Trotter v. Dotson

Filing 26

MEMORANDUM. An appropriate order will enter Signed by District Judge Harry S Mattice, Jr on 9/14/10. (JGK, )

T r o t t e r v. Dotson

D o c . 26

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF TENNESSEE a t WINCHESTER

E A R L RAY TROTTER P e titio n e r , v.

S T E P H E N DOTSON, Warden, R e s p o n d e n t.

) ) ) ) ) ) ) ) ) )

N o . 4:07-cv-38 M a ttic e

MEMORANDUM

T h is is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by p e titio n e r Earl Ray Trotter ("Trotter"). The matter is before the court on the respondent's a n sw e r to the petition and Trotter's reply. For the following reasons, the petition for the writ o f habeas corpus will be DENIED and this action will be DISMISSED WITH P R E J U D IC E .

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I.

S ta n d a rd of Review

A state prisoner is entitled to habeas corpus relief "only on the ground that he is in c u s to d y in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Under Rule 8 of the Rules Governing Section 2254 Cases In The United States D is tric t Courts, the court is to determine, after a review of the answer and the records of the c a se , whether an evidentiary hearing is required. If no hearing is required, the district judge is to dispose of the case as justice dictates. If the record shows conclusively that Trotter is n o t entitled to relief under § 2254, there is no need for an evidentiary hearing and the petition s h o u ld be denied. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).

II.

F a c tu a l Background

T h e respondent has provided the court with copies of the relevant documents as to T r o tte r 's post-conviction proceedings; there was no direct appeal from the convictions. [ C o u rt File No. 12, Notice of Filing Documents, Addenda 1-7]. Trotter pleaded guilty, in the C irc u it Court of Bedford County, Tennessee, to attempted second degree murder, especially a g g ra v a te d burglary, and especially aggravated robbery, and received an effective sentence o f 25 years. As noted, he did not file a direct appeal of his convictions or sentence, but did f ile a petition for post-conviction relief which was denied by the trial court after an e v id e n tia ry hearing and the Tennessee Court of Criminal Appeals affirmed. Trotter v. State, 2

N o . M2005-02905-CCA-R3-PC, 2006 WL 2843350 (Tenn. Crim. App. Oct. 5, 2006) [ A d d e n d u m 5], perm. app. denied, id. (Tenn. Jan. 29, 2007) [Addendum 7]. T h e Tennessee Court of Criminal Appeals summarized the factual basis for Trotter's g u ilty plea and the circumstances surrounding his plea and sentence as follows: T h e petitioner was indicted by the Bedford County Grand Jury for a tte m p te d second degree murder, especially aggravated burglary, and e sp e c ially aggravated robbery. On January 20, 2005, the petitioner pled guilty to all charges with no agreement regarding sentencing. At the guilty plea h e a rin g , the State recited the factual basis for the plea. The State contended th a t the petitioner and two co-defendants, Kenny Porter and Ellis Baucom, Jr., d e c id e d to rob an elderly gentleman, Claude Thomas, who lived alone in the c o u n try. The men believed that the victim had "guns and other things of value a n d a large sum of money that he kept in his house." Late in the evening of Ju n e 26, 2004, the men went to the victim's residence and knocked on his door. W h e n the victim opened the door, the men went in and demanded money. The v ic tim gave the men his wallet, in which was a large sum of money, but the m e n were not satisfied. Baucom held a gun on the victim while the petitioner s e a rc h e d the house. The victim was "pistol whipped" during the search. At s o m e point, the victim managed to grab one of his guns. The petitioner fired tw o shots at the victim, striking him once in the face causing very serious in ju r ie s . Ultimately, the investigation focused on the petitioner and his c o -d e f en d a n ts. The State concluded the recitation of facts by stating: A ll three [perpetrators] were interviewed and they all implicated th e m s e lv e s and one another including this defendant having g iv e n a statement indicating that he did go in with the intent to ro b Mr. Thomas. That he-when Mr. Thomas attempted to defend h im s e lf , that he did fire a shot that struck Mr. Thomas in the f a c e . He did take some of the money at force from Mr. Thomas. T h e petitioner agreed with the State's recitation, explicitly admitting to th e trial court his complicity in the crimes. At the conclusion of the guilty plea h e a rin g , the trial court scheduled a sentencing hearing for March 21, 2005. O n the date of the sentencing hearing, the petitioner agreed to accept a se n ten c e of nine years each for attempted second degree murder and especially 3

a g g ra v a te d burglary conviction. The agreement provided that the petitioner w a s to serve thirty percent of these sentences in confinement before becoming e lig ib le for release. Additionally, the petitioner agreed to accept a sentence of t w e n ty-f iv e years for the especially aggravated robbery conviction, one h u n d re d percent of which he was to serve in confinement. All three sentences w e r e to be served concurrently with each other but consecutively to an o u ts ta n d in g sentence in Sumner County. The trial court accepted the a g re e m e n t. Id ., 2006 WL 2843350 at *1. In his petition for post-conviction relief, Trotter alleged, inter alia, that he was denied th e effective assistance of counsel. All issues other than the claims of ineffective assistance o f counsel were abandoned on appeal from the denial of post-conviction relief. Id. at *2, n.1. In support of his petition for the writ of habeas corpus, Trotter alleges four instances o f ineffective assistance of counsel: (1) his attorney failed to contact Trotter's alibi witnesses a n d thus Trotter was coerced into pleading guilty; (2) his attorney failed to object to the in tro d u c tio n of inflammatory testimony from witnesses in the statements the State planned to use at trial; (3) his attorney failed to inform him of any plea negotiation offers proffered b y the State; and (4) his attorney failed to file pre-trial motions, including a motion to s u p p re ss his statement. [Court File No. 1, Habeas Corpus Petition, pp. 11-20]. The re sp o n d e n t contends he is entitled to judgment as a matter of law based on procedural default w ith respect to two of Trotter's claims, and judgment as a matter of law based upon the f in d in g s of the Tennessee state courts as to the remaining two claims.

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III.

P ro c e d u ra l Default

T h e doctrine of procedural default is an extension of the exhaustion doctrine. A state p ris o n e r's petition for a writ of habeas corpus cannot be granted by a federal court unless the p e titio n e r has exhausted his available state court remedies. 28 U.S.C. § 2254. This rule has b e e n interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 5 0 9 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must h a v e been presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971). See a lso Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (Exhaustion "generally entails fairly p rese n tin g the legal and factual substance of every claim to all levels of state court review."). M o r e o v e r, the substance of the claim must have been presented as a federal constitutional c la im . Gray v. Netherland, 518 U.S. 152, 162-63 (1996). T ro tte r cannot file another state petition for post-conviction relief. Tenn. Code Ann. § 40-30-102(C). Accordingly, he has no remedy available to him in the Tennessee state c o u r ts for challenging his conviction and is deemed to have exhausted his state remedies. It is well established that a criminal defendant who fails to comply with state p ro c e d u ra l rules which require the timely presentation of constitutional claims waives the rig h t to federal habeas corpus review of those claims "absent a showing of cause for the nonc o m p lia n c e and some showing of actual prejudice resulting from the alleged constitutional v i o la tio n ." Wainwright v. Sykes, 433 U.S. 72, 84 (1977). Accord Engle v. Isaac, 456 U.S. 1 0 7 , 129 (1982) ("We reaffirm, therefore, that any prisoner bringing a constitutional claim 5

to the federal courthouse after a state procedural default must demonstrate cause and actual p rejud ice before obtaining relief."). In all cases in which a state prisoner has defaulted his federal c laim s in state court pursuant to an independent and adequate sta te procedural rule, federal habeas review of the claims is b a rre d unless the prisoner can demonstrate cause for the default a n d actual prejudice as a result of the alleged violation of federal law , or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. C o l e m a n v. Thompson, 501 U.S. 722, 750 (1991). "When a state-law default prevents the s ta te court from reaching the merits of a federal claim, that claim can ordinarily not be r e v ie w e d in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). T h e court has reviewed the brief Trotter filed on direct appeal from the denial of postc o n v ic tio n relief. [Addendum 3, Brief of Appellant, pp. 1-10]. Trotter did not raise in that b rief the claims that his attorney failed to object to the introduction of inflammatory te stim o n y from witnesses or that his attorney failed to inform him of any plea negotiation o f f e rs proffered by the State. Accordingly, Trotter has procedurally defaulted those claims o f ineffective assistance of counsel. The court will, therefore, consider on the merits only Trotter's claims that his attorney f a ile d to contact alibi witnesses and failed to file pre-trial motions. With respect to those c la im s , the respondent contends he is entitled to judgment as a matter of law based on the f in d in g s of the Tennessee state courts.

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IV .

S ta te Court Findings

P u r s u a n t to 28 U.S.C. § 2254(d), Trotter may not obtain federal habeas corpus relief w ith respect to a claim that was adjudicated on the merits in a state court proceeding unless th e state court decision (1) was contrary to, or involved an unreasonable application of, c le a rly established federal law or (2) was not reasonably supported by the evidence presented to the state court. In addition, findings of fact by a state court are presumed correct and T ro tte r must rebut the presumption of correctness by clear and convincing evidence. 28 U .S .C . § 2254(e). T h e Supreme Court, in Williams v. Taylor, 529 U.S. 362 (2000), clarified the d ist in c ti o n between a decision "contrary to," and an "unreasonable application of," clearly e sta b lis h e d Supreme Court law under § 2254(d)(1). A state court decision is "contrary to" S u p r e m e Court precedent "if the state court arrives at a conclusion opposite to that reached b y [the Supreme Court] on a question of law or if the state court decides a case differently th a n [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413. A s ta te court decision "involves an unreasonable application of clearly established Federal law" o n ly where "the state court's application of clearly established federal law was objectively u n r e a so n a b l e ." Id. at 409. A federal habeas court may not find a state adjudication to be " u n re a so n a b le " "simply because that court concludes in its independent judgment that the re le v a n t state-court decision applied clearly established federal law erroneously or in c o r re c tly. Rather, that application must also be unreasonable." Id. at 411. 7

V.

D is c u ss io n

In Strickland v. Washington, 466 U.S. 668 (1984) the United States Supreme Court e sta b lish e d a two-part standard for evaluating claims of ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This r e q u ire s showing that counsel made errors so serious that counsel was not f u n c tio n in g as the "counsel" guaranteed the defendant by the Sixth A m e n d m e n t. Second, the defendant must show that the deficient performance p r e ju d ic e d the defense. This requires showing that counsel's errors were so s e rio u s as to deprive the defendant of a fair trial, a trial whose result is reliable. Id . at 687. To establish that his attorney was not performing "within the range of competence d e m a n d e d of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970), T rotter must demonstrate that the attorney's representation "fell below an objective standard o f reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's c o n d u c t , a court should consider all the circumstances and facts of the particular case. Id. a t 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls w ith i n the wide range of reasonable professional assistance; that is, the defendant must o v e rc o m e the presumption that, under the circumstances, the challenged action 'might be c o n s id e r e d sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1 9 5 5 )). A finding of serious attorney incompetence will not justify setting aside a

c o n v ic tio n , however, absent prejudice to the defendant so as to render the conviction u n re lia b le . Id. at 691-92.

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T h e two-part test of Strickland also applies to ineffective assistance of counsel claims in cases involving guilty pleas. Hill v. Lockhart, 474 U.S. 52 (1985); Sparks v. Sowders, 852 F .2 d 882 (6th Cir. 1988). W e hold, therefore, that the two-part Strickland v. Washington test a p p lies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence a lre a d y set forth in Tollett v. Henderson, [411 U.S. 258 (1973)], and McMann v . Richardson, [397 U.S. 759 (1970)]. The second, or "prejudice," requirement, o n the other hand, focuses on whether counsel's constitutionally ineffective p e rf o rm a n c e affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have p lea d e d guilty and would have insisted on going to trial. H ill, 474 U.S. at 58-59 (footnote omitted). In considering Trotter's claims of ineffective assistance of counsel, the Tennessee C o u rt of Criminals first summarized the evidence at the post-conviction hearing, as well as th e trial court's conclusion in denying post-conviction relief: A t the post-conviction hearing, the petitioner's trial counsel testified that he m e t with the petitioner three times prior to the entry of the guilty pleas. C o u n s e l stated that he was appointed to the petitioner's case after another a tto rn e y had been removed. Counsel reviewed the discovery provided to the p re v io u s attorney. The discovery materials included crime scene photographs a n d medical records. However, there was no DNA evidence to connect the p e titio n e r with the crimes. Counsel felt that he had a good understanding of the S ta te 's case against the petitioner. Counsel discussed in detail with the p e titio n e r the available defenses, the likelihood of conviction, and the possible p u n is h m e n ts the petitioner could receive upon conviction. C o u n s e l conceded that he did not visit the crime scene. He stated that h e had planned to argue for mitigating the petitioner's sentence at the

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se n ten c in g hearing, but the petitioner entered into an agreement regarding his s e n te n c e s . C o u n s e l said that he did not present any character witnesses for the p e t itio n e r because the petitioner did not want "a hearing." Additionally, c o u n se l did not ask for a mental evaluation of the petitioner because the p e titio n e r did not seem to need an evaluation. Counsel was aware that the p e titio n e r used drugs, specifically noting that the petitioner used drugs on the n i g h t of the offenses. C o u n s e l asked the petitioner about his statement to police. The p e t itio n e r stated that he had been advised of his Miranda rights, he understood th o s e rights, and he waived his rights before giving the statement. The p e titio n e r did not indicate that he was under the influence of an intoxicating s u b s ta n c e at the time he gave his statement to police. Counsel stated that he c o u l d find no basis on which to file a motion to suppress the statement. C o u n s e l said that he did not file any other pretrial motions. C o u n se l stated that he knew the victim had been shown a photographic lin e u p , and counsel had examined the pictures used in the lineup. Counsel a c k n o w le d g e d that the victim identified someone other than the petitioner from th e lineup; however, counsel said that other than discussing the issue with the p e titio n e r, he was unsure of how he could have pursued the identification issue f u rth e r. Counsel conceded that he did not speak with Stephen Patrick Gossey, th e person who had been identified by the victim. Counsel stated, "It certainly w o u ld have been a defense if [Gossey] did it, but considering [the petitioner] w a s saying I did it, I didn't see any need to talk to anyone else." C o u n s e l said that he did legal research in connection with the p e titio n e r's case, including researching the elements of the crimes charged and s e n te n c in g . Counsel also said that he would have investigated any witnesses o r pursued any leads suggested by the petitioner. However, the petitioner never a s k e d counsel to speak with additional witnesses. Counsel asserted, "If he'd a s k e d me to do something, I usually do it." C o u n s e l stated that he could not recall if he investigated any witnesses w h o were not identified by the petitioner, but he was sure that he never spoke w ith the victim. Counsel did not speak with the petitioner's co-defendants, but h e did speak with their attorneys. Counsel stressed that the petitioner never d e n ie d his involvement in the crimes; in fact, the petitioner gave a statement 10

to police detailing his role in the crimes. Counsel maintained that the petitioner n e v e r indicated that he wanted to go to trial. Counsel recalled that the p e titio n e r's statement to police was a "big part" of the decision to enter guilty p le a s. Counsel asserted that the petitioner "was just looking to get the best deal h e could." C o u n s e l recalled that prior to entry of the petitioner's guilty pleas, the S tate offered to allow the petitioner to plead guilty to the charged offenses in e x c h an g e for a sentence of thirty-five years, one hundred percent of which w o u ld be served in confinement. The petitioner rejected that offer and c o u n te re d with an offer to plead guilty to the offenses if the accompanying s e n te n c es required that he serve no more than fifteen years. The State rejected th e petitioner's offer and countered with a proposal for an accompanying s e n te n c e of twenty-five years, with one hundred percent of the sentence to be se rv e d in confinement. The petitioner also rejected that offer and decided to e n te r open guilty pleas to the offenses and allow the trial court to determine the le n g th of the sentences. However, on the day of the sentencing hearing, the p e titio n e r agreed to a total effective sentence of twenty-five years to be served a t one hundred percent. Counsel stated that the petitioner had been aware of th e offer of twenty-five years for at least several days prior to accepting the s e n te n c e . C o u n s e l recalled that the district attorney's office sent him a copy of a le tte r that the petitioner had submitted to the district attorney after the entry of h is guilty pleas but prior to the sentencing hearing. In the letter, the petitioner a s k e d if the State would agree to a sentence of twenty-five years, with release e lig ib ility after service of eighty-five percent of the sentence. Counsel stated th a t he told the petitioner that with a sentence requiring that one hundred p e rc e n t be served in confinement, the petitioner could potentially earn fifteen p e rc e n t "good time" credits. Nevertheless, he cautioned the petitioner to a ss u m e that a one hundred percent sentence would have to be served c o m p l e te ly in confinement because a fifteen percent reduction in sentence was a possibility but was not guaranteed. T h e petitioner testified that he spoke with counsel two or three times p rio r to entering his guilty pleas. He stated that "all [counsel] did was went o v e r the motion discovery." Counsel told the petitioner that the State offered to allow him to plead to a sentence of thirty-five years to be served at one h u n d re d percent. The petitioner asked counsel to try for a lower sentence.

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C o u n s e l then advised the petitioner that a sentence of twenty-five years at one h u n d re d percent was the shortest sentence the State would accept. R e g a rd in g the photographic lineup, the petitioner said: T h e only thing that was missing was that they had p ic t u r e s or a photograph that looked like me and that they s h o w e d me a photo lineups of me in the photo lineup, but at no p o in t or time did it say that the victim could identify me in any p ic tu re of me. The petitioner stated that there was no physical evidence linking him to th e crimes. The petitioner maintained that counsel did not interview the State's w itn e ss e s nor did he file any motions. The petitioner said that he was relying o n counsel's advice in the case. The petitioner claimed that he did not feel that h e had been adequately represented and would like the opportunity to go to trial. T h e petitioner testified, "I don't recall telling [counsel] anything about it, but there was an incident when being questioned in the Sumner County Jail b y the TBI agents that I was under the influence of drugs." The petitioner a lle g e d that was "the statement that they got on me." The petitioner said that c o u n se l asked him if he was under the influence of an intoxicating substance a t the time he gave his statement; however, the petitioner said that he never in f o rm e d counsel that he was under the influence of drugs or alcohol at the tim e he gave his statement to police. The petitioner acknowledged that he had b e e n incarcerated for two or three months prior to giving his incriminating s ta te m e n t to police. T h e petitioner testified that he had only a limited amount of time to c o n sid e r the State's offer of twenty-five years because he was "in court when th e y presented it to me." However, on cross-examination, he admitted that one m o n th before he accepted the offer, he wrote a letter to the district attorney's o f f ic e requesting a sentence of twenty-five years to be served at eighty-five p e rc e n t. Thereafter, the petitioner acknowledged that he was not rushed into a c ce p tin g the sentence. T h e petitioner said that trial counsel advised him that the sentencing a g re e m e n t called for service of one hundred percent of the sentence in c o n f in e m e n t. The petitioner acknowledged that counsel never told him that he 12

w o u ld be able to serve only eighty-five percent of the sentence in confinement. T h e petitioner was not informed that he could potentially earn fifteen percent g o o d time credits. He said, "[A]s for right now and while I was in court, all I c a n do was 100 percent. That's what I was going to do." A t the conclusion of the post-conviction hearing, the post-conviction c o u rt denied the petition for relief. The court found that the petitioner did not m e e t his burden of establishing the ineffectiveness of counsel by clear and c o n v i n c i n g evidence. On appeal, the petitioner contests the post-conviction c o u rt's ruling. T ro tter v. State, 2006 SL 2843350 at **2-4. In analyzing Trotter's claims of ineffective assistance of counsel, the Tennessee Court o f Criminal Appeals next noted the two-part standard of review set forth in Strickland. Id. a t *5 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). T h e appellate court then rejected Trotter's arguments: O n appeal, the petitioner alleges that counsel was ineffective because h e failed to interview witnesses, investigate the case, follow up on an alternate p e rs o n being identified from a photographic lineup, pursue the lack of physical e v i d e n c e against the petitioner, meet with the petitioner more than three times, re q u e st a hearing, file pretrial motions, ask the petitioner if he was under the in f lu e n c e at the time of his statement, and advise the petitioner regarding s e n te n c i n g reductions. W e note that trial counsel testified that he asked the petitioner if he was u n d e r the influence of any intoxicating substance at the time of his statement, a n d the petitioner said that he was not. Additionally, counsel stated that he a d v is e d the petitioner that he could potentially earn a fifteen percent reduction in his sentence but such a reduction was not guaranteed. Moreover, while the p e titio n e r complains about counsel's lack of investigation, failure to file m o tio n s, failure to meet more frequently with the petitioner, or request a h e a rin g , the petitioner does not state what could have been accomplished had s u c h measures taken place. The petitioner did not testify regarding any w itn e ss e s that counsel should have investigated or any proof counsel should h a v e uncovered. Generally, "[w]hen a petitioner contends that trial counsel 13

f a ile d to discover, interview, or present witnesses in support of his defense, the s e witnesses should be presented by the petitioner at the evidentiary h e a rin g ." We may not speculate on what benefit witnesses might have offered to the petitioner's case, nor may we guess as to what evidence further in v e stig a tio n may have uncovered. The petitioner put on absolutely no proof to indicate what prejudice he suffered as a result of any alleged deficiency on th e part of counsel. Therefore, the petitioner has failed to establish that he is e n title d to relief. Id . (quoting Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.1990)). T his court has reviewed the transcript of Trotter's post-conviction hearing [Addendum 2 , Transcription of Post-Conviction Hearing, pp. 1-46] and finds the decision by the T e n n e ss e e Court of Criminal Appeals is supported by the record. Trotter's trial attorney was c a lle d as his first witness. [Id. at 10]. With respect to Trotter's claim that his attorney failed to contact alibi witnesses, counsel testified that he did not recall investigating any witnesses o n behalf of Trotter, but from the first time they met, Trotter never denied committing the o f f e n s e s but was just looking for the best deal he could get. [Id. at 11-12]. On crossex am ination , counsel testified that Trotter never asked him to speak to witnesses who were n o t on the State's witness list nor did Trotter provide counsel with the names of witnesses. [ Id . at 24]. Trotter also testified at his post-conviction hearing. He admitted that he did not te ll counsel of any witnesses he wanted counsel to interview. [Id. at 28]. In addition, the record reflects that Trotter's guilty plea was voluntary, knowing, and in tellig e n t, and he was not coerced into pleading guilty. [Addendum 2, Transcription of PostC o n v iction Hearing, Exhibit 2, Transcript of Plea Acceptance Hearing, pp. 1-25].

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A c c o rd in g ly, to the extent Trotter claims that he was forced to plead guilty because his a tto rn e y failed to contact alibi witnesses, that claim in contradicted in the record. W ith respect to Trotter's claim that his attorney failed to file pretrial motions, counsel te s tif ie d that at the time he came to represent Trotter, prior counsel had pursued discovery, w h ich current counsel was able to review in the file. [Addendum 2, Transcription of PostC o n v ic tio n Hearing, pp. 14, 23]. Counsel also testified that he discussed Trotter's statement w ith him and Trotter admitted that he had been read his rights and fully understood and w a iv e d them; Trotter never indicated that he was on drugs at the time he gave his statement. [ Id . at 13-14, 22-23]. Counsel did not file a motion to suppress Trotter's statement because h e could find no grounds to support the motion. [Id. at 13-14, 23]. Trotter admitted that he d id not tell his trial attorney that he was under the influence of drugs or alcohol at the time h e gave his statement to the police. [Id. at 28-29, 32]. In denying post-conviction relief, the trial court specifically found there was nothing in the record to suggest that a motion to suppress would have been successful and that c o u n s e l investigated everything that would have been useful to investigate. [Id. at 52]. In its written Memorandum Opinion in support of the Order denying post-conviction relief, the t r i a l court noted that Trotter was unable to name a single witness that he told counsel to in te rv ie w . [Addendum 1, Technical Record, pp. 26-32, Memorandum Opinion at 30]. The tria l court again found there was no basis for filing a motion to suppress because Trotter r e c e iv e d and waived his Miranda rights, there was no evidence of coercion, and no evidence

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th a t Trotter was suffering from mental illness or under the influence at the time he made his c o n f e s s io n . [Id. at 31]. T h e findings of the state courts are supported in the record and are neither contrary to , nor do they involve an unreasonable application of, federal law as established in S tr ic k la n d v. Washington. Trotter has failed to demonstrate he received ineffective assistance o f counsel under the Strickland standard and he is not entitled to relief on this claim.

V I.

C o n c lu s io n

T h e petition for habeas corpus relief will be DENIED and this action will be D IS M I S S E D WITH PREJUDICE. Rule 4 of the Rules Governing Section 2254 Cases In T h e United States District Courts. Trotter having failed to make a substantial showing of th e denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U .S .C . § 2253(C); Rule 22(b) of the Federal Rules of Appellate Procedure. The court C E R T I F IE S that any appeal from this action would not be taken in good faith and would b e totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure. The court will fu rth er DENY Trotter leave to proceed in forma pauperis on appeal.

A N APPROPRIATE ORDER WILL ENTER. /s/Harry S. Mattice, Jr. HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE 16