Hearing v. Lindamood

Filing 67

MEMORANDUM OPINION in support of the following Order dismissing case. Signed by District Judge R. Leon Jordan on 10/6/21. (c/m David Hearing #395482 South Center Correctional Facility 555 Forrest Ave. Clifton, TN 38425 ) (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DAVID HEARING,
Petitioner,
v.
GRADY PERRY 1,
Respondent.

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No. 2:18-CV-00094-RLJ-CRW

MEMORANDUM OPINION
Petitioner David Hearing has pro se filed a petition for a writ of habeas corpus under U.S.C.
§ 2254, challenging the constitutionality of his confinement under convictions for two counts of
first-degree felony murder [Doc. 1; Doc. 25]. After reviewing the parties’ filings and the relevant
state court record, 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 Schriro
v. Landrigan, 550 U.S. 465, 474 (2007). For the reasons set forth below, the § 2254 petition will
be DENIED, and this matter will be DISMISSED.
Additionally, as the Court now denies Petitioner’s § 2254 petition, his motion for summary
judgment [Doc. 52] is DENIED AS MOOT. Likewise, Petitioner’s motion for discovery [Doc.
59] and motion to set a date for a summary judgment hearing [Doc. 60] are DENIED AS MOOT.
Petitioner’s motions for judicial notice [Docs. 65, 66] are also DENIED AS MOOT.

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Although Petitioner names Cherry Lindamood as the Respondent, Grady Perry is the
current warden of South Central Correctional Center, where Petitioner is confined, and is thus the
proper Respondent.

I. BACKGROUND
Petitioner was one of several defendants accused of murdering a Tennessee couple, Ance
“Pete” Pratt and his wife, Rebecca Pratt, during an aggravated burglary at the couple’s home in
Hancock County, Tennessee. David Hearing v. State, No. E2009-02430-CCA-R3-PC, 2010 Tenn.
Crim. App. LEXIS 829, at *2 (Tenn. Crim. App. Oct. 4, 2010) (“Hearing III”). Petitioner pleaded
guilty to two counts of first-degree felony murder and received two concurrent life sentences, while
his other charges were dismissed. Id. at *2. Less than a month later, Petitioner filed a motion to
withdraw his guilty pleas, the first of many avenues through which he would attempt to challenge
these pleas, alleging that his appointed counsel was ineffective which rendered his guilty pleas not
knowingly, voluntarily, and understandingly entered. Id. The trial court ordered this motion to be
treated as a petition for post-conviction relief, which it denied after an evidentiary hearing, finding
that Petitioner’s pleas were knowing and voluntary and that Petitioner did not receive ineffective
assistance of counsel. Id. Petitioner appealed to the Tennessee Court of Criminal Appeals
(“TCCA”) which remanded the case to the trial court with instructions that the motion be
considered as a motion to withdraw Petitioner’s guilty pleas. David Wayne Hearing v. State, No.
E2006-00362-CCA-R3-PC, 2006 Tenn. Crim. App. LEXIS 997, slip op. at 2 (Tenn. Crim. App.,
Dec. 28, 2006) (“Hearing I”). On remand, the trial court denied Petitioner’s motion to withdraw
his guilty plea, which the TCCA affirmed. David Wayne Hearing v. State, No. E2007-00778CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 105, slip op. at 2 (Tenn. Crim. App., Feb. 22, 2008)
(“Hearing II”) (perm. app. denied). The TCCA found that although Petitioner alleged many
deficiencies on behalf of counsel, he failed to demonstrate any prejudice resulting from the
suggested deficiencies. Id. at 7-9. Moreover, the court found that the transcript of Petitioner’s
guilty plea hearing reflected that his pleas were knowingly and voluntarily entered. Id. at 9.

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Petitioner then filed a petition for post-conviction relief, alleging that counsel on his motion
to withdraw was deficient for: (1) allowing the court to treat his motion as a post-conviction action;
(2) failing to provide sufficient evidence to support Petitioner’s claims; (3) failing to argue that his
judgments “were both void and voidable;” and (4) failing to argue a conflict of interest between
Petitioner and plea counsel. 2 Hearing III, 2010 Tenn. Crim. App. LEXIS 829, at *1. The postconviction court denied Petitioner relief and the TCCA affirmed, finding that Petitioner had not
demonstrated prejudice when counsel conducted a thorough evidentiary hearing on Petitioner’s
motion, which was in fact considered, that counsel was not deficient for failing to offer the plea
agreement into evidence because the record belied Petitioner’s claims of ambiguity and
misunderstanding, and that counsel was neither deficient nor was Petitioner prejudiced where
counsel developed Petitioner’s claims to the best of his ability. Id. The TCCA declined to further
address Petitioner’s claim that his pleas were not knowingly and voluntarily entered as it had been
previously determined. Id.
Over the next decade, Petitioner filed a plethora of state court challenges, none of which
were successful. He filed for a writ of habeas corpus alleging that the judgments against him were
void due to internal inconsistencies. Hearing v. Mills, No. W2011-01226-CCA-R3-PC, 2012
Tenn. Crim. App. LEXIS 135 (Tenn. Crim. App. Feb. 28, 2012) (finding that although the
judgments against Petitioner stated that Petitioner would receive a fifty-one year sentence, the
judgments were not void where they also correctly stated Petitioner was sentenced to life).
Petitioner then filed for a writ of error coram nobis alleging that he had an avenue to provide new
evidence via a Rule 12 report. Hearing v. State, No. E2013-00640-CCA-R3-ECN, 2014 WL
2547780 (Tenn. Crim. App. June 3, 2014), perm. app. denied (Tenn. Dec. 19, 2014) (denying the

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Claim (4) was added in an amended petition after the appointment of counsel.
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petition finding that the report had been available since 2005 and that the information Petitioner
wanted to introduce was the result of a mistake and was not then new evidence). Next, Petitioner
filed two motions to correct illegal sentencing because Petitioner’s plea agreements state “life with
the possibility of parole,” while Petitioner was not parole-eligible because he was convicted of
first-degree murder. State v. Hearing, No. E2014-01908-CCA-R3-CD, 2015 WL 2128600 (Tenn.
Crim. App. May 6, 2015), perm. app. denied (Tenn. Oct. 16, 2015) (finding that although the
negotiated plea agreement stated that Petitioner was sentenced to life with the possibility of parole,
which was inaccurate terminology, this language did not render the judgments against him void);
State v. Hearing, No. E2015-00173-CCA-R3-CD, 2015 WL 4710393 (Tenn. Crim. App. Aug. 7,
2015), perm. app. denied (Tenn. Dec. 10, 2015) (dismissing Petitioner’s motion as the issue was
previously raised and addressed in his prior motion). Petitioner then filed a motion to correct a
clerical mistake. State v. Hearing, No. E2016-00566-CCA-R3-CD, 2017 WL 2791182 (Tenn.
Crim. App. June 27, 2017), perm. app. denied (Tenn. Nov. 16, 2017) (finding no merit to the
argument that Petitioner was sentenced to life while bargaining for life with the possibility of
parole). Petitioner then filed another application for writ of error coram nobis arguing that the trial
court’s ruling that the sentencing judge misspoke when referring to Petitioner’s life sentence as
one with parole was new evidence and seeking to have the trial judge from his first error coram
nobis proceeding recused. Hearing v. State, No. E2016-01297-CCA-R3-ECN, 2017 WL 2829754
(Tenn. Crim. App. June 30, 2017), perm. app. denied (Tenn. Nov. 16, 2017) (finding that a trial
court’s prior findings do not provide a basis for recusal, that coram nobis relief is not available for
convictions arising from guilty pleas, and that the trial judge was not a witness to the error coram
nobis allegations by nature of his previous ruling). Petitioner then filed a second application for
writ of habeas corpus, which the habeas court and the TCCA agreed contained only issues that had

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been raised and addressed in other petitions. Hearing v. Lindamood, No. M2016-02114-CCA-R3HC, 2017 WL 2438581 (Tenn. Crim. App. June 6, 2017), perm. app. denied (Tenn. Oct. 4, 2017).
Finally, Petitioner filed the instant petition [Doc. 1]. After Respondent filed his answer
[Doc. 18], Petitioner filed a motion to expand the record [Doc. 20] and motion for an evidentiary
hearing [Doc. 24], each of which were denied. Petitioner then filed a motion to amend his petition
[Doc. 25], which the Court granted ordering Respondent to file an answer within sixty days [Doc.
27]. Before Respondent’s answer, Petitioner filed a Motion for Summary Judgment [Doc. 29],
and Respondent filed a motion for extension of time in which to file his answer [Doc. 33]. Despite
Petitioner’s opposing motion, the Court granted Respondent an extension, which Petitioner then
contested [Docs. 35, 36, 38]. Petitioner filed many other motions [a motion for clarification
regarding docketing [Doc. 40]; two motions for a show cause order regarding prosecutorial
misconduct [Docs. 41, 45]; an ex parte application to conduct limited discovery and a request for
in-camera proceedings [Docs. 42, 43]; a motion for a Martinez hearing [Doc. 47]; and a motion
for appointment of counsel [Doc. 48]], which the Court denied on September 28, 2020 [Doc. 51].
On the same date, the Court likewise denied Petitioner’s motion for summary judgment, finding
that Petitioner and Respondent substantially disagree about genuine issues of material fact and that
Petitioner was not then entitled to habeas corpus relief as a matter of law [Id.]. Just over two weeks
later, on October 15, 2020, Petitioner filed another motion for summary judgment with nearly
identical subject matter to his first motion [Doc. 52], which is also pending before the Court.
Accompanying this motion, Petitioner has also filed motions for discovery [Doc. 59] and to set a
date for a summary judgment hearing [Doc. 60]. Petitioner likewise filed motions for the Court to

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take judicial notice of a recently decided Sixth Circuit case which he claims pertains to the instant
petition [Docs. 65, 66].3
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in 28
U.S.C. § 2254, prohibits the grant of habeas corpus relief for any 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). A district court may only grant habeas
relief under the “contrary to” clause where the state court decides a question of law or materially
indistinguishable set of facts conversely to the Supreme Court. Williams v. Taylor, 529 U.S. 362,
405-06 (2000). “A run-of-the-mill state-court decision applying the correct legal rule . . . to the
facts of a prisoner’s case would not fit comfortably within § 2254(d)(1)’s ‘contrary to’ clause.”
Id. at 406. The Court may only grant relief under the unreasonable application clause when the
state court applied the correct legal principle in an “objectively unreasonable” manner, not when
the state court’s decision was simply erroneous or incorrect. Id. at 409 – 11; Schriro, 550 U.S. at
473. Under this clause, a petitioner must demonstrate “that the state court’s ruling on the claim…

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Judicial notice is governed by Federal Rule of Evidence 201, which provides that courts
may “judicially notice a fact that is not subject to reasonable dispute.” Fed. R. Evid. 201(b).
Petitioner’s motion misunderstands the purpose of judicial notice and rather seeks to support or
supplement Petitioner’s petition with a recently decided case, which is not a proper “fact” to be
judicially noticed.
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was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Woods, 135 S. Ct. at 1376.
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). “Even if reasonable minds reviewing the
record might disagree about the finding in question, on habeas review that does not suffice to supersede
the trial court’s . . . determination.” Wood v. Allen, 558 U.S. 290, 301 (2010) (internal quotations
omitted). A factual determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance. Id. 4

In addition to the stringent standard for succeeding on the merits of a claim, the grant of
habeas relief is further restrained by exhaustion requirements and the doctrine of procedural
default. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). In order for a
claim to be considered on habeas review, the petitioner must first exhaust state remedies for that
claim. 28 U.S.C. § 2254(b)(1). Exhaustion requires a petitioner to “fairly present,” each federal
claim to all levels of the state appellate system, meaning he presented the “same claim under the
same theory” up to the state’s highest court, Wagner v. Smith, 581 F.3d 410, 414, 418 (6th Cir.
2009), to ensure that 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.
Tennessee has determined that presentation to the TCCA will satisfy the requirement of
presentation to the state’s highest court. Tenn. S. Ct. R. 39. If a claim has never been presented
to the highest available state court and is now barred from such presentation by a state procedural
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Importantly, the Court evaluates the record only as it existed at the time the state court
adjudicated Petitioner’s claims on their merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
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rule, that claim is procedurally defaulted and barred from federal habeas review. Coleman v.
Thompson, 501 U.S. 722, 732 (1991).
III. ANALYSIS
Petitioner raises four claims in his amended petition: (1) his guilty pleas were
“unknowingly, involuntarily, and unintelligently entered;” (2) he received ineffective assistance
of counsel; (3) the prosecution breached the negotiated plea agreement; and (4) the prosecution
committed prosecutorial misconduct by violating Brady v. Maryland, 373 U.S. 83 (1963) [Doc.
25-1]. Respondent contends that Petitioner’s claim regarding his guilty plea is meritless and that
his remaining claims are procedurally defaulted and not entitled to review [Doc. 37]. The Court
agrees that Petitioner is not entitled to relief on any of his claims.
A. Guilty Plea
Petitioner first challenges the validity of his guilty pleas. While Petitioner characterizes
this claim as one that he “was provided ineffective assistance of counsel when his guilty plea was
unknowingly, involuntarily, and unintelligently entered, based upon misadvice [sic] and a
misunderstanding as to its consequences, including the actual value of the promises made to him
by counsel…,” nearly all of the argument he provides center around the state court’s
misapplication of Boykin v. Alabama, 395 U.S. 238 (1969) [Doc. 25-1 p. 9-104]. Respondent in
turn addresses this claim as regarding the voluntary nature of Petitioner’s plea and not as one of
ineffective assistance of counsel, [Doc. 37 p. 13-18], which Petitioner seems to take umbrage with
in his response [Doc. 39 p. 14]. Petitioner’s argument appears to allege both that his guilty plea
was involuntary because, inter alia, counsel was ineffective and that counsel was ineffective
because Petitioner’s guilty plea was not knowingly entered. Either claim would require the Court

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to first find that Petitioner’s plea was not knowingly, voluntarily, and understandingly entered and
the Court will address it accordingly.
First, Petitioner argues that his plea could not be knowing and voluntary where the sentence
he received was different than that promised in his negotiated plea agreement and some of those
promises were, in fact, illegal and unenforceable. Specifically, Petitioner claims to have believed
he was negotiating for a fifty-one year sentence, which was only being “called” a life sentence, to
be served at thirty percent as a Class A standard offender, and that he would be given credit for all
time served. Petitioner alleges that not only did he subjectively misunderstand his sentence, but
that portions of the plea agreement were unenforceable under Tennessee law as Petitioner was
neither eligible for parole nor eligible to be credited for the time he served during which he fought
extradition. Next, Petitioner alleges that his plea was undermined by the ineffective assistance of
his trial counsel, who advised Petitioner to accept this plea agreement which included illegal and
unavailable provisions. Further, Petitioner claims that his plea colloquy was constitutionally
deficient, as the trial court did not go over the negotiated plea agreement “promise by promise,”
and thus could not cure the defects in his plea. 5 Lastly, he takes issue with the state court’s finding
on appeal that Petitioner received the sentence he bargained for, which credited the testimony of
counsel, rather than Petitioner.
To be valid, a guilty plea must be entered into knowingly, intelligently, and voluntarily.
Brady v. United States, 397 U.S. 742, 748 (1970). To determine if a plea was voluntary, the Court

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Petitioner claims that the presiding judge likewise mischaracterized the sentence as a
determinant sentence of life with the possibility of parole and explained to Petitioner that his
sentence was a determinant sentence of fifty-one years. He also states that the judge did not explain
that Petitioner was not accepting the plain language of the specific terms of the plea agreement or
that the terms of the agreement were unenforceable.
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looks to the totality of the circumstances, Abdus-Samad v. Bell, 420 F.3d 614, 631 (6th Cir. 2005)
(citing Brady, 397 U.S. at 747), to establish “whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” Boykin, 395 U.S. at 242.
The totality of the circumstances must show that the plea was not coerced and that Petitioner was
informed of the relevant circumstances surrounding his plea and all the direct consequences of his
plea.

Brady, 397 U.S. at 755; Stumpf v. Mitchell, 367 F.3d 594, 609 (6th Cir. 2004).6

Considerations include the intelligence of the defendant, his familiarity with criminal proceedings,
the effectiveness of his counsel, and the reason he decided to plead guilty. Caudill v. Jago, 747
F.2d 1046, 1052 (6th Cir. 1984).
When a petitioner challenges his guilty plea in federal habeas proceedings, the respondent
bears the burden of demonstrating that the plea was voluntary and intelligent, which is typically
accomplished by producing a transcript of the plea proceedings. Garcia v. Johnson, 991 F.2d 324,
326 (6th Cir. 1993). State court findings that a plea was proper are presumed correct, unless the
transcript is inadequate to support that the plea was voluntary and intelligent. Id. at 326-27. To
withstand post-conviction challenge the record must “leave[] [no] doubt as to whether the plea was
in fact intelligent and voluntary.” Stumpf, 367 F.3d at 600; Boykin, 395 U.S. at 242. A petitioner’s
representation of voluntariness at his guilty-plea hearing carries a strong presumption of veracity
and constitutes “a formidable barrier in any subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977). Accordingly, not every ambiguity in a plea proceeding,
without more, will render a plea not “knowing and intelligent.” Stumpf, 367 F.3d at 609.

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Eligibility for parole is not a direct consequence of which a defendant must be informed.
McAdoo v. Elo, 365 F.3d 487, 495 (6th Cir. 2004).
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Petitioner exhausted this claim to the TCCA when he appealed the denial of his motion to
withdraw his guilty pleas. See Hearing, 2008 WL 481781, at *8-9. There, the TCCA correctly
applied Boykin and affirmed the trial court’s decision that Petitioner’s plea was not coerced and
that Petitioner was not misinformed about the length of his sentence. Id. at *7-9. The TCCA noted
that Petitioner’s own statements during his plea colloquy belied his later claims. Id. The transcript
demonstrated that Petitioner stated he had a twelfth grade education and could read and write; was
of sound physical and mental condition; understood what he was pleading to and the
accompanying waiver of rights; that he was pleading guilty because he was guilty; and that no
promises or threats were used to induce his plea. Id. Petitioner also agreed that the “complete
agreement” he reached with the State was that he would be sentenced to “a determinant sentence
of life with the possibility of parole in each count, those two counts to be served concurrently for
a life sentence in each of the . . . counts[.] Id. Moreover, while the TCCA believed that many of
Petitioner’s claims stemmed from his dissatisfaction with counsel, Petitioner had told the trial court
that he had no complaint with the representation he had received. Id. The TCCA found that
ultimately, the trial court resolved conflicts in testimony between Petitioner and his counsel in
favor of counsel, who stated that Petitioner was not pressured into entering his pleas and was not
misinformed about the length of his sentence, and that the evidence did not preponderate against
this finding. Id.
The Court cannot find that the TCCA’s holding was either contrary to or an objectively
unreasonable application of Boykin, nor that it involved unreasonable factual findings. Respondent
produced transcripts of Petitioner’s plea proceedings which demonstrate that the trial court advised
Petitioner that he was waiving constitutional rights by pleading guilty [Doc. 17-3 p. 41-50].
Moreover, these transcripts show that Petitioner stated that he understood the charges and

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proceedings, had no complaints about his representation, and was not pleading guilty relative to
any promises, outside of those made by the state, or threats [Id.]. Petitioner made no effort to
inform the court, while he was under obligation to do so, that he misunderstood his sentence, was
being induced or coerced to plead guilty, or that his plea was different than what he agreed to
during the colloquy. He likewise agreed that he was to be sentenced to two life sentences to run
concurrently [Id.]. A strong presumption of veracity has now attached to Petitioner’s statements
and the plea transcripts, which Petitioner has not overcome by his later statements that he did not
understand. See Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (holding that a petitioner’s
subjective understanding that his plea agreement was different than what is on the record, without
more, will not suffice to undermine a plea).
Although Petitioner later testified that he received a different sentence than what he
bargained for, the state court credited Petitioner’s counsel’s testimony that Petitioner was
thoroughly informed of the correct terms of his sentence and decided to plead guilty after learning
that a co-defendant was prepared to testify against him. Petitioner’s attorneys testified that they
discussed Petitioner’s rights regarding his plea on numerous occasions, explained Petitioner’s life
sentence and that he “had the possibility that one day [he] could be released after the service of
fifty-one years,” and did not tell Petitioner that he would be eligible for parole after twelve to
fifteen years [Doc. 17-2 p. 545-551; 571-574]. This Court is not well-positioned to disturb such
credibility determinations absent powerful evidence that this was an erroneous determination,
which Petitioner has not provided. See Miller-El v. Cockrell, 537 U.S. 322, 339 (2003); Miller-El
v. Dretke, 545 U.S. 231, 265 (2005).
Petitioner attempts to undermine the state court’s holding by pointing to notations in his
plea agreement and judgment forms to indicate that he reasonably believed he was pleading only

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to a fifty-one year sentence to be served at thirty percent. Notably, Petitioner’s negotiated plea
agreement form indicates that he committed a “Class A felony” and was a standard offender and
his judgment form lists his sentences as “51 years.” However, each of these documents likewise
state that Petitioner was receiving a life sentence and neither indicates a specific early release
classification [Doc. 17-13 p. 49, 51]. Accordingly, the TCCA’s finding that the additional
notations were erroneous and not part of what was expressly promised to Petitioner is not
objectively unreasonable, particularly where it is supported by the testimony of Petitioner’s
counsel. See Ramos, 170 F.3d at 564 (holding that a finding that a particular plea agreement did
not exist was not clearly erroneous where the state testified that it did not exist, the contested
elements were not revealed in open court, and the alleged agreement would have violated state
law). Petitioner has not offered sufficient evidence to undermine the deference given to both his
own assertions during the plea colloquy and that granted to state court decisions; accordingly, he
has not demonstrated that his plea was unknowing, intelligent, or involuntary.
Turning to Petitioner’s claim that his counsel was ineffective relative to his plea
proceedings, the Sixth Circuit has clarified that even if counsel’s advice leading to a guilty plea
were to fall below a standard of reasonableness, a “proper colloquy can be said to have cured any
misunderstanding [Petitioner] may have had about the consequences of his plea” and thus defense
counsel errors concerning sentences or probation are harmless. Id. at 565 (citing Barker v. United
States, 7 F.3d 629, 633 (7th Cir. 1993)). Although Petitioner claims that his plea colloquy was
deficient because the court did not go over his plea agreement “promise by promise,” a proper plea
colloquy need only reflect that Petitioner waived his trial rights and pled guilty, and that such plea
was knowing, intelligent, and voluntary. See Malloy v. Scutt, 2013 U.S. Dist. LEXIS 157444, at
*14 (E.D. Mich. November 4, 2013). The Court agrees with the TCCA that Petitioner received a

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thorough explanation of both his sentence and the consequences of his guilty plea and thus finds
that Petitioner is not entitled to relief in this regard.
B. Procedurally Defaulted Claims
Petitioner’s remaining claims are (1) that he received ineffective assistance of counsel as
his attorneys failed to gather certain facts or recognize the State’s misconduct before advising
Petitioner to plead guilty; (2) the prosecution breached the negotiated plea agreement when it “took
away” certain promises at sentencing and argued against Petitioner’s later attempts to assert them;
and (3) the prosecution committed prosecutorial misconduct by withholding exculpatory evidence
and violating Brady v. Maryland [Doc. 25-1]. While the parties agree that Petitioner’s claim
regarding his guilty plea was properly exhausted, both Petitioner and Respondent acknowledge
that these remaining claims are procedurally defaulted [Docs. 25-1 p. 2; 37 p. 18-22]. Petitioner’s
myriad of collateral attacks has resulted in a complex and tortured procedural history, in which he
has appealed to the TCCA no less than ten times. While almost all of his claims below center
around Petitioner’s allegation that he received a different sentence than he bargained for and his
dissatisfaction with counsel, the Court agrees that Petitioner presented neither the specific claim
of ineffective assistance of counsel he now presents, 7 nor his claims that the prosecution breached
his plea agreement and committed misconduct, to the state court. As state remedies are now
foreclosed to Petitioner, these claims are technically exhausted but procedurally defaulted. See
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); See Tenn. Code Ann. § 40-30-103. Accordingly,
they may not now be addressed on the merits absent Petitioner’s demonstration of cause and
prejudice sufficient to excuse such default. See Engle v. Isaac, 456 U.S. 107, 125-26 n. 28 (1982).

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Petitioner does raise claims of ineffective assistance of counsel in the courts below.
However, he does not raise those claims on the same theory he now presents and as such they are
not exhausted. See Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004).
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Procedurally barred claims may be considered on their “merits only if the petitioner
establishes (1) cause for his failure to 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 v. Sexton, 570 Fed. Appx. 443, 452 (6th Cir. 2014) (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. To demonstrate
prejudice, Petitioner must show that the inadequacies worked to his “actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). The prejudice requirement is not met where there is strong
evidence of a petitioner’s guilt and lack of evidence for his claim. Id. at 172. 8 Each of Petitioner’s
claims and his suggested “cause” and “prejudice” will be discussed in turn.
i. Ineffective Assistance of Counsel
Petitioner makes a lengthy and weighty charge of ineffective assistance against his trial
counsel. He alleges that his attorneys (1) failed to recognize the prosecution’s misconduct, where
he alleges that the State supported the arrest warrant with a false and misleading affidavit and
breached Petitioner’s plea agreement as discussed above; (2) failed to attempt to resolve the
prosecution’s non-compliance with “early discovery” as ordered by the court and did not then
discover evidence that would have led Petitioner to go to trial; and (3) advised Petitioner to enter

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Where petitioner fails to show cause, the court need not consider whether he has
established prejudice. See Engle, 456 U.S. at 134 n.43; Leroy v. Marshall, 757 F.2d 94, 100 (6th
Cir. 1985).
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a guilty plea based on unfulfillable promises 9 [Doc. 25-1 p. 109-221]. Moreover, he claims that
his attorneys put forth little effort during negotiating the plea agreement, failed to assess likely
trial outcomes, and failed to uncover or refute various pieces of evidence gathered by the State
[Id.].
As cause to excuse the default of this claim, Petitioner pleads both that he is actually
innocent and that his post-conviction counsel was ineffective. Respondent, however, alleges that
actual innocence will not provide a gateway to Petitioner’s claims and that Petitioner may not use
the ineffective assistance of counsel as cause because his claims are not substantial.
First, Petitioner claims that his ineffective assistance of counsel claims may be reviewed
under the actual innocence gateway set out in Schlup v. Delo, 513 U.S. 298 (1995) and House v.
Bell, 547 U.S. 518 (2006).10 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 trustworthy eyewitness accounts, critical 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. at 536 (citing

9

Claim (3) was discussed above in reference to Petitioner’s guilty pleas.

10

To the extent that Petitioner attempts to raise his actual innocence as a freestanding claim,
the Court notes that “claims of actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent an independent constitutional violation
in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); see
also Cress v. Palmer, 484 F.3d 844, 845-55 (6th Cir. 2007) (holding that a freestanding innocence
claim is not cognizable without allegations of constitutional error at trial).
16

Schlup, 513 U.S. at 327).

The petitioner must prove “factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
While it may seem counterintuitive, a petitioner who pled guilty may raise claims of actual
innocence. Id. However, here Petitioner has not supported his claim of actual innocence with any
new, reliable evidence,11 but rather attempts to support the claim largely by presenting his
perspective casting doubt on various pieces of evidence gathered by the state. These self-serving
assertions cannot demonstrate that it is more likely than not that no reasonable juror would have
found Petitioner guilty, particularly where Petitioner’s own assertions of guilt during his plea
colloquy undermine his claim that he is factually innocent. Other evidence produced by the state
– most notably Petitioner’s statement admitting his involvement to a Drug Enforcement
Administration special agent – likewise supported that Petitioner is not factually innocent. See
Doc. 17-3, p. 3 (letter from Petitioner’s attorney outlining the evidence of Petitioner’s guilt likely
to be raised at trial). The bar for this exemption is high, and Petitioner has not offered sufficient
new, reliable evidence to demonstrate that a fundamental miscarriage of justice will occur if his
claims are not granted review.
Next the Court turns to Petitioner’s argument that the ineffective assistance of his postconviction counsel warrants relief from the doctrine of procedural default. Ordinarily, because
there is “no constitutional right to an attorney in state post-conviction proceedings,” the ineffective
assistance of counsel in post-conviction proceedings does not qualify as “cause” to excuse
procedural default of constitutional claims. Coleman v. Thompson, 501 U.S. 725, 755 (1991).

11

Petitioner’s only “new evidence” is a purported letter in which a co-defendant admits to
the murders, which would not exculpate Petitioner of felony murder, and his own statement that
he had a key to the victims’ home, which he claims proves that he could not have committed
aggravated burglary as he had their consent to enter their home.
17

However, the United States Supreme Court has carved out a narrow exception that allows a
substantial claim of ineffective assistance of post-conviction counsel to constitute cause for
underlying claims of ineffective assistance of counsel when the state limits presentation of those
claims to post-conviction proceedings or employs a procedural framework that “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, 569 U.S. 413, 429 (2013) (citing
Martinez v. Ryan, 566 U.S. 1, 18 (2012)). This exception applies in Tennessee. See Sutton v.
Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014).
For ineffective assistance of counsel to constitute cause to excuse Petitioner’s procedural
default of his claims, this Court must find that: (1) the claims of ineffective assistance of trial
counsel were “substantial,” (2) there was no counsel or counsel was ineffective during the state
collateral review, (3) the state collateral review proceeding was the “initial” review proceeding,
and (4) the state-law system requires or strongly encourages ineffective-assistance claims to be
raised in initial-review proceedings. Trevino, 569 U.S. at 423 (citing Martinez, 566 U.S. at 13-14,
16-17).
To demonstrate that his claims are substantial, Petitioner “must demonstrate that the
claim[s] ha[ve] some merit,” which in this case requires analysis under the conjunctive deficiency
and prejudice test set out by Strickland v. Washington, 466 U.S. 668, 687 (1984). Martinez, 566
U.S. at 14. To successfully prove that counsel was constitutionally ineffective, a defendant must
establish: (1) that counsel’s performance was deficient such that he was no longer “functioning as
the ‘counsel’ guaranteed under the Sixth Amendment,” and (2) that counsel’s “performance
prejudiced the defense . . . so as to deprive the defendant of a fair trial” and undermine the
reliability of trial results.

Strickland, 466 U.S. at 687.

18

Counsel is deficient when his

“representation fell below an objective standard of reasonableness.” Id. at 688. A petitioner has
been prejudiced when “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. In the context of a
guilty plea, to demonstrate prejudice, the petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In many guilty plea cases, the “prejudice” inquiry will closely
resemble the inquiry engaged in by courts reviewing ineffectiveassistance challenges to convictions obtained through a trial. For
example, where the alleged error of counsel is a failure to investigate
or discover potentially exculpatory evidence, the determination
whether the error “prejudiced” the defendant by causing him to
plead guilty rather than go to trial will depend on the likelihood that
discovery of the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn, will
depend in large part on a prediction whether the evidence likely
would have changed the outcome of a trial.
Id.
Here, the Court need not determine whether Petitioner’s counsel was deficient, because
Petitioner has not demonstrated that he was prejudiced by any of counsel’s alleged errors such that
his trial was constitutionally inadequate. Specifically, although Petitioner has leveled a lengthy
list of errors against his attorneys, he has not shown that but for counsel’s alleged errors he would
have chosen to go to trial. Petitioner’s attorneys testified that while Petitioner originally adamantly
declined to plead guilty, he changed his mind after learning one co-defendant was preparing to
testify against him, and another was considering doing so [Doc. 17-2 p. 9, 46]. Counsel testified
that Petitioner understood that his attorneys viewed the evidence against him as pretty strong [Id.
at 24], and that he eventually conceded “I think I’ll be found guilty” before deciding to accept a
plea deal [Id. at 46]. Petitioner likewise understood that he could be sentenced to death, and pled

19

guilty in exchange for a life sentence instead [Id.]. This evidence indicates that Petitioner was not
induced to plead guilty by counsel’s deficient performance, but rather that Petitioner, “a smart
man,” understood that there was substantial damning evidence against him, that the chance of his
being convicted was high, and that he was facing the death penalty and made a calculated decision
to accept a guilty plea.
Moreover, Petitioner has not demonstrated that had counsel not “erred” as Petitioner
alleges, that counsel would have changed the recommendation that Petitioner plead guilty rather
than proceeding to trial. Petitioner alleges that counsel failed to recognize the State’s misconduct
in supporting the arrest warrant with “false affidavits” and he details vast information that
Petitioner disagrees with from these affidavits, and that counsel failed to resolve the State’s noncompliance with discovery. 12 However, there is no indication that even had counsel “discovered”
this information, that counsel would have either agreed with Petitioner’s interpretation or been
induced to change their recommendations, particularly where his attorneys repeatedly indicated
that they believed the evidence against Petitioner was strong and that Petitioner was likely to be
convicted. As for Petitioner’s generalized statement that counsel put forth little effort during
negotiations, failed to assess trial outcomes, and failed to uncover various evidence gathered by
the State, such conclusory allegations will not provide grounds for habeas relief. See Cross v.
Stovall. 238 F. App’x 32, 39-40 (6th Cir. 2007). Petitioner has not presented any evidence, outside
of his now self-serving words, that would allow the Court to find that there is a reasonable
probability that any of these alleged errors predicated his guilty plea.

12

The Court notes that the State’s alleged breach of the plea agreement, which by nature
had to occur after Petitioner’s guilty plea, could not then meet the standard of prejudice indicated
here.
20

Because Petitioner’s claims are thus unsubstantial, he is not entitled to relief under the
Martinez/Trevino framework. Moreover, as neither theory Petitioner has provided will warrant
exemption from the doctrine of procedural default, he is not entitled to review on his claim of
ineffective assistance of counsel.
ii. Prosecution Breach and Misconduct
Petitioner next claims that his due process rights were violated when the prosecution
breached his plea agreement and committed misconduct.

Here, Petitioner claims that the

prosecution verbally agreed that Petitioner would receive a “nominal” life sentence with the
possibility of parole, which was actually a fifty-one year sentence, would only serve thirty percent
of this sentence, and would receive credit for all time served. He alleges the prosecution breached
this agreement when Petitioner attempted to have his judgments amended to reflect these promises
and the State argued against such amendments.

As to his claim that the State committed

misconduct, Petitioner argues that the State violated Brady v. Maryland, when it withheld key
exculpatory evidence. Neither of these claims was presented to the state court, a default which
Petitioner argues may be excused under § 2254(b)(1)(B)(i). This clause provides in relevant part
that failure to exhaust claims will not prevent review of claims if “there is an absence of available
State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i). Specifically, Petitioner claims that at the
time he filed his federal petition, there were no state procedures by which he could have presented
these claims to the state court because the Tennessee Supreme Court has issued an opinion “which
took away all remedies for those that pled guilty to bring forth newly discovered evidence after
the limitations period.” The case Petitioner cites to support this theory is Frazier v. State, 495
S.W.3d 246, 253 (Tenn. 2016), which held “that the error coram nobis statute is not available as a
procedural mechanism for collaterally attacking a guilty plea.” Petitioner heavily relies on

21

language in the dissent that states that this limitation of error coram nobis relief “effectively
deprives a defendant who pleaded guilty from challenging the conviction with newly discovered
evidence.” Frazier, 495 S.W.3d at 257.
Here, Petitioner is conflating the doctrines of exhaustion and procedural default. See
Broom v. Mitchell, 441 F.3d 392, 399 (6th Cir. 2006). Section 2254 requires a petitioner to either
(a) exhaust those state court remedies available to him at the time he filed his federal petition or
(b) show that no state corrective processes were available. Id. Petitioner indeed exhausted the
state court appeals process. This question, however, is distinct from whether Petitioner’s claims
are procedurally defaulted. Petitioner’s claims are defaulted because he did not present them in
his previous state court proceedings and there are no further remedies available to him in state
court, rendering his claims technically exhausted, but procedurally defaulted. Rust, 17 F.3d at 160.
Accordingly, Petitioner still must demonstrate cause and prejudice in order to excuse his
procedural default.
Regarding his first claim, that the prosecution breached his plea agreement, the Court finds
it unnecessary to determine whether Petitioner has shown “cause” as he has not demonstrated
prejudice. To demonstrate prejudice in this regard, Petitioner would need to show that he has
suffered actual prejudice that worked to his “actual and substantial disadvantage,” and “so infected
the entire trial that the resulting conviction violates due process.” See Frady, 456 U.S. at 170.
Although Petitioner argues that he was prejudiced because he did not receive the “benefit of his
bargain,” he has offered inadequate proof of the alleged verbal agreement that existed with the
prosecution. As detailed above, these alleged terms were not indicated in open court during
Petitioner’s plea colloquy and Petitioner’s own attorneys deny that the terms existed or that
Petitioner’s sentence was different than what he bargained for. Although Petitioner failed to raise

22

this specific claim that the prosecution breached his plea agreement to the state courts, he many
times in many ways challenged that his sentence was other than what he bargained for. The state
court repeatedly held that this was not true. Petitioner has not demonstrated prejudice sufficient
to warrant relief for this claim.
The Court also does not find that Petitioner is warranted relief regarding his claim that the
prosecution committed a Brady violation. The Sixth Circuit has clarified that “[w]hen a defendant
has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.” Campbell v. Marshall, 769 F.2d 314, 318 (6th
Cir. 1985). “There is no authority…holding that suppression of Brady material prior to trial
amounts to a deprivation of due process.” Id. at 322 (emphasis in original). Petitioner pled guilty
in open court and thus the Court cannot address this claim.
Petitioner is not entitled to exemption from the doctrine of procedural default and his
claims of prosecutorial breach of his plea agreement and misconduct will not be reviewed.
IV. CONCLUSION
For the reasons set forth above, Petitioner’s petition for a writ of habeas corpus [Docs. 2,
34] will be DENIED and this action will be DISMISSED.
V. 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

23

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.
No reasonable jurist would find that Petitioner’s guilty plea was not knowingly,
intelligently, and voluntarily entered or that he was entitled to relief from the procedural default of
his remaining claims. Accordingly, a COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.

ENTER:

s/ Leon Jordan
United States District Judge

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