Pugh v. McAllister

Filing 21

MEMORANDUM OPINION: For the reasons set forth below, however, the Court determines that no evidentiary hearing is warranted in this case, Petitioner's § 2254 petition [Doc. 2] will be DENIED, and this action will be DISMISSED. Signed by District Judge J Ronnie Greer on 09/20/2017. (Copy mailed to Steve Pugh) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

STEVE PUGH,
Petitioner,
v.
GERALD MCALLISTER,
Respondent.

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No.

2:14-CV-179-JRG-MCLC

MEMORANDUM OPINION
In 2011, Steve Pugh (“Petitioner”) entered a best interest guilty plea 1 on two counts of
attempted first degree murder and received an effective seventeen-year sentence of incarceration.
Petitioner now brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Doc. 2] challenging the legality of his confinement under that state court judgment. Warden
Gerald McAllister (“Respondent”) filed a response to the petition, arguing that relief is
unwarranted with respect to Petitioner’s claims based on procedural default and, in support of his
argument, he has filed copies of the state court record [Doc. 11 and 12]. Petitioner filed a reply to
Respondent’s response stating that any procedural default should be excused [Doc. 15].
For the reasons set forth below, however, the Court determines that no evidentiary hearing
is warranted in this case, Petitioner’s § 2254 petition [Doc. 2] will be DENIED, and this action
will be DISMISSED.

See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (permitting guilty pleas without an
admission of guilt where a criminal accused concludes that his best interests would be furthered
by pleading guilty).
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I.

PROCEDURAL HISTORY
Petitioner is currently serving two concurrent seventeen-year sentences after he entered a

best interest guilty plea to two counts of attempted first degree murder on March 11, 2011. Pugh
v. State, No. E2012-02649-CCA-R3PC, 2013 WL 4806964, at *1 (Tenn. Crim. App. Sept. 9,
2013), app. denied (Tenn. Jan. 14, 2014). The convictions were based upon the act of shooting
his pregnant girlfriend in the stomach. Id. Petitioner did not file a direct appeal of the judgment
[Doc. 2 at 2]. However, Petitioner did file a timely pro se petition for post-conviction relief. Pugh,
2013 WL 4806964, at *1. Following the appointment of counsel, an amended petition was filed.
Id. A hearing on the matter was held and the post-conviction court denied relief on November 29,
2012. Id. On September 9, 2013, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed
the trial court’s judgment. Id. The Tennessee Supreme Court denied permission to appeal on
January 14, 2014. Id. There followed this timely § 2254 habeas corpus application alleging he
was denied his right to effective assistance of counsel.
II.

DISCUSSION
In his petition, Petitioner asserts that he received ineffective assistance of counsel due to

trial counsel’s failure to interview Tonya Mallicote, an alleged alibi witness, and failure to
interview the victim, Mary Smith, to ascertain possible impeachment [Doc. 2 at 5, 10]. Respondent
argues, in her answer, that Petitioner’s claims are barred by Petitioner’s state procedural defaults
[Doc. 11]. Respondent asserts that Petitioner’s claims of ineffective assistance, which he raises
on federal habeas review, have not been fairly or adequately presented in the state courts in
satisfaction of § 2254(b)’s exhaustion requirement” [Id.]. Furthermore, Respondent asserts that
“those claims are now barred from presentation to the state courts by the statute of limitations
under Tenn. Code. Ann. § 40-30-102(a) and the ‘one petition’ limitation of § 40-30-102(c)” [Id.].

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A federal district court will not entertain a petition for writ of habeas corpus unless the
Petitioner has first exhausted all available state court remedies for each claim in his petition. 28
U.S.C. § 2254(b)(1). While exhaustion is not a jurisdictional requirement, it is a strictly enforced
doctrine that promotes comity between the states and federal government by giving the state an
initial opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Consequently, as a condition precedent to
seeking federal habeas corpus relief, a petitioner is required to fairly present his claims to every
available level of the state court system. Rose v. Lundy, 455 U.S. 509, 518-20 (1982); Lyons v.
Stovall, 188 F.3d 327, 331 (6th Cir. 1999). The petitioner must offer the state courts both the
factual and legal bases for his claims. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
In other words, the Petitioner must present “the same claim under the same theory” to the state
courts. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987). It is not enough that all the facts
necessary to support a federal claim were before the court or that the Petitioner made a somewhat
similar state law claim. Anderson v. Harless, 459 U.S. 4, 6 (1982). Once Petitioner’s federal
claims have been raised in the highest state court available, the exhaustion requirement is satisfied,
even if that court refused to consider the claims. Manning v. Alexander, 912 F.2d 878, 883 (6th
Cir. 1990). 2
Here, Petitioner claims that his trial counsel was ineffective for failing to interview
potential witnesses [Doc. 2]. These claims of ineffective assistance of counsel were addressed by
the post-conviction trial court, but never raised in the state appellate court for review, and the

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In Tennessee, a Petitioner need only take his claims to the Tennessee Court of Criminal
Appeals in order to fully exhaust his available state court remedies. Rule 39, Tenn. Sup. Ct. Rules;
see also Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (Rule 39 clearly removed Tennessee
Supreme Court review as an antecedent for habeas purposes). Shipp v. Holloway, No. 1:15-CV0012, 2017 WL 2376774, at *2 (M.D. Tenn. June 1, 2017).
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TCCA did not consider these issues sua sponte. Therefore, Petitioner did not fairly present this
claim to every available level of the state court.
At this late date, the Petitioner is no longer able to raise this issue as a federal claim in state
court. See Tenn. Code Ann. § 40-30-102(a) (post-conviction petition must be filed “within one
year of the date of the final action of the highest state appellate court to which an appeal is taken
or, if no appeal is taken, within one year of the date on which the judgment became final”) and (c)
(“This part contemplates the filing of only one petition for post-conviction relief”). Therefore, by
way of procedural default, the Petitioner has technically met the exhaustion requirement with
respect to this claim because there are no state court remedies currently available to him for it.
Shipp v. Holloway, No. 1:15-CV-0012, 2017 WL 2376774, at *3 (M.D. Tenn. June 1, 2017) (citing
Castille v. Peoples, 489 U.S. 346, 351 (1989) (the requirement of exhaustion is satisfied if it is
clear that petitioner’s claims are now procedurally barred under state law)).
The exhaustion of a claim via procedural default does not, however, automatically entitle
a habeas petitioner to federal review of that claim. To prevent a federal habeas petitioner from
circumventing the exhaustion requirement in such a manner, the Supreme Court has held that a
Petitioner who fails to comply with state rules of procedure governing the timely presentation of
federal constitutional issues forfeits the right to federal review of those issues, absent cause for the
noncompliance and some showing of actual prejudice resulting from the alleged constitutional
violations. Gray v. Netherland, 518 U.S. 152, 162 (1996); Shipp, 2017 WL 2376774, at *3.
In his reply, Petitioner cites to Martinez v. Ryan, 566 U.S. 1, 9 (2012) arguing that his
claims should be excused from procedural default because his post-conviction counsel was
ineffective for failing to raise these claims. Martinez effected a change in decisional law in that it
created a “narrow exception” to the general rule of Coleman v. Thompson, 501 U.S. 722 (1991).

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The general rule from Coleman states that a habeas petitioner cannot use ineffective assistance of
collateral review counsel as cause to excuse a procedural default. Id. at 756-57. The Martinez
exception, however, provides 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 on ineffective assistance of counsel, if
in the initial-review collateral proceeding, counsel in that proceeding was ineffective. Martinez,
132 S.Ct. at 1320. A year later, the Supreme Court expanded the Martinez exception to cases
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 . . .” Trevino v. Thaler, 133 S. Ct. 1911 at 1921
(2013). The Sixth Circuit subsequently ruled this exception applicable to Tennessee. See Sutton
v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014)).
Under Martinez a petitioner may 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 does not dispense with
the “actual prejudice” requirement of Coleman; as such, a petitioner must show that his postconviction counsel was ineffective under Strickland. See Strickland v. Washington, 466 U.S. 668,
694 (1984). That is, “the petitioner must show both that his post-conviction 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).
In addition, relief under Martinez requires a showing of a substantial underlying claim of
ineffective assistance of trial counsel. See Trevino, 133 S. Ct. at 1918; Martinez, 132 S. Ct. at

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1318-19.

This showing, as with the showing for post-conviction counsel, must meet the

requirements of Strickland. See id. Under Strickland, a petitioner can prove prejudice by showing
“that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. 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.”
Hollway, 2014 WL 4411680, at *23.
Petitioner asserts that his trial counsel was ineffective for failing to investigate Tonya
Mallicote as a possible alibi witness, and for failing to talk to the victim to ascertain potential
impeachment of the witness [Doc. 15 at 6]. Petitioner agrees that these claims were not properly
presented in the post-conviction hearing, but argues that he is entitled to relief under Martinez
because his post-conviction counsel was ineffective for failing to rise these claims on appeal [Id.].
As stated, to find relief under Martinez, a showing of a substantial underlying claim of ineffective
assistance of trial counsel is needed. Based on the requirements of Strickland, this Court finds that
Petitioner’s claims fail to demonstrate that the result of the proceedings would have been different
but for counsel’s alleged error. Because Petitioner’s underlying ineffective assistance of trial
counsel claim is without merit, he is unable to excuse a finding of procedural default through
Martinez.
At the post-conviction hearing, trial counsel testified that he and Petitioner discussed
possible defenses and that an investigation was conducted. Pugh, 2013 WL 4806964, at *2. As
part of the investigation, trial counsel confirmed that the lead investigator on the case attempted to

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contract Ms. Mallicote as an alibi witness, but was unable to get an interview with her at that time
and her voice mail had not been set up [Doc. 12, Addendum 1: Transcript of Post-Conviction
Proceeding]. As the investigation continued, Petitioner “felt that trial counsel was not prepared to
go to trial” and told trial counsel that he was considering entering a plea. Pugh, 2013 WL 4806964,
at *2. Trial counsel testified that, at that time, he approached the State and began negotiations. Id.
Trial counsel was clear that the investigation continued up until the plea was accepted. Id.
The TCCA found that Petitioner was clearly aware of the charges to which he pled guilty
and chose to enter that plea, by his own testimony, because it was in his own best interest to do so.
Pugh, 2013 WL 4806964, at *5. Clearly, trial counsel’s investigation was cut short by Petitioner’s
desire to plead. By choosing to plead prior to the conclusion of the investigation of this case,
Petitioner is unable to prove that trial counsel would not have attempted to contact Ms. Mallicote
a second time or that Ms. Mallicote would not have been produced as a witness during trial. Nor
is Petitioner able to argue with any degree of certainty that trial counsel would not have interviewed
the victim prior to the trial on this case. Thus, Petitioner has failed to carry his burden, as is
required by Strickland, of establishing that trial counsel offered defective representation or that he
was prejudiced, and therefore, failed to establish his entitlement to relief of this habeas corpus
petition.
III.

CONCLUSION
The petition for habeas corpus relief will be DENIED and this action will be DISMISSED

WITH PREJUDICE.
IV.

CERTIFICATE OF APPEALABILITY
The Court must 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

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final order in a habeas proceeding only if he is issued a COA, and a COA may only be issued
where a Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). When a district court denies a habeas petition on a procedural basis without reaching
the underlying claim, a COA should only issue if “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Where the court dismissed a claim on the merits, but
reasonable jurists could conclude the issues raised are adequate to deserve further review, the
petitioner has made a substantial showing of the denial of a constitutional right. See Miller-El v.
Cockrell, 537 U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484.
After reviewing Petitioner’s claim, the Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right. Accordingly, a COA SHALL NOT
ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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