 Petitioner argues that whenever evidence
17
As discussed above, specific performance of a plea agreement has been used in Tennessee as a remedy,
but Petitioner has not demonstrated that it has been used for a breach of open-file discovery.
18
Petitioner likewise attempts to raise that the prosecution executed its open file policy in bad faith where it
did not include “documentary x-ray and 7400 schematic evidence” but these are amongst his procedurally defaulted
claims and will not be considered.
51
came in that was not included in the open file discovery, counsel should have moved for specific
performance of the plea deal or other curative measures [Doc. 3 at 66].
As set forth above, on direct appeal, the TCCA concluded that Petitioner failed to show
that he was prejudiced through the lack of disclosure of Maston as a witness because trial counsel
was able to thoroughly cross-examine Ms. Maston and Petitioner did not indicate what more trial
counsel could have done if he had known about her testimony earlier. Kendricks, 947 S.W.3d at
883. The TCCA also noted that it did not find bad faith or undue advantage on the State’s part,
because it credited the State’s version of events that they did not know about Ms. Maston’s
potential testimony earlier. Id. at 884.
On post-conviction, the TCCA held that Petitioner had not pointed to any legal authority
supporting that sanctions were required for the State’s violation of the open-file policy. Kendrick,
2015 Tenn. Crim. App. LEXIS 887, at *79. The court, instead, applied Tennessee Rule of Criminal
Procedure 16(d)(2), which provides that when a party fails to comply with discovery rules, the trial
court has discretion to enter an order it deems just. Id. However, it also noted that Rule 16(a)(2)
clarifies that statements made by state witnesses are not discoverable material. Id. The court cited
a Tennessee case which held that even though a prosecutor had promised information and failure
to supply it was “likely a breach of decorum,” it was “not within the purview of the rules of
procedure governing the practice of criminal law in Tennessee.” Id. (citing Matrin Becton v. State,
No. W2014-00177-CCA-R3-PC, 2015 Tenn. Crim. App. LEXIS 303, at *79 – 80.) With regards
to the change in Mr. Shepheard’s testimony not being disclosed to the defense before trial, the
TCCA held that “[e]ven if trial counsel had objected to Mr. Shepheard’s testimony on direct
examination, there was no guarantee that the trial court would have issued any curative measures
52
at all.” Id. at 80. Neither the TCCA or the TSC analyzed the changes in Officer Miller’s testimony
and counsel’s effectiveness or ineffectiveness resulting from them under this framework.
Under the Tennessee Rules of Criminal Procedure, Petitioner was not entitled to the
discovery of the statements of state witnesses or prospective witnesses. Tenn. R. Crim. P. Rule
16(a)(2). Although the state promised the entirety of its information, it is not a settled matter that
the state courts would have sanctioned the State in any form for failing to provide it, particularly
when these statements are not alleged to have been reduced to writing, and Tennessee
jurisprudence seems to indicate they would not. See Matrin Becton, 2015 Tenn. Crim. App. LEXIS
303, at *79 – 80. Petitioner can show neither deficiency nor prejudice for counsel’s failure to
object to Petitioner not receiving information he was not legally entitled to. The Court cannot find
that the state courts were unreasonable for failing to find counsel deficient for choosing not to
make an argument with no clear basis in law. See O’Hara, 499 F.3d at 506. Petitioner additionally
alleged prejudice because he claims he would have accepted the plea deal if given these pieces of
State evidence. However, such prejudice would only be attributable to the State’s withholding,
not counsel where he likewise had no knowledge of the additional testimony that would be offered
at trial.
Even if counsel had objected, there was no legal basis, under similar facts, for
reinstatement of the plea deal. For these reasons, the Court will not find that “there is [no]
reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562
U.S. at 105.
7. Fifth Amendment Silence
Petitioner claims that counsel was ineffective for failing to object or request other curative
measures for the prosecution’s improper use of Petitioner’s Fifth Amendment silence [Doc. 3 at
75 – 79]. Respondent holds out that Petitioner voluntarily agreed to speak with Detective
53
Rawlston, which the detective was properly permitted to comment on, and that neither trial nor
appellate counsel should be faulted for failing to bring a meritless claim [Doc. 15 at 55 – 60].
Neither trial nor appellate counsel were deficient on this issue.
On cross-examination, trial counsel attempted to elicit testimony from Detective Rawlston
to suggest that the detective performed an inadequate and less than thorough investigation because
he made up his mind on the scene about what had occurred. Kendrick, 2015 Tenn. Crim. App.
887, at *110. He asked Detective Rawlston whether he ever considered if the Petitioner’s rifle
was fired or discharged accidentally, and the Detective said no. Id. After which trial counsel went
through the following line of questioning:
Q. What about when the crime scene technician lifted the gun out of the trunk of
his car and shot himself in the foot with it, saying all the time that his finger was
nowhere near the trigger, what about that, that wasn’t an issue you thought worthy
of investigation?
A. It has been investigated.
...
Q. And there was never an issue as to whether or not the gun - that nobody fired
the gun, that it went off accidentally?
A. No, sir.
...
Q. Okay. Had you had your mind - you had your mind made up out there that
night what happened didn’t you?
A: I had, from the investigation received on the scene and from my investigation,
had concluded what occurred, yes, sir.
Q. Okay. On the scene?
A. On the scene, the airport, forensics.
Q. So by the airport your mind was made up?
A. At that point, yes, sir.
Id. at 110 – 111. On redirect examination, Rawlston stated that the statements of the witnesses
and “[Petitioner’s] response… in the case after advising him of his rights” contributed to his
decision. Id. at 111. Trial counsel objected that they had not been made aware of any such
statement and the prosecutor stated that Detective Rawlston was planning to “say something to the
effect of I hope this is a dream or something like that.” Id. at 111 – 112. Trial counsel
54
acknowledged he was aware of this statement. Id. at 112. Detective Rawlston then testified that
after he advised Petitioner of his rights and Petitioner indicated that he understood, Petitioner
agreed to speak with him and stated “I hope this is only a dream,” but never indicated at that time
that this was an accidental discharge. Id. Petitioner conceded both that he made this statement
and that he never told anyone at the airport that the shooting was an accident, but insisted he did
not discuss anything else because of the “racial tension” at the airport. Id. at *113.
During closing arguments, the State highlighted Petitioner’s failure to tell anyone that the
shooting was an accident. Id. at *113 – 114. Specifically, the prosecutor said:
Given the opportunity, did he tell anybody that it was an accident? He
makes the [9-1-1] call . I think the testimony came in it’s four minutes later… But
when he does, what’s the first communication? He knows he has been caught. I
want to turn myself in, I just shot my wife. That’s consistent with guilt. When
asked why did you shoot your wife, finally, he didn’t say it was an accident.
Mark Rawlston, talked to Mark Rawlston, he said he hoped it was only a
dream. It definitely wasn’t a dream. Didn’t say an accident. He didn’t tell anybody
it was an accident, didn’t present it.
Id. Trial counsel then in his own closing tried to highlight both that Detective Rawlston had his
mind made up by the time he reached the airport, and that while Petitioner did not tell the officers
that the shooting was an accident, he also did not state that it was not and that his statement “I hope
this is all a dream,” is not actually inconsistent with the theory of accident. Id. at *114.
The TCCA held that while the “constitutional right to remain silent after arrest may not be
exploited by the prosecution at trial[,]” Petitioner’s claim fails because he failed to establish by
clear and convincing evidence that he invoked his right to remain silent after Miranda warnings.
Id. at *115 – 116 (citing Doyle v. Ohio, 426 U.S. 610, 618 (1976)). The TCCA said that although
Petitioner was under arrest, Detective Rawlston testified that Petitioner voluntarily agreed to speak
with him, making Rawlston’s statement a comment on Petitioner’s decision to make a voluntary
statement, rather than his silence. Id. at *116. The TCCA held that because there was no error,
55
there was no deficient performance by trial counsel. The TCCA likewise held that there was no
prejudice because the State did not overly emphasize Detective Rawlston’s testimony during
closing and the jury heard the 9-1-1 call where Petitioner did not say the shooting was an accident.
Id. The TCCA also provided that because there was no error here, appellate counsel will also not
be faulted for failing to raise this issue on appeal. Id.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to
be a witness against himself.” U.S. Const. amend. V. Criminal defendants have a right to remain
silent and doing so cannot be used as substantive evidence of guilt. Griffin v. California, 380 U.S.
609, 615 (1965). Likewise, a defendant’s silence during custodial interrogation may not be used
to impeach the defendant’s testimony at trial. Doyle, 426 U.S. 610 at 619. However, the Doyle
rule does not apply where defendant waives his right to silence, expressly or implicitly, after
Miranda warnings. United States v. Lawson, 476 F. App'x 644, 650 (citing United States v.
Crowder, 719 F.2d 166, 172 (6th Cir.1983) (en banc)); see North Carolina v. Butler, 441 U.S.
369, 373 (1979) (holding that a waiver may be inferred “from the actions and words of the person
interrogated”). Relying on Butler, the Supreme Court has held that an uncoerced statement
following Miranda warnings may constitute a valid waiver of the right to remain silent, when the
accused understood his rights. Berghuis v. Thompkins ,560 U.S. 370, 385 – 86 (2010).
The Court cannot find that the TCCA unreasonably applied Strickland when it found that
Petitioner’s counsel was not deficient in this regard. Petitioner and the Respondent seem to be in
accord that Petitioner was under arrest, had been advised of his rights, and understood those rights.
Petitioner does not contest that he made a statement after that point, but seems to imply that
anything he did not say during that statement could not be used in trial. To hold so would be a
logical fallacy. Because Petitioner’s statements were made after valid and understood Miranda
56
warnings, they constitute an implicit waiver of his right to remain silent and do not fall within the
Doyle prohibition. See Berghuis, 560 U.S. at 385 – 386. As such, Detective Rawlston was
permitted to comment on the entirety of what Petitioner did say. Even without explicit comment
by Detective Rawlston, anything Petitioner did not say could have been logically inferred. Even if
counsel was found deficient, the Court could not find prejudice sufficient to undermine the
reliability of the trial.
Even without comments by Detective Rawlston or the prosecution about what Petitioner
did not say, the jury was quite capable of discerning it on their own, particularly when the tape
recorded 9-1-1 call made by Petitioner where he also did not indicate that the shooting was an
accident, was before them. Neither trial nor appellate counsel will be faulted for failing to raise
this meritless claim.
8. Calling of Divorce Attorney
Petitioner alleges that counsel was deficient for failing to make a reasonable decision in
the calling of Petitioner’s divorce attorney, Ken Lawson, and for failure to request a jury-out
hearing regarding the waiver of attorney-client privilege regarding this witness [Doc. 3 at 79 – 82].
Respondent characterizes this claim as involving a credibility dispute between Petitioner, who
claims he was not consulted on the decision to call Ken Lawson or on the waiver of attorney-client
privilege, and trial counsel, who claimed that the calling of this witness and the waiver were a
result of client’s own decision [Doc. 15 at 29 – 32]. The Court cannot find that the TCCA’s holding
that trial counsel was not deficient was an unreasonable application of Strickland, or based on an
arbitrary finding of fact, therefore Petitioner is not entitled to habeas relief on this claim.
At trial, counsel called Mr. Lawson who testified on direct-examination that the parties
were divorcing amicably, and that it was a mutual decision based on irreconcilable differences.
57
Kendrick, 2015 Tenn. Crim. App. 887, at *54 – 55. He likewise testified that under the terms of
the divorce Petitioner would be receiving child support from his wife, that he would have primary
custody of the couple’s children, and would retain most of the marital property. Id. at *55, *58.
He likewise served as a character witness, stating that he believed Petitioner to be a “truthful and
honest” person. Id. at *55.
Petitioner’s complaints regarding Mr. Lawson’s testimony began at cross-examination,
where the State asked Mr. Lawson if he had discussed adultery or other grounds for divorce with
the couple. Id. at *55. Mr. Lawson then asserted attorney-client privilege. Id. After his assertion,
the parties held a bench conference at which trial counsel, prior to the court’s ruling on privilege,
stated “I’ll make this easy for everybody. As long as I can do it in front of the jury, we’ll waive
the privilege. As long as I can announce it when counsel does it.” Id. at *56. He then stated that
he was comfortable doing so after conferring with Petitioner, at which point the court allowed
counsel to waive privilege and the testimony to proceed. Id. at *56 – 57. At this point, Mr. Lawson
admitted that he had discussed adultery grounds with Petitioner, who suspected that his wife was
having an affair, although Lawson could not recall specifics about this conversation. Id. at *57.
After this conversation, the couple attempted to reconcile, but their attempts failed and the couple
agreed to file for divorce on the basis of irreconcilable differences. Id. at *57. Mr. Lawson testified
that “[h]er affair had nothing to do with it at that point.” Mr. Lawson stated that although in initial
conversations Petitioner’s mood was “more of a combination of anger and discouragement[,]” that
later on the Petitioner “seemed more resigned to it” and told Mr. Lawson that he did not harbor
any “aggressive feelings” towards the victim. Id. at 57 – 58.
Petitioner first alleges counsel’s deficiency in calling this witness, because had counsel
performed better pre-trial investigation, he would have either not called Mr. Lawson, or limited
58
his testimony to character only [Doc. 3 at 80]. Next, Petitioner claims that trial counsel waived his
attorney client privilege without consulting him and erred in doing so, as it allowed the State to
insinuate the shooting was motivated by suspicions of adultery, and that counsel should have
requested a jury out hearing before agreeing to waive privilege [Doc. 3 at 80 – 82].
The TCCA first found that regardless of Petitioner’s contentions, Mr. Lawson’s testimony
actually corroborated Petitioner’s testimony regarding the divorce and the couple’s accord in the
matter, and further demonstrated that the death of his wife would be tangibly detrimental to
Petitioner under the terms of the divorce. Id. at *60. The court clarified that the fact that some
elements of this witness’s testimony were less than favorable did not amount to the deficiency of
counsel. Id. Further, the court noted that post-conviction hearings established that the calling of
the divorce attorney and the waiving of attorney-client privilege was a strategic decision at least
partially directed by Petitioner. Id. at *61. The TCCA then found that Petitioner failed to
demonstrate either deficiency of counsel or prejudice. Id.
The Court does not find that the TCCA unreasonably applied Strickland to determine that
counsel was not deficient or made an arbitrary finding of fact in this regard. Counsel made a
strategic decision to call this witness and to waive privilege. Due to the couple being in the process
of divorce, motive could have been implied or naturally inferred with or without the testimony of
Mr. Lawson. This witness had pertinent and useful information regarding lack of contention in the
divorce, and thus lack of motive, which was important to the defense. Even if counsel knew of the
prior adultery conversation between Petitioner and Mr. Lawson, the Court could not say that his
professional decision that the benefit of this testimony outweighed any potential negatives is
objectively unreasonable. Much less could the Court find that the state court had no reasonable
basis for deciding so. Once Mr. Lawson had asserted privilege, it could have seemed to the jury
59
that he was hiding something and counsel again made a strategic decision in order to soften any
suspicions. Although Petitioner claims he was not consulted about such decisions, he has not
demonstrated so by clear and convincing evidence. Petitioner is not entitled to habeas relief on this
claim.
9. Calling Randall Leftwich
Petitioner claims that counsel was ineffective because he failed to fully investigate,
interview, or call Randall Leftwich, Petitioner’s cousin, to testify [Doc. 3 at 82 – 86]. Respondent
states that although Leftwich’s testimony may have provided useful corroboration, it does not
necessarily follow that counsel was deficient for failing to call him as a witness [Doc. 15 at 32 –
35]. The Court cannot find that the TCCA’s finding that counsel was not deficient for failing to
call this singular witness is an unreasonable application of Strickland.
Petitioner first raised this claim in his state post-conviction petition. At post-conviction
hearings, Mr. Leftwich stated that he would have been available to testify at trial, that he did not
recall being contacted by trial counsel or an investigator prior to trial, and then summarized
information he had that may have been useful to present to the jury. Kendrick, 2015 Tenn. Crim.
App. 887, at *61 – 62. Leftwich testified that his parents owned the home that the couple lived in
at the time of the shooting, which they remained in even during their divorce proceedings. Id. He
saw the couple interact on the day of the shooting when Petitioner’s car broke down and Leftwich
went to assist; Petitioner called the victim who then bought needed car parts and delivered them
to Petitioner and Leftwich. Id. at *62. Leftwich indicates that there was no indication of a problem
between the couple at that time. Id. After learning of the shooting, Leftwich’s mother asked him
to go secure Petitioner’s residence where he discovered cabbage that had been left simmering on
the stove. Id. At post-conviction hearings, trial counsel testified that he could not recall whether
60
he or anyone else contacted Mr. Leftwich, but did note that Petitioner was very engaged in the
direction of his trial and that counsel frequently consulted with Petitioner on which witnesses to
call. Id. at *63. Petitioner rebutted that Leftwich logically should have been interviewed to
corroborate Petitioner’s testimony because Petitioner informed trial counsel that he was with
Leftwich on the day of the shooting and that the calling of witnesses was a decision for counsel.
Id.
The TCCA agreed that Leftwich could have provided corroborating testimony, but
declined to find counsel deficient for failing to interview and call him as a corroborating witness.
Id. at *64 – 65. First, the TCCA noted one small discrepancy between Petitioner’s testimony and
Leftwich’s, regarding the victim’s mood upon having to deliver car parts to Petitioner, and second
noted that as Petitioner was very involved with the direction of his case, he could have informed
trial counsel of his desire to have Leftwich testify and counsel was likely to have complied, as he
did in other circumstances. Id. at *65. Further the Court found no prejudice from the absence of
this testimony because the testimony was largely cumulative or corroborative. Id. at *66 – 67. As
to the non-corroborative evidence, regarding the cabbage simmering on the stove, the TCCA found
that Petitioner did not demonstrate by clear and convincing evidence that he knew about or alerted
trial counsel to Leftwich’s discovery of the cabbage, which Petitioner alleges undermines
premeditation, before or at the time of trial. Id. at *67.
Petitioner raises two distinct claims here: the failure to investigate Randall Leftwich as a
witness and the failure to call Randall Leftwich as witness. See English v. Romanowski, 602 F.3d
714, 726 (6th Cir. 2010). To determine if counsel was ineffective for failing to investigate, the
Court must assess the reasonableness of counsel’s “investigation or lack thereof.” English v.
Romanowski, at 726. As with all ineffective assistance claims, Petitioner must still demonstrate
61
prejudice resulting from this action. Strickland, 466 U.S. at 687. To show that counsel was
ineffective for failing to call witnesses, Petitioner must establish that the witness had favorable
information and the lack of that witness’s testimony prejudiced his defense. Pillette v. Berghuis,
408 Fed. Appx. 873, 882–83 (6th Cir. 2010) (citing Towns v. Smith, 395 F.3d 251, 258 – 60 (6th
Cir. 2005)). However, “defense counsel has no obligation to call or even interview a witness
whose testimony would not have exculpated the defendant.” Millender v. Adams, 376 F.3d 520,
527 (6th Cir. 2004).
Here, the Court cannot find the TCCA’s holding that counsel was not deficient for failing
to investigate or call Randall Leftwich to testify is based on an unreasonable finding of fact or
application of law. The TCCA considered Leftwich’s potential testimony in two categories: first,
corroborative evidence regarding Petitioner’s account of the day of the shooting and good
relationship with the victim and second, evidence of cabbage simmering at Petitioner’s home that
could have showed a lack of premeditation. Counsel was not deficient for failing to investigate or
call Leftwich when he had no indication that Leftwich had potentially exculpatory information and
only knew of Leftwich’s potentially corroborative testimony. Petitioner did not establish by clear
and convincing evidence that counsel had any indication of the “cabbage simmering” testimony,
the only piece of Leftwich’s testimony that was not merely cumulative. The Court cannot say that
the TCCA had no reasonable basis for their decision that counsel was not constitutionally
ineffective. Petitioner is not entitled to relief on this claim.
10. Calling Officer Lapoint
Petitioner alleges that counsel was deficient in failing to investigate, call, or otherwise seek
to introduce the information available through Officer William Lapoint, as such would have
communicated Petitioner’s state of mind to the jury [Doc. 3 at 86 – 88]. Respondent states that
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the TCCA found that the jury had other evidence from which it could discern Petitioner’s
demeanor and in addition notes that Officer Lapoint’s testimony was only relevant to Petitioner’s
state of mind after the event, while the TCCA focused only on his calmness before as indicative
of premeditation and deliberation [Doc. 15 at 53 – 55]. Because Petitioner cannot show that this
witness had favorable information, the TCCA’s holding that counsel was not deficient in this
regard is not unreasonable.
Officer Lapoint was present at the airport where Petitioner was arrested. Kendrick, 2015
Tenn. Crim. App. 887, at *106. At that time, he went to the police vehicle Petitioner was in to talk
to the Petitioner. Id. At post-conviction hearings, Officer Lapoint described Petitioner as “very
distraught” and noted that he was rocking his body, crying, and that he stated “I can’t believe I did
that.” Id. Officer Lapoint testified that he put a tape recorder in the patrol car set to record
Petitioner, but did not check that the tape recorder was working before doing so. Id. When the
recorder was returned, it did not work because the batteries had corroded; other officers told
Officer Lapoint there was nothing on the tape contained in the recorder. Id. The Petitioner noted
at trial that the tape recorder was placed in the patrol car with him and that he believed that there
must have been evidence favorable to him on the tape because the prosecution did not play it. Id.
at *107.
On motion for new trial, counsel raised the State’s failure to include the tape in discovery,
but as the court denied the motion, appellate counsel chose not to raise it on appeal. Id. at *107.
Trial counsel testified at post-conviction that he did not recall ever hearing about the tape recorder
and did not recall speaking to Officer Lapoint. Id.
The TCCA held that counsel was not deficient in this regard for multiple reasons. First,
Petitioner only alleged that this tape could have had evidence relevant to his mental state after the
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shooting, an issue which the jury had substantial alternative evidence on: testimony from Ms.
Maston stating that Petitioner was crying, the tape of Petitioner’s 9-1-1 call, and Petitioner’s own
testimony.
Second, Petitioner’s state of mind post-shooting was not used as evidence of
premeditation and deliberation, but rather his calmness before the shooting. Id. at *107 – 109.
Lastly, the tape has never been found and there is no indication of what was on it, not even by
Petitioner. 19 Id. The TCCA held that for all these reasons, Petitioner failed to establish either
deficient performance or prejudice in this regard. Id.
This Court does not find that the state courts unreasonably applied Strickland to find that
counsel was not deficient. Petitioner has not proven the factual basis of this claim by clear and
convincing evidence – he has not demonstrated whether trial counsel ever heard about the tape or
knew of Lapoint’s existence as his name was not provided in discovery. This court likewise finds
no prejudice where there is no indication as to the contents of the tape on which to assess their
potential outcome on the verdict. Petitioner is not entitled to relief on this claim.
11. Improper Jury Promise in Opening Argument
Although neither the state courts nor the Respondent address this issue, the Court finds that
it was properly presented in Petitioner’s brief to the TCCA appealing the second dismissal of his
post-conviction petition [Doc. 14 Attachment 47 at 82 – 83]. As such, this claim will be reviewed
de novo. See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). Petitioner raises here that counsel
was ineffective because, in his opening statement, counsel made an unfulfilled promise to the jury
that irreparably damaged Petitioner’s credibility [Doc. 3 at 94 – 106]. In opening statement,
counsel informed the jury that Petitioner’s wife was killed by a faulty rifle and that the jury would
19
Petitioner seems to contend throughout the record that there must have been information useful to his
defense on the tape and that provided motivation for the State to suppress it. However, he has not offered any evidence
of what is on the tape and this Court is not in the position of assuming such malintent without proof.
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hear from Officer Miller that the firearm discharged, shooting him in the foot, without his hands
anywhere near the trigger [Doc. 14 Attachment 47 at 82 – 83]. As detailed above, Officer Miller
did not expressly testify that his finger was not on the trigger during his accident, but rather that
he could not recall his posture. However, counsel did elicit some proof from Officer Miller
indicating that his finger was not near the trigger. Petitioner alleges that counsel did not have a
proper basis for this claim because he had not interviewed Officer Miller and that he should have
realized by the State’s plan to call Officer Miller and Agent Fite that Officer Miller’s testimony
had changed [Doc. 3 at 94 – 106]. 20
“It is unreasonable for counsel to promise testimony to the jury without first examining the
availability and soundness of such testimony where counsel could, and should, have discovered
these details prior to trial.” Plummer v. Jackson, 491 Fed. Appx. 671 (6th Cir. 2012)(citing English
v. Romanowski, 602 F.3d 714, 728 (6th Cir. 2010)). Such an unfulfilled promise can create a
negative inference in the mind of the jury, who may wonder why the promised testimony was not
proffered. See English, 602 F.3d at 729. However, English makes clear that the ineffective
assistance of counsel is formed by the lack of a reasonably investigated basis for the promise, not
just the unfulfilled promise itself. English 729. While counsel generally has a duty to make
reasonable investigation, Strickland clarifies that counsel can also reasonably determine that
certain investigations are unnecessary. Strickland, 466 U.S. 668, n. 19.
In Petitioner’s case, it was a reasonable decision for counsel to rely on previous signed
statements by Officer Miller to inform his expectations for Officer Miller’s trial testimony and his
opening argument. Regardless of Petitioner’s contention that counsel should have anticipated the
20
Petitioner seems to allege that because Agent Fite testified that the gun could not fire without the trigger
being pulled or the gun being broken, and Officer Miller’s statement declared that the gun had fired without his finger
on the trigger, that counsel should have deduced that there was a change in Officer Miller’s testimony because the
State would not put contradicting witnesses on the stand.
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change in testimony, this was an unforeseeable alteration, by a witness that counsel had no reason
to presume was unreliable. Given his limited time and resources, it was reasonable for counsel to
focus on other investigation rather than calling Officer Miller and every other officer to verify their
sworn, written statements. Additionally, even if Petitioner had demonstrated deficiency, he cannot
demonstrate prejudice. As English notes, the damage from such unfulfilled promises occurs when
the jury is left to infer why such testimony was not raised or believes that counsel lied. English,
602 F.3d at 729. Here, counsel took or attempted to take measures to make it abundantly clear to
the jury that he proposed that Officer Miller would say his finger was not on the trigger because
he had said so before. Petitioner cannot show that this error, after being explained to the jury, was
sufficient to undermine the reliability of the results of his trial.
V. CONCLUSION
For the reasons set forth above, Petitioner’s petition for a writ of habeas corpus [Doc. 1] will
be DENIED and this action will be DISMISSED.
VI. CERTIFICATE OF APPEALABILITY
The Court must now consider whether to issue a certificate of appealability (“COA”), should
Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may appeal a
final order in a habeas proceeding only if he is issued a COA, and a 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
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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.
Reasonable jurists would not disagree that Petitioner procedurally defaulted his claims, nor
would they disagree that neither Petitioner’s trial nor appellate counsel was constitutionally
ineffective. Accordingly, a COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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