Wells v. Perry

Filing 16

AMENDED MEMORANDUM AND OPINION. Signed by District Judge Curtis L Collier on 9/28/2017. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TONY FULTON WELLS,
Petitioner,
v.
GRADY PERRY, Warden,
Respondent.

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No.:

3:16-CV-566-CLC-HBG

AMENDED MEMORANDUM OPINION
This is a counseled second amended petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, filed on behalf of Petitioner Tony Fulton Wells [Doc. 6]. Raising two main grounds for
relief, Petitioner is challenging the constitutionality of his confinement under a 2012 state court
judgment convicting him of second-degree murder [Id.].
Respondent has filed an answer to the pleading [Doc. 13] and has attached thereto the
state court record [Doc. 12, Notice of Filing Documents, Attachments 12-1 through 12-11].
Respondent argues that four of the claims asserted in Petitioner’s two primary grounds for relief
have been procedurally defaulted. The remaining claims, so Respondent argues, do not warrant
habeas corpus relief because the TCCA adjudicated those claims and reached a decision that was
not contrary to or an unreasonable application of the governing Supreme Court precedent.
Petitioner has not filed a reply, and the time for doing so has passed. See E.D. Tenn. L.R.
7.1(a). For the reasons that follow, the second amended petition will be DENIED.
I.

PROCEDURAL HISTORY
On April 2, 2012, in the Criminal Court for Union County, Tennessee, Petitioner entered

a plea of nolo contendere to one count of second-degree murder, a Class A felony, and received

the recommended punishment for that offense of 25-year’s imprisonment [Doc. 12-2, Plea Hr’g
Tr. pp. 8 and 31].1 Petitioner did not file an appeal. Rather, Petitioner filed a petition for postconviction relief, but the post-conviction court denied his petition. Wells v. State, No. E201500463-CCA-R3-PC, 2016 WL 656616, at *1 (Tenn. Crim. App. Feb. 17, 2016), perm. app.
denied, (Tenn. 2016).

The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the

judgment of the post-conviction court and, on June 23, 2016, the Tennessee Supreme Court
denied Petitioner permission to appeal [Id.]. Petitioner next filed an initial § 2254 petition and an
amended § 2254 petition [Docs. 1 and 3], but this Court found that both such petitions were
insufficient [Docs. 2 and 5]. Petitioner then submitted the second amended petition for habeas
corpus relief [Doc. 6], which is now ripe for disposition.
II.

FACTUAL BACKGROUND
The facts that led to Petitioner’s plea and conviction are set forth in the opinion of the

TCCA.
The State . . . introduced statements from the victim’s two sons, the
victim’s neighbor Linda Griffey, and two statements the petitioner
made to police as a summary of the evidence against the petitioner.
According to the statements, the petitioner lived with the victim
and her two sons, D.C. and T.W., and he was the boys’ stepfather.
Prior to the shooting, the petitioner had been unemployed for
several weeks and was “stressed” about his inability to find a job.
The petitioner had a Ruger P 89 pistol that he showed the victim’s
older son, D.C., how to use on the evening of the shooting.
Throughout the evening, the petitioner was drinking vodka. When
the boys went to bed, the petitioner was alone in the living room
1

A nolo contendere plea is not viewed as an express admission of guilt, but as a consent
by a defendant that he may be punished as though he were guilty. North Carolina v. Alford, 400
U.S. 25, 36 n. 8 (1970). In Tennessee, a plea of nolo contendere is treated the same as a guilty
plea. State v. Davenport, No. C.C.A. 88-19-III, 1988 WL 119320, * 4 (Tenn. Crim. App. Nov.
10, 1988).
2

with the victim. He began “talking crazy stuff,” and the victim
appeared to fear for her safety. The victim was on the couch, and
the petitioner picked up his Leatherman knife and said that if he
wanted to hurt the victim or her sons, he would have already done
so.
From his bedroom, T.W. heard the victim crying in the
living room. He went into the kitchen, and he saw the victim lying
on the couch and the petitioner standing over her with an envelope
opener. He returned to his bedroom and told his brother that he
believed that the petitioner stabbed the victim. While in his
bedroom, T.W. overheard the petitioner tell the victim twice to sit
down.
Back in the living room, the petitioner told the victim to be
quiet. He leaned toward her with the knife in his hand. As he
leaned forward, the victim raised her hand, and the petitioner cut a
finger on her right hand. The petitioner placed his right hand on the
couch, and the knife punctured the cushion. Upset that he cut the
couch and that the victim was afraid, the petitioner sat down on the
couch and took several drinks of vodka. While on the couch, he
picked up the pistol and “racked” it. He stood up and walked
between the coffee table and the television. The petitioner claimed
that he was planning to de-cock the pistol, and he had his finger on
the trigger and his thumb on the hammer. His thumb never grasped
the top of the hammer, and the gun went off, shooting the victim in
the head. The petitioner pulled the victim onto the floor and began
repeating her name.
D.C. and T.W. heard the gunshot and ran into the living
room. D.C. smelled gun powder, and both boys saw the victim
lying on the floor. D.C. ran out of the house and called the police,
and the petitioner told T.W. to call their neighbor, Russell Riffey.
Ms. Griffey, was awakened by her son around 12:30 or 1:00 a.m.
on the date of the shooting, before T.W. was able to call their
home. Ms. Crriffey’s2 son told her that something was wrong at the
victim’s home and that the victim’s sons “were screaming and
running in the yard.” She received a call from T.W., and she told
him to hang up so that she could call 9–1–1. She called 9–1–1, and
Mr. Riffey left to go to the victim’s home. Ms. Crriffey saw Mr.
Riffey wrestling with the petitioner on the porch of the victim’s
home, and she learned from a hysterical T.W. that the victim had
2

The TCCA’s opinion variously refers to this individual as “Ms. Crriffey” and as “Ms.
Griffey.” The Court infers from the context of the opinion, that this person’s surname has been
misspelled and that the correct spelling of her surname is “Riffey.”
3

been shot in the head. Ms. Griffey went to the victim’s home and
took T.W. back to her home. Ms. Crriffey looked back and saw
that police had arrived and that they and her husband were still
struggling with the petitioner. Ms. Griffey saw the petitioner being
placed in a police car and shouting to tell the victim that he would
find employment “and everything would be all right.”
The State also said it planned to call Dr. Christopher
Lockmuller, a forensic pathologist, who would have testified that
at the time of the shooting, the petitioner had to have been within
three feet of the victim. Dr. Lockmuller also would have testified
consistently with the autopsy report, which showed that the victim
had a single gunshot wound to the head associated with severe
injury to the brain and skull. There was a “very shallow cut” on the
third finger of the victim’s left hand, along with five “linear
abrasions.” Additionally, there were minor abrasions on the
victim’s body.
At the conclusion of the summary, the trial court asked the
petitioner if he contested any of the evidence that the State
submitted. The petitioner responded that he contested “[s]ome of
it.” When asked to specify his objections, the petitioner responded,
“On the things that was said on the second statement after I asked
for a lawyer, they continued to question me and everything else.”
Trial counsel clarified for the petitioner that the trial court was
asking whether he specifically contested what the State said their
proof would be. After a conference with trial counsel, the
petitioner stated that he did not contest the evidence. The trial court
found the petitioner guilty of second degree murder and imposed a
twenty-five-year sentence.
Wells, 2016 WL 656616, at *1-2 (footnote omitted).
III.

DISCUSSION

Petitioner lists two primary grounds for relief, with each ground containing several
claims [Doc. 6 at 5, 7, and 16].
1.

Petitioner was denied effective assistance of counsel and due process of

law, in that:
a.
b.

counsel gave petitioner insufficient time to consider his guilty plea;
Petitioner did not understand the terms and did not plead guilty
knowing and voluntarily; and
4

c.

2.

Petitioner was not told that he could not appeal and that he was
waiving any appeal. Had he known that he was waiving his
appeal, he would not have pled guilty.

Petitioner received ineffective assistance of counsel, in that counsel:
a.
b.
c.
d.
e.
f.

negligently failed to interview the key witness;
failed to follow the recommendations of his own expert;
failed to interview the victim’s youngest son, D.C.;3
failed to investigate and present exculpatory evidence;
failed to investigate and develop ballistics evidence; and
failed to develop psychological evidence.

For ease of discussion, the Court has organized the claims into three categories: (1)
claims that have not been pled sufficiently, (2) claims that were adjudicated in state courts, and
(3) claims that are subject to a finding of procedural default.
A.

Insufficiently-Pled Claims

A petitioner must state facts that point to a real possibility of constitutional error to be
entitled to habeas corpus relief. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977). A claim that
lacks any factual support is conclusory, and it is well settled that conclusory claims fail to state a
claim for relief under § 2254. Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991) (observing that
bare, conclusory allegations, unsupported by facts, cannot establish a constitutional violation).
Even though Respondent did not address specifically either Claim 1.b or 1.c in his answer, the
Court finds that neither claim warrants habeas corpus relief.
Petitioner asserts in Claim 1.b that he did not understand the terms of his plea agreement
and that, thus, he did not plead guilty knowingly and voluntarily. The second amended petition
does not identify any terms in the plea offer, save the offense charged and the agreed-upon
sentence, much less specify which terms he did not understand. Nor did the TCCA mention or

3

As did the state court in its opinion, this Court refers to the victim’s children by their

initials.
5

address any issue involving Petitioner’s lack of understanding of the terms of the plea offer.
Indeed, the TCCA had no need to do so because the issue was not presented in Petitioner’s postconviction appeal [Doc. 12-9, Petr.’s Post-Conviction Br.]. Given the lack of any supporting
factual allegations, Claim 1.b has been pled insufficiently. Without some factual backing, Claim
1.b violates Rule 2.
Petitioner also has failed to clothe Claim 1.c with any facts. In Claim 1.c, Petitioner
asserts that he was not told that he could not appeal and that he was waiving any appeal and that,
had he known that he was waiving his appeal, he would not have pled guilty. Petitioner has
labeled Claim 1, in its entirety, as “Denial of effective assistance of counsel and due process of
law [Doc. 6 at 5]. The Court cannot discern, in the absence of any factual underpinnings,
whether Petitioner is contending that trial counsel failed to advise him that he could not appeal
and that he was waiving any appeal or that the trial court failed to give him such advice during
the plea colloquy.
The Court has searched the record and has found that, while Claim 1.c was raised in
Petitioner’s amended post-conviction petition as Claim 4 [Doc. 12-1 at 35], he did not carry the
claim to the TCCA in his post–conviction appeal. This omission alone would be grounds for the
Court to find sua sponte that the claim has been procedurally defaulted, Rhodes v. Bell, No. 07–
1411, 2011 WL 2135188, at * 1(6th Cir. May 31, 2011) (commenting that “courts may, on their
own initiative, raise a petitioner’s procedural default) (citing to Day v. McDonough, 547 U.S.
198, 206 (2006), a doctrine that will be discussed in depth later in this opinion. However, at its
inception, Claim 1.c contained a deficiency that renders habeas corpus relief unavailable.
In its opinion, the TCCA recounted Petitioner’s testimony at the post-conviction hearing
where he stated that “he could not recall if trial counsel informed him that he was waiving his

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right to an appeal by pleading guilty.” Wells, 2016 WL 6566126 at * 3. The TCCA further
recounted that Petitioner stated that he ‘“[v]aguely’ remembered the trial court telling him that he
was waiving his right to a trial and an appeal, and he agreed that he said ‘yes’ to that question.”
Id., 2016 WL 6566126 at * 3.
Petitioner cannot claim that counsel failed to advise him that he was waiving his right to
appeal by pleading guilty when he has testified under oath that he does not recall whether
counsel so advised him. Nor can Petitioner claim that the trial court failed to tell him that he was
waiving his right to appeal because he admitted, again under oath, that he “[v]aguely” recalled
that he was given that advice by the trial court during the plea colloquy.
Accordingly, because Claim 1.b has been insufficiently pled and because Claim 1.c is
undercut by Petitioner’s own sworn testimony at the post-conviction hearing, those claims
warrant no habeas corpus relief.
B.

Adjudicated Clams

In this category are claims that Petitioner’s counsel gave him ineffective assistance
during the plea process, in the entry of his plea, and at the plea hearing, and that these alleged
attorney failings rendered Petitioner’s plea unlawful.

The claims that were raised and

adjudicated in the TCCA are Claims 1.a, 2.a, and 2.d.
1.

Standards of Review

The adjudicated claims will be evaluated under the review standards contained in the
Antiterrorism and Effective Death Penalty Act (AEDPA), codified in 28 U.S.C. § 2241. The
AEDPA standards instruct a court considering a habeas claim to 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

7

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.A. § 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 Supreme Court cases which governs 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; see also Harrington v. Richter, 562 U.S. 86,102 (2011)
(“[E]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.”).
This 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, 562 U.S. at 102). 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).
2.

Plea Challenges - Claim 1.a

In Claim 1.a, Petitioner alleges that he was denied effective assistance of counsel and due
process of law during the plea process and in the entry of his nolo contendere plea because
counsel did not afford him enough time to consider his plea.

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a.

Governing Law

The Constitution permits an accused to plead guilty in his best interest, while professing
his actual innocence. North Carolina v. Alford, 400 U.S. 25, 31 (1970). The constitutional
standards which determine whether a plea of nolo condendere is valid are the same ones which
apply to a guilty plea because “the Constitution is concerned with the practical consequences, not
the formal categorizations, of state law.” Id. at 37. According to the Supreme Court, “[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 substantial consequences flowing from a
plea of guilty and to ensure that a plea is voluntary and knowing, a court must ascertain, prior to
accepting such a plea, whether a defendant understands that he is waiving three separate rights—
the right to a trial by jury; the right to confront his accusers; and the privilege against selfincrimination. Id. at 243–44.
To ensure that a plea is voluntary and knowing, a plea-taking court must ascertain that the
plea is being proffered with sufficient awareness of the relevant circumstances and the probable
and direct consequences flowing therefrom. Brady v. United States, 397 U.S. 742, 748–49
(1979). A plea is not valid unless it “represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting Alford, 400 U.S. at 31). After a plea has been entered on the advice of counsel, a
petitioner “may only attack the voluntary and intelligent character” of the plea by showing that
his counsel’s advice was outside “the range of competence demanded of attorneys in criminal
cases.” Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (citation omitted).

9

The Sixth Amendment provides, in pertinent part, “[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 established 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 break down
in the adversary process that renders the result unreliable.
Id.
In considering the first prong of the Strickland test, the appropriate measure of attorney
performance is “reasonableness under prevailing professional norms.” Id. at 688. A petitioner
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 in light of all the circumstances,
and the standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381
(1986). Thus, counsel’s conduct is strongly presumed to have fallen 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
10

States, 323 F.3d 445, 454 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 694). In the context of
a guilty plea, to prove Strickland’s prejudice prong, 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, 474 U.S. at 59. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694). A
reviewing court owes significant deference to a state court’s prejudice determination due to “the
uncertainty inherent in plea negotiations.” Premo v. Moore, 562 U.S. 115, 117 (2011). Where “it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.” Strickland, 466 U.S. at 697.
“[W]hen a federal court reviews an ineffective-assistance claim brought by a state
prisoner, the question is not simply whether counsel’s actions were reasonable, ‘but whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.’”
McGowan v. Burt, 788 F.3d 510, 515 (6th Cir. 2015) (quoting Harrington, 562 U.S. at 105).
Moreover, because AEDPA applies, this Court’s evaluation of the TCCA’s decision on the
ineffective assistance claims is ‘“doubly deferential’ . . . that gives both the state court and the
defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
When Petitioner challenged the validity of his nolo contendere plea in his post-conviction
appeal, the TCCA pointed to Boykin for its holding that the test for a legal plea was and remains
whether the plea represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant. Wells, 2016 WL 656616, at *8. The TCCA also relied on state
court cases involving the legality of guilty pleas. The guilty plea law in the state court cases

11

embodied the constitutional principles enunciated in Boykin and Alford and, indeed, the state
court cited to those Supreme Court cases.
Similarly, in considering the claims now raised in the second amended petition, the
TCCA applied the two-prong test in Strickland, with Hill’s modification to the prejudice prong,
to evaluate whether counsel’s alleged shortcomings amounted to ineffective assistance.
Likewise, the TCCA cited to Strickland, Hill, and several state court cases, including Baxter v.
Rose, 523 S.W.2d 930 (Tenn. 1975). The cited state court cases encapsulate the teachings of
Strickland and Hill.
The TCCA applied the relevant legal rules to the Petitioner’s nolo contender plea. See
Ahart v. Bradshaw, 122 F. App’x 188, 195 (6th Cir. 2005) (finding that “Alford applies” when a
defendant pleads guilty, but ‘is unwilling or unable to admit his participation in the acts
constituting the crime’”); Franks v. Lindamood, No. 1:06-0018, 2007 WL 3046357, at *12 (M.D.
Tenn. Oct. 15, 2007), aff’d, 401 F. App’x 1 (6th Cir. 2010); cf. Eggers v. Warden, 826 F.3d 873,
876 (6th Cir. 2016) (finding that an Alford requirement does not apply when a petitioner protests
his innocence at sentencing, rather than during the plea colloquy).
The TCCA also applied the pertinent Supreme Court precedents to Petitioner’s claims of
ineffective assistance. See Cullen, 563 U.S. at 189 (commenting, with respect to ineffective
assistance claims, “[t]here is no dispute that the clearly established federal law here is Strickland
v. Washington”); Premo, 562 U.S. at 129 (stating that a petitioner establishes prejudice where he
demonstrates “a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial” (quoting Hill, 474 U.S. at 59)). Thus, the
TCCA’s decision is not contrary to clearly established federal law as determined by the United
States Supreme Court.

12

The Court now considers whether the TCCA unreasonably applied the cited Supreme
Court precedents to reach its decision on Petitioner’s claims.
b.

Analysis

In addressing Petitioner’s assertion that counsel’s failure to give him sufficient
time to reflect on his guilty plea coerced him into entering the plea, the TCCA pointed to the
post-conviction court’s determination that Petitioner’s testimony on this issue at the postconviction hearing was not credible. Wells, 2016 WL 656616, at *8. The post-conviction court
also had noted that it was unclear as to how granting additional time to consider the plea would
have affected Petitioner’s decision to plead guilty. Wells, 2016 WL 656616, at *8. The finding
of a lack of clarity, apparently, was tied to Petitioner’s testimony at the evidentiary hearing that
he would have obtained a better lawyer who would have investigated the case more thoroughly,
had he had more time to ruminate on the plea agreement. Id., 2016 WL 656616, at *4.
The TCCA likewise pointed to the post-conviction court’s finding that the transcript of
Petitioner’s April 2, 2012 guilty plea hearing indicted that his plea was knowing and voluntary.4
Observing that Petitioner’s solemn declarations in open court concerning his plea erected “a
formidable barrier” in any subsequent collateral proceedings because the declarations “carry a
strong presumption of verity,” the TCCA concluded that Petitioner had not shown that his plea

4

The TCCA summarized Petitioner’s responses during that colloquy, as follows:
The petitioner testified that he signed his guilty plea form after it
was read to him and that he understood the terms of the form. He
stated that no one had forced or threatened him to plead guilty or
made any promises to induce his guilty plea. He agreed that he was
pleading guilty of his own free will. The petitioner stated that he
had no complaints about the work of trial counsel. He agreed that
he was satisfied with trial counsel’s representation and that trial
counsel satisfactorily investigated and prepared for the case.

Wells, 2016 WL 656616, at *1.
13

was unknowing and involuntary and found that he was entitled to no relief. Id., 2016 WL
656616, at *8 (citations omitted).
Counsel testified at that same hearing, and he provided the circumstances underlying the
plea offer and the reasons for what he viewed as a firm plea deadline. Counsel stated that
Petitioner authorized him to make a counter offer of twenty-five years to the prosecution’s offer
of thirty years one week before the plea deadline. Counsel further stated that Petitioner learned
on the Friday before the plea deadline that his offer to plead nolo contendere for a twenty-five
year sentence had been accepted by the prosecution. Counsel explained that the prosecutor had
set the plea deadline due to the difficulty of the case and to her concerns about subjecting the
victim’s family to protracted plea negotiations. Id., 2016 WL 656616, at *5. Counsel surmised
that, while it was possible that the prosecutor would have extended the deadline to allow
additional time for Petitioner to contemplate the plea offer, he did not believe that she would
have so done. Id., 2016 WL 656616, at *5.
Counsel testified that he had advised his client that he had two options.

Id., 2016 WL

656616, at *8. Counsel told Petitioner that he could choose either to enter the plea to seconddegree murder or to proceed to trial on the charge of first-degree murder, where he would face,
upon conviction, a much greater sentence than the sentence he would confront upon his
conviction for second-degree murder, as provided for by the plea agreement. Id., 2016 WL
656616, at *8.
Petitioner testified, when asked what he would have done with more time, that he would have
gotten a better lawyer to perform an investigation [Doc. 12-8, Post-Conviction Hr’g Tr. at 44].
Petitioner, however, did not connect any prospective attempt to get a better lawyer to
counsel’s failure to secure a plea-deadline extension.

14

Nor did Petitioner demonstrate how

counsel’s supposed error affected Petitioner’s plea decision. True, Petitioner makes a bare
allegation in his second amended § 2254 petition that he would not have pleaded nolo contendere
and would have insisted on going to trial, had counsel obtained more time for him to consider his
plea. However, Petitioner must show “a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.
Petitioner’s statement, as related in the TCCA’s opinion, “that he wanted to enter a ‘nolo
contendere’ plea that day, Id., 2016 WL 656616, at *4, does not support that there is a
reasonable probability that, but for counsel’s purported misstep, he would not have pleaded
guilty and would have insisted on standing trial.
The TCCA’s implicit conclusion and the post-conviction court’s explicit finding that
Petitioner did not show prejudice from counsel’s purported inadequacy [Doc. 12-8, PostConviction Hr’g Tr. at 80] were not unreasonable applications of the standards in Strickland and
Hill.
Furthermore, “[w]hen a defendant brings a federal habeas petition challenging his plea,
the state generally satisfies th[e] burden [of showing that a plea is voluntary and knowing] by
producing a transcript of the plea proceeding. A state court finding that the plea was proper is
accorded a presumption of correctness, unless the transcript of the plea proceeding is inadequate
to demonstrate that the plea was voluntary, intelligent and knowing.” Stumpf v. Mitchell, 367
F.3d 594, 600 (6th Cir. 2004), judgment rev’d in part, vacated in part sub nom. Bradshaw v.
Stumpf, 545 U.S. 175 (2005) (citing Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993)). The
plea hearing transcript Respondent submitted shows that Petitioner was advised of his rights, that
he acknowledged that he understood those rights, and that he intentionally surrendered those
rights [Doc. 12-2, Plea Hr’g Tr]. The transcript likewise reveals that, when questioned by the

15

trial court, Petitioner responded that that no one had forced or threatened him to plead nolo
contendere, and he confirmed that he understood the consequences of his conviction and was
satisfied with his attorney’s investigation of the facts [Id.].
The Court thus concludes that Petitioner is not entitled to relief because the state court
did not unreasonably apply well-established Supreme Court case law in rejecting Claim 1.a and
the rejection did not result from an unreasonable determination of the facts.
3.

Ineffective Assistance - Claim Two

In Claim 2.a, Petitioner maintains that counsel failed to interview the key witness, Jack
Eugene Riffey, and, in Claim 2.d, that he failed to investigate and present exculpatory evidence
of the distance between the muzzle of the weapon and the entry wound of the victim [Doc. 5 at
7].
a.

Failure to Interview Key Witness

The TCCA summarized trial counsels’ testimony as pertinent to Claim 2.a, as follows:
Both trial counsel and co-counsel testified that they made
numerous efforts to contact Mr. Riffey and that Mr. Riffey was not
responsive to any of these efforts. Co-counsel made phone calls
that went unanswered, and Mr. Riffey refused to speak to an
investigator who was dispatched to Mr. Riffey’s home to speak
with him.
Wells, 2016 WL 656616, at *9.

The TCCA then agreed with the post-conviction court that

Petitioner had not shown ineffective assistance of counsel. Id., 2016 WL 656616, at *9.
Counsels’ above testimony at the post-conviction hearing demonstrates that they and
their investigator exhaustively attempted to contact Mr. Riffey, but that he rebuffed all their
attempts to interview him. “The prosecution and the defense have an equal right to interview
witnesses in a criminal proceeding,” but a prosecution “witness who does not wish to speak to or
be interviewed by the defense prior to trial may not be required to do so.” United States v.
16

Montana, No. 84-3674, 1986 WL 17465 802 F.2d 460 (6th Cir. Aug. 15, 1986) (all citations
omitted). As the Sixth Circuit has recognized “[a] defendant is entitled to have access to any
prospective witness although such right of access may not lead to an actual interview.” United
States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975).
The only proof in the record is that the defense did all it could do secure an interview
with this witness, and the fact that they were unsuccessful in this endeavor does not amount to a
deficient performance. See Castillo v. Stephens, 640 F. App’x 283, 290 (5th Cir. 2016), cert.
denied sub nom. Castillo v. Davis, 137 S. Ct. 279, 196 L. Ed. 2d 58 (2016) (concluding that,
where prosecution witnesses declined to speak with counsel, state court’s finding of no deficient
performance was not an unreasonable application of Strickland); cf. United States v. Smith, 107
F.3d 876 (8th Cir. 1997) (finding no ineffective assistance where counsel made no attempt to
interview a witness whose attorney would have advised her to refuse the interview). “[T]the
duty to investigate and prepare a defense is not limitless” and “does not necessarily require . . .
that counsel must pursue every path until it bears fruit or until all conceivable hope withers.”
Hamilton v. Ayers, 583 F.3d 1100, 1129 (9th Cir. 2009) (internal quotation marks omitted).
As the TCCA pointed out, the post-conviction court determined that Petitioner had not
shown either a deficient performance or prejudice and that “the weight of the evidence is
strongly against the finding of any error on the part of defense counsel.” Id., 2016 WL 656616,
at *7. Given the defense’s repeated efforts to contact and interview Mr. Riffey, the Court finds
that habeas corpus relief is unwarranted because the TCCA did not apply Strickland
unreasonably in rejecting Petitioner’s claim.
b.

Failure to Investigate Exculpatory Evidence

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Petitioner maintains that counsel did not investigate and present exculpatory evidence in
the form of the distance between the muzzle of the weapon and the entry wound of the victim.
Notably, Petitioner does not flesh out how this evidence would have exculpated him and how he
sustained any prejudice from this alleged shortcoming on the part of counsel.
When Petitioner offered this claim in his post-conviction appeal, the TCCA state court
iterated counsel’s testimony that he had thoroughly reviewed discovery materials with Petitioner,
including “the autopsy report, which indicated that the gun was six inches to two feet away from
the victim when it was fired.” Wells, 2016 WL 656616, at *4. Counsel also stated that he had
possession of numerous photographs of the crime scene and that “[i]t was pretty conclusive” as
to “how far away the gun was from the victim’s face when it was fired.” Id., 2016 WL 656616,
at *4.
Trial counsel stated additionally that the defense’s retained firearms expert concluded
“that the gun barrel was five inches away from the victim’s face when it was fired.” Id., 2016
WL 656616, at *4. Counsel testified that, while he recalled Petitioner’s telling the expert about
the “hot load” bullets,5 the expert’s report did not mention the “hot load” bullets. Id., 2016 WL
656616, at *4. Counsel indicated that the firearms expert told him that, although it was possible
that a weapon, like the murder weapon, could have accidentally discharged had Petitioner been
attempting “to de-cock the weapon by pulling back on the trigger and then pulling back the
hammer,” he (the expert) could not state that this was the manner of discharge in Petitioner’s
case. Id., 2016 WL 656616, at *6.

5

Petitioner explained, in his testimony at the post-conviction hearing, that “hot load”
bullets contain extra gunpowder “to make them fire hotter and faster.” Id., 2016 WL 656616, at
*2.
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Counsel’s testimony shows that he obtained evidence regarding the distance between the
weapon and the victim’s face. The firearms expert stated that he could not say that the weapon
accidentally discharged.

Petitioner has not shown that a further investigation would have

disclosed evidence to support an “accidental discharge” theory. Under these circumstances, the
Court finds that the TCCA did not apply Strickland unreasonably in concluding that Petitioner
“has not met his burden of showing that trial counsel was ineffective.” Id., 2016 WL 656616, at
*9.
C.

Procedurally Defaulted Claim

Petitioner maintains that trial counsel gave him ineffective assistance in four additional
instances. Counsel failed to follow the firearms expert’s recommendations (Claim 2.b) [Doc. 6
at 7]. Counsel also failed to interview the victim’s younger son, D.C. (Claim 2.c) [Id.]. Counsel
further failed to investigate whether the homemade ammunition in the murder weapon was such
a mixture that it would alter ballistics testing (Claim 2.e) [Id. at 17]. Counsel likewise failed to
develop psychological evidence suggested by Dr. Diane McCoy, who stated that she needed to
look at the crime scene, but that she never went to the scene (Claim 2.f) [Id.].
Respondent correctly argues that Petitioner did not raise any of these four claims in his
post-conviction proceedings. Respondent suggest that his failure to raise the claims amounts to a
failure to exhaust his claims and constitutes a procedural default.
A state prisoner who petitions for habeas corpus relief must exhaust his available state
court remedies by presenting his federal habeas claim first to the state courts for consideration.
28 U.S.C. § 2254(b)(1). A claim is exhausted fully if it has been pursued at each level of state
court review. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. Boerckel, 526 U.S. 838,
845-47 (1999). A prisoner who has failed to present a federal claim to all levels of the state

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courts and who is barred by a state procedural rule from returning with his claim to those courts
has committed a procedural default. Coleman v. Thompson, 501 U.S. 722, 732 (1991).
As Respondent correctly indicates, Petitioner’s ineffective assistance claims were not
raised on post-conviction appeal.

Respondent thus argues that the claims have not been

exhausted completely and are subject to a finding of procedural default.
Federal review of a procedurally defaulted claim is foreclosed, unless the habeas
petitioner shows cause to excuse his failure and actual prejudice resulting from the alleged
constitutional violation. Id. Absent cause and prejudice, a petitioner who shows that he is
actually innocent can overcome the procedural hurdle as well. Murray v. Carrier, 477 U.S. 478,
488, 496 (1986).
As noted, Petitioner did not respond to Respondent’s assertion of procedural default, and
he, consequently, has not argued or shown that he presented these claims to the state courts
before raising them in this federal habeas court. The Court has independently reviewed the state
court record and does not find that Petitioner submitted these claims to the TCCA in his postconviction appeal [Doc. 12-9, Petr.’s Post-Conviction Br.]. Petitioner has offered nothing to
show cause and prejudice, and federal review of these remaining four claims of ineffective
assistance are barred from federal habeas review.
IV.

CONCLUSION
For the above reasons, this state prisoner’s second amended petition for a writ of habeas

corpus [Doc. 6] will be DENIED and this case will be DISMISSED.
V.

CERTIFICATE OF APPEALABILITY
Finally, the Court must consider whether to issue a certificate of appealability (COA). A

petitioner may appeal a final order in a § 2254 case only if he is issued a COA, and a COA will be

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issued only where the applicant has made a substantial showing of the denial of a constitutional
right. See 28 U.S.C. § 2253(c). A petitioner whose claims have been denied on a procedural
basis must demonstrate that reasonable jurists would debate the correctness of a court’s
procedural rulings. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Porterfield v. Bell, 258 F.3d
484, 485-86 (6th Cir. 2001). Where claims have been dismissed on their merits, a petitioner must
show that reasonable jurists would find the assessment of the constitutional claims debatable or
wrong. Slack, 529 U.S. at 484.
After having reviewed the claims and in view of the law upon which is based the dismissal
on the merits of the adjudicated claims and the procedural basis upon which is based the dismissal
of the other claims, reasonable jurors would neither debate the correctness of the Court’s
procedural rulings nor its assessment of the claims. Id. Because reasonable jurists could not
disagree with the resolution of these claims and could not conclude that they “are adequate to
deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), the
Court will DENY issuance of a COA. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
AN APPROPRIATE ORDER WILL ENTER.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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