Owens v. McCallister

Filing 8

MEMORANDUM AND ORDER - Signed by Chief District Judge Thomas A Varlan on 8/31/2015.(KMK, ) Modified text on 8/31/2015 (KMK, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TOMMY JOE OWENS,
Petitioner,
v.
GERALD McALLISTER, Warden,
Respondent.

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No.:

3:14-cv-529-TAV-HBG

MEMORANDUM AND ORDER
Tommy Joe Owens (“Petitioner”), an inmate confined in Northeast Correctional Complex
in Mountain City, Tennessee, brings this petition for a writ of habeas corpus, 28 U.S.C. § 2254,
challenging the legality of his confinement under a judgment of the Criminal Court for Campbell
County, Tennessee [Doc. 1]. Warden Gerald McAllister (“Respondent”) filed a response in
opposition to the petition, supported by copies of the state-court record [Doc. 7]. Petitioner has
failed to reply to Respondent’s response, and the time for doing so has passed. E.D. Tenn. L.R.
7.1. For the following reasons, Petitioner’s § 2254 motion will be DENIED.
I.

PROCEDURAL HISTORY
A Campbell County Criminal Court jury convicted Petitioner of three counts of

aggravated child abuse and one count of aggravated child neglect. Petitioner was sentenced to
twenty-five years for each aggravated child abuse conviction and twenty years for the aggravated
child neglect conviction, with the sentences to run consecutively for an effective sentence of
ninety-five years.

State v. Tommy Joe Ownes, No. E2007-02296-CCA-R3-CD, 2009 WL

4931340 (Tenn. Crim. App. Dec. 22, 2009), perm. app. denied (Tenn. May 11, 2010). On direct
appeal of his convictions, Petitioner argued, in relevant part that (1) the evidence was insufficient

to support his aggravated child abuse convictions, (2) his trial was rendered fundamentally unfair
by the loss of taped interviews of the children made by the Department of Children’s Services
(“DCS”), (3) the trial court improperly restricted courtroom testimony, and (4) consecutive
sentencing was improper. Id. The Tennessee Court of Criminal Appeals (“TCCA”) reversed
one of Petitioner’s convictions for aggravated child abuse, affirmed the other convictions, and
found that Petitioner’s sentences must run concurrently, not consecutively, therefore reducing
Petitioner’s effective sentence to twenty-five years. Id. at 32, 91-92. The Tennessee Supreme
Court declined any further review. Id. at 1.
Petitioner’s subsequent application for post-conviction relief was denied by the
Tennessee Criminal Court of Appeals. Owens v. State, No. E2013-01134-CCA-R3-PC, 2014
WL 1759099, at 11 (Tenn. Crim. App. Apr. 30, 2014). Thereafter, the Tennessee Supreme Court
declined any further review. Id.
II.

BACKGROUND
The following factual recitation is taken from the TCCA’s summary of the evidence

presented at trial.1
On June 14, 2004, the victim, H.S. was recovered by police officers from a
private home and brought for treatment to the East Tennessee Children’s Hospital.
The doctors treated the child for multiple injuries including a cauliflower ear, a
broken nose that had healed incorrectly, and eyes matted shut from a chemical
burn. Appellant, Tommy Joe Owens, is the father of the victim.
*****
Appellant testified on his own behalf at trial. He stated that at the time he was
arrested, he lived with Ms. Claiborne, the victim, his other daughter, K.O., and
Ms. Claiborne's daughter, A.L. He got custody of H.S. right before Christmas of
2003. He and Ms. Claiborne had been living together about two years by that
time. Appellant had been working as an underground miner for nine or ten years
at the time of his arrest. Appellant testified that after he got custody of the victim,

1

The TCCA’s summary is extremely detailed and lengthy. The Court has, therefore,
included only the facts that are relevant to the claims Petitioner has raised in his habeas petition.
2

his relationship with Ms. Claiborne went “downhill.” Ms. Claiborne and the two
girls became jealous of the attention he was showing H.S. Things became
noticeably worse in April of 2004. Around that time, the family went on a trip to
Gatlinburg. Appellant had ample opportunity to observe the victim and did not
notice any injuries to her head. On cross-examination, Appellant admitted that the
date of the Gatlinburg trip would have actually been in February.
Appellant and Ms. Claiborne began using methamphetamine on the weekends in
May. By the end of the month, he and she were using it every day. Appellant
admitted that “[methamphetamine] clouded my judgment, I mean, as far as just
paying attention and stuff.”
*****
Appellant testified concerning what an average day was like in May of 2004. He
stated that getting up at 11:30 a.m. would be an early day for him. When he got
up, he would start trying to obtain methamphetamine. He would then return home,
gather his belongings and go to work for his shift beginning at 3:00 p.m. His shift
ended at 11:00 p.m., and Appellant would return home. Appellant worked
Monday through Friday and occasionally on Saturday. Appellant was usually
home on the weekends. The methamphetamine use did not affect his work. Ms.
Claiborne and the older children would be up when he arrived home, but H.S.
would be in her bed. H.S. would also be in bed when he got up in the morning. He
did not go into her room to see her because of the jealousy exhibited by Ms.
Claiborne, K.O., and A.L. On cross-examination, Appellant testified that on the
weekends he would not wake up until 11:00 a.m., and H.S. was always asleep
when he was awake.
Appellant did notice an injury to the victim’s ear at the beginning or middle of
May. He asked Ms. Claiborne what had happened. She told him that K.O. had
been pushing H.S. on the bicycle and there was an accident. Appellant said he
told Ms. Claiborne to take H.S. to the doctor. She told Appellant she would
handle the situation. Appellant testified that taking care of the children was the
duty of the woman of a household. He stated that he never gave H.S. a bath.
Appellant also stated that he had noticed the victim’s “hair problem” at the end of
April. Ms. Claiborne told him that it was psoriasis and that she was taking care of
it. Appellant never treated H.S. He relied upon Ms. Claiborne. Besides the
victim’s ear and hair, Appellant could not believe what he saw in the photographs
taken at the hospital. He denied inflicting any of the victim’s injuries. On crossexamination, Appellant stated that he relied upon Ms. Claiborne for the care of
H.S. and getting medical attention for the injury he saw to her ear and the hair loss
he noticed. He admitted that he did not take it upon himself to check her injuries
or take H.S. to the doctor himself.

3

When Appellant was arrested on June 16, 2004, he had been asleep. Ms.
Claiborne woke him up to tell him the police were there. He did not see the
children in the house when he was walking through the house. He was arrested for
having a dog running at large. He was in jail for around an hour and a half. Ms.
Claiborne was also arrested. When he returned to the house, there was a note
saying that the children were at Ms. Draughn’s. He stopped by Ms. Draughn’s to
tell her he was going to work and ask her to watch the children. After work he
returned to get the children. Ms. Draughn told him she was getting ready to feed
the children, so he could go home to fix his septic tank. He left but did not see
H.S. before he left. Later that day, Appellant’s mother came to his house to tell
him that Ms. Draughn had called and said that the police had taken H.S. His
mother told him that Ms. Draughn had mentioned child abuse. Appellant went to
get K.O. While they were driving to the Sheriff’s Department, a police officer
drove up behind Appellant and activated his blue lights. K.O. began crying and
saying that Appellant was going to go to jail because H.S. was hurt.
*****
Annette Owens is Appellant’s mother and lived across the street from Appellant
and Ms. Claiborne. When Appellant got custody of H.S., Mrs. Owens saw her
almost daily. In April of 2004, Mrs. Owens had a discussion with Appellant about
Ms. Claiborne’s care of the children and the fact that Mrs. Owens was concerned.
Appellant told her that he would take care of it. From that point on, H.S. was
never in her house up to the time Appellant was arrested. On the day that
Appellant was arrested, Mrs. Owens paid the fine to get him out of jail the first
time when he was arrested for the dog charges. She offered to get the children
from Ms. Draughn’s house, but Appellant said that he would take care of it. Mrs.
Owens later saw that Appellant was home around 10:00 p.m. Ms. Draughn called
after that and told Mrs. Owens that “they took [H.S.]” and that K.O. and A.L. had
taken off running. Mrs. Owens went to tell Appellant, and he left to find out what
was happening. Mrs. Owens waited and decided to drive towards Ms. Draughn’s
house. She passed Appellant on the way there. They stopped and spoke. He told
her that he had K.O. The police officers arrived at that time and arrested
Appellant. Mrs. Owens asked the officers if she could take K.O. with her. They
said she could, but she had to bring K.O. to the police station. The officers told
Mrs. Owens about the extent of the victim’s injuries.
On cross-examination, Mrs. Owens stated that she was a nurse. Appellant never
asked her to look at any injuries on the victim’s body. She admitted that she
blamed Ms. Claiborne for the type of life they were living, but Appellant took
responsibility for H.S., and “he should have been the father. . .”
Donnie Owens is Appellant’s father. He lived with Mrs. Owens across the street
from Appellant. Mr. Owens also worked with Appellant at the coal mine as the
production foreman, who was the “boss.” He testified that there was a discussion
4

between Appellant and Mrs. Owens in April and after that time he barely saw
H.S. or K.O. On the day Appellant was arrested, Mr. Owens saw the police across
the street. He walked over and asked what was happening. After he was told, he
asked Ms. Claiborne where H.S. and K.O. were. She told him that they were with
her mother and shook her head at him. The officers then asked if there were
minors in the house. They searched the house and did not find any children. The
officers left with Appellant and Ms. Claiborne to take them to jail. Mr. Owens
went to see his wife to get a check so he could bail out Appellant. He got
Appellant out of jail and took him home. Mr. Owens went to work at the mine. He
heard that Appellant also went to work. The mines were not operating that day, so
Appellant left to go get Ms. Claiborne out of jail. While Mr. Owens was at work,
Mrs. Owens called him to tell him about H.S. being taken and Appellant’s arrest
because of H.S.’s condition.
K.O. is Appellant’s daughter. She testified at trial on behalf of Appellant. At the
time Appellant was arrested, she was nine years old. K.O. lived in the house with
Appellant, Ms. Claiborne, and the other children. H.S. stayed in a bedroom by
herself. K.O. testified that H.S. injured her ear in a bicycle wreck. According to
K.O., she was holding onto the bicycle and let her go. H.S. ran into the side of the
house on the bicycle when K.O. let go. H.S. hit her head when she fell. K.O.
testified that a day or two after the bicycle wreck, Appellant asked what had
happened to H.S.’s ear. K.O. also testified that the burns on the victim’s bottom
were the result of K.O. and A.L. putting her in the bathtub when the water was too
hot. The cigarette burns on the victim were inflicted by K.O., A.L., and Ms.
Claiborne. K.O. testified that the injuries to the victim’s eyes occurred when she
and A.L. were swinging H.S. and H.S. hit a table with her face. She did not tell
Appellant because she was afraid that she would get into trouble. Ms. Claiborne
was keeping K.O. out of school and having her shoplift. K.O. thought that it was a
good situation.
K.O. also testified that they tried to hide the victim from Appellant. When the
police officers came to arrest Appellant and Ms. Claiborne, K.O., A.L., and H.S.
hid from the officers. Appellant was asleep when they left the house. After the
officers left, K.O., A.L., and H.S. called Ms. Draughn. Ms. Smith came to pick
them up. When they arrived at Ms. Draughn’s house, A.L. took the victim to a
bedroom and put her in the bed. They covered her up because they were afraid
that someone would see H.S. Ms. Draughn knew there was something wrong with
the victim. K.O. spoke with Appellant when he came to Ms. Draughn’s house, but
no one told him about the victim’s injuries. When officers arrived later that night,
K.O. and A.L. ran because they thought they would be in trouble because of the
victim’s injuries. K.O. saw Appellant driving down the road and got into the car.
She told Appellant that the officers had taken the victim from Ms. Draughn’s
house. She did not tell Appellant that H.S. had gotten bee stings on her eyes. She
told Appellant that the officers had taken H.S. because they thought she had been

5

abused. Appellant was not around the house very much when the victim was
injured. He was at work.
On cross-examination, K.O. testified that she spoke with Dr. Diana McCoy about
five times in an effort to help her father at trial. When she first met with Dr.
McCoy, K.O. told her the same things that she told DCS during her interviews
with them, such as, K.O. would sneak H.S. to the bathroom, H.S. would never
come out of her room, and someone told her to tell the authorities that H.S. had
been stung by a bee. K.O. also told DCS that the children hid when the police
came because they did not want to be taken away. She was afraid that they would
be taken away because the victim’s eyes were already matted shut when the
officers came to arrest Appellant and Ms. Claiborne. K.O. was not sure how many
days the victim’s eyes had been matted shut. She had been with her mother the
week before. K.O. returned on Sunday. H.S.’s eyes were not matted shut on
Sunday but were on Monday. That same Monday, Appellant, Ms. Claiborne,
K.O., A.L., and H.S. went to see about having A.L.’s tongue pierced. They all
went in the car together. K.O. stayed in the car with H.S. because of the victim’s
injuries. According to K.O., Ms. Claiborne told her to stay in the car with H.S.
K.O. and the other children did not go to school the last two weeks of the school
year. Ms. Claiborne decided they did not need to go. Appellant did not attempt to
take K.O. to school during that time. With regard to the cigarette burns, K.O.
testified that she, A.L., and Ms. Claiborne inflicted them. She said they burned the
victim’s arms and legs. However, when asked if the leg burns were above or
below the knee, she replied that she was “not sure.” She also could not tell
counsel how many cigarette burns they inflicted. When testifying about the water
burns from the bath, K.O. said that she and A.L. put H.S. in the water and gave
her a bath. She said that the burns inflicted from the bath were to her back and one
foot. K.O. repeated that H.S. hurt her eyes from K.O. and A.L. swinging her into
the table. She stated that it occurred shortly before Appellant was arrested. With
regard to the bicycle wreck, K.O. testified that H.S. rode a “three-wheeler.” K.O.
said that H.S. could not ride it by herself. K.O. then said that she was not sure if
the bicycle was a three-wheeler or a two-wheeler. K.O. stated that H.S. ran into
the back of the house. The victim’s ear did not sustain a cut, and it did not bleed.
It began to swell and looked even bigger the next day. Appellant saw the ear and
wanted to take her to the hospital. Ms. Claiborne told him that she had already
taken H.S. to the hospital. K.O. stated that H.S. stayed in her room on Ms.
Claiborne’s instruction.
Dr. Diana McCoy is a clinical psychologist who evaluated Appellant. She
testified as an expert witness on Appellant’s behalf. To complete her evaluation of
Appellant, Dr. McCoy received 4500 pages of records from the State, got his
work records, and conducted interviews with Appellant and family members. She
also received psychological evaluation records of A.L. After completing her
evaluation, Dr. McCoy prepared a nineteen page report. She gave Appellant an
6

I.Q. test and found him to be of average intelligence. She gave Appellant some
additional psychological tests. Her conclusions as to Appellant’s mental condition
in May or June of the year in question are as follows:
[Appellant] was experiencing a lot of stress in his relationship with
Charlotte Claiborne and was being avoided in the household [by
Ms. Claiborne, K.O. and A.L.], was staying away from home as
much as he could, was having little contact with Charlotte and with
the other-the two girls in the home because he felt himself to be
ostracized and that they were angry with him.
Owens, 2014 WL 4931340, at *1 (footnotes omitted).
On appeal, Petitioner contended that he received ineffective assistance of counsel.
Owens, 2014 WL 1759099, at *1. The following is a summary of findings of the post-conviction
court following the evidentiary hearing.
After our supreme court denied the Petitioner’s application for permission to
appeal, he filed a timely petition for post-conviction relief, raising numerous
issues, including that he received the ineffective assistance of trial counsel
because counsel (1) misunderstood the rules of joinder, which resulted in his case
being improperly joined with Draughn’s case and the jury’s hearing about her
guilty plea; (2) failed to request a missing evidence jury instruction when the
State lost the DCS tapes; (3) failed to make an offer of proof regarding Dr.
McCoy’s restricted testimony; and (4) incorrectly advised the Petitioner to waive
ex post facto protections and be sentenced pursuant to the 2005 amendments to
the Tennessee Sentencing Reform Act of 1989.
At the evidentiary hearing, the Petitioner testified that trial counsel was retained.
He said that at the time of the offenses, his state of mind was “bad” due to his use
of methamphetamine and marijuana. The Petitioner was supposed to go to trial
with Teresa Draughn, the victim’s baby-sitter, but Draughn pled guilty in front of
the jury. The Petitioner said that tape-recorded evidence was missing and that he
did not remember if counsel asked the trial court for a missing evidence
instruction. Dr. Diana McCoy interviewed the Petitioner several times. The
Petitioner said that she also interviewed other witnesses, including K.O. and the
daughter “of the girl [he] was living with.” However, the trial court limited Dr.
McCoy’s testimony by ruling that she could not testify about her interviews with
those witnesses, and the Petitioner did not remember if counsel made an offer of
proof regarding her excluded testimony. He said Dr. McCoy’s testimony would
have helped his case because she would have testified that he was innocent and
“didn’t know what was going on.”

7

The Petitioner testified that trial counsel asked him to sign a waiver at sentencing.
The Petitioner said that he asked counsel if the waiver was going to “hurt” him
and that counsel told him, “[N]o, this has nothing to do with you.... [T]his has no
bearing on you whatsoever.” The Petitioner said that signing the waiver “got
[him] more time.” He thought that if he had not signed the waiver, his maximum
sentence would have been twenty-one years.
On cross-examination, the Petitioner acknowledged that trial counsel was
appointed to represent him in juvenile court when DCS began removing the
children from his home. Subsequently, the Petitioner’s parents hired trial counsel
to represent him in the instant case. During a joinder hearing, Draughn’s case was
joined with the Petitioner’s and Claiborne’s case. However, during a severance
hearing, the trial court severed the counts involving the victim from the counts
involving the other children. The Petitioner acknowledged that during another
hearing, trial counsel argued that the defense needed the missing DCS tapes and
that the trial court should dismiss the case. The Petitioner also acknowledged that
although Dr. McCoy was prohibited from testifying about her interviews with the
children, defense counsel called K.O. as a witness for the Petitioner at trial. K.O.
tried to testify about what she told Dr. McCoy. Regarding the Petitioner’s claim
that he could have received no more than twenty-one years if he had not signed
the ex post facto waiver, the Petitioner explained, “Well, I’m just assuming that
was the max before I signed the waiver that they could have give me before I
signed the waiver. Then after I signed the waiver, my understanding, it give me—
I agreed to more time.” The Petitioner said that the State had offered him a “deal
of fifteen years” but that trial counsel told him the maximum sentence he could
receive if he went to trial was twenty years. The Petitioner stated, “That’s the
reason why I took it—one of the reasons I took it to trial because I thought, you
know, it was worth five years to try to clear my name” The Petitioner said that he
did not understand the waiver when he signed it and that “I still ain’t a hundred
percent sure what that waiver was. The only thing I know is I agreed to more
time.”
The Petitioner’s trial counsel testified for the State that he had been practicing law
for thirty-eight years. At the time of the Petitioner’s trial in February 2005, ten to
fifteen percent of counsel’s practice involved criminal law. Counsel had worked
in the district attorney’s office for four years and had tried about twenty-five
homicide cases. Counsel said he was appointed to represent the Petitioner in
juvenile court when DCS began the process to terminate the Petitioner’s parental
rights. Another attorney was appointed to represent Charlotte Claiborne. Trial
counsel developed a relationship with the Petitioner, so the Petitioner’s family
hired counsel to represent the Petitioner in the criminal case.
Trial counsel testified that during the Petitioner’s juvenile court case, he crossexamined the emergency room physician who had examined the victim and heard
extensive evidence from witnesses. Counsel met with the Petitioner, and they
8

talked about the case and trial strategy. Counsel said the Petitioner was very
truthful and “never at any time ever laid a hand on this child whatsoever.” He said
that the Petitioner had a “disconnect” from Claiborne and the children and that the
case against the Petitioner was based on criminal responsibility. The defense’s
strategy was that people hid the victim’s condition from the Petitioner.
Trial counsel acknowledged that he opposed joining Draughn’s case with the
Petitioner’s case. Regarding the missing DCS tapes, the tapes had been delivered
to the sheriff’s office, but office employees lost the tapes. According to a DCS
case worker’s report, the children had said on the tapes that nobody did anything
to the victim, which was exculpatory to the Petitioner. Counsel filed a motion to
dismiss the Petitioner’s case based on a Brady violation, but the trial court denied
the motion. Counsel said that he had conversations with two of the children in his
office but that none of the conversations “were particularly enlightening as to the
content of the tapes.” Counsel said he did not request a missing evidence jury
instruction because he “didn’t think it required calling attention to it. . . It was a
judgment call. I chose not to make-ask for an instruction on it, good or bad.” He
raised the issue of the missing tapes on direct appeal.
Counsel acknowledged that on the morning of trial, in the presence of the
potential jurors but before the jury was impaneled, Draughn’s attorney announced
that she would not be proceeding to trial. Counsel said that he did not object to the
announcement because “it was done extemporaneously by the Judge in asking the
attorney if [Draughn] was going to plead to something and then the statement
came out.” He said that he also did not want to call attention to her guilty plea and
that “sometimes you just let those things pass on by.” Counsel said Draughn’s
failure to report the abuse actually helped the defense in that it “support[ed] the
idea that my client was saying this was hidden from him, not only hidden from
him by [Claiborne], the co-defendant, but by others.” In fact, counsel introduced
Claiborne’s guilty plea forms into evidence at the Petitioner’s trial as part of the
defense’s strategy to show that the Petitioner was “disassociated” and that
Claiborne was “doing these acts.”
Trial counsel testified that Dr. McCoy “gave fairly extensive testimony” at trial,
and he acknowledged that the trial court allowed her to give her opinion about the
Petitioner’s mental state. However, the trial court did not allow her to testify
about information she received from other witnesses, such as K.O. Some of those
witnesses, including K.O., testified at trial. Dr. McCoy’s report about the
Petitioner was introduced into evidence at trial for identification purposes only.
Trial counsel acknowledged that the Petitioner signed a written ex post facto
waiver at sentencing and said that “we had a meeting before agreeing to it.”
Claiborne had received an effective fifteen-year sentence in return for her pleas.
Counsel said that the Petitioner’s signing the waiver “was an opportunity to argue
that the threshold of the sentence should be 15 years and that he wasn’t as
9

culpable as the person that the State and the Court accepted a plea on of 15 years,
and I thought it would strengthen our argument for that.” Counsel denied telling
the Petitioner that the waiver “was not about him.” Counsel stated, “I wouldn’t
have said it isn’t about him. It’s precisely about him. He executes the waiver.”
Before trial, trial counsel advised the Petitioner that the trial court could sentence
him to more than fifteen years if the jury convicted him. Counsel never told the
Petitioner that his maximum potential sentence was twenty-one years.
On cross-examination, trial counsel acknowledged that at the joinder hearing, he
argued that in order for permissive joinder to apply, a conspiracy had to exist
between the Petitioner and Draughn. He also acknowledged that he did not
address any other arguments against permissive joinder, stating, “We tried to
attack something that [was] more difficult to establish.” Counsel did not ask for
the missing evidence jury instruction because the trial court could not determine
whether the missing DCS tapes had any evidentiary value. Regardless, counsel
did not think his failing to ask for the instruction affected the outcome of the trial.
Regarding his failure to object to the announcement of Draughn’s plea, counsel
maintained that the announcement helped the Petitioner’s theory of defense.
Regarding the trial court’s limitation of Dr. McCoy’s testimony, counsel testified
that Dr. McCoy “testified to substantially what was in her report.” As to the
Petitioner’s signing the ex post facto waiver, counsel said that “I think it’s
presumptuous to assume the judge [was] going to find [enhancement factors
applicable to the sentences].” Counsel said he and the Petitioner discussed
“generally the terms of what could be found under enhancement” and the fact that
Claiborne’s sentence “would work in his favor to get the sentence at the lower
end, not on the upper end.”
In a written order, the post-conviction court denied the petition for postconviction relief. Regarding the Petitioner’s claim that counsel was ineffective
because he misunderstood the rules of joinder, which ultimately resulted in the
jury’s hearing about Draughn’s guilty plea, the trial court ruled that the Petitioner
was not entitled to relief because counsel’s decisions were based on trial strategy.
Regarding counsel’s failure to request a missing evidence jury instruction or make
an offer of proof for Dr. McCoy’s excluded testimony, the post-conviction court
ruled that the Petitioner was not entitled to relief because this court addressed
those issues on direct appeal and found no error or harm. Finally, regarding the
Petitioner’s claim that the trial counsel incorrectly advised him about the ex post
facto waiver at sentencing, the trial court ruled that signing the waiver “placed the
Petitioner in an essentially more favorable position” and that, in any event, the
Petitioner would have received the same sentence even if he had not signed the
waiver.
Owens, 2014 WL 1759099, at *5 (footnotes omitted).

10

III.

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

U.S.C. § 2241, 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
determined by the Supreme Court of the United States, and (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).
A state court’s decision is “contrary to” federal law when it arrives at a conclusion
opposite to that reached by the Supreme Court on a question of law, or resolves a case differently
on a set of facts which cannot be distinguished materially from those upon which the precedent
was decided. Williams v. Taylor, 529 U.S. 362, 413 (2000).

Under the “unreasonable

application” prong of § 2254(d)(1), the relevant inquiry is whether the state-court decision
identifies the legal rule in the Supreme Court cases which govern the issue, but unreasonably
applies the principle to the particular facts of the case. Id. at 407. The habeas court is to
determine only whether the state court’s decision is objectively reasonable, not whether, in the
habeas court’s view, it is incorrect or wrong. Id. at 411.
The § 2254(d) standard is a high 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, findings of fact which are sustained by the record are entitled to a
presumption of correctness–a presumption that may be rebutted only by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
11

IV.

ANALYSIS
Petitioner’s § 2254 petition raises six main grounds for relief: (1) his conviction was

based on the use of a coerced confession; (2) his conviction was based on the use of evidence
gained pursuant to an unconstitutional search and seizure; (3) his conviction was based on a
violation of the privilege against self-incrimination; (4) his conviction was based on the action of
a grand jury or petit jury that was unconstitutionally selected and impaneled; (5) he received
ineffective assistance from his trial counsel; and (6) illegal evidence [Doc. 1].
In his answer, Respondent argues that all six of Petitioner’s claims should be dismissed.
Respondent argues that “[a]ll but Claim 5 are procedurally defaulted and barred from review”
[Doc. 7 p. 30]. Respondent states that Claim 2 is a Fourth Amendment claim that is not
cognizable on habeas review, and Claims 1, 2, 3, and 6 should be dismissed as insufficiently pled
[Id.]. Respondent further argues that the state court’s rejection of the ineffective assistance subclaims of Claim 5 was not contrary to or an unreasonable application of clearly established
federal law or based on an unreasonable determination of fact in light of the evidence before the
state court [Id. at 31].
The Court agrees with Respondent concerning the appropriateness of habeas relief and,
for the reasons that follow, will DENY the petition and DISMISS this case.
A.

Procedurally Defaulted Claims

As previously stated, Respondent argues that Claims 1, 2, 3, 4, and 6 are procedurally
defaulted and barred from review. The Court agrees for the following reasons.

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1.

Procedural Default

Under 28 U.S.C. § 2254(b), a federal court’s jurisdiction to hear a habeas claim is limited
to those cases in which the petitioner has exhausted all available state-court remedies. The
statute provides that:
(1)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a state court shall not be granted unless it appears
that–
(A)
the applicant has exhausted the remedies available in the courts of
the State; or
(B)
(i)
there is an absence of available State corrective processes;
or
(ii)
circumstances exist that render such process ineffective to
protect the rights of the applicant.
(2)
An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State.
28 U.S.C. § 2254(b); see also Granberry v. Greer, 481 U.S. 129, 133–34 (1987); Rose v. Lundy,
455 U.S. 519 (1982).
A petitioner must present each factual claim to the state court as a matter of federal law.
See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“It is not enough to make a general appeal to
a constitutional guarantee as broad as due process to present the substance of such a claim to a
state court”). In essence, a claim sought to be vindicated in a federal habeas proceeding must
have been raised in the state courts so that the state courts have the first opportunity to hear the
claim. “Where a petitioner has not fully and fairly presented a federal claim to the state’s highest
court . . . , a federal court will not consider the merits of that claim unless petitioner can show
cause to excuse his failure to present the claims appropriately in state court, and actual prejudice
as a result.” Stanford v. Parker, 266 F.3d 442, 451 (6th Cir. 2001) (citing Coleman v. Thompson,
501 U.S. 722, 750 (1991)). Cause for a procedural default depends on some “objective factor

13

external to the defense” that interfered with the petitioner’s efforts to comply with the procedural
rule. Coleman, 501 U.S. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).
a.

Coerced Confession

Petitioner asserts that his conviction was based on the use of a coerced confession [Doc.
1, 2].
Respondent argues that Petitioner does not brief this claim or otherwise elaborate, he
does not identify the statement or testimony he is referring to, and he does not identify any way
in which he was coerced into making any statement [Doc. 7 p. 31]. Respondent avers that these
pleading deficiencies are an appropriate ground for its dismissal [Id.]. Moreover, Respondent
argues that this claim is procedurally defaulted and barred from review because Petitioner did not
raise the claim on direct appeal [Id.]. Respondent maintains that although Petitioner did raise the
claim in his initial petition for post-conviction relief, he did not present it on post-conviction
appeal to the TCCA [Id.]. Respondent argues that because Petitioner did not give the Court of
Criminal Appeals the opportunity to consider the claim, he has not exhausted it [Id.]. As a result,
Respondent argues that it is not 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 § 40-30102(c), and it is procedurally defaulted in this proceeding [Id.].
A state prisoner must exhaust all constitutional claims by fully and fairly presenting them
in state court before a federal court can consider them in a habeas proceeding. 28 U.S.C. §
2254(b)(1)(A), (C). Petitioner’s failure to present his claim of coerced confession to the TCCA
has resulted in a procedural default of the claim. See Stanford, 266 F.3d at 451.
Moreover, the Court finds that even without the procedural default, it is precluded from
understanding and addressing the merits of this claim due to the lack of specific pleadings
14

addressing the issue. Petitioner has not alleged any grounds upon which the Court can find cause
or prejudice to excuse this procedural default.
Accordingly, Petitioner’s claim that his conviction was based on coerced confession will
be DISMISSED as procedurally barred from habeas review.
b.

Illegal Search and Seizure

Petitioner asserts that his Fourth Amendment rights were violated because his conviction
was based on use of evidence gained pursuant to an unconstitutional search and seizure [Doc. 1].
Respondent argues that this claim is insufficiently pled, it is not cognizable, and it is
procedurally defaulted and barred from review [Doc. 7 p. 33]. Specifically, Respondent argues
that this claim is subject to dismissal because a Fourth Amendment search and seizure claim,
which Petitioner had the opportunity to litigate in state court, does not raise a basis for federal
habeas relief [Doc. 33]. The Court agrees.
The Supreme Court has clearly established that “where the [s]tate has provided an
opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not
be granted federal habeas relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). As
stated in Respondent’s answer, Petitioner did not move in the trial court to suppress evidence
based on the Fourth Amendment, and Petitioner has not asserted or provided any evidence that
he was barred by any state procedural mechanism from bringing such a motion to suppress [Doc.
7 p. 34]. Therefore, Petitioner’s claim does not present a cognizable basis for review, and relief
is precluded by 28 U.S.C. § 2254(a) because Petitioner received a full and fair opportunity to
litigate this claim.

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As such, the Court finds that Petitioner is not entitled to relief on his claim of an illegal
search and seizure because it does not raise an assertion that is cognizable on habeas relief and,
therefore, will be DISMISSED. Based on the Court’s finding that this claim is non-cognizable,
the Court will not address Respondent’s additional arguments regarding insufficient pleading or
procedurally defaulted claims.
c.

Violation of the Privilege Against Self-Incrimination

Petitioner asserts that his conviction was based on a violation of the privilege against selfincrimination [Doc. 1].
Respondent argues that Petitioner does not brief this claim or otherwise elaborate, he
does not specify the testimony to which he is referring, and he does not specify in what way it
represents a violation of the privilege against self-incrimination [Doc. 7 p. 35]. Respondent
avers that these pleading deficiencies are an appropriate ground for its dismissal [Id.]. Moreover,
Respondent argues that this claim is procedurally defaulted and barred from review because
Petitioner did not raise the claim on direct appeal [Id.].

Respondent states that “while

[Petitioner] did raise it in his initial petition for post-conviction relief, he did not present it on
post-conviction appeal to the Tennessee Court of Criminal Appeals” [Id.]. Respondent argues
that because Petitioner did not give the Court of Criminal Appeals the opportunity to consider
the claim, he has not exhausted it [Id.]. As a result, Respondent argues that it is not barred from
presentation to the state courts by the statute of limitations under Tenn. Code Ann. § 40-30102(a) and the “one petition” limitation of § 40-30-102(c), and it is procedurally defaulted in this
proceeding [Id.].

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The Court finds that Petitioner did not raise his violation of the privilege against selfincrimination claim to the TCCA on direct appeal.

A state prisoner must exhaust all

constitutional claims by fully and fairly presenting them in state court before a federal court can
consider them in a habeas proceeding. 28 U.S.C. § 2254(b)(1)(A), (C). Petitioner’s failure to
present his violation of the privilege against self-incrimination claim to the highest Tennessee
court has resulted in a procedural default of the claim. See Stanford, 266 F.3d at 451.
Additionally, the Court finds that even without the procedural default, it is precluded
from understanding and addressing the merits of this claim due to the lack of specific pleadings
addressing the issue. Petitioner has not alleged any grounds upon which the Court can find cause
or prejudice to excuse this procedural default.
Accordingly, Petitioner’s claim that his conviction was based on a violation of the
privilege against self-incrimination will be DISMISSED as procedurally barred from habeas
review.
d.

Unconstitutionally Selected and Impaneled Jury

Petitioner asserts that his conviction was based on the action of a grand jury or petit jury
that was unconstitutionally selected and impaneled [Doc. 1 p. 9].
Respondent argues that “this freestanding claim should be dismissed because it is
procedurally defaulted and barred from review.” [Doc. 7 p. 36]. Petitioner did not raise the claim
on direct appeal [Doc. 6–20]. As with his previous arguments, Respondent states that “while
[Petitioner] did raise [this allegation] in his initial petition for post-conviction relief, he did not
present it on post-conviction appeal to the Tennessee Court of Criminal Appeals.” [Doc. 7 p. 36].
Respondent argues that this claim in barred from presentation to the state courts by the statute of

17

limitations under Tenn. Code Ann. § 40-30-102(a) and the “one petition” limitation of § 40-30102(c) [Id.].
Although the Court notes that this issue was raised in Petitioner’s post-conviction appeal
in the context of an ineffective assistance of trial counsel claim, the Court finds that Petitioner
did not raise this specific allegation as an isolated claim. Because Petitioner did not give the
TCCA the opportunity to consider this claim separately, he has not exhausted it. Accordingly,
because Petitioner did not plead any cause to excuse the default of this claim, it is barred from
review and subject to dismissal. Wogenstahl, 668 F.3d at 321. The Court finds that Petitioner’s
claim regarding the alleged unconstitutional selection and impaneled jury will be DISMISSED
as procedurally barred from habeas review.
e.

Illegal Evidence

Petitioner asserts that his conviction was based on illegal evidence [Doc. 1 p. 12].
Respondent argues that Petitioner does not brief this claim or otherwise elaborate, he
does not specify what evidence he is referring to, and he does not specify in what way it was
illegal [Doc. 7 p. 51]. Respondent argues that based on the lack of information provided he is
precluded from understanding and addressing the merits of this claim [Id.].

Moreover,

Respondent argues that this claim is procedurally defaulted because Petitioner did not raise this
claim on direct appeal, although he did raise it in his initial petition for post-conviction relief
[Doc. 7 p. 52]. Respondent argues that because Petitioner did not give the Court of Criminal
Appeals the opportunity to consider the claim, he has not exhausted it [Id.]. As a result,
Respondent argues that it is 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 § 40-30102(c), and is procedurally defaulted in this proceeding [Id.].
18

The Court finds that based on Respondent’s reasoning, Petitioner’s claim regarding
illegal evidence will be DISMISSED as procedurally barred from habeas review due to
insufficient pleading.
B.

Ineffective Assistance of Counsel

Petitioner asserts that he received ineffective assistance of counsel from his trial attorney
with respect to counsel’s (1) failure to understand or make an effort to learn the law of joinder;
(2) failure to object when co-defendant pled guilty before the very jury panel which was about to
try Petitioner; (3) failure to obtain exculpatory evidence and not request the standard jury
instructions; and (4) misadvising Petitioner to sign a sentencing waiver [Doc. 2 p. 2-3].
Respondent argues in opposition that “the state court’s rejection of Petitioner’s ineffectiveassistance-of-trial-counsel claims was not contrary to or an unreasonable application of
Strickland or based on an unreasonable determination of fact in light of the evidence before the
state court” [Doc. 7 p. 37].
1.

Applicable Law

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. IV. 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
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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
break down in the adversary process that renders the result unreliable.
Id. As with any other claim under § 2254, the burden of proving ineffective assistance of
counsel is on the movant. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
In considering the first prong of the test set forth in Strickland, 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 of counsel 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 light
of all the circumstances, and the standard of review is highly deferential.” Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986). There is a strong presumption that counsel’s conduct was
within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.
Second, a petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 694). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 454-55
(quoting Strickland, 466 U.S. at 694). A petitioner must demonstrate that, due to counsel’s
deficient performance, there was a “breakdown in the adversary process that rendered the result
of the proceeding unreliable.” Id. (quoting Bell v. Cone, 535 U.S. 685 (2002)). Counsel is
constitutionally ineffective only if a performance below professional standards caused the

20

defendant to lose what he “otherwise would probably have won.” United States v. Morrow, 977
F.2d 222, 229 (6th Cir. 1992).
2.

Analysis

When Petitioner’s claims of ineffective assistance were presented to the TCCA, the state
appellate court cited to Strickland and employed its two-pronged test in reviewing Petitioner’s
claims of ineffective assistance. Thus, its conclusion relative to those claims is not contrary to
the well-established legal rule in Supreme Court cases governing these types of claims. The
question then becomes whether the state court’s application of Strickland to the facts of
Petitioner’s case was unreasonable.
Each of counsel’s alleged failings will be addressed individually.
a.

Failure to Understand or Make an Effort to Learn the Law of
Joinder

As his first example of ineffective assistance, Petitioner asserts that his trial counsel
failed to understand the law of joinder, which resulted in the trial court improperly joining his
and Draughn’s cases [Doc. 2 p. 2]. Although Petitioner was ultimately tried alone, he contended
that he was prejudiced by counsel’s deficient performance because Draughn announced in front
of potential jurors that she would not proceed to trial. The TCCA rejected this allegation and
found that Petitioner failed to meet his burden of establishing that he was prejudiced by trial
counsel’s actions. Owens, 2014 WL 1759099, at *6-7.
The Court finds that the state court’s decision was not contrary to, and did not involve, an
unreasonable application of Strickland, and it was not based on an unreasonable determination of
the facts in light of the evidence presented in state court proceedings. The Court agrees that “it
was not unreasonable for the Court of Criminal Appeals to conclude that Petitioner was not

21

prejudiced by trial counsel’s argument against a theory of joinder that was not alleged, when the
trial court was able to hear trial counsel and two other attorneys make additional arguments that
sufficiently addressed the theory of joinder that was alleged” [Doc. 7 p. 41]. Accordingly, this
sub-claim should be DISMISSED.
b.

Failure to Object When Co-defendant Pled Guilty Before the
Very Jury Panel That was About to Try Petitioner

Petitioner also claims that defense counsel should have objected when Draughn
announced in front of the jury that she would be entering a plea of guilty [Doc. 2 p. 2]. The
TCCA rejected this allegation and found that Petitioner had failed to meet either the deficiency
or prejudice prong of Strickland. Owens, 2014 WL 1759099, at *7.
The Court finds that the state court’s decision was not contrary to and did not involve an
unreasonable application of Strickland, and it was not based on an unreasonable determination of
the facts in light of the evidence presented in state-court proceedings. As stated by the Court of
Criminal Appeals, “[a]llegations of ineffective assistance of counsel relating to matters of trial
strategy or tactics do not provide a basis for post-conviction relief.” Taylor v. State, 814 S.W.2d
374, 378 (Tenn. Crim. App. 1991). Counsel’s decision not to object could be attributed to trial
strategy. As outlined in Respondent’s response, “Petitioner has not pointed to any evidence that
the strategy was based on inadequate preparation or otherwise met his burden of rebutting the
presumption that trial counsel’s strategy was sound” [Doc. 7 p. 42]. In fact, the trial counsel
testified that he thought the jury’s hearing about the plea could be beneficial to show that other
people tried to hide the victim’s condition from him. Owens, 2014 WL 1759099, at *5. On
appeal, the TCCA is not able to second guess the tactical or strategic choices of counsel unless

22

those choices were based upon inadequate preparation, nor may the TCCA measure counsel
behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982).
Additionally, the Court finds that Petitioner failed to provide evidence showing any prejudice
resulted from Draughn’s announcement of a guilty plea. Accordingly, this sub-claim should be
DISMISSED.
c.

Failure to Obtain Exculpatory Evidence and Not Request the
Standard Jury Instructions

Next, Petitioner contends that he received ineffective assistance of counsel because trial
counsel failed to request a missing evidence jury instruction for the lost DCS tapes [Doc. 2 p. 3].
Petitioner additionally argues that the TCCA unreasonably applied Arizona v. Youngblood, 488
U.S. 51 (1988) [Id. p. 2]. The TCCA rejected this allegation and found that Petitioner failed to
provide convincing evidence of deficiency and had not met the prejudice prong of Strickland.
Owens, 2014 WL 1759099, at *8-9. The Court concluded that the outcome of Petitioner’s trial
would not have been different if the jury had been allowed to infer evidence found on those tapes
because the State was prosecuting Petitioner under a theory of prosecution that did not depend on
any information those tapes provide. Id. Petitioner did not establish that he would have been
acquitted if the jury had been allowed to hear those tapes. Id. The Court of Criminal Appeals
declined to find trial counsel deficient for failing to request a jury instruction that Petitioner did
not establish he was entitled to [Doc. 7 p. 46].
The Court finds that the state court’s decision was not contrary to and did not involve an
unreasonable application of Strickland, and it was not based on an unreasonable determination of
the facts in light of the evidence presented in state-court proceedings. As for Petitioner’s
allegation that the TCCA unreasonably applied Arizona v. Youngblood, the Court finds that

23

Petitioner provided no analysis to support this claim. Without any information to support his
allegation, the Court rejects such assertion. Accordingly, this sub-claim should be DISMISSED.
d.

Misadvising Petitioner to Sign a Sentencing Waiver

Petitioner contends that he received ineffective assistance of counsel because trial
counsel did not know the holding of Blakely v. Washington, 542 U.S. 296 (2004), and therefore,
misadvised him to sign a sentencing waiver [Doc. 2 p. 3]. Petitioner argues that the Tennessee
courts unreasonably applied the holding of Blakely as well as Cunningham v. California, 545
U.S. 270 (2000), and Partin v. Tennessee, 549 U.S. 1196 (2000) [Id.]. Petitioner further argues
that trial counsel failed to advise Petitioner regarding his right to waive ex post facto protections
and be sentenced pursuant to the 2005 amendments to the Tennessee Sentencing Reform Act of
1989 [Id.].
The Court of Criminal Appeals found that Petitioner failed to provide convincing
evidence of deficiency and had not met the prejudice prong of Strickland. Owens, 2014 WL
1759099, at *9-10. Based on the record, the Court finds that the state court’s decision was not
contrary to and did not involve an unreasonable application of Strickland, and it was not based
on an unreasonable determination of the facts in light of the evidence presented in state-court
proceedings.

The Court agrees with Respondent’s argument that “[f]rom trial counsel’s

testimony, supported by his argument at the sentencing hearing, the Court of Criminal Appeals
was reasonable to conclude that counsel’s advice that petitioner sign the ex post facto waiver was
based on trial strategy and was not deficient. For this reason alone, this sub-claim should be
dismissed.” [Doc. 7 p. 50].

24

As for Petitioner’s allegation that the state court unreasonably applied the holding of
Blakely v. Washington, 542 U.S. 296 (2004), Cunningham v. California, 545 U.S. 270 (2000),
and Partin v. Tennessee, 549 U.S. 1196 (2000), the Court finds that Petitioner provided no
analysis to support this claim. Without any information to support his allegation, the Court
rejects such assertion. Accordingly, this sub-claim should be DISMISSED.
V.

CONCLUSION
For the reasons stated above, the Court finds that none of Petitioner’s claims warrant

issuance of a writ; therefore, Petitioner’s petition for a writ of habeas corpus [Doc. 1] will be
DENIED and this case will be DISMISSED.
VI.

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
final order in a habeas proceeding only if he is issued a COA, and a COA may be issued only
where a Petitioner has made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2). Where a claim has been dismissed on the merits, a substantial showing is
made if reasonable jurists could conclude that the issues raised are adequate to deserve further
review. See Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000). When a claim has been dismissed on procedural grounds, a substantial showing
is demonstrated when it is shown that reasonable jurists would debate whether a valid claim has
been stated and whether the court’s procedural ruling is correct. Slack, 529 U.S. at 484.
After reviewing each of Petitioner’s claims, the Court finds that reasonable jurists could
not conclude that Petitioner’s claims are adequate to deserve further review, nor would
reasonable jurists debate the correctness of the Court’s procedural ruling. As such, because
25

Petitioner has failed to make a substantial showing of the denial of a constitutional right, a COA
will not issue.

IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

26