McNish v. Bell
Filing
212
MEMORANDUM OPINION. Signed by District Judge Pamela L Reeves on 2/25/16. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAVID McNISH,
Petitioner,
v.
BRUCE WESTBROOKS, Warden,
Respondent.
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No.: 2:00-CV-095-PLR-CLC
MEMORANDUM OPINION
David McNish (“Petitioner”) was sentenced to death by a jury in Carter County,
Tennessee, following his 1984 conviction for first-degree murder. Petitioner has exhausted his
appeals in the Tennessee Courts, and this Court denied his federal habeas corpus petition on
February 12, 2013 [Docs. 187, 188]. This matter is now before the Court on remand from the
Sixth Circuit. After reviewing the supplemental briefs filed by both parties, including supporting
affidavits and exhibits from Petitioner, the applicable law, and, where relevant, the record of
Petitioner’s underlying conviction and habeas records, the Court will GRANT Petitioner’s
motion in part and DENY it in part.
I.
Procedural Background 1
Petitioner was convicted of first-degree murder for the April 5, 1983 murder of Gladys
Smith, a seventy-year-old widow, and received a sentence of death. The conviction and sentence
were affirmed on direct appeal to the Tennessee Court of Criminal Appeals and the Tennessee
Supreme Court. See State v. McNish, 727 S.W.2d 490 (Tenn. 1987). The United States Supreme
1
The Court assumes familiarity with Petitioner’s case and discusses the procedural and
factual background only as it is relevant to the issues currently before the Court.
Court denied certiorari. McNish v. Tennessee, 484 U.S. 873 (1987). Petitioner subsequently
filed a petition for post-conviction relief that was denied by the Carter County Criminal Court
and the Tennessee Court of Criminal Appeals. See McNish v. State, No. 03C01-9712-CR-00550,
1999 WL 604436 (Tenn. Crim. App. Aug. 12, 1999), perm. app. denied Mar. 6, 2000.
Petitioner filed a habeas corpus petition that the Court denied on February 12, 2013
[Docs. 187, 188]. In reaching this decision, the Court found that Petitioner had procedurally
defaulted some of his ineffective assistance of trial counsel claims by failing to properly exhaust
them in the state proceedings [Doc. 187]. The Court also denied a certificate of appealability on
Petitioner’s claims [Doc. 188]. Petitioner next filed a motion to alter judgment [Doc. 189],
which the Court denied on May 30, 2013 [Doc. 194]. Petitioner appealed the Court’s denial of
his habeas petition to the Sixth Circuit. Following the Supreme Court’s decision in Martinez v.
Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), Petitioner filed a
motion to remand this case that the Sixth Circuit granted [Doc. 196].
The Court ordered both parties to file supplemental briefs on the ineffective assistance of
counsel claims affected by Martinez and Trevino addressing why Petitioner is or is not entitled to
relief on those claims [Doc. 197].
Petitioner has filed his supplemental brief [Doc. 202],
Respondent has filed a response [Doc. 208], and Petitioner has filed a reply to Respondent’s
response [Doc. 211].
II.
Analysis
Petitioner is seeking relief from the Court’s procedural default ruling, arguing that he can
establish the requisite cause and prejudice to excuse the procedural default of his ineffective
assistance of trial counsel claims because he received ineffective assistance by his postconviction trial counsel [Doc. 202].
Petitioner specifically seeks to reopen the following
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ineffective assistance of counsel claims: (1) that trial counsel failed to investigate and present
petitioner’s social history comprising classic mitigating evidence; and (2) that trial counsel failed
to investigate and present evidence on the absence of premeditation [Doc. 202].
In Martinez, the Supreme Court created “a narrow exception” to the general rule of
Coleman v. Thompson that a habeas petitioner cannot use ineffective assistance of collateral
review counsel as cause to excuse a procedural default. 501 U.S. 722, 756–57 (1991). The
Supreme Court held that where a state’s procedural law requires claims of ineffective assistance
of counsel to be raised in an initial-review collateral proceeding, a procedural default will not bar
a habeas court from hearing a substantial claim of ineffective assistance of trial counsel if, in the
initial-review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective. Martinez, 132 S. Ct. at 1320. The Court subsequently expanded the Martinez
exception, holding that where a “state[’s] procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of counsel on direct appeal, [the] holding in
Martinez applies.” Trevino, 133 S. Ct. at 1921. The Sixth Circuit has since held that Martinez,
as expanded by Trevino, is applicable in Tennessee. See Sutton v. Carpenter, 745 F.3d 787,
795–96 (6th Cir. 2014).
Martinez permits a petitioner to establish cause to excuse a procedural default of an
ineffective assistance of trial counsel claim by showing that he received ineffective assistance by
post-conviction counsel. See Martinez, 132 S. Ct. at 1320. This holding, however, does not
dispense with the “actual prejudice” requirement established by the Supreme Court in Coleman.
501 U.S. at 750. To successfully establish cause and prejudice under Martinez and Trevino, a
petitioner must show a substantial underlying claim of ineffective assistance of trial counsel. See
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Trevino, 133 S. Ct. at 1918; Martinez, 132 S. Ct. 1318–19. “To establish that his claim is
‘substantial,’ a habeas petitioner must ‘show that his post-conviction relief counsel was
ineffective under Strickland v. Washington.’ That is, the petitioner must show both that his postconviction counsel’s performance was constitutionally deficient and that the petitioner was
prejudiced by the deficiency.” Thorne v. Hollway, No. 3:14-CV-0695, 2014 WL 4411680, at
*22 (M.D. Tenn. Sept. 8, 2014) (quoting Clabourne v. Ryan, 745 F.3d 362, 376 (9th Cir. 2014)).
The Sixth Circuit has directed that a district court reconsidering ineffective assistance of
counsel claims under Martinez and Trevino must first address whether the petitioner can
demonstrate “(1) the absence or ineffective assistance of his post-conviction counsel and (2) the
‘substantial’ nature of his underlying [ineffective assistance of trial counsel claims].”
Woolbright v. Crews, 791 F.3d 628, 637 (6th Cir. 2015). If the petitioner demonstrates these first
two elements, the Petitioner has established cause to excuse the procedural default, and the
district court must next determine whether the petitioner can establish prejudice from the alleged
ineffective assistance of trial counsel. Id. If the petitioner successfully establishes cause and
prejudice, the final step is for the district court to evaluate the underlying ineffective assistance
of trial counsel claims on the merits. Atkins v. Holloway, No. 12-6498, 2015 WL 4098358, at * 5
(6th Cir. July 8, 2015).
As part of showing a substantial claim of ineffective assistance of trial counsel, the
petitioner must prove prejudice under Strickland. See McGuire v. Warden, Chillicothe Corr.
Inst., 738 F.3d 741, 752 (6th Cir. 2013) (“To be successful under Trevino, [petitioner] must show
a ‘substantial’ claim of ineffective assistance, and this requirement applies as well to the
prejudice portion of the ineffective assistance claim.” (internal citations omitted)).
Under
Strickland, a petitioner can prove prejudice by showing “that there is a reasonable probability
4
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
The “actual prejudice”
requirement of Coleman and the prejudice requirement of Strickland overlap such that
in many habeas cases seeking to overcome procedural default
under Martinez, it will be more efficient for the reviewing court to
consider in the first instance whether the alleged underlying
ineffective assistance of counsel was “substantial” enough to
satisfy the “actual prejudice” prong of Coleman. If not, because
the “cause and prejudice” standard is conjunctive rather than
disjunctive, the reviewing court would have no need to consider
whether the petitioner has established cause to overcome the
procedural default, in the form of ineffective assistance of postconviction counsel.
Thorne, 2014 WL 4411680, at *23. The Supreme Court has defined this “substantial” showing
as requiring a petitioner to show that the claim has some merit. Martinez, 132 S. Ct. at 1318–19
(citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). The threshold inquiry at this stage “does not
require full consideration of the factual or legal basis adduced in support of the claims”; rather,
the court is required to engage in a preliminary, though not definite, consideration of the twostep framework mandated by Strickland. Miller-El, 537 U.S. at 336, 338.
A.
Failure to investigate and present Petitioner’s social history comprising
classic mitigating evidence.
1.
Relief under Martinez
As previously mentioned, under Martinez, the Court is required to undertake a
preliminary analysis of Petitioner’s underlying ineffective assistance of trial counsel claim in
order to determine whether the claim has some merit. See Martinez, 132 S. Ct. at 1318–19.
Petitioner argues that his trial counsel was ineffective for failing to investigate and present
evidence of Petitioner’s impoverished and abusive family background, mental health issues, and
brain damage [Doc. 202]. Petitioner argues that his trial counsel’s preconceived notions about
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mental health illness prevented him from investigating Petitioner’s social and mental history
because counsel believed that their decision to pursue a reasonable doubt defense precluded them
from using any sort of mental health defense [Doc. 202 p. 7–8]. According to Petitioner,
counsel’s decision was not strategic because there was no investigation conducted to support it
[Doc. 202 p. 1]. Petitioner claims that he was prejudiced by his trial counsel’s failure to present
evidence of his social history because the evidence is mitigating, and there is a reasonable
probability that this mitigating evidence would have outweighed the sole aggravating factor
[Doc. 202 p. 40].
In response, Respondent argues that Petitioner is not entitled to relief on this claim under
Martinez because this Court previously found that the Tennessee Court of Criminal Appeals
addressed and rejected this claim on a more limited record and factual allegations, and the Court
concluded that petitioner was not entitled to federal habeas relief [Doc. 208 p. 4]. Petitioner, in
reply, argues that Respondent neglects the portion of this Court’s previous ruling which
specifically stated that this issue was procedurally defaulted [Doc. 211]. The Court agrees with
Petitioner. To the extent that Petitioner alleges that his trial counsel were ineffective for failing
to investigate and present mitigating evidence in form of Petitioner’s family history, the issue
was procedurally defaulted for failure to present it to the post-conviction trial court and,
therefore, falls within the purview of Martinez [See Doc. 187 p. 100].
The Supreme Court has held that the failure to investigate and present mitigating
evidence at sentencing generally constitutes ineffective assistance of counsel. See Williams v.
Taylor, 579 U.S. 362, 393 (2000). Here, Petitioner’s trial counsel presented mitigating evidence
in form of testimony from Petitioner’s family members and Petitioner himself. However, they
failed to explore a wealth of evidence that was available to them concerning Petitioner’s family
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and mental history. A preliminary review of counsel’s failures in this respect, based on existing
Supreme Court precedent on failure to investigate and present mitigating evidence, indicates that
Petitioner’s ineffective assistance of trial counsel claim here has some merit.
With respect to ineffective assistance of counsel by Petitioner’s post-conviction counsel,
the Court must also find that Petitioner received ineffective assistance with respect to the
procedural default of this claim by his state post-conviction counsel. Strickland requires a
petitioner to show both deficient performance and prejudice in order to bring a successful
ineffective assistance of counsel claim. Strickland, 466 U.S. at 687–88. Admittedly, “the
Strickland analysis ‘does not require an attorney to raise every non-frivolous issue on appeal.’”
Ballard v. United States, 400 F.3d 404, 407 (6th Cir. 2005) (quoting Caver v. Straub, 349 F.3d
340, 348–49 (6th Cir. 2003)).
However, the Supreme Court has noted the importance of
developing the evidentiary basis for a claim of ineffective assistance of counsel, which often
turns on evidence outside the trial record. See Martinez, 132 S. Ct. at 1317. The record indicates
that in the amount of time that Petitioner’s case bounced around from one attorney to the next
during the state post-conviction appeal proceedings, none of Petitioner’s counsel thoroughly
investigated the lack of mitigating evidence in form of Petitioner’s social, mental, and family
history [Doc. 202 pp. 47–50]. Having found that this claim has some merit, Counsel’s actions in
ignoring this avenue that was potentially successful cannot be rationalized. Furthermore, the
Sixth Circuit has found that “an appellate counsel prejudices a client where the attorney fails to
raise on appeal a meritorious claim.” Carver, 349 F.3d at 349–50. As such, the Court finds that
Petitioner’s post-conviction counsel was ineffective under Strickland.
2.
Merits of Petitioner’s Ineffective Assistance of Trial Counsel Claim
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Because the Court has found that Petitioner has established the requisite cause and
prejudice to excuse the procedural default of his claim of ineffective assistance of counsel claim
for failure to investigate and present mitigating evidence, the Court must now evaluate
Petitioner’s underlying ineffective assistance claim on its merits. See Atkins, 2015 WL 4098358,
at *5.
a.
Evidence of Petitioner’s Life History.
Petitioner presented evidence of his family, social, and mental history in form of
affidavits, health records, and military records [Doc. 202]. These records were never presented
to the jury during Petitioner’s trial, and were introduced in the state courts for the first time
during the appeal of the denial of Petitioner’s petition of post-conviction relief. The Tennessee
Court of Criminal appeals denied Petitioner’s remand motion to expand the record before the
post-conviction trial court, stating that this information was readily available to post-conviction
counsel.
The affidavits of Petitioner’s family members described the abusive environment
Petitioner grew up in. Petitioner’s mother was an alcoholic who drank throughout all her
pregnancies, and Petitioner’s parents ran a bootleg alcohol business in their dry county using
their children to deliver and hide the illegal alcohol. This alcohol business also brought many
strangers into Petitioner’s home with whom his parents hosted all-night parties where
Petitioner’s mother got drunk and engaged in sexual relationships with the men. Some of these
men also attacked the McNish children, and his parents did nothing to stop them. Petitioner’s
father, George McNish, abused his children, and his mother did not take the children to see a
doctor because she did not want people to find out what he was doing to the children. In
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addition, Petitioner had to watch his sisters being molested by his older brothers, some of whom
also abused him.
Petitioner’s siblings started running away from home at young ages in order to get away
from the physical and sexual abuse in their home. As a child, Petitioner would not run far from
home, but would climb high into trees and stay there as long as he could. At seventeen years old,
Petitioner enlisted in the Army; however, he was discharged during basic training after the Army
doctor discovered a birth defect after Petitioner suffered a back injury. Petitioner subsequently
attempted to re-enlist in the Army and again in the Navy, but was quickly discharged for
fraudulent entry.
Petitioner had been self-medicating for his back pain, and compounded this with
additional pain medication for his headaches following a head injury from a car accident in 1974.
After two failed marriages and the termination from his job with a restaurant, Petitioner moved
back to his parents’ apartment complex.
overdosing on nerve pills.
Shortly after, Petitioner attempted suicide by
Petitioner was admitted to a mental health center where he
acknowledged an intent to kill himself. Petitioner was diagnosed with hysterical personality and
drug dependence. In the months leading up to the offense, Petitioner reported taking a many as
eighty pills of Seconal, Darvon, Valium, Nimbutal, and Meprobamate on a daily basis.
b.
Counsel’s Performance under Strickland
As previously explained, to show a substantial ineffective assistance of counsel claim, a
petitioner must demonstrate that: (1) counsel’s performance was deficient; and (2) the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687–88. A counsel’s performance
is considered deficient if it is objectively unreasonable under prevailing professional norms. Id.
at 688.
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It is well established that failure to investigate and present mitigating evidence at
sentencing generally constitutes ineffective assistance of counsel. See Williams, 529 U.S. at 393
(finding that Petitioner had received ineffective assistance based on counsel’s failure to uncover
and provide mitigating evidence). The Supreme Court has found deficient performance in cases
where counsel failed to investigate and present evidence of a petitioner’s family and mental
history as mitigating evidence. See, e.g., Sears v. Upton, 561 U.S. 945, 951 (2010) (finding it
unsurprising that the trial court concluded counsel was deficient for failing to provide evidence
of petitioner’s history in mitigation); Wiggins v. Smith, 539 U.S. 510, 5333 (2003) (holding that
counsel’s failure to investigate petitioner’s background fell below the standard of professional
norms as required by Strickland); Williams, 529 U.S. at 395 (involving counsel’s failure to
investigate petitioner’s background that would have revealed his abusive family history).
Under Strickland, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” 466 U.S. at 690–91.
Where counsel
chooses not to investigate, the decision “must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgment.” Id. at 691.
Here, Petitioner’s trial counsel had available to them Petitioner’s records which indicated
a history of attempted suicides, depression, blackouts, and drug abuse, as well as reports that
Petitioner suffered from displaced anger at his parents stemming from overwhelming memories
from his past [Doc. 202 p. 5]. However, trial counsel chose not to investigate petitioner’s family
history any further because of their decision to pursue a reasonable doubt defense. Counsel’s
failure to discover and present evidence of Petitioner’s family history in mitigation cannot be
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considered strategic because counsel did not fulfil their obligation to independently investigate
this evidence in order to make an informed decision. See, e.g., Carter v. Bell, 218 F.3d 581, 596
(6th Cir. 2000) (stating that counsel must make independent investigations into potential
mitigating evidence in order to make an informed decision as to its utility). Likewise, the Court
cannot find that counsel’s decision to limit their investigation into Petitioner’s family history in
this manner was reasonable, particularly considering that counsel had a general knowledge of the
difficulties of Petitioner’s family history. Even further, nothing in the record indicates that
Petitioner gave counsel any information that would have obviated counsel’s duty to thoroughly
investigate this potential line of mitigating evidence. See, e.g., Strickland, 466 U.S. at 691
(stating that strategic choices may be made based on information provided by a defendant which
may diminish or eliminate a need for investigation). As such, the Court finds that counsel’s
failure to investigate and present evidence of Petitioner’s family history constituted deficient
performance under Strickland.
c.
Prejudice under Strickland
The second prong of Strickland requires Petitioner to show that he was prejudiced by
counsel’s deficient performance. To prove prejudice, the petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Where a petitioner challenges a death sentence, “the
question is whether there is a reasonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695. “To assess that probability, we consider ‘the totality of the available
mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas
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proceeding’—and ‘reweigh it against the evidence in aggravation.’” Porter v. McCollum, 558
U.S. 30, 41 (2009) (quoting Williams, 529 U.S. at 397–98).
During the sentencing phase of Petitioner’s trial, counsel presented testimony from
Petitioner’s father, mother, niece, ex-wife, and friend, as well as testimony from Petitioner
himself.
The sum of the testimony portrayed Petitioner as a good-hearted, tender, and
compassionate person who was not violent and loved his family and friends. The State, on the
other hand, presented testimony from a detective who verified that photographs of the victim’s
badly beaten body accurately reflected the condition of her body after the murder.
In a substantially similar case, Foust v. Houk, 655 F.3d 524 (6th Cir. 2011), the Sixth
Circuit granted a conditional writ of habeas corpus vacating a death sentence based on the fact
that counsel failed to present sufficient evidence of the petitioner’s family history at the
mitigation hearing. Id. at 546. In Foust, trial counsel failed to obtain Children’s Services
records, interview family members, and prepare witnesses for the mitigation hearing. Id. at 535.
Rather, the only testimony presented at trial was from Foust’s parents and a psychologist who
had been approved as a mitigation specialist. Id. at 530–32. The mitigation testimony included
evidence of an abusive, alcoholic father; violence and adultery in Foust’s childhood home;
Foust’s mother’s imprisonment; Foust’s violent upbringing and its impact on his relationship
with women; and Foust’s suffering with depression, unstable emotions, and alcohol abuse. Id.
The Sixth Circuit, nonetheless, found that the testimony presented at the mitigation hearing only
“scratched the surface” of Foust’s horrific childhood and dysfunctional home life. Id. at 539.
Although the court acknowledged that the aggravating circumstances of the crime were
overwhelming, the Court still found that the horror of Foust’s childhood undermined reasonable
confidence in the reliability of his death sentence. Id. at 546.
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The evidence presented in mitigation at Petitioner’s sentencing was even less
comprehensive than the evidence the Sixth Circuit previously found insufficient in Foust. See id.
In the present case, Petitioner’s counsel completely disregarded evidence of the degenerative
environment Petitioner grew up in; evidence that Petitioner suffered physical and sexual abuse
from his parents, their customers, and his siblings; evidence of Petitioner’s addiction to
prescription medication; and evidence of Petitioner’s mental health issues. Petitioner was not
merely a good-hearted, tender, compassionate, and non-violent person.
If anything, these
characteristics were undermined by the nature of the crime for which Petitioner had been
convicted. Counsel’s failure to do more than scratch the surface of Petitioner’s grim family and
social history cannot be deemed inconsequential regardless of the cruel nature of the crime in
question.
Accordingly, the Court finds that although the aggravating circumstance—i.e., the
heinous nature of the crime—was compelling, the new evidence of Petitioner’s family history is
equally overwhelming and necessarily “undermines reasonable confidence in the reliability of
[Petitioner’s] death sentence. Id. at 546. Petitioner’s underlying ineffective assistance of trial
counsel claim alleging that trial counsel was ineffective for failing to investigate and present
evidence of Petitioner’s family history has merit, and habeas relief will be GRANTED for this
claim.
B.
Failure to Investigate and Present Evidence on the Absence of Premeditation
Petitioner’s second claim of ineffective assistance of counsel alleges that trial counsel
failed to investigate and present evidence of lack of premeditation during the guilt phase of
Petitioner’s trial [Doc. 202]. Respondent argues that this issue does not fall within the scope of
Martinez because this Court previously found that the issue was defaulted on post-conviction
appeal, rather than during the post-conviction trial level [Doc. 208]. Petitioner’s reply argues
13
that this issue was not fully and fairly presented to the post-conviction trial court, and that he
merely alleged that it was in his initial habeas petition in order to overcome a procedural default
on the issue [Doc. 211].
As an initial matter, the Court must determine which level the claim was defaulted, as the
Supreme Court has made clear that Martinez and Trevino are not applicable at any stage other
than the initial-review collateral proceeding. See Martinez, 132 S. Ct. at 1316. While the Court
does not encourage Petitioner’s practice of repudiating previous arguments in order to seek
review of defaulted claims, upon review of Petitioner’s post-conviction record, the Court cannot
find that Petitioner’s claim of failure to investigate and present evidence on the absence of
premeditation was fully and fairly presented to the state post-conviction trial court. In his first
petition for state post-conviction relief, Petitioner generally claimed that his trial counsel “failed
to investigate and present all available evidence that would support Petitioner’s claims of
innocence regarding the first degree murder charge” [Addendum No. 3, Vol. 1, p. 4]. Petitioner
never made any specific reference to failure to present evidence on absence of premeditation.
Likewise, in his second amended petition, Petitioner generally argued that there was insufficient
evidence of deliberation [Id. at p. 84]. To survive a procedural default ruling, a petitioner must
present the same claim under the same theory presented to the state courts. See Wagner v. Smith,
581 F.3d 410, 418 (6th Cir. 2009). Petitioner did not present this claim as an ineffective
assistance of counsel claim to the state post-conviction trial court. As such, the Court finds that
this claim was procedurally defaulted on the post-conviction trial level and, therefore, falls
within the very narrow scope of the Martinez exception.
As previously outlined, to be successful under Martinez and Trevino, a petitioner must
show a substantial underlying ineffective assistance of trial counsel claim under Strickland.
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Martinez, 132 S. Ct. at 1319. This showing requires petitioner to demonstrate that his claim is
substantial, and can meet a cursory application of the Strickland two-prong test—i.e., that trial
counsel’s performance was deficient, and that this deficient performance prejudiced petitioner.
See Strickland, 466 U.S. at 687–88.
Petitioner claims that his trial counsel failed to “follow the obvious signs pointing to [his]
inability to form the heightened mental state required for premeditation,” and instead solely
chose to pursue a reasonable doubt defense [Doc. 202 p. 41]. According to Petitioner, because
intoxication can negate a specific-intent crime in Tennessee, evidence of Petitioner’s intoxication
caused by the amount of drugs he had consumed on the day of the crime would have been
relevant to negate premeditation [Id. at 41–44]. Strickland instructs that “strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.”
466 U.S. at 690.
Strickland further advises that the reasonableness of
counsel’s action may be determined or substantially influenced by the defendant’s own
statements or actions. Id. at 691. “Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by the
defendant.” Id. Trial counsel testified that Petitioner contended from the beginning that he did
not commit the crime and, as such, that was the line of defense that they chose to pursue
[Addendum No. 3, Vol. 3, p. 252; Addendum No. 3, Vol. 3, p. 120].
Under Strickland, the Court cannot find that trial counsel was deficient in failing to
pursue other avenues of defense. Strickland suggests that information supplied by a defendant
may considerably diminish or eliminate the need for further investigation. Strickland, 466 U.S.
at 691. Here, based on Petitioner’s insistence to trial counsel that he did not commit the crime,
and that it was in fact someone else, counsel adopted a reasonable doubt strategy in the guilt
15
phase of Petitioner’s trial, and it is not this Court’s place to second-guess that strategic decision.
As such, the Court finds that Petitioner’s claim of ineffective assistance of counsel for failure to
investigate and present evidence on the lack of premeditation is not substantial and does not
warrant relief under Martinez.
III.
Conclusion
For the reasons stated above, the Court finds that Petitioner has failed to show that his
claim for ineffective assistance of counsel for failure to investigate and present evidence on the
absence of premeditation is substantial, permitting him to overcome its procedural default under
Martinez and Trevino. This claim will, therefore, be DENIED. However, the Court finds that
Petitioner was denied the effective assistance of counsel during the penalty phase of his trial, and
his sentence of death will be VACATED. The writ of habeas corpus shall issue, unless within
180 days from the entry of the Court’s order, the State shall conduct a new sentencing hearing or
impose a lesser sentence consistent with law.
IV.
Certificate of Appealability
The Court must also consider whether to issue a Certificate of Appealability (“COA”).
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. See 28 U.S.C. § 2253(c)(2). Where a
claim has been dismissed on the merits, a substantial showing is made if reasonable jurists could
conclude the issues raised are adequate to deserve further review. See Miller-El v. Cockrell, 537
U.S. 322, 327, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
After reviewing Petitioner’s claim, the Court finds that reasonable jurists could not
conclude that Petitioner’s claim of ineffective assistance of counsel for failure to investigate and
16
present evidence on the lack of premeditation is adequate to deserve further review. The Court
will, therefore, DENY a COA on this issue because Petitioner has failed to make a substantial
showing of the denial of a constitutional right.
ORDER ACCORDINGLY.
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UNITED STATES DISTRICT
UNITED STATES DISTRICT JUDGE
A S S
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