Robinson v. Sexton

Filing 26

MEMORANDUM OPINION. Signed by District Judge Pamela L Reeves on 8/17/17. (copy mailed to Petitioner) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JIMMIE R. ROBINSON,

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

No. 3:14-CV-235-PLR-CCS
REEVES/SHIRLEY

MEMORANDUM OPINION

This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Doc. 1]. Petitioner also filed a memorandum in support of his § 2254 petition [Doc. 2].
Respondent filed a response in opposition thereto, as well as a copy of the state record [Docs. 14
and 16]. Petitioner filed a reply [Doc. 19]. Petitioner has also filed a motion to ascertain status of
the case [Doc. 24] that will be GRANTED to the extent that this memorandum opinion and an
order will enter. For the reasons set forth below, however, the Court determines that no evidentiary
hearing is warranted in this case, Petitioner’s § 2254 petition [Doc. 1] will be DENIED, and this
action will be DISMISSED.
I.

PROCEDURAL HISTORY
On June 23, 2011, Petitioner entered a plea of guilty to a charge of second-degree murder

[State Court Record, Exhibits 1 and 2 to Post-Conviction Hearing]. Petitioner did not appeal the
resulting conviction, but did file a petition for post-conviction relief raising claims of ineffective
assistance of counsel based on counsel’s (1) failure to move for a change of venue, recusal of
Sevier County judges, and disqualification of prosecutors; (2) failure to fully investigate the case;

(3) failure to inform Petitioner of the defense of necessity; (4) failure to inform Petitioner of a
police/prosecution fabrication defense [State Court Record p. 48–75]; and (5) failure to inform
Petitioner of all of the essential elements of the relevant offenses prior to his guilty plea [State
Court Record, Amendment to Petition for Post-Conviction Relief]. Petitioner also raised claims
based on allegations of suppression of exculpatory evidence and an allegation that his guilty plea
was not knowing and voluntary due to the alleged ineffective assistance of counsel and/or judicial
and prosecutorial misconduct [Id. at 75–88]. The state post-conviction court denied relief [State
Court Record p. 121].
Petitioner appealed this denial to the Tennessee Court of Criminal Appeals (“TCCA”),
raising claims for ineffective assistance of counsel based on allegations that counsel (1) raised a
dishonest defense; (2) failed to prepare for trial; and (3) coerced Petitioner into a guilty plea [Id.,
Brief of Appellant p. 4]. Petitioner also raised a claim that the post-conviction court erred by
finding that Petitioner’s guilty plea was made intelligent and voluntarily [Id.].1 The TCCA
affirmed the post-conviction court’s denial of relief. Robinson v. State, No. E2013-01163-CCAR3-PC, 2014 WL 1285502, at *7–9 (Tenn. Crim. App. March 31, 2015), perm. app. denied (Tenn.
Aug. 26, 2014).
II.

BACKGROUND
The following factual background is taken from the TCCA’s opinion on Petitioner’s appeal

of the denial of his petition for post-conviction relief:
The Petitioner pleaded guilty on June 23, 2011, to second[-]degree
murder as a lesser included offense to the charged offense of first

1

Petitioner also attempted to bring a pro se claim that he was not informed of the elements
of first or second degree murder, but the TCCA held that claim was not properly before them.
Robinson v. State, No. E2013-01163-CCA-R3-PC, 2014 WL 1285502, at *9 (Tenn. Crim. App.
March 31, 2015).
2

degree premeditated murder. At the plea hearing, the State set forth
the factual basis for the plea as follows:
[T]he facts in this case the State would expect to
prove are the following, first through Leah Brackins,
the mother of the victim, James Jason Hicks.
He was born in 1979 and grew up and in 2003 met
Wendy Robinson, the [Petitioner’s] daughter.
Thereafter, he and Wendy had . . . three children.
Ethan, born August 24, 2005, Samuel and Jake are
twins born April 9, 2007.
Subsequently, there was an order of protection filed
by Ms. Robinson against the victim. Subsequently
he filed a divorce. That case was pending and was a
hotly contested divorce and custody dispute. That
case was proceeding in both this court and the
juvenile court until April 8 and 9 of 2009 when Judge
Strand ordered that the victim, who had been
separated from his children would be given the right
to start . . . visitation.
Thereafter, on April 19, according to the testimony
of Ms. Brackins—well, actually on the 20th, she had
went [sic] to her son’s house and found him killed in
his carport and driveway.
Thereafter, Detectives Brown and Bush, along with
Lieutenant Hinson of the Sevierville Police
Department conducted an investigation. During the
course of their investigation the body was autopsied.
Dr. Steven Cogswell, who was the medical examiner
at UT Hospital would testify that the victim died
from three gunshot wounds to the head, two on the
right side and one on the back left.
The detectives investigated. They were able to locate
several witnesses, including Marlene Forrester, and
she would testify that the [Petitioner] made
statements that he intended to ensure that the children
would never see their father again. Allen Adams and
Don McFalls would further testify that [the
Petitioner] made statements along those lines. Mr.
McFalls discovered a gun on the morning of April
3

20th in his car and it was arranged that that would be
destroyed by him and that was in fact done and that
would be his immunized testimony in this case.
The detectives located projectiles, or a projectile.
That was tested and compared with the projectiles
found in the victim, and they matched.
Taking all this information, the detectives were able
to locate [the Petitioner]. [The Petitioner] made
statements to them after being Mirandized
implicating himself in this killing. As the Court is
aware from a motions hearing, he stated his reasons
for doing that.
At the evidentiary hearing on the Petitioner’s claim for postconviction relief, the Petitioner testified that he retained trial counsel
to assist him in defending against the first[-]degree murder charge
that the State brought against him. He retained trial counsel no more
than two months prior to the scheduled trial date. He thought they
met approximately five times. After the first several meetings, trial
counsel claimed to have developed “a strategy that was not going to
fail.” The Petitioner testified that trial counsel wanted to conduct
the case in a manner so as to allow the jury to conclude that the
Petitioner’s daughter had shot and killed the victim. The Petitioner
refused to cooperate with this strategy “because it was not true.”
The Petitioner also was dissatisfied with trial counsel’s attitude
about the abuse that the Petitioner claimed that the victim had
inflicted on the Petitioner’s grandchild.
The Petitioner testified that, about six days before trial, there was a
hearing that impacted negatively the Petitioner’s defense of
necessity. After the hearing, trial counsel told the Petitioner that he
would have to take a plea bargain or he would “never get out of
prison.” Subsequently, they went to court, and the Petitioner signed
the plea agreement at the podium. The Petitioner did not recall
reviewing the agreement with trial counsel prior to signing it. The
Petitioner did not recall trial counsel’s explaining second[-]degree
murder to him. He testified that trial counsel “always told me it [the
facts of the case as related by the Petitioner] rose at best to
manslaughter, two to six years.” However, trial counsel did not
explain the elements of manslaughter to the Petitioner, either.

4

The Petitioner recalled telling trial counsel that, right before the
Petitioner killed the victim, the Petitioner’s grandson asked him “if
he would have to put [the victim’s] pee-pee in his mouth again.”
According to the Petitioner, trial counsel’s response to this reported
conversation was, “that’s too F-ing pat.”
On cross-examination, the Petitioner acknowledged that he was not
indicted and arrested for the killing of the victim until almost one
year after he killed the victim. In the meantime, he had told the
police that “there might be some bikers that had it out for” the
victim. Ultimately, however, he confessed to the killing.
The Petitioner stated that he was sixty-seven years old at the time he
entered his plea. He knew at the time he went to court on the day of
the plea that he was going to plead guilty to second[-]degree murder
and that he was going to be sentenced to seventeen and one-half
years. He knew that he would be going to prison that day. He did
not remember any specifics from the plea hearing because he was
“in a fog.”
Crystal Piarrot testified that, during the State’s prosecution of the
Petitioner, she had been employed with the Department of
Children’s Services (“DCS”) as a child protective services
investigator. She investigated a matter involving a child that was
relevant to the Petitioner’s prosecution. Trial counsel did not
interview her.
On cross-examination, Piarrot stated that the victim was never
charged with a crime.
On re-direct examination, she stated that a detective had been
assigned to the case to determine if the victim should have been
charged.
Trial counsel testified that he became licensed to practice law in
1996 and that his practice consisted solely of criminal defense work.
He had significant trial experience with first degree murder cases.
In this case, the State turned over extensive discovery to him. The
discovery included materials about the divorce between the victim
and the Petitioner’s daughter and about the allegations of child
abuse. Trial counsel acknowledged that he did not talk to Piarrot,
explaining that he had two reasons for not doing so. First, he did
not believe that she would be allowed to testify. Second, he had
been “led to believe there was a criminal history there, and that’s not
a good witness.” Trial counsel, however, did have access to
Piarrot’s records.
5

Trial counsel stated that his initial trial strategy was “heat of
passion” resulting from the Petitioner’s discovery that the victim
had abused one of the Petitioner’s grandsons. However, trial
counsel became aware of several significant weaknesses with this
strategy. First, over one year had elapsed between the Petitioner’s
discovery of the alleged abuse and the shooting. Second, “the way
the shooting took place,” i.e., the way the Petitioner hid, waited, and
then shot the victim while the victim was talking on the phone.
Third, the Petitioner previously had arranged for a third person to
destroy the murder weapon, and the third person had admitted to
doing so after the shooting. Fourth, the Petitioner initially told
police that someone else was responsible for the killing. Finally,
another significant problem was the Petitioner’s videotaped
statement to the police in which he was “cool, calm, and collected”
and in which he told the police that he committed the crime because
he was “sick of the system.” In light of these difficulties with the
initial strategy, trial counsel discussed with the Petitioner an
alternate strategy of giving the jury an opportunity to consider that
the Petitioner had confessed in order to protect his daughter, whom
witnesses had described as very distraught before the murder and
then, before the murder was discovered, was described as having
undergone a “remarkable change in her demeanor” and who was
saying, “don’t worry, it’s all going to be okay.” The Petitioner and
his family rejected this approach.
Trial counsel testified that he explained the elements of first degree
premeditated murder to the Petitioner. Trial counsel stated that the
facts as relayed by the Petitioner to him constituted premeditation:
“we have a one to two hour lying in the dark watching the victim,
contemplating shooting his head off . . . . And, secondly, having
gone ahead of time to a friend and saying if I do this I need to get
rid of the gun and then doing that.” Trial counsel also explained
second degree murder and voluntary manslaughter to the Petitioner.
Trial counsel also explained the penalties for each of these crimes.
After the Petitioner rejected the defense strategy of blaming the
Petitioner’s daughter, trial counsel returned to the necessity of the
Petitioner’s testifying about why he shot and killed the victim. Trial
counsel remained concerned that the jury would convict the
Petitioner of premeditated murder because the State had
uncontroverted proof that there had been no confrontation between
the Petitioner and the victim before the Petitioner shot the victim
multiple times in the head. Trial counsel also referred to the
videotaped police interview in which the Petitioner confessed,

6

testifying that “[t]he [Petitioner] himself admitted standing there in
the dark waiting an hour or two and then shooting him.”
Shortly before trial, there was a hearing about (1) whether the
Petitioner would be able to testify about what he believed had
happened to his grandchildren and why he killed the victim and (2)
whether the State would be able to impeach the Petitioner with his
prior convictions. Trial counsel testified that the trial court ruled in
the Petitioner’s favor as to both issues. Trial counsel also stated that
the trial court’s ruling allowed him to strike a favorable plea bargain
for the Petitioner. In discussing the plea offer with the Petitioner
and the Petitioner’s family, he told the Petitioner that, if they went
to trial, they would lose. He testified,
I told them, if the jury follows the law, it will be first
degree [murder]. If we can convince one or two or
three, they might trade down and we’ll get second. If
we get second, you’re going to get twenty-five. You
are going to get twenty-five years . . . .The Court is
going to hammer you. You have a prior record. The
deception for a year, the trying to blame other people
. . . . [T]he use of a firearm.
The ultimate sentence agreed to was based on the possibility that the
Petitioner would serve fifteen years and then be able to get out and
see his grandchildren. Trial counsel discussed the sentence in detail
with the Petitioner, and the Petitioner agreed to the plea bargain.
The next day, at the plea hearing, the Petitioner was, according to
trial counsel, “very strong, showed a lot of character, back straight,
spoke up, went forward with dignity, I thought. Conducted himself
very, very well.” Trial counsel testified that he went over the written
plea agreement with the Petitioner before the hearing. He also
testified that, if the Petitioner had changed his mind, trial counsel
was ready to go to trial.
On cross-examination, trial counsel stated that he did not interview
any of the State’s witnesses, nor did he have an investigator
interview any of them. He stated, “there was no reason to. I knew
what had happened from my own client.” He also had the State’s
witnesses’ statements, which conformed to the facts as he knew
them. He did not seek a change of venue, in spite of the Petitioner’s
request, because he did not think it would be granted.

7

When asked if the Petitioner informed him about an event with his
grandchild that was closer in proximity to the shooting and that
would have been relevant to a heat-of-passion defense, trial counsel
responded as follows:
I recall telling [the Petitioner] that if he had shot him
within three or four days I would walk him on
probation. I remember telling him that. And I
remember telling him that there was a real, real
problem, and the problem was that it appeared that
they were losing the court battle for custody and that
when they got word they were going to lose, that
that’s when this all started to happen. And I
remember telling him . . . that something has to drive
you in the heat of passion. Okay? And up until then
his entire conversations were about the system and
the judges and the this and the that. There was never
any mention of what [the grandson] had said
recently. When I directly pointed out that that was
going to be a real problem, the next day he came and
said, I remember [my grandson] told me, I don’t want
to go there because I’m afraid he’s going to make me,
you know, put his pee-pee in my mouth or something
like that. I didn’t believe that for a second. He
manufactured that because he realized I had just told
him we didn’t have a trigger. And so the next day he
provided me the trigger.
Piarrot was re-called in rebuttal, and she testified that she voluntarily
resigned from the DCS in April 2011. She stated that she resigned
because she and her husband were leaving Tennessee. She denied
that she ever had been charged with anything criminal.
The Petitioner also testified in rebuttal. He stated that he had
watched the victim for “maybe five [minutes], at the most” before
shooting him. He reiterated that his grandson had spoken to him
about his fears of his father, the victim, three hours before the
shooting and that the Petitioner had so informed trial counsel.
At the conclusion of the hearing, the post-conviction court ruled
from the bench as follows:
[The Petitioner’s] trial counsel ... is a highly qualified
and experienced defense attorney. By his account,
he has actually taken to jury trial over thirty-five first
degree murder cases and represented defendants in
8

many, many others that did not go to trial. In this
case, he was diligent in obtaining discovery
materials, spent considerable time consulting with
[the Petitioner], explored all possible avenues of
defense, investigated the case, and was fully
prepared to take the case to trial. He was faced with
a difficult task, in that the evidence would have
shown that the victim, Mr. Jason Hicks, was killed
by three gunshot wounds to the head and that [the
Petitioner] had admitted to shooting from essentially
an ambush position. [The Petitioner] had made a
very detailed videotaped confession of the offense.
On June 23rd, 2011, [the Petitioner] appeared in
court and entered a plea of guilty to second degree
murder and received an agreed sentence of seventeen
and a half years. I refer to the transcript of that
hearing, which has been filed here as Exhibit No. 1.
This transcript shows that [the Petitioner] was fully
advised of his rights by the Court. He clearly
understood those rights and voluntarily, knowingly
and intelligently waived his right to a jury trial and
entered his plea of guilty. When asked if satisfied
with [trial counsel’s] representation, he replied,
quote, absolutely, Your Honor, I am. He was given
the opportunity to ask questions and make
statements. He did go on to say in that hearing,
again, this is in the transcript, a big part of why I am
doing this is this needs to end for my family and for
the other family. It’s gone on too long and I’m sorry
that all this had to happen. I’m just Grandpa. That’s
all I am. Whatever comes, comes. And I respect this
Court, I respect you, and I believe this has all been
honest.
Besides stating his personal motivation for entering
the plea, this shows that he was very clear, he
understood all of the circumstances, he understood
the procedure, and was making a voluntarily and
intelligently made decision. [The Petitioner] was
fully informed and advised by counsel of the
ramifications of the plea agreement. Counsel met
with family members. [The Petitioner] met with his
family members. He considered the plea offer
overnight and then appeared in court the next day.

9

The Court must find that he was fully advised, fully
informed by counsel, who had fully prepared,
adequately prepared, and that the plea was his own
voluntary decision to waive his right to a trial by jury
and proceed with the plea agreement. The Court
further finds [trial counsel] was thorough. He
prepared himself fully for trial, was well-versed with
all of the issues, considered all possible trial
strategies, even some that were rejected by [the
Petitioner], and in all respects performed well above
the standards of reasonably effective defense
counsel, and was in no way deficient. Thus, [the]
[P]etitioner has failed to carry his burden of proof on
the first prong of the two-prong test, and the Court
must conclude to the contrary that [trial counsel's]
representation was at the highest level of standards
of defense counsel.
Having failed to meet the first prong of the test, the
Court need not address the second part, but if I did,
it's clear that [the Petitioner] was in no way
prejudiced in this case. Counsel made no errors. His
advice was spot on. [The Petitioner] faced a potential
life sentence. The evidence against him was
overwhelming. [The Petitioner] served himself well
by entering into and accepting the plea agreement.
It is therefore the finding of this Court that [the
Petitioner] has failed to carry his burden of proof,
that his plea of guilt was knowingly and voluntarily
made, that his counsel was very effective and met the
highest standard of his profession, and therefore the
petition for post-conviction relief is hereby
dismissed.
Robinson v. State, 2014 WL at *1–6 (footnote omitted).
III.

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

U.S.C. § 2254, et. seq., a court considering a habeas claim must defer to any decision by a state
court concerning the claim, unless the state court’s judgment: (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law, as
10

determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1)–(2).
The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (noting that Ҥ 2254(d), as amended by AEDPA, is a purposefully demanding
standard . . . ‘because it was meant to be’”) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)). Further, where findings of fact are supported by the record, they are entitled to a
presumption of correctness which may be rebutted only by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
IV.

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

of which Petitioner has procedurally defaulted. The Court will address the procedurally defaulted
claims before addressing the remaining claims in turn.
A. Procedurally Defaulted Claims
First, Respondent argues that many of Petitioner’s arguments are procedurally defaulted.
Specifically, Respondent asserts that Petitioner has procedurally defaulted the following claims by
not raising them in his appeal of the denial of his petition for post-conviction relief:
1. Petitioner’s claim for ineffective assistance of counsel based on the failure to move for
change of venue, recusal of judge, and/or disqualification of judge and prosecutor;
2. Petitioner’s claim for ineffective assistance of counsel based on the failure to
investigate the case legally and factually and to inform Petitioner that his conduct met
the elements of voluntary manslaughter;
3. Petitioner’s claim for ineffective assistance of counsel based on the failure to inform
Petitioner of the defense of necessity;
4. Petitioner’s claim for ineffective assistance of counsel based on the failure to inform
Petitioner of the defense of police/prosecution fabrication;
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5. Petitioner’s claim for ineffective assistance of counsel based on the failure to inform
Petitioner of the intent element of second-degree murder; and
6. Petitioner’s claim that the prosecution suppressed exculpatory material.
A petitioner who fails to raise his federal claim in the state courts and who is now barred
by a state procedural rule from returning with the claim to those courts has committed a procedural
default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). A procedural default forecloses
federal habeas review, unless a petitioner can show cause to excuse his failure to comply with the
state procedural rule and actual prejudice resulting from the alleged constitutional violation, id. at
732, or where the Petitioner demonstrates that he has “an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Murray v.
Carrier, 477 U.S. 478, 496, 106 (1986).
An attorney’s ineffective assistance in post-conviction proceedings generally does not
establish “cause” to overcome procedural default of claims. Coleman, 501 U.S. at 755(1991).
Where a 2254 petitioner could raise a claim for trial counsel’s ineffective assistance for the first
time in a post-conviction petition, however, ineffective assistance of post-conviction counsel may
be “cause” to excuse the procedural default of such a claim. Wallace v. Sexton, 570 F. App’x 443,
452–53 (6th Cir. 2014); Trevino v. Thaler, 133 S.Ct. 1911, 1918–21 (2013); Martinez v. Ryan, 132
S. Ct. 1309, 1320 (2012). This exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d
787, 792–95 (6th Cir. 2014). Where a petitioner alleges ineffective assistance of post-conviction
counsel to establish cause to excuse his default of an ineffective assistance of trial counsel claim
and alleges that the ineffective assistance or post-conviction counsel occurred only on appeal of
his post-conviction petition, however, this exception does not apply, as the appeal was not the first
time the petitioner could have raised the claim. Wallace, 570 F. App’x at 453.

12

As set forth above, Petitioner did not raise the above-listed claims in his appeal of the denial
of post-conviction relief.2 While Petitioner asserts that this omission resulted from the ineffective
assistance of post-conviction counsel, this allegation is not sufficient to overcome this procedural
default. Moreover, Petitioner has not demonstrated that he is actually innocent of second-degree

2

To the extent that Petitioner’s TCCA appellate brief raised the substance of Petitioner’s
§ 2254 arguments regarding counsel’s failure to inform him of the defense of necessity and/or that
his conduct amounted to voluntary manslaughter, the record establishes that the TCCA determined
that the trial court credited counsel’s testimony that “Petitioner’s claim that he killed the victim to
protect his grandchild would likely not convince a jury because of the amount of time that had
passed between the Petitioner learning of the allegations of abuse and the murder, the Petitioner’s
arrangements to destroy the murder weapon, the manner of the killing, the Petitioner’s initial
attempts to blame others, and the Petitioner’s explanation to the police that he had killed the victim
because he was ‘sick of the system,’” Robinson, 2014 WL at *8, and that this testimony was
supported by the record. As such, the TCCA reasonably determined that counsel was not deficient
in his trial preparation or in seeking a plea bargain for second-degree murder. Id.
Under Tennessee law, the defense of necessity requires proof that the defendant
“reasonably believes the conduct is immediately necessary to avoid imminent harm; and (2) The
desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented
by the law proscribing the conduct, according to ordinary standards of reasonableness.” Tenn.
Code Ann. § 39-11-609 (2006). This defense applies “in exceedingly rare situations where
criminal activity is ‘an objectively reasonable response to an extreme situation.’” State v.
Davenport, 973 S.W.2d 283, 287 (Tenn. Ct. Crim. App. 1998) (quoting the Sentencing
Commission Comments to Tenn. Code Ann. § 39-11-609).
Further, voluntary manslaughter is an “intentional or knowing killing of another in a state
of passion produced by adequate provocation sufficient to lead a reasonable person to act in an
irrational manner.” Tenn. Code Ann. § 39-13-211. Second-degree murder, however, is a “knowing
killing of another.” Tenn. Code Ann. § 39-13-210(a)(1)(2003).
Given the totality of the circumstances surrounding Petitioner’s crime, the fact that the
record establishes that the trial court credited Petitioner’s counsel’s testimony at the postconviction hearing by finding that counsel “spent considerable time consulting with [Petitioner],
explored all possible avenues of defense, [and] investigated the case,” and that Petitioner was
“fully informed by counsel” regarding the guilty plea [State Court Record, Transcript of PostConviction Hearing p. 138–39], and the fact Petitioner has set forth no evidence to contradict these
findings, the record does not support finding that counsel was deficient for not informing Petitioner
of the defense of necessity and/or not telling Petitioner that his conduct amounted to voluntary
manslaughter. As such, Petitioner is not entitled to relief for these claims.
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murder. Accordingly, Petitioner’s above-listed claims are procedurally defaulted and they will be
DISMISSED.
B. Validity of Guilty Plea
Petitioner also that his guilty plea was not knowing, intelligent, and/or voluntary, but rather
the result of “fraud, deception, duress, ignorance, misrepresentation, misunderstanding, and
improper coercion, as well as based upon the prosecution’s suppression of exculpatory evidence,
judicial misconduct, and absent the [sic] effective assistance of counsel” [Doc. 1 p. 21]. The only
related argument Petitioner presented in his appeal of the denial of his petition for post-conviction
relief, however, was his claim that the plea was invalid because counsel “was deficient by
overriding Appellant’s opportunity to be informed and make his own decision about his case”
based on the assertion that counsel only told Petitioner that he had “no defense [and] that [they]
were going to get [their] *sses kicked” [State Court Record, Brief of Appellant p. 13–14 (quoting
the transcript of the post-conviction hearing)]. Accordingly, for the reasons set forth above, this
claim for ineffective assistance of counsel is the only claim that is not procedurally defaulted and
the Court will therefore address only this claim.
The Supreme Court has explained that “[a] plea of guilty is more than a confession which
admits that the accused did various facts; it is itself a conviction; nothing remains but to give
judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 237, 242 (1969). Because of
the consequences stemming from a guilty plea, a plea-taking court must ascertain that the plea is
voluntary and knowing and that it is being proffered with sufficient awareness of the relevant
circumstances and the probable and direct consequences of a plea. Brady v. United States, 397
U.S. 742, 748–49 (1979).

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The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective
assistance of counsel:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland, 466 U.S. at 687. Petitioner has the burden of showing both deficient performance and
prejudice. Smith v. Robbins, 528 U.S. 259, 285–86 (2000).
Under the first prong of the test, the appropriate measure of attorney performance is
“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. A defendant
asserting a claim of ineffective assistance must “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690. The
evaluation of the objective reasonableness of counsel’s performance must be made “from
counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the
standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong requires the petitioner to show that counsel’s deficient performance
prejudiced the defense. Thus, “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
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judgment.” Strickland, 466 U.S. at 691. In the context of a guilty plea, to prove the prejudice
prong of his claim, a petitioner must show a reasonable probability that, but for counsel’s deficient
performance, he would not have pleaded guilty and would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome, Strickland, 466 U.S. at 694, and it “requires a substantial,
not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189
(2011) (citation and internal quotation marks omitted).
While both prongs must be established to meet a petitioner’s burden, if “it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed.” Id. at 697. Also, review of a Strickland claim under § 2254(d)(1) is “doubly
deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420 (2009). Further,
“[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable,” but
instead “whether there is any reasonable argument that counsel satisfied Strickland's deferential
standard.” Harrington v. Richter, 131 S.Ct. 770, 788 (2011).
The TCCA found that the record supported the post-conviction court’s ruling that
Petitioner entered his guilty plea knowingly, voluntarily, and intelligently. Robinson v. State, No.
E2013-01163-CCA-R3-PC, 2014 WL 1285502, at *9 (Tenn. Crim. App. March 31, 2015). The
TCCA specifically held that the post-conviction court had credited3 the trial testimony of counsel
that he “reviewed the plea bargain offer with the Petitioner and explained the consequences of the

3

Habeas courts generally defer to trial court credibility findings, as the trial court is in the
best position to determine witness credibility. Miller-El v. Cockrell, 537 U.S. 322, 339 (2003);
see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (holding that § 2254 does not give
habeas courts “license to redetermine credibility of witnesses whose demeanor has been observed
by the state trial court, but not by them”).
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deal . . . . [and] advised the Petitioner of what he considered to be the likely consequence of a
trial.” Id. The TCCA further noted that despite the strong proof that Petitioner had committed
premeditated first-degree murder, counsel had negotiated a guilty plea for second-degree murder,
that this plea allowed Petitioner hope of being released during his lifetime, that Petitioner was
given a night to think about the offer and to consider it with his family, and that Petitioner had
voiced no concerns about the plea or trial counsel at the plea hearing.4 Id. As such, the TCCA
found that Petitioner had not demonstrated that the guilty plea violated Petitioner’s
unconstitutional rights.
The record supports the state courts’ finding that counsel was not deficient with regard to
explaining the plea agreement to Petitioner and that Petitioner entered the guilty plea freely,
intelligently, and voluntarily. Moreover, the Court is not in a position to second-guess the postconviction court’s determinations on credibility. As such, Petitioner is not entitled to relief on this
claim.
V.

CONCLUSION
As set forth above, Petitioner’s motion to ascertain status of the case [Doc. 24] will be

GRANTED to the extent that this memorandum opinion and an order will enter.
For the reasons set forth above, however, the Court finds that none of Petitioner’s claims
warrant issuance of a writ. Therefore, Petitioner’s petitions for a writ of habeas corpus [Doc. 1]
will be DENIED and this action will be DISMISSED.

4

To the contrary, Petitioner stated that he was “absolutely” satisfied with his counsel’s
representation at the plea hearing [State Court Record, transcript of plea agreement hearings, p. 9].
Petitioner further specifically expressed that he was pleading guilty in part because he wanted the
ordeal to end for his friends and family [Id. at 13].
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VI.

CERTIFICATE OF APPEALABILITY
The Court must consider whether to issue a COA, should Petitioner file a notice of appeal.

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

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UNITED STATES DISTRICT JUDGE
A S S
C
UNITED STATES DISTRICT

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