Niles v. Johnson

Filing 22

MEMORANDUM OPINION. Petitioners § 2254 petition (Doc. 1) will be DENIEDand this action will be DISMISSED. The Court will DENY issuanceof a Certificate of Appealability. AN APPROPRIATE JUDGMENT WILL ENTER. Signed by District Judge Travis R McDonough on 3/4/2019. (AML, ) Mailed to David Edward Niles

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
DAVID EDWARD NILES,

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Petitioner,
v.
DEBRA JOHNSON,
Respondent.

Case No. 4:16-cv-13
Judge Travis R. McDonough
Magistrate Judge Susan K. Lee

MEMORANDUM OPINION
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
filed by pro se prisoner David Edward Niles (“Petitioner”), challenging the constitutionality of
his confinement under a state-court judgment of conviction of first-degree premeditated murder
(Doc. 1). Respondent filed a response in opposition to Petitioner’s pleading, as well as a copy of
the state record (Docs. 14, 15). Petitioner filed a reply to Respondent’s response (Doc. 18).
For the reasons set forth below, Petitioner’s § 2254 petition (Doc. 1) will be DENIED
and this action will be DISMISSED.
I.

PROCEDURAL HISTORY
Petitioner was convicted by a Bedford County jury of first-degree premeditated murder

and was sentenced by the trial court to life imprisonment. State v. Niles, No. M2011-01412CCA-R3CD, 2012 WL 1965438, at *1 (Tenn. Crim. App. June 1, 2012), perm. app. denied
(Tenn. Oct. 17, 2012). On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”)
affirmed the conviction. Id. The Tennessee Supreme Court (“TSC”) denied Petitioner’s
application for permission to appeal. Id.

Petitioner filed a timely pro se petition for post-conviction relief. Niles v. State, No.
M201400147CCAR3PC, 2015 WL 3453946, at *4 (Tenn. Crim. App. June 1, 2015) perm. app.
denied (Tenn. Sept. 17, 2015). The post-conviction court appointed counsel, denied relief after
holding an evidentiary hearing, and reappointed counsel for Petitioner in the event of an appeal.
Id.
Petitioner filed a notice of appeal along with a motion to remove counsel. Id. Following
the post-conviction court’s denial of the motion to remove counsel, post-conviction counsel filed
a motion to withdraw. Id. The TCCA reviewed counsel’s motion to withdraw and ordered the
post-conviction court to conduct a hearing on the matter. Id. Following that hearing, the postconviction court determined that Petitioner could proceed pro se. Id. Petitioner proceeded pro
se on appeal, and the TCCA affirmed the judgment of the post-conviction court. Id. Thereafter,
the TSC denied Petitioner’s application for permission to appeal. Id.
Petitioner filed a timely pro se petition for a writ of habeas corpus on November 4, 2015
(Doc. 1). This matter is now ripe for the Court’s review.
II.

FACTUAL BACKGROUND
The TCCA summarized the facts of this case in its opinion on direct appeal as follows:
This case concerns the January 11, 2010 shooting death of victim Laura Parker.
Niles, who had a four-year-old son with the victim, was arrested for this crime.
He subsequently filed an ex parte motion for funds for a psychiatrist and a motion
to suppress the evidence seized during the search of his home.
...
At approximately 8:30 p.m. on January 11, 2010, Isaac Williams and Timothy
Farliss were moving some furniture at the Forest Hill Apartments when they
heard two gunshots. Williams immediately called 911. While Williams was on
the phone with the 911 dispatcher, he walked toward the sound of the gunshots
and saw a white Nissan vehicle with tinted windows driving away from the
complex with its lights off. The car did not turn on its headlights until it was
almost out of the parking lot. Then the white car turned left out of the lot.
Williams relayed the description of the car to the 911 dispatcher. Farliss also saw
2

this car before it left the parking lot. An instant later, Williams heard someone
scream that a person had been shot, and he called 911 a second time to tell them
to send an ambulance. Williams walked toward the sound of the person
screaming and observed the body of the deceased victim, who had been shot in
the head.
The officers who responded to the scene found two nine-millimeter shell casings
manufactured by Speer and a bullet hole just to the right side of the victim’s
apartment door. Officers were unable to find the bullet that struck the area to the
right side of the victim’s door.
As Sergeant James Wilkerson and Lieutenant Jason Williams were responding to
the incident, they received the description of the vehicle seen leaving the crime
scene. At the time they received the description, they passed a small white car
with tinted windows. They immediately turned around and stopped this vehicle.
Sergeant Wilkerson approached the driver, later identified as the DefendantAppellant, David Edward Niles, and informed him that police were investigating
a shooting and that his vehicle matched the description of the vehicle leaving the
scene. He then asked the driver for his license, and Niles responded that he did
not have any identification with him.
Sergeant Wilkerson next asked Niles if he had a firearm in the vehicle. Niles
responded affirmatively and reached for a nine-millimeter Glock handgun.
Sergeant Wilkinson grabbed Niles and pulled him out of his vehicle. He did a
quick pat-down, handcuffed him, read him his Miranda rights, and placed him in
the back of his patrol car. He then asked for his name, which Niles provided.
Niles asked Sergeant Wilkerson to call his wife to notify her of his whereabouts.
A short time later, Williams and Farliss identified Niles’s vehicle as the vehicle
they saw leaving the crime scene.
When Niles was placed in the patrol car, Sergeant Wilkerson and Lieutenant
Williams looked inside Niles’s vehicle, they observed a black ski mask, a black
baseball cap, a pair of gloves, a white towel, a handgun case, and a ninemillimeter Glock handgun in plain view on the front passenger seat. A firearm
trace of the handgun showed that Niles owned the gun and had purchased the gun
and a box of Speer nine-millimeter ammunition from the Outpost Armory with his
debit card on December 19, 2009.
As Officer Wilkinson retrieved a crime scene log-in sheet from the backseat of his
patrol car, Niles told him that he and his wife were having marital difficulties and
that he had been driving the roads with the gun, trying to clear his mind. Officer
Wilkinson asked Niles if he had shot the gun that night, and Niles replied that he
had shot it twice in the air on a deserted road. Officer Wilkerson then called Mrs.
Niles and asked if she and Niles had been having marital difficulties, and she
responded that this was not the case. Officer Wilkinson then drove Niles to the
Shelbyville Police Department.
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The Glock that was found in Niles’s car had thirteen rounds in it, including one
round in the chamber. The Glock’s magazine had a maximum capacity of fifteen
rounds. The rounds were nine-millimeter Luger hollow points, which were
manufactured by Speer. The hollow point rounds were designed to expand on
impact, thereby causing serious injuries. The shell casings found at the crime
scene matched the ammunition found in Niles’s car. Testing by the Tennessee
Bureau of Investigation (TBI) confirmed that the shell casings at the crime scene
had been fired from the Glock handgun recovered from Niles’s car. Officers later
found a box of Speer nine-millimeter Luger hollow point rounds in Niles’s home.
Although the box held twenty rounds, only five were in the box at the time it was
recovered.
In addition to the fully assembled Glock handgun, the officers found a spare
Glock firing pin, a spare Glock barrel, and a Glock disassembly tool in the
handgun case in Niles’s car. The officers also discovered that the serial number
stamped on the barrel of the recovered Glock differed from the serial number on
the Glock’s frame and slide, despite the fact that the serial numbers for these parts
were supposed to be identical. However, the serial number of the spare Glock
barrel found in the handgun case was identical to the serial number on the Glock’s
frame and slide. TBI testing showed that the shell casings found at the scene
exhibited signs that they were fired with a different barrel and firing pin than the
stock barrel and firing pin found in the handgun case in Niles’s car.
One of the gloves found in Niles’s car showed traces of gunshot primer residue,
which indicated that the glove had been in contact with or near a gun when it was
fired. Papers found in the victim’s car showed that Niles and the victim had a
four-year-old son together. Officers also discovered that the victim had recently
been giving her work schedule to Niles.
Sometime after the victim’s murder, Detectives Crews and Merlo became aware
that the barrel of the handgun found in Niles’s car had a different serial number
than the number on the gun’s slide and the frame. On January 13, 2010,
Detectives Crews and Merlo interviewed Niles’s wife at the police station, and
she gave the detectives permission to seize some boxes of ammunition that were
in the home she shared with Niles. During this search, the detectives seized two
boxes of ammunition, including the twenty-round box of Speer hollow point
ammunition with only five rounds remaining, and the TopGlock receipt showing
that Niles purchased a replacement firing pin, a replacement barrel, and a Glock
disassembly tool prior to the victim’s death. This evidence was found on the top
shelf of the closet in the master bedroom. The TopGlock receipt was dated
December 20, 2009, the day after Niles bought the Glock at the armory. In
addition, the detectives found a date planner in Niles’s home that contained the
victim’s work schedule, including her work schedule for the date of her death.

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While in jail, Niles spoke to Officer Cameron Farrell shortly after midnight on
January 14, 2010. Niles told Officer Farrell numerous times that “he knew it
would sound crazy” but that “God told him to kill [the victim].” Niles told
Officer Farrell that the victim was “an unfit mother” to their son. He also told
Officer Farrell that he considered leaving the victim’s apartment complex because
he believed that God had told him not to kill the victim but that he changed his
mind and decided to kill the victim. He said he stopped his vehicle, got out, and
took two steps towards the victim before shooting her in the head with the first
shot. He said he shot the victim a second time, but he was not sure where the
bullet struck her. Niles said the victim never saw his face because he was wearing
a ski mask. He also told Officer Farrell that he had done online research about
defeating ballistics testing by using a replacement barrel and firing pin in the gun.
Niles then asked to speak with a “short heavy-set detective” who was identified
by Officer Farrell as Detective Merlo. Officer Farrell subsequently talked to
Detective Merlo about the information that Niles had just given him regarding the
case. At Detective Merlo's request, Officer Farrell completed a report regarding
the conversation he had with Niles. However, Detective Merlo was unable to
speak with Niles about his conversation with Officer Farrell.
The victim’s autopsy confirmed that she had been shot in the head and neck with
a gun at an indeterminate range. The report stated that the victim’s cause of death
was multiple gunshot wounds. It also determined that the gunshot wound to her
head or her neck could have resulted in her death. The copper-plated lead
fragments found in the victim’s body were consistent with the Speer cartridge
cases for the rounds found in the Glock handgun in Niles’s car and the
ammunition found in Niles’s home. The rifling marks on the fragments found
were also consistent with rifling marks produced by Glock firearms.
State v. Niles, 2012 WL 1965438, at *7–9.
The opinion of the TCCA affirming the decision of the post-conviction court contains a
recitation of the evidence presented at the evidentiary hearing held by the post-conviction court
and summarizes the testimony heard from Petitioner, his trial counsel, and numerous other
witnesses in that proceeding. Niles, 2015 WL 3453946. Specifically, testimony from trial
counsel about his decision not to file a motion to suppress the traffic stop, along with testimony
from Officer Farrell and Petitioner regarding their past relationship, will be addressed in more
detail below in the analysis of those specific claims.

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III.

STANDARD OF REVIEW
A state prisoner is entitled to habeas corpus relief “only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, which
amended § 2254, sets forth “an independent, high standard to be met before a federal court may
issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10
(2007). By this standard, when a state court adjudicates a claim on the merits, habeas relief is
available only if the adjudication of that claim “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; 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).
A state-court decision is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if
the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court’s ruling is
an “unreasonable application of” clearly established federal law if the state court identifies the
correct governing legal principle from Supreme Court precedent but unreasonably applies it to
the facts of the particular state prisoner’s 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.
Under AEDPA, a habeas petitioner must “‘show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
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disagreement.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)). This standard is “difficult to meet,” “highly deferential,” and
“demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102; Woodford v. Visciotti, 537 U.S. 19,
24 (2002)).
IV.

PETITIONER’S CLAIMS FOR RELIEF
Petitioner’s § 2254 habeas corpus petition raises three claims for relief:
(1) Ineffective assistance of post-conviction counsel;
(2) Ineffective assistance of trial counsel, specifically:
(a) that his trial counsel was ineffective for failing to investigate the allegedly
illegal traffic stop and failing to present and argue a motion to suppress based on
the illegal stop, (Doc. 1, at 10), and that the TCCA premised its rejection of this
claim on erroneous information,1 (Id. at 12);
(b) and that trial counsel was ineffective for failing to investigate and to discover
that, due to animosity toward Petitioner, a correctional officer falsely testified that
Petitioner confessed to shooting the victim, (Id. at 10).

V.

INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
Amend. VI. A defendant has a Sixth Amendment right not just to counsel but to “reasonably

1

Although raised as separate allegations in the § 2254 petition, when analyzing Petitioner’s claims,
Respondent addressed Petitioners claims that the state court based its decision on erroneous
information with the claim that trial counsel was ineffective for failing to file a motion to suppress
the traffic stop. (Doc. 15, at 14.) This Court agrees that these claims are related and should be
addressed together.
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effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was deficient and that the deficient performance prejudiced the defense so as to render the
proceedings unfair and the result unreliable. Id. In assessing counsel’s performance, a court
must presume that counsel’s questioned actions might have been sound strategic decisions and
must evaluate the alleged errors or omissions from counsel’s perspective at the time the conduct
occurred and under the circumstances of the particular case. Id. at 689; see also Vasquez v.
Jones, 496 F.3d 564, 578 (6th Cir. 2007) (“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable[.]”) (quoting
Strickland, 466 U.S. at 690). Only when the challenged actions are “outside the range of
professionally competent assistance” will counsel’s performance be considered constitutionally
deficient. Strickland, 466 U.S. at 690.
To demonstrate prejudice, a petitioner must show “a reasonable probability that, but for
[counsel’s acts or omissions], the result of the proceedings would have been different.”
Strickland, 466 U.S. at 694. “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.” Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). On balance,
“[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the [proceedings] cannot be
relied on as having produced a just result.” Strickland, 466 U.S. at 686.
When a petitioner raises an ineffective-assistance-of-counsel claim in a § 2254 petition,
the Court must review the state court’s ruling on that claim under AEDPA’s highly deferential
standard. Thus, in order to succeed on a federal claim of ineffective assistance of counsel, a

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habeas petitioner must demonstrate that the state court’s ruling on his-ineffective-assistance-ofcounsel claim was an unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685, 693–
94 (2002). “Surmounting Strickland’s high bar is never an easy task,” and “[e]stablishing that a
state court’s application of Strickland was unreasonable under § 2254(d) is all the more
difficult.” Harrington, 562 U.S. at 105 (citing Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
A.

Ineffective Assistance of Post-Conviction Counsel

Petitioner claims his conviction and sentence are void because his post-conviction
counsel was ineffective. He contends post-conviction counsel failed to communicate
meaningfully with him; failed to follow the requirements of Tennessee Supreme Court Rule 28,
and failed to file an amended petition for post-conviction relief. (Doc. 1, at 7; Doc. 2, at 11.)
Petitioner raised these issues in his post-conviction appeal, and the TCCA addressed the claims
as follows:
Petitioner alleges that he received ineffective assistance of counsel at the postconviction level and that the “federal rulings in Trevino v. Thaler, 133 S.Ct. 1911
(2013), Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Sutton v. Carpenter, 745
F.3d 787 (6th Cir. 2014), establish the right of effective assistance of counsel at a
post-conviction evidentiary hearing.” Petitioner argues that these cases, coupled
with post-conviction counsel’s failure to “meet the very lax requirements of
T[ennessee] Sup[reme] C[ourt] R[ule] 28” entitle him to relief in the form of a
remand for a new post-conviction hearing with newly appointed counsel and the
opportunity to file an amended petition.
We disagree. This Court has repeatedly held that Martinez does not entitle a
petitioner to make such a claim. In Martinez, the United States Supreme Court
stated:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.
132 S.Ct. at 1320. This Court has declined to extend Martinez to state
proceedings. See, e.g., Charles McHaney v. State, No. M2014–00290–CCA–R3–
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PC, 2014 WL 3384666, at *3 (Tenn. Crim. App. July 10, 2014); Ruben Pimentel
v. State, No. M2011–01309–CCA–R3–PC, 2013 WL 4505402, at *3 (Tenn. Crim.
App. Aug. 21, 2013).
Likewise, Trevino does not provide relief for Petitioner in this Case. In Trevino,
the Supreme Court concluded that Martinez applies not only where state law
mandates that a claim of ineffective assistance of counsel must be raised in a postconviction proceeding but also “where ... state procedural framework, by reason
of its design and operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of ineffective
assistance of trial counsel on direct appeal.” Trevino, 133 S.Ct. at 1921. The
result of Trevino was to slightly expand the holding of Martinez. It, too, does not
compel the relief sought by Petitioner.
Petitioner does not have a constitutional right to the effective assistance of postconviction counsel. Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010). The
right to post-conviction counsel is statutorily based, found in the Post–Conviction
Procedure Act. T.C.A. § 40–30–107(b). The justification for this statutory right
“is to afford a petitioner the full and fair consideration of all possible grounds for
relief.” Frazier, 303 S.W.3d at 680. In furtherance of this purpose, our supreme
court requires a minimum standard of service for all post-conviction counsel. Id.;
see Tenn. Sup. Ct. R. 28 § 6(C)(2)-(4). However, it should be pointed out that
these rules “do not provide any basis for relief from a conviction or sentence.”
Frazier, 303 S.W.3d at 681. Due process in the post-conviction context requires
merely that “the defendant have ‘the opportunity to be heard at a meaningful time
and in a meaningful manner.’” Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 2004)
(quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)). Specifically, a full
and fair hearing requires only “the opportunity to present proof and argument on
the petition for post-conviction relief.” House, 911 S.W.2d at 714.
In the case herein, Petitioner complains that post-conviction counsel did not file
an amended petition or comply with Rule 28. As a result, he asks us to grant him
a second bite at the apple. We decline to do so. Petitioner received the benefit of
the full extent of due process of law and assistance of post-conviction counsel.
Post-conviction counsel pursued Petitioner’s claims of ineffective assistance of
trial and appellate counsel at the evidentiary hearing. Witnesses were presented
to lend support to the arguments advanced in the petition filed pro se by
Petitioner. On appeal, Petitioner has provided us with no legal authority entitling
him to a second post-conviction hearing for the alleged shortcomings of his postconviction counsel because he is not entitled to effective representation beyond
what he has already received. Our supreme court has expressly held that an
allegation of ineffective assistance of post-conviction counsel “does not establish
a legal excuse for failure to raise ... issues in the initial proceeding.” House, 911
S.W.2d at 712. Moreover, this Court has repeatedly held that violations of Rule
28 by post-conviction counsel do not warrant a second post-conviction hearing.
See, e.g., Thaddeus Johnson v. State, No. W2014–00053–CCA–R3–PC, 2014 WL
10

7401989, at *9 (Tenn. Crim. App. Dec. 29, 2014), perm. app. filed (Tenn. Feb.
26, 2015); Anthony Boyland v. State, No. W2013–01226–CCA–MR3–PC, 2014
WL 3818612, at *17 (Tenn. Crim. App. Aug. 4, 2014), perm. app. denied (Tenn.
Nov. 20, 2014); Jonathan Everett v. State, No. W2013–02033–CCA–R3–PC,
2014 WL 3744498, at *6–7 (Tenn. Crim. App. Jul. 28, 2014), perm. app. denied
(Tenn. Nov. 19, 2014). Petitioner is not entitled to relief on this issue.
Niles v. State, 2015 WL 3453946, at *6–7.
Claims of ineffective assistance of post-conviction counsel are not cognizable on habeas
review. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”); see also Coleman v. Thompson, 501 U.S. 722, 752 (1991) (holding
that prisoners have no constitutional right to an attorney in state post-conviction proceedings and
therefore cannot claim constitutionally ineffective assistance of counsel in such proceedings).
Moreover, the Sixth Circuit has held that “the writ [of habeas corpus] is not the proper means by
which prisoners should challenge errors or deficiencies in state post-conviction proceedings . . .
because the claims address collateral matters and not the underlying state conviction giving rise
to the prisoner’s incarceration.” Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986) (following
Preiser v. Rodriguez, 411 U.S. 475 (1973)).
The state court correctly observed that there is no constitutional right to the effective
assistance of post-conviction counsel and that Petitioner’s allegations do not fall under the
narrow exceptions held in Martinez. Accordingly, the state court properly rejected this claim,
and Petitioner is not entitled to relief.
B.

Ineffective Assistance of Trial Counsel

Petitioner claims his conviction and sentence are void because his trial counsel was
ineffective. (Doc. 1, at 10; Doc. 2, at 19–21). He claims that trial counsel was ineffective for
failing to investigate the traffic stop and for failing to file a motion to suppress based upon the
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illegality of the stop. (Id.) He also claims that the TCCA based its “decision on the erroneous
information provided by the State” regarding the distances and times between the shooting and
the traffic stop of Petitioner. (Doc. 2, at 22.) Finally, he contends that trial counsel was
ineffective for failing to investigate and to present evidence that Petitioner did not confess to
Bedford County Sheriff’s Deputy Cameron Farrell and that Deputy Farrell “had personal
animosity” towards Petitioner in the motion to suppress Petitioner’s confession. (Id. at 19.)
The TCCA addressed these issues as follows:
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40–30–103. In
order to prevail in a claim for post-conviction relief, a petitioner must prove his
factual allegations by clear and convincing evidence. T.C.A. § 40–30–110(f);
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245
(Tenn. Crim. App. 1998).
Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the
effective assistance of trial counsel. In order to sustain a claim of ineffective
assistance of counsel, a petitioner must demonstrate that counsel’s representation
fell below the range of competence demanded of attorneys in criminal cases.
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-prong test
established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that trial counsel’s performance was deficient and that deficiency
prejudiced the defense. See Burnett v. State, 92 S.W.3d 403, 408 (Tenn. 2002).
Because a petitioner must establish both elements in order to prevail on a claim of
ineffective assistance of counsel, “failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley
v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
The test for deficient performance is “whether counsel’s assistance was
reasonable considering all the circumstances.” Strickland, 466 U.S. at 688. To be
considered deficient, counsel’s acts or omissions must fall below an objective
standard of reasonableness under prevailing professional norms. Id.; Henley, 960
S.W.2d at 579. This Court “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Burns,
6 S.W.3d at 462. This Court will not use hindsight to second-guess a reasonablybased trial strategy. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
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1994). This deference to the tactical decisions of trial counsel, however, is
dependent upon a showing that the decisions were made after adequate
preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Prejudice is shown where “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694).
Whether a petitioner has been denied the effective assistance of trial counsel
presents a mixed question of law and fact. State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999). This Court will review the post-conviction court’s findings of fact
“under a de novo standard, accompanied with a presumption that those findings
are correct unless the preponderance of the evidence is otherwise.” Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997)). This Court will not re-weigh or reevaluate the evidence presented or substitute our own inferences for those drawn
by the trial court. Henley, 960 S.W.2d at 579. Questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues
raised by the evidence are to be resolved by the post-conviction court. Momon,
18 S.W.3d at 156 (citing Henley, 960 S.W.2d at 578). However, the postconviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness.
Fields, 40 S.W.3d at 458.
Trial Counsel
In support of his claim of ineffective assistance of trial counsel, Petitioner has
alleged several errors both prior to trial and at trial. Petitioner alleges that his trial
counsel was ineffective for failing to thoroughly investigate the scene and
circumstances of his arrest and subsequent confession. He believes that he was
prejudiced thereby because trial counsel failed to file a motion to suppress the
search of his vehicle. Petitioner claims that one of the officers had “personal
animosity” toward Petitioner that was a remnant of some high school altercation.
Additionally, Petitioner complains that the motion to suppress his statement and
the search of his residence that was filed by trial counsel was ultimately denied
and the evidence was admitted against him during trial. See David Edward Niles,
2012 WL 1965438, at *11–12.
Trial counsel’s failure to adequately prepare for a dispositive motion hearing or to
investigate the circumstances of a potentially unconstitutional interrogation can be
the basis for a claim of ineffective assistance of counsel. See Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996) (“Defense counsel must investigate all apparently
substantial defenses available to the defendant and must assert them in a proper
and timely manner.”). According to Petitioner, had trial counsel filed an
additional motion to suppress, both motions would have been successful.
Petitioner hones in on the specifics of why and how he was apprehended,
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contending that the time and distance from the shooting to the traffic stop lend
credence to his assertion that a motion to suppress the search of his vehicle would
have been granted had it been filed. However, in this case, trial counsel testified
that he investigated thoroughly, looked at all the facts, and determined that an
additional motion to suppress would be frivolous. The post-conviction court
accredited this testimony. From the record, it appears that this was a trial tactic
made after adequate preparation and planning. See Adkins, 911 S.W.2d at 347;
Cooper, 847 S.W.2d at 528. Petitioner is not entitled to relief on this issue.1
[FN 1]: We also note that, from our review of the record and the briefs, it appears
that Petitioner does not raise on appeal all of the issues that were identified in his
petition. For example, Petitioner seems to abandon on appeal his argument that
trial counsel failed to thoroughly investigate and call two witnesses. Any issues
that were raised in the post-conviction court but that have not been pursued on
appeal are deemed abandoned. See Ronnie Jackson, Jr. v. State, No. W2008–
02280–CCA–R3–PC, 2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26,
2009) (“While the Petitioner raised additional issues in his petition for postconviction relief, he has abandoned those issues on appeal.”). Moreover, had the
issue not been waived, trial counsel testified that he interviewed one of the
witnesses, Tina Sanders, and found her testimony unnecessary. Again, this Court
must be highly deferential to counsel’s performance, Burns, 6 S.W.3d at 462, and
we will not second-guess the informed tactical decisions of trial counsel. Pylant
v. State, 263 S.W.3d 854, 874 (Tenn. 2008) (citing Henley v. State, 960 S.W.2
572, 579 (Tenn. 1997)). The record reflects that counsel adequately prepared for
trial and made informed strategic decisions. Additionally, because we have
determined Petitioner made an insufficient showing of deficiency with regard to
the presentation of these witnesses, we need not address the issue of prejudice.
See Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Nevertheless,
we note that Petitioner failed to present any of these proposed witnesses at the
post-conviction hearing. This Court has repeatedly concluded that “[w]hen a
petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the
petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990).
Niles v. State, 2015 WL 3453946, at *4–6.
1.

Traffic stop

This Court finds that the state court correctly identified and applied Strickland to address
Petitioner’s claim, and the record supports the state court’s finding that trial counsel made a
strategic decision not to file a motion to suppress. Trial counsel testified as follows: “Well, if
you look at the facts, the 911 call was made; officers exited the building immediately; sped to the
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scene. There was a description of the vehicle. There was a report of a shooting and just almost
immediately he met the car that matched the description.” (Doc. 14‒18 p. 46). Based on the
facts and circumstances surrounding the stop, “[trial counsel] thought there was no legal basis”
to file a motion to suppress the stop of Petitioner’s vehicle. (Id.). In fact, he testified that a
motion to suppress “would have been frivolous.” (Id.). Trial counsel was not ineffective for
failing to pursue a motion to suppress not supported by the evidence.
Consequently, Petitioner cannot show that the TCCA rejected this claim based upon
erroneous information. In his § 2254 petition, Petitioner argues that trial counsel should have
filed a motion to suppress because of the time and location of the traffic stop (Doc. 2). He
emphasized the alleged discrepancy as to whether the stop occurred one or two miles away from
the site of the shooting (Id.). However, the TCCA rejected the claim that trial counsel was
ineffective for failing to file a motion to suppress based on the determination that trial counsel
made an overall tactical decision after a thorough investigation of all of the facts surrounding the
stop, not just the time and distance between the shooting and traffic stop. Accordingly,
Petitioner cannot show that the TCCA rejected his claim of ineffective assistance of trial counsel
based on erroneous determination of the distance and time between the shooting and the traffic
stop.
This Court finds that Petitioner has not met his burden of demonstrating that he is entitled
to relief on this claim as he has not provided any evidence to diminish the deference owed to the
state court’s factual findings under § 2254(d). Petitioner may disagree with the result reached by
the state courts, but he failed to describe how the state court’s adjudication of his claim was
anything other than reasonable under the Strickland standard. Conclusory allegations, without
evidentiary support, do not provide a basis for habeas relief. See Cross v. Stovall, 238 F. App’x

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32, 39–40 (6th Cir. 2007). Based on this Court’s review of the record, the state court’s decision
met the AEDPA standard of review because it was not contrary to and did not involve an
unreasonable application of clearly established federal law, and it was not based on an
unreasonable determination of the facts in light of the evidence presented in state court
proceedings.
2.

Statements to Deputy Farrell

Petitioner alleges that trial counsel “fail[ed] to discover[ ] and present the abusive history
between Deputy Cam Farrell and [Petitioner]” and “fail[ed] to identify the false statements
claimed by Farrell within the body of the so called ‘confession . . . .’” (Doc. 2, at 21.)
Respondent asserts that Petitioner properly presented this ineffective-assistance claim to the
higher state court, which affirmed the denial of post-conviction relief without specifically
addressing the claim in its opinion. (Doc. 27, at 27.) However, Respondent argues that “[w]hen
a federal claim has been presented to the state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the merits in the absence of any
indication of state-law procedural principles to the contrary[.]” (Id. (citing Harrington v.
Richter, 562 U.S. 86, 99 (2011)).)
The TCCA addressed this matter as follows:
While in jail, Niles spoke to Officer Cameron Farrell shortly after midnight on
January 14, 2010. Niles told Officer Farrell numerous times that “he knew it
would sound crazy” but that “God told him to kill [the victim].” Niles told
Officer Farrell that the victim was “an unfit mother” to their son. He also told
Officer Farrell that he considered leaving the victim’s apartment complex because
he believed that God had told him not to kill the victim but that he changed his
mind and decided to kill the victim. He said he stopped his vehicle, got out, and
took two steps towards the victim before shooting her in the head with the first
shot. He said he shot the victim a second time, but he was not sure where the
bullet struck her. Niles said the victim never saw his face because he was wearing
a ski mask. He also told Officer Farrell that he had done online research about
defeating ballistics testing by using a replacement barrel and firing pin in the gun.
Niles then asked to speak with a “short heavy-set detective” who was identified
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by Officer Farrell as Detective Merlo. Officer Farrell subsequently talked to
Detective Merlo about the information that Niles had just given him regarding the
case. At Detective Merlo’s request, Officer Farrell completed a report regarding
the conversation he had with Niles. However, Detective Merlo was unable to
speak with Niles about his conversation with Officer Farrell.
State v. Niles, 2012 WL 1965438, at *9.
After speaking to both Petitioner and Officer Farrell, trial counsel filed a motion to
suppress the statements made by Petitioner to Officer Farrell, claiming “[t]hat [Petitioner] made
the statement only after being coerced and tricked by what he thought was a friend and feeling he
had no other choice but to confess due to not being in his right mind . . .” (Doc. 14-1, at 89.)
The trial court determined that Petitioner’s statements were unsolicited by anything said or done
by law enforcement or any agent of law enforcement and that Petitioner was not questioned or
interrogated. (Doc. 14-1, at 181.)
A determination of a factual issue made by a state court is presumed to be correct, and the
petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003). This presumption
of correctness is accorded to findings of state appellate courts, as well as the trial court. See
Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
Federal courts strongly presume that a state appellate court’s summary affirmance was on the
merits and cannot grant relief unless the result does not comply with the AEDPA. See
Harrington, 562 U.S. at 99; see also Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013). The
presumption, however, is not irrebuttable. Johnson, 133 S. Ct. at 1096. AEDPA requires
heightened respect for state-court factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th
Cir. 1998). Here, Petitioner failed to meet his burden of proof to refute the presumption of
correctness offered to the state court.

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First, the record indicates that the TCCA addressed the merits of Petitioner’s claim that
Officer Farrell had assaulted Petitioner in high school and held a grudge against him. The TCCA
concluded that Officer Farrell’s testimony refuted this claim. (Doc. 14-7, at 158.) At trial,
Officer Farrell testified that he attended high school with Petitioner and that there was no
animosity between them. (Id.) Second, there is no evidence in the record that Officer Farrell
falsely testified that Petitioner confessed. Petitioner has not shown any evidence that trial
counsel was ineffective in preparing or filing the motion to suppress his statement. Accordingly,
Petitioner is not entitled to relief.
VI.

CONCLUSION
For the reasons set forth above, Petitioner’s § 2254 petition (Doc. 1) will be DENIED

and this action will be DISMISSED.
VII.

CERTIFICATE OF APPEALABILITY
The Court must consider whether to issue a certificate of appealability (“COA”) should

Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may appeal a
final order in a habeas proceeding only if he is issued a COA, and a COA may only be issued
where a Petitioner has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a procedural basis without
reaching the underlying claim, a COA should only issue if “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the court dismissed a claim on the
merits, but reasonable jurists could conclude the issues raised are adequate to deserve further
review, the petitioner has made a substantial showing of the denial of a constitutional right. See
Miller-El, 537 U.S. at 327, 336; Slack, 529 U.S. at 484. After reviewing each of Petitioner’s
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claims, the Court finds that Petitioner has not made a substantial showing of the denial of a
constitutional right as to any claims. First, as to the procedurally defaulted claims, jurists of
reason would not debate the Court’s finding that the claims are procedurally defaulted. Further,
in view of the law upon which the dismissal on the merits of the adjudicated sub-claim is based,
reasonable jurists could not disagree with the correctness of the Court’s resolution of this claim.
Because the Court’s assessment of Petitioner’s claims could not be debated by reasonable jurists,
such claims are inadequate to deserve further consideration, and the Court will DENY issuance
of a COA. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El, 537 U.S. at 327.
AN APPROPRIATE JUDGMENT WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

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