Gann v. Lester
Filing
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MEMORANDUM OPINION: This pro se state prisoner's application for a writ of habeas corpus will be DENIED and this case will be DISMISSED. The Court will DENY issuance of a COA. AN APPROPRIATE JUDGMENT ORDER WILL ENTER.Signed by District Judge Harry S Mattice, Jr on 9/7/2016. (aws, ) Mailed to James W. Gann, Jr.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
JAMES W. GANN, JR.,
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Petitioner,
v.
JERRY LESTER, Warden,
Respondent.
No.: 4:13-CV-71-HSM-CHS
MEMORANDUM OPINION
In 2002, a jury in the Coffee County, Tennessee Circuit Court convicted James W. Gann,
Jr., (“Petitioner”) of first degree premeditated murder, arson, and setting fire to personal
property. State v. Gann, 251 S.W.3d 446, 451 (Tenn. Crim. App. 2007). For these offenses,
Petitioner received sentences of life with the possibility of parole (first degree murder); six years
arson); and two years (setting fire to personal property)—all set to be served consecutively to
one another. Id. Petitioner now brings this pro se petition and amended petition for a writ of
habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement under that
judgment of convictions [Docs. 1, 18].
Warden Jerry Lester has filed a response and a supplemental response to the petition
[Docs. 14, 19], in which he argues that relief is not warranted with respect to Petitioner’s claims,
and in support of that argument, he has filed copies of the state court record [Doc 15, Notice of
Filing Documents, Addenda 1-4]. Petitioner has not replied to the response or supplemental
response, and the time for doing so has lapsed.
I.
PROCEDURAL HISTORY
On October 26, 2007, Petitioner’s convictions were affirmed on direct appeal by the
Tennessee Court of Criminal Appeals (hereinafter “TCCA”) and on April 7, 2008, the Tennessee
Supreme Court denied his application for permission to appeal. Id., 251 S.W.3d at 446.
On June 19, 2008, Petitioner challenged his convictions by filing a petition for postconviction relief, followed by two amended petitions [Doc. 15, Add. 3, vol.1 pp. 1, 20, and 411].
After holding an evidentiary hearing on the claims, the state post-conviction court denied the
petitions [Id. at 68-71], and the TCCA affirmed the denial. Gann v. State, No. M2010-01944CCA-R3-PC, 2012 WL 2870605 (Tenn. Crim. App. July 13, 2012), perm. to app. denied (Tenn.
Nov. 20, 2012). No further appeal was granted. Id.
There followed this timely § 2254 habeas corpus application and amended application
[Docs. 1 and 18].
II.
FACTUAL BACKGROUND
The following factual recitation is taken from the Tennessee Court of Criminal Appeal’s
opinion summarizing the evidence presented at trial.
On December 6, 2000, firefighters responding to a fire at the
residence of the victim, Willard Morris, Jr., discovered the victim’s
body under a pile of blankets. The victim had been stabbed
repeatedly, and his clothing had been stuffed with wrapping paper,
newspaper, and receipts. The defendant, who was originally
charged with first degree felony murder, first degree premeditated
murder, especially aggravated robbery, and two counts of arson,
was convicted of first degree premeditated murder, arson, and
setting fire to personal property.
The victim’s mother, Linda Morris, testified that she last saw the
victim alive on the evening of December 5, 2000. She and her
husband visited briefly with the victim, who showed them a large
1
Bates stamp numbers are used in the state court record and, thus, page citations to the
state court record contained in this memorandum opinion refer to the Bates stamp numbers.
2
amount of cash totaling at least $1,100, and left at approximately
9:30 p.m. According to Ms. Morris, the victim kept money in an
encyclopedia and under a loose piece of carpeting in his house, but
when she searched the house after the fire, she did not find any
money in either location.
Tullahoma Fire Department Firefighter Jason Morgan responded to
the fire at the victim’s residence and used a digital thermal imaging
camera to search for signs of life inside the structure and found
none. According to Mr. Morgan, the house was a “complete
wreck” with objects torn from the wall and thrown onto the floor,
the shower curtain torn down, and furniture overturned. He found a
large pile of quilts in the front room of the house. After the fire
was under control, Mr. Morgan began a search for bodies and saw
the victim’s fingers protruding from the edge of the pile of
blankets in the den. Mr. Morgan pulled back the blankets and saw
that the victim’s shirt was soaked with blood and that his clothing
had been stuffed with paper. Officials from the State Fire
Marshall’s Office concluded that the fire began in the kitchen,
where numerous items of clothing, some still on hangers, had been
placed on top of the stove and inside the oven.
Tullahoma Police Department Investigator Jason Ferrell led the
investigation into the victim’s death and seized a poster board and
two pieces of toilet paper that contained blood drops and smears as
well as a tuft of “light blondish-brown hair” that was in the
victim’s hand. As he was collecting evidence from the scene,
Ferrell received a telephone call from Timmy Brawley, who stated
that he had important information regarding the victim’s death.
Ferrell met with Brawley, and Brawley agreed to wear a wire and
meet the defendant at his residence. Ferrell recalled that he listened
to the conversation but admitted that parts of it were distorted.
Ferrell specifically recalled that the defendant told Brawley that his
wife had scratched his cheek and poked him in the eye. At some
point, the defendant got into a vehicle with Brawley, and the police
stopped the vehicle. The defendant agreed to come to the police
station for questioning and traveled there in Brawley’s car. Ferrell
stated that he continued to listen to the conversation between the
defendant and Brawley. According to Ferrell, the defendant told
Brawley, “We are the only alibi that each other’s got.” Brawley
responded, “I’m telling the truth.”
At the police station, the defendant waived his rights in writing
and provided a statement in which he admitted smoking crack
cocaine with the victim and Brawley at the victim’s residence. He
stated that he left the victim’s residence at approximately 4:30 a.m.
The defendant also told Ferrell that his blood would not be found
3
at the victim’s residence. The defendant said nothing about an
altercation with the victim or about the presence of others who
might have attacked the victim. He stated that after leaving the
victim’s residence he walked to a cab stand, but when he could not
get a cab, he walked to the Favorite Market and called a cab. The
cab picked him up and drove him home. The defendant claimed
that he received the scratches on his hands while he was running
from police on a prior occasion. After the defendant gave his
statement, Ferrell transported him to the hospital where blood was
drawn for deoxyribonucleic acid (“DNA”) testing. Ferrell
explained that, because of the delay in receiving test results from
the Tennessee Bureau of Investigation (“TBI”), the defendant was
not arrested until he was indicted in January 2002.
Timmy Brawley, who had known the defendant for four or five
years at the time of the victim’s death, testified that on December
5, 2000, he and the defendant drove to two different locations in an
unsuccessful attempt to purchase marijuana before driving to the
victim’s house to purchase cocaine. Brawley and the defendant
purchased cocaine and left the victim’s house at approximately
4:00 p.m. They then went to Brawley’s house and injected the
cocaine before traveling to Nashville in search of more drugs.
While in Nashville, the two men purchased Dilauded and cocaine
which they dissolved in water and injected before returning to
Brawley’s residence. There, they injected more cocaine and then
traveled to the victim’s residence. The defendant told Brawley to
park next door and wait outside. Brawley waited thirty to forty-five
minutes and then went to the front door. At that point, the
defendant came to the door, told Brawley that the victim had
agreed to “front him an eightball of cocaine,” and instructed
Brawley to go purchase cigarettes for the victim. When Brawley
returned, the victim and defendant were cooking crack cocaine in
the kitchen of the victim’s residence. Thereafter, the three men
“smoked a lot of cocaine.” According to Brawley, the victim and
the defendant argued about money, with the victim refusing to
front any cocaine to the defendant. The victim did, however, offer
to allow them to smoke all of the crack cocaine that he had in the
house.
Brawley recalled that when he left the victim’s residence at 3:45
a.m., the victim and the defendant were in the kitchen with a large
amount of cocaine. At that time, the defendant was wearing baggy
pants, a t-shirt, tennis shoes, and a blue flannel jacket that he had
borrowed from Brawley on the previous day. Brawley returned to
his residence, showered, drove his wife to work, and then drove his
children to school. As he was driving to work later in the morning,
he saw police at the victim’s residence and observed that the house
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was on fire. Thereafter, he contacted Ferrell, who asked him to
wear a wire and go to the defendant’s house to retrieve the blue
flannel jacket. Brawley admitted that he did not contact Ferrell
until after he learned that the victim was dead. Brawley claimed
that the defendant asked him to tell police that he had left the
victim’s residence with Brawley.
Seventeen-year-old Michael Kyle McKay, who lived across the
street from the victim, testified that at approximately 7:45 a.m. on
December 6, 2000, he saw a man carrying a garbage bag leave the
victim’s house and walk down the street. The man looked over his
shoulder at the victim’s house several times but did not appear to
be in a hurry. He was approximately five feet, four inches tall and,
because of his slim build and shoulder-length hair, McKay initially
believed he was a woman. McKay recalled that the man was
wearing navy blue or faded black sweat pants, a red and black
checked shirt, and a navy blue toboggan. Upon viewing a
photographic lineup, McKay identified the defendant as the man he
had seen leaving the victim’s house.
Doctor Feng Li, who performed the autopsy, testified that the
victim had a of total 77 stab wounds in addition to a number of
blunt force trauma injuries. The victim had 15 stab wounds to the
head and neck, 16 to the left side of the chest, four to the right
chest, six to the abdomen, one to the right shoulder, one to the left
thigh, and 34 to the back. At least one of the stab wounds
penetrated the victim’s heart and seven penetrated the lungs.
Doctor Li testified that many of the wounds were likely inflicted
after the victim lost consciousness and some after he had died. The
cause of death was multiple stab wounds. Wounds to the victim’s
hands and arms were classified as defensive wounds. The victim’s
urine tested positive for cocaine and marijuana.
Scott Robinson, a driver for Courtesy Cab, testified that he picked
the defendant up at Scot Market at 8:31 a.m. on December 6, 2000.
He recalled that the defendant had long hair and acted completely
normal.
Kristen Brazier, the defendant’s girlfriend and mother of his three
children, testified that the defendant left their residence on the
evening of December 5, 2000, and returned at approximately 8:00
a.m. the following morning. Ms. Brazier, who was declared a
hostile witness, admitted giving a statement to police that the
defendant “had gashes on his hands, his thumb cut, and had a gash
on his head. His scalp was busted.” She also told police that the
defendant claimed that he received the injuries in a fight in
Nashville. The defendant did not appear upset or distraught when
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he discussed his injuries. On cross-examination, Ms. Brazier stated
that the defendant had the cut on his head before he left on
December 5. She claimed that she gave her statement to police
only because she felt pressured by police.
Special Agent Joseph P. Minor of the TBI performed DNA testing
on the items collected from the scene. According to Agent Minor,
the defendant’s blood was found on a piece of poster board found
underneath the victim’s body and a calendar found in the front
room of the victim’s house. Blood on a piece of toilet paper was a
mixture from the defendant and the victim.
The defendant, who was 19 years old at the time of the crimes,
testified that he was a heavy drug user during that time and that the
victim was his usual supplier of cocaine. He stated that on
December 5, 2000, he left his residence with Brawley in search of
drugs. After unsuccessful attempts to purchase marijuana and
cocaine elsewhere, he and Brawley bought cocaine from the
victim. They injected the drugs at Brawley’s house and then
traveled to Nashville, where they purchased Dilaudid using
clothing that Brawley had shoplifted. While in Nashville, the
defendant injected both cocaine and Dilaudid. The two men then
went to Brawley’s house, where they injected more drugs before
traveling to the victim’s house to purchase more cocaine. While at
the victim’s residence, the defendant and Brawley smoked crack
cocaine and agreed to split the purchase of an eightball. The victim
sent Brawley for cigarettes, and he was gone thirty to forty-five
minutes. The defendant contended that after he heard a car pull
into the driveway, he went into the bathroom and vomited. He
claimed that as he was cleaning himself up, he heard the sounds of
a struggle coming from the front room of the house. When he came
out of the bathroom, he saw Brawley and the victim fighting and
observed Brawley “sticking” the victim. The defendant claimed
that he was knocked unconscious when he tried to intervene in the
melee.
When he regained consciousness, the defendant was lying on the
floor and paper had been stuffed into his clothing. The defendant
stated that he got up, pulled the paper out of his clothing, and “hit
the door wide open.” Although he saw the victim lying on the floor
and saw and smelled smoke, he did not check to see if the victim
was alive and did not attempt to offer any assistance. The
defendant stated that he did not provide this information to police
because he was sick and sleepy from ingesting Dilauded just prior
to the interview. When asked why he did not get stabbed, the
defendant stated that he heard someone say, “Just let him burn.”
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During cross-examination, the defendant said that he ran from the
victim’s house to Scot Market and stated that he did not call the
fire department or the police because he felt as though he was
“running for [his] life.” The defendant could not explain how his
blood came to be on the items seized from the victim’s residence
or how he had received the numerous scratches to his face and
hands. He admitted lying to police about the origin of his injuries,
explaining that he was scared.
Tammy Smith, a third-shift clerk at Scot Market, recalled that
around 4:30 a.m., a white man with “scraggly hair,” dark pants, a
white t-shirt, and a blue checked shirt entered the store and told her
he was waiting for a ride home to Shelbyville. The man, who she
said “could have been” the defendant, was wearing work boots and
had no injuries on his hands or face. Another clerk, Katie Ferrell,
disagreed with Smith’s description of the man from Shelbyville
and described him as tall with broad shoulders and shoulder length
dark hair.
At the conclusion of the trial, the jury returned verdicts of guilty
for first degree premeditated murder, arson, and setting fire to
personal property. The jury acquitted the defendant of especially
aggravated robbery and felony murder.
State v. Gann, 251 S.W.2d at 451-55.
III.
DISCUSSION
Petitioner raises four grounds in his § 2254 petition (Grounds I – IV) and seven grounds
in his amended petition (Grounds 1 -7), for a total of eleven grounds [Docs. 1 and 18].2
1. The TCCA abused its discretion in affirming the trial court’s judgment.
2. The State violated Rule 28 section (5)(G) of the Post-Conviction Procedures Act by
not responding to each claim raised in the post-conviction petition and amended
petition.
3. [Petitioner] received ineffective assistance of counsel.
4. The post-conviction court erred, violating R. 28 Sec. (9)(A) and T.C.A. [§] 40-302
Petitioner used Roman numerals to list the grounds in the petition, but he used Arabic
numbers to list the grounds in the amended petition. For the sake of clarity and consistency,
some grounds have been restated and all grounds have been renumbered using Arabic numbers.
7
118(b), by failing to issue an order, stating specific findings of fact and conclusions
of law as to each issue presented.
5.
The lack of contact between Petitioner and his counsel constituted ineffective
assistance of counsel.
6. Counsel’s failure to investigate and review evidence against Petitioner constituted
ineffective assistance.
7. Counsel’s failure to file a pretrial motion to suppress evidence constituted ineffective
assistance.
8. Counsel’s failure to request specific curative instructions after objections were
sustained constituted ineffective assistance.
9. Counsel’s failure to object to closing arguments constituted ineffective assistance.
10. The trial court deprived Petitioner of his constitutional rights by failing to cure the
prosecutorial misconduct that occurred before the jury and in the presence of the
court during the trial.
11. Prosecutorial misconduct violated Petitioner’s right to a fair trial.
The Warden argues that the four grounds asserted in the petition are not cognizable;
insufficiently pleaded; or are barred by state procedural defaults. The Warden also argues that
Grounds 5 through 9 in the amended petition relate back to Ground 3 in the petition. Though
Ground 3 was insufficiently pleaded in the petition, Respondent takes the position that Grounds
5 - 9, which provide the factual content missing from the general claim of ineffective assistance
offered as Ground 3, fairly can be considered to be sub-claims of Ground 3.
The Warden further argues that, even if the Court construes the claims of ineffective
assistance raised in the amended petition as being the same claims presented to the state courts
during post-conviction proceedings, those claims warrant no habeas corpus relief, given the
deferential review of state court decisions on adjudicated claims which 28 U.S.C. § 2244(d)
requires. As to the last two Grounds (Grounds 10 – 11 in the amended petition), which contain
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claims involving prosecutorial misconduct during the closing argument, the Warden first
suggests that the claims are insufficiently pleaded. The Warden further suggests that, since
counsel did not object to the prosecutor’s closing argument to the trial court, the TCCA reviewed
the claim on direct appeal only for plain error and that a plain error review is a type of judicial
review which amounts to a procedural default.
The Court agrees with Respondent Warden concerning Petitioner’s entitlement to habeas
corpus relief and, for the reasons which follow, will DENY the petition and DISMISS this case.
The claims have been grouped into different categories for purposes of discussion: noncognizable/ insufficiently pleaded claims, adjudicated claims, and procedurally defaulted claims,
A.
Non-Cognizable/ Insufficiently Pleaded Claims
1. Abuse of Discretion (Ground 1)
Petitioner maintains that the TCCA abused its discretion in affirming the trial court’s
judgment. Petitioner furnishes no supporting contentions of fact to flesh out his claim. Because
Petitioner does not explain how the TCCA’s affirmance of the judgment was an abuse of the
discretion it was afforded, his claim is conclusory. Bare, conclusory allegations, unsupported by
facts, cannot establish a constitutional violation. Lynott v. Story, 929 F.2d 228, 232 (6th Cir.
1991).
Furthermore, Petitioner does not point to the constitutional right which was violated by
the TCCA’s alleged abuse of discretion. A state court’s abuse of discretion, without more, does
not present a constitutional issue. Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (finding
that federal habeas review is limited to whether there was a constitutional violation and does not
extend to whether a state court abused its discretion); Sinistaj v. Burt, 66 F.3d 804, 808 (6th Cir.
1995) (“[W]e can conceive of no situation in which a federal judicial determination on habeas
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collateral review that a state court, as a matter of general law, abused its discretion in denying the
withdrawal motion is therefore a violation of the federal Constitution.”) (italics in original).
Additionally, an assertion that the TCCA abused the discretion granted it under state law
involves solely an issue of state law. See e.g., Sneed v. Donahue, 993 F.2d 1239, 1244 (6th Cir.
1993) (assertion that sentences were aggregated under state law causing an illegal total sentence
is not a cognizable habeas corpus claim); Howard v. White, 76 Fed. App’x. 52, 53 (6th Cir.
2003) (“A state court's alleged misinterpretation of state sentencing guidelines and crediting
statutes is a matter of state concern only.”).
Because this claim does not allege a violation of federal constitutional law, it provides no
cognizable basis for habeas corpus relief.
28 U.S.C. § 2254(a) (habeas corpus relief is
appropriate only for constitutional violations); see Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(claims which allege a state law error or an incorrect application of state law do not present
cognizable issues for federal habeas review); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A
federal court may not issue the writ on the basis of a perceived error of state law.”).
2. Post-Conviction Errors (Grounds 2 and 4)
Petitioner maintains that the State violated a post-conviction procedural rule by failing to
respond to each claim asserted in his post-conviction petition and amended petition and that the
post-conviction court violated state law by failing to issue an order, stating specific findings of
fact and conclusions of law as to each issue presented. Petitioner has failed to state a cognizable
federal claim.
There is no constitutional requirement that states provide an appeal process for criminal
defendants seeking to review alleged trial court errors.
393 (1985).
Evitts v. Lucey, 469 U.S. 387,
Nor is there a constitutional duty to provide for post-conviction relief
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since “[p]ostconviction relief is even further removed from the criminal trial than is
discretionary direct review,” as “[i]t is not part of the criminal proceeding itself, and
it is in fact considered to be civil in nature.”
Pennsylvania v. Finley, 481 U.S. 551,
556-57 (1987) (citation omitted).
Thus, Petitioner’s assertions with regard to the State’s inadequate response to his postconviction claims and to the inadequacies in the post-conviction court’s opinion are not
cognizable habeas corpus claims. Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986) (finding
that claims involving constitutional violations during post-conviction proceedings did not relate
to a prisoner's detention and, therefore, were not cognizable under § 2254); see also Cress v.
Palmer, 484 F.3d844, 853 (6th Cir. 2007) (“[T]he Sixth Circuit has consistently held that errors
in post-conviction proceedings are outside the scope of federal habeas corpus review.”) (citing
Kirby, 794 F.2d at 247). Additionally, whether a state court opinion contains findings of fact and
conclusions of law is not a matter on which this habeas Court may sit in judgment. Harrington
v. Richter, 562 U.S. 86, 99 (2011) (“Opinion-writing practices in state courts are influenced by
considerations other than avoiding scrutiny by collateral attack in federal court.”).
B. Adjudicated Claims
Petitioner asserts that the TCCA erred in denying his claims of ineffective assistance of
counsel.
1. Standard of Review
Adjudicated claims are evaluated under the review standards contained in the
Antiterrorism and Effective Death Penalty Act (AEDPA), codified in 28 U.S.C. § 2241, which
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
11
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(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.
The AEDPA 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, 562 U.S. at 102).
AEDPA prevents the use of “federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). Further, findings
of fact which are sustained by the record are entitled to a presumption of correctness—a
presumption which may be rebutted only by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
2. Governing Legal Rules on Ineffective Assistance of Counsel Claims
The Sixth Amendment provides, in pertinent part, “[i]n all criminal prosecutions, the
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accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective
assistance of counsel:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a break down
in the adversary process that renders the result unreliable.
Id.
In considering the first prong of the test set forth in Strickland, 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, it is strongly presumed that counsel’s conduct was within the wide
range of reasonable professional assistance. Strickland, 466 U.S. at 689.
When considering Strickland’s second prong, a petitioner must show a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine
13
confidence in the outcome.” Id. “That requires a substantial, not just conceivable, likelihood of
a different result.”
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal
quotation marks omitted).
Counsel is constitutionally ineffective only if a performance below professional standards
caused the defendant to lose what he “otherwise would probably have won.” United States v.
Morrow, 977 F.2d 222, 229 (6th Cir. 1992). Yet, the core inquiry remains “whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland, 466 U.S. at 686.
Finally, a petitioner asserting claims of “ineffective assistance of counsel under
Strickland have a heavy burden of proof.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
“[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, 563
U.S. at 190).
3. Claims of Ineffective Assistance of Counsel (Grounds 3, 5-9)
According to a broad construction of Petitioner’s allegations, the lack of contact with
counsel, along which counsel’s failure to investigate and review evidence against him; to file
a pretrial motion to suppress evidence; to request specific curative instructions after objections
were sustained; and to object to closing arguments warrant issuance of the writ because the
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TCCA’s unfavorable decision on his Sixth Amendment claims of ineffective assistance was
contrary to and an unreasonable application of the governing rule in Supreme Court cases.
While pointing out that these claims are supported by no allegations of fact and, thus, are
insufficiently pleaded, Respondent has interpreted Petitioner’s allegations as encompassing the
same claims of ineffective assistance asserted in the TCCA during his post-conviction appeal.
The Court will follow suit. See Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (“The
allegations of a pro se habeas petition, though vague and conclusory, are entitled to liberal
construction[,] [and t]he appropriate liberal construction requires active interpretation in some
cases to construe a pro se petition to encompass any allegation stating federal relief.”) (internal
quotation marks and citations omitted).
a.
Lack of Communication and Contact
The first instance of ineffective assistance presented to the TCCA was Petitioner’s
contention that counsel failed to maintain adequate communication with him.
The TCCA
initially pointed out that, under Strickland, Petitioner’s success on all his claims of ineffective
assistance would depend on whether he could prove “both that counsel's performance was
deficient and that the deficiency prejudiced the defense.” Gann v. State, No. M2010-01944CCA-R3PC, 2012 WL 2870605, at *5 (Tenn. Crim. App. July 13, 2012) (quoting Goad v. State,
938 S.W.2d 363, 369 (Tenn. 1996), which in turn cited Strickland, 466 U.S. at 687)). The TCCA
then iterated the post-conviction court’s findings that “trial counsel maintained sufficient contact
with the petitioner, noting that trial counsel visited the petitioner at the jail and the penitentiary
and that he had multiple meetings with the petitioner shortly before trial.” Gann, 2012 WL
2870605, at *6. The TCCA did not grant relief on this claim.
The state court cited to Strickland’s two-pronged test for evaluating Petitioner’s
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ineffective assistance claim and therefore, its decisions with respect to the instant claim and to all
other claims of ineffective assistance are not contrary to the controlling legal rule in Supreme
Court cases. The question therefore is whether the TCCA’s decision on Petitioner’s first claim
of ineffective assistance and all remaining ineffective assistance claims was an unreasonable
application of Strickland.
In resolving this specific claim, the TCCA relied on the post-conviction court’s factual
findings that counsel visited Petitioner at the jail and the state prison that that counsel met
multiple times with Petitioner. Those findings are entitled to a presumption of correctness absent
clear and convicting contrary evidence. No such evidence has been adduced by Petitioner.
Therefore, based on these undisputed factual findings, the Court concludes that the TCCA’s
rejection of this ineffective assistance claim decision was not an unreasonable application of
Strickland.
b.
Failure to Investigate and Review Evidence
In the TCCA, Petitioner alleged that he received ineffective assistance in that counsel
failed to obtain an audible copy of his audiotaped conversation with a witness.
In addressing this claim, the TCCA observed that “[r]egarding the audiotape of the
petitioner's conversation with Brawley, the post-conviction court noted that during trial, trial
counsel was provided with a transcribed copy of the recording and was allotted time to review
it.” Gann, 2012 WL 2870605, at *5.
The post-conviction court’s finding that counsel “reviewed the tape once it was
transcribed” requires further clarification. A review of the state court record reflects that, when
defense counsels complained that the majority of the audiotaped recordings of the conversation
which they had been provided by the prosecution consisted of static and that they had been
16
unable to hear anything audible on the tapes, they were permitted, during an overnight recess, to
listen to the tapes, on special equipment provided by the prosecutor, who had assured the trial
court that “there is no transcript of the tape” [Doc. 15, Add. 1, vol. 2 pp. 289-297; Add. 1, vol. 4
pp. 450-56; Add. 3, vol. 2 p.1403]. The trial transcript shows that the investigating officer
listened to the audiotapes, made written notes of the conversation, and used those notes to refresh
his memory while offering testimony; that there was a “typed version” of those notes; and that
the defense was supplied with the typed version of the officer’s notes [Doc. 15, Add. 1, vol. 4 pp
449-56].
The trial transcript controverts Petitioner’s allegation that his counsel failed to investigate
and review the audiotaped conversation between himself and Mr. Brawley. In addition, the trial
transcript discloses that counsel conducted a vigorous cross-examination of the officer who
testified as to the contents of the audiotaped conversation [Doc. 15, Add. 4, vol. 2 pp. 525-529].
“An error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland,
466 U.S. at 691. Petitioner has not alleged, nor could he show, that he suffered any prejudice
from his counsel’s alleged error in failing to obtain an audible copy of the audiotaped
conversation, given that counsel not only reviewed the audiotapes (though they did so during the
trial) but that they also engaged in cross-examination of the officer who was responsible for
having the conversation recorded and whose typed notes they were provided prior to his crossexamination.
Absent some showing of prejudice, the TCCA’s rejection of Petitioner’s claimed attorney
error as not prejudicial and not in violation of his right to receive reasonably effective assistance
of counsel was not an unreasonable application of Strickland. The Court’s conclusion would be
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the same under de novo review if, due to the fact that the trial transcript shows that counsel was
provided a typed copy of the officer’s notes and not a transcription of the audiotape, the
deferential standards under AEDPA were not required.
c.
Failure to File a Pretrial Motion to Suppress
In the TCCA, Petitioner claimed that his counsels should have but failed to file a motion
seeking to suppress the “intoxicated statement” he made to police [Doc. 15, Add. 4, doc. 1
p.1533]. The TCCA observed that the post-conviction court accredited counsels’ testimony
involving the discussions they had about the statement their client gave the police. Noting that
the lower state court iterated that counsels had determined that their client was coherent when he
gave the statement before the lower state court went on to find that counsels had made a tactical
decision not to challenge the statement, the TCCA itself concluded that Petitioner had failed to
establish that his counsels gave him ineffective assistance, and it too declined to grant him relief.
The finding that counsels discussed the statement and made a strategic decision not to
pursue this line of defense is supported by the state court record [Doc. 15, Add. 3, vol. 2 pp.
1394-95, 1478-81]. According to the Supreme Court, strategic decisions are especially difficult
for a petitioner to attack. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable . . . .”).
At any rate, given the presumption that counsel's challenged conduct must be considered
sound trial strategy, as well as the difficulty encountered by a petitioner in challenging counsel's
tactical decisions, the Court finds that Petitioner has not established that the TCCA’s rejection of
this claim was an unreasonable application of Strickland. Hanna v. Ishee, 694 F.3d 596, 612
(6th Cir. 2012) (“The burden rests on the [petitioner] to overcome the presumption that the
18
challenged conduct might be considered sound trial strategy.”) (citing Strickland, 466 U.S. at
689).
e.
Failure to Request Curative Instructions
Petitioner asserts that his counsels were ineffective for failing to request specific
curative instructions to the jury after their objections were sustained.
Petitioner has not
identified the objectionable statements for which counsel should have sought curative
instructions, nor did he do so in his post-conviction appellate brief [Doc. 15, Add. 4, doc. 1
p.1533 (arguing that the record demonstrates five instances where counsel’s objections were
sustained but no curative instructions requested)]. Seemingly, Petitioner has offered this habeas
claim in a vacuum, where no facts dwell.
Even so, it remains that Petitioner raised this same barebones claim in his state postconviction appeal. The TCCA initially addressed the claim by relating that trial counsel testified
at the post-conviction evidentiary hearing that he did not request curative instructions because
the trial court told the jury that they should disregard the statements to which he had objected.
The TCCA added:
Regarding trial counsel’s failure to request curative jury
instructions, the post-conviction court noted that the trial court
“properly instructed the jury to disregard statements made by
counsel not supported by the evidence [and] also gave the
instruction concerning objections and rulings by the [trial court].”
The post-conviction court stated that the trial court instructed the
jury that when evidence did not support statements made by trial
counsel, the jury was to disregard those statements.
Gann, 2012 WL 2870605, at *6. Concluding that Petitioner had failed to establish that his trial
counsel was ineffective, the TCCA declined to grant relief.
To prevail on a claim of ineffective assistance for counsel’s failure to request a curative
instruction, a petitioner would need to show prejudice by demonstrating a reasonable probability
19
that the omission of such instruction affected the outcome of the trial. Shafer v. Wilson, 364 F.
App’x 940, 951 (6th Cir. 2010) (finding no prejudice “given the unlikelihood that the omission
of such instruction affected the outcome of the trial”). Absent some showing of prejudice, the
TCCA’s rejection of Petitioner’s claimed attorney error was not an unreasonable application of
Strickland. Berghuis v. Thompkins, 560 U.S. 370, 391 (2010) (assuming that counsel’s failure to
request a limiting instruction was deficient representation, but finding no prejudice in light of the
other evidence of guilt).
d.
Failure to object to closing argument
Petitioner claims that his counsels failed to object to the closing arguments of the District
Attorney, which constitutes ineffective assistance. Petitioner has not identified the prosecutor’s
arguments made in closing to which counsels should have objected but to which they did not
object. In Petitioner’s post-conviction appellate brief, Petitioner argued that, during his direct
appeal, the TCCA had held that the prosecutor’s arguments were improper and intentional; that
they constituted prosecutorial misconduct; and that counsel had not interposed any objection,
even though had objections been made, the misconduct would have warranted a new trial [Doc.
15, Add. 4, doc. 1 p.1534].
In reviewing the claim, the TCCA acknowledged that it had concluded that the
prosecutor’s comments “were improper, inflammatory, and utterly indefensible as they violate
nearly every rule established for proper closing argument,” [and] “that no reasonable attorney
would have failed to object out of simple inadvertence or neglect.” Gann, 2012 WL 2870605, at
*6 (citing Gann, 251 S.W.3d at 464). The TCCA continued that it had also recognized, in its
direct appeal opinion, the possibility “that the argument was so outrageous that the prosecutor
lost more credibility than he gained” and that “[i]f that were the case, then the failure to object
20
could have been a reasonable tactical decision.” Gann, 2012 WL 2870605, at *6-7.
The TCCA iterated that co-counsel stated at the post-conviction hearing that, while she
regretted not objecting when the prosecutor compared her client to “Charles Manson,” she
thought the outrageousness of the argument possibly hurt the prosecutor’s credibility. Id., 2012
WL 2870605, at *4. Lead counsel testified that he did not object because he believed the
comparison between his client and Manson to be inapt and clearly outrageous and the
prosecutor’s closing argument to be so egregious that it may have turned the jury against the
prosecution. Id., 2012 WL 2870605, at *5.
The TCCA then pointed to the post-conviction court’s findings that counsel made a
strategic decision not to object to the prosecutor’s closing argument and that Petitioner sustained
no prejudice as a result of counsel’s alleged error, in view of the overwhelming evidence
presented against him at trial. Id., 2012 WL 2870605, at *7. The TCCA determined that
Petitioner failed to establish that his trial counsel was ineffective, and it did not grant relief.
Petitioner has a right to effective assistance during closing arguments, and deference to
counsel’s tactical decisions “is particularly important because of the broad range of legitimate
defense strategy at that stage.” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). Petitioner can
establish that he received ineffective assistance of counsel if he shows that counsel’s failure to
object was “both objectively unreasonable and prejudicial.” Schauer v. McKee, 401 F. App’x
97, 101 (6th Cir. 2010).
As discussed earlier, Strickland teaches that counsel’s strategic decisions are difficult to
attack. Here, both co-counsel and counsel believed that the prosecutor’s egregious comments
were so outrageous that they would offend the jury and would turn the jury against the
prosecutor and, thus, would redound to their client’s benefit [Doc. 15, Add. 3, vol. 2 pp. 1430,
21
1506-08]. Similar trial strategy has been effected by other defense counsel. See Darden v.
Wainwright, 477 U.S. 168, 182-83 n.14 (1986) (counsel explained that he made a tactical
decision not to object to the prosecutors’ improper comments since, based on his experience with
the prosecutor, counsel knew the prosecutor would “get much more vehement in his remarks”
and hopefully would commit a reversible error).
Petitioner has presented nothing here to
overcome the presumption that counsel’s strategic decision was not reasonable.
A trial is not rendered unfair where prosecutors’ closing argument is turned against them
in such a way as “to engender strong disapproval [rather] than [to] result in inflamed passions
against petitioner.” Id. at 182. Furthermore, the state courts noted (and the state court record
demonstrates) that the evidence presented against Petitioner was weighty. See id. (stating that
substantial evidence against a petitioner reduced the likelihood that a jury’s decision was
influenced by an improper closing argument). Given the weight and amount of the evidence of
guilt, and the double deference owed to the state court’s decision on this Sixth Amendment
claim, it was not unreasonable for the TCCA to determine that Petitioner did not show that he
received ineffective assistance of counsel. Harrington v. Richter, 562 U.S. 86, 112 (2011)
(finding that Strickland prejudice requires that “[t]he likelihood of a different result must be
substantial, not just conceivable”).
C.
Procedurally Defaulted Claims
Respondent Warden maintains that Grounds 11 and 12 have been procedurally defaulted
and that the purported procedural default of those grounds now bars federal habeas corpus
review.
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. §
22
2254(b)(1)(A), (C). A petitioner commits a procedural default by failing to raise a federal claim
first in a state court or by failing to raise it at the proper time, both of which failings bar habeas
corpus relief, unless that petitioner can show cause to excuse his default and prejudice as a
result of the alleged constitutional violation. See Coleman v. Thompson, 501 U.S. 722, 752-53
(1991); Wainwright v. Sykes, 433 U.S. 72 (1977) (a failure to comply with a state’s
contemporaneous objection rule at trial results in a procedural default).
Cause can be shown by the existence of “some objective factor external to the defense”
such as interference by government officials, where the factual or legal basis for a claim was not
reasonably available, or ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488
(1986).
A petitioner demonstrates prejudice by establishing that the constitutional error
“worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in
original). Absent cause and prejudice, a petitioner who shows that he is actually innocent can
overcome the procedural hurdle as well. Murray, 477 U.S. at 496.
1. Failure to cure prosecutorial misconduct [Ground 11]
2. Prosecutorial misconduct [Ground 12]
These grounds are combined for ease of discussion because Respondent argues that the
same type of procedural default occurred with respect to each of these grounds.
In these grounds, Petitioner claims that he was denied a fair trial by the prosecutor’s
misconduct that occurred in the presence of the jury and the trial court, and that the trial court,
likewise, deprived him of a fair trial by failing to cure the prosecutorial misconduct, even absent
an objection by counsel. Petitioner argued, on direct appeal, that the prosecutors engaged in
misconduct, primarily during their closing remarks, by making improper and inflammatory
23
statements, to which “defense counsel[s‘ failure to] object could be considered a tactical
decision” [Doc. 15, Add. 2, doc. 1 pp. 1073-1074]. Petitioner listed nineteen intemperate
comments by the first prosecutor and two comments by the second prosecutor and he sought
plain error review of all those comments [Id. at 1065, 1067-1071].
This claim was carried to the TCCA, which noted that Petitioner had failed to object
during the prosecutor’s closing argument; cited to Tennessee’s waiver rule and to state law cases
for the proposition that the waiver rule applies where no contemporaneous objection is made;
explained that it could engage in plain error review even if an error whether “properly assigned
or not;” and proceeded to conduct a painstaking review of the comments under the plain error
doctrine. Gann, 251 S.W.3d at 458-463. But, as Respondent correctly points out, a plain error
review of a claim does not dissipate a state court’s finding that a procedural rule stands in the
way of a full appellate review.
Here, the TCCA expressly concluded that Petitioner did not preserve his prosecutorial
misconduct claim by objecting to the prosecutor’s remarks during closing argument. Gann, 251
S.W.3d at 458. The TCCA reviewed the defaulted claim for plain error, discussed plain-error
factors, including Petitioner’s “substantial right,” whether “substantial justice” called for
consideration of the issue, and whether the plain error “probably changed the outcome of the
trial.” Id. at 458-59. The TCCA ultimately determined that, while the prosecutors’ remarks
were improper, those comments had no effect on the verdict. Id.at 462-63.
Since the TCCA clearly invoked a state procedural rule, then the plain error review
conducted subsequently does not constitute a waiver of those state procedural default rules. See
Cooey v. Coyle, 289 F.3d 882, 915 (6th Cir. 2002); see also Hinkle v. Randle, 271 F.3d 239, 244
(6th Cir. 2001) (“[W]e view a state appellate court’s review for plain error as the enforcement of
24
a procedural default.”). “Plain error analysis,” according to the Sixth Circuit, “is more properly
viewed as a court’s right to overlook procedural defects to prevent manifest injustice, but is not
equivalent to a review of the merits.” Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006).
When a state invokes a procedural default defense, a federal court in the Sixth Circuit
must make four determinations: (1) whether there is a procedural rule which applied to a
petitioner’s claim and whether a petitioner complied with the rule; (2) whether the procedural
rule was actually enforced against a petitioner; (3) whether that rule is an adequate and
independent state ground sufficient to block habeas review; and (4) whether a petitioner can
demonstrate cause for his failure to comply with the rule and prejudice resulting from the alleged
constitutional violation. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Beuke
v. Houk, 537 F.3d 618, 630 (6th Cir. 2008) (applying Maupin).
Tennessee has a rule providing that an issue is waived if not raised in an earlier
proceeding where it could have been raised. See Tenn. Code Ann. § 40-30-106(g). The TCCA
applied this rule to Petitioner’s claim. Tennessee’s waiver rule is an adequate and independent
state ground sufficient to foreclose habeas review. Hutchison v. Bell, 303 F.3d 720, 738 (6th Cir.
2002). No cause and prejudice has been shown, and Petitioner’s unexcused procedural default
precludes federal habeas corpus review of Grounds 11 and 12.
IV.
CONCLUSION
For the above reasons, this pro se state prisoner’s application for a writ of habeas corpus
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)
should Petitioner file a notice of appeal. A petitioner may appeal a final order in a § 2254 case
25
only if he is issued a COA, and a COA will be 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 rejected on a procedural basis must demonstrate that reasonable jurists
would debate the correctness of the Court’s procedural ruling. 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 reasonable jurists would find the assessment of
the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
After having reviewed each claim individually and in view of the firm procedural basis
upon which is based the dismissal of most claims and the law upon which is based the dismissal
on the merits of one claim, 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 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 JUDGMENT ORDER WILL ENTER.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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