Cummins v. Phillips

Filing 56

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 12/22/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

CHRISTOPHER A. CUMMINS,
Petitioner,
v.
SHAUN PHILLIPS, Warden
Respondent.

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NO. 1:16-cv-00023
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Petitioner Christopher A. Cummins is serving a life sentence imposed by the Wayne County
Criminal Court on May 26, 2011, after a jury convicted him of first-degree murder. (Doc. No. 1
at Page ID# 1.) Respondent has filed an answer to the petition (Doc. No. 15) stating that the
grounds should be denied because they are without merit.
The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d).
Respondent does not dispute that Petitioner’s federal habeas petition is timely. (Doc. No. 15 at
Page ID## 2261-62.) Respondent states that the federal habeas petition at issue here appears to
be Petitioner’s first application for federal habeas relief. (Id.)
Because a federal court must presume the correctness of a state court’s factual findings
unless the petitioner rebuts this presumption with ‘clear and convincing evidence,” 28 U.S.C. §
2254(e)(1), and because the issues presented can be resolved with reference to the state-court
record, the court finds that an evidentiary hearing is not necessary. See Schriro v. Landrigan,
550 U.S. 464, 474 (2007) (holding that if the record refutes a petitioner’s factual allegations or
otherwise precludes habeas relief, the district court is not required to hold an evidentiary hearing

(citing Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998))). Upon review and applying the
AEDPA standards, the Court finds that Petitioner is not entitled to relief on the grounds asserted.
Accordingly, the petition will be denied and this matter dismissed.
I.

PROCEDURAL BACKGROUND
The state prosecution arose from the murder of Buddy Allen Griggs, the Petitioner’s

wife, Krystal Cummins’s, 1 ex-boyfriend and the father of her two children. On June 18, 2010,
Petitioner was indicted by the Wayne County Grand Jury and charged with one count of firstdegree murder.

(Doc. No. 14-1 at Page ID## 80-82.)

Petitioner was tried before a jury

beginning on May 23, 2011 and ending on May 26, 2011, at which time the jury returned a
verdict finding Petitioner guilty as charged. (Id. at Page ID## 130-31); see also Doc. No. 14-214-7.) Petitioner was sentenced to life imprisonment. (Doc No. 14-1 at Page ID# 132.)
Petitioner appealed his judgment of conviction to the Tennessee Court of Criminal
Appeals (“TCCA”), which rejected all appellate arguments, and affirmed Petitioner’s conviction
and sentence in an unpublished opinion issued on October 22, 2012. (Doc. No. 14-12; see also
State v. Chris Cummins, No. M2011-02264-CCA-R3-CD; 2012 WL 5193393, at *1 (Tenn.
Crim. App. Oct. 22, 2012) [Cummins I].) Petitioner filed an application for permission to appeal
to the Tennessee Supreme Court, which was denied on March 5, 2013. (Doc. No. 14-14; see also
Washington I, 2012 WL 6115589 at *1.) 2
1

Ms. Cummins name is sometimes spelled with a “C” and sometimes with a “K” throughout
these proceedings. The Court adopts the spelling used by TCCA—Krystal—in this
Memorandum Opinion.
2
In Tennessee, review by the state Supreme Court is not required for exhaustion. Instead, “once
the Court of Criminal Appeals has denied a claim of error, ‘the litigant shall be deemed to have
exhausted all available state remedies available for that claim.’” Adams v. Holland, 330 F.3d
398, 402 (6th Cir. 2003) (quoting Tenn. S. Ct. R. 39).

2

On September 25, 2013, Petitioner timely filed a petition for post-conviction relief in the
Wayne County Criminal Court. (Doc. No. 14-15 at Page ID## 1139-1189.) On September 9,
2013, the trial court appointed counsel. (Id. at Page ID## 1192-93.) Counsel did not file an
amended petition for post-conviction relief, relying instead on Petitioner’s pro se petition. (Doc.
No. 14-16 at Page ID# 1212.) The matter was heard in the trial court on May 15, 2014, and on
May 22, 2014, the court issued an order denying relief. (Doc. No. 14-15 at Page ID## 1200-04.)
Petitioner appealed to the TCCA, which denied relief on September 22, 2016. (Doc. No.
14-25; see also Christopher Allen Cummins v. State, No. M2014-01197-CCA-R3-PC, 2015 WL
4126737, at *1 (Tenn. Crim. App. July 9, 2015) [Cummins II].) Petitioner filed an application
for permission to the appeal to the Tennessee Supreme Court, which was denied on November
24, 2015. (Id.)
II.

STATEMENT OF FACTS
The TCCA summarized the facts presented at trial as follows:
The victim, Buddy Griggs, was the ex-boyfriend of the defendant’s wife,
Krystal Cummins. The victim and Ms. Cummins had two young children
together. The victim disappeared from his mother’s home on April 17,
2010, and his remains were found approximately one month later, after the
historic flood of May 2010, in a wooded area. Although both the defendant
and Ms. Cummins initially denied any involvement with the victim’s death,
Ms. Cummins, after giving numerous contradictory statements to the police,
implicated the defendant and led police to the victim’s remains.
Ms. Cummins testified at trial that the defendant was jealous of her
relationship with the victim. According to Ms. Cummins, she had decided
to leave the defendant because he manufactured methamphetamine. Ms.
Cummins testified she brought the victim to the house where she and the
defendant lived because she needed to retrieve her diaper bag prior to
leaving the defendant. She unexpectedly found the defendant at home. Ms.
Cummins testified that there was no immediate hostility between the victim
and the defendant and that the three adults spent time playing with the
children. According to Ms. Cummins, the victim had put his two-year-old
daughter on the hood of a van and was engaged in making sure she did not
3

fall off when the defendant unexpectedly struck him from behind on the
right side of the head with a sleeve cut from a thermal shirt, filled with
rocks, and secured at either end. Ms. Cummins testified that the defendant
then choked the victim with a wire cut from an exercise machine and fitted
with homemade handles which she had noticed in his pocket earlier. The
defendant wrapped the victim in plastic and placed him in the trunk of the
car. The defendant and Ms. Cummins then drove the car with the children
inside to the victim’s mother’s house and left the children there. Ms.
Cummins also testified that they stopped by a gas station. After driving
various places in an attempt to hide the body and making a few more stops,
the defendant rolled the victim down a ridge. The defendant then burned
various items which might have had physical evidence on them.
The defendant gave a statement in which he denied any knowledge of the
victim’s death. However, after he was informed that Ms. Cummins, in one
of her statements, had told the police that he and the victim had been
fighting and he killed the victim, the defendant gave a second statement
which blamed Ms. Cummins for the victim’s death. In this statement, he
asserted that Ms. Cummins had told him the victim attempted to rape her
and she hit him with a rock and choked him with some wire, then put him in
the trunk of the car. The defendant stated that Ms. Cummins removed the
body from the trunk at their home and wanted to burn the body, but he
would not let her. He stated that she put the victim’s body back in the trunk
and left briefly and that he thought she had removed the body from the
trunk. They then took the children to the victim’s mother’s house, went by
the gas station, and drove various places. He stated that he did not realize
the victim was still in the car until Ms. Cummins expressed a desire to go
down a road to dump the body. When they got home, they burned some
wood, but he would not let her burn the body at their home. He stated that
he did not know when the body was removed from the trunk and that Ms.
Cummins had burned several items.
On the Friday afternoon prior to trial, the prosecutor was told that an inmate
had some information regarding the defendant’s case. The prosecutor
interviewed the inmate, then communicated with others in the District
Attorney General’s office. The prosecutor was not able to “fully interview”
the witness until the morning of the first day of trial, and the decision was
made then to use the inmate’s testimony at trial. Although the inmate
testified at trial that he had told the administrator of the jail that he knew
something about the defendant’s case in January, approximately four
months prior to the trial in late May, the prosecutor stated to the trial court
that, while he was aware that the inmate had information regarding a
different case, he was not aware that the inmate had any information
regarding the defendant’s case until the Friday before trial.
4

The defendant moved for a continuance. At this time, the prosecutor
revealed the substance of the witness’s expected testimony. The trial court
denied the continuance but allowed defense counsel to interview the inmate;
the inmate refused to speak with defense counsel. The prosecution
provided defense counsel with the inmate’s criminal record for the purpose
of impeachment. The inmate testified at trial that the defendant had told
him and Steven Beersdorf—who was also incarcerated and who was trying
to silence a prisoner who planned to testify against him—that the defendant
had killed before and was not scared to do it again. The inmate testified
that the defendant then privately told him that he had killed the victim with
a sock full of rocks and strangled him with a wire, and that he did it so that
the victim would not take the kids away because the kids “would get
checks” until they turned eighteen. The defendant later, according to the
inmate, showed him the photographs of the victim’s remains and pointed
out a fracture that he said was caused by hitting the victim with the rocks.
On cross-examination, the inmate testified that at one point the defendant
had animosity towards him because the inmate had called a guard to assist
another prisoner who had a seizure while the defendant and another man
were “smacking” him for being a child molester. According to the inmate,
the defendant showed him the pictures of the victim’s remains in order to
frighten him. Jeremy Holt testified on behalf of the defendant that he had
been incarcerated with the inmate witness and that the inmate told him that
someone wanted the inmate to testify against the defendant. Mr. Holt
testified that the inmate was trying to get information about the case against
the defendant. The trial court allowed defense counsel to interview Mr.
Beersdorf, who was allegedly present when the defendant confessed to
having killed someone. Although the record shows that the defendant
called Mr. Beersdorf and that Mr. Beersdorf testified, the record is missing
the volume in which Mr. Beersdorf’s testimony is recorded.
Numerous witnesses testified for the State and the defendant. A videotape
from Ms. Cummins’s stop at the gas station showed the defendant using the
windshield cleaner to clean the bumper of the car, and medical testimony
established that the victim’s skeletal remains had sustained some trauma to
the right side of the head which likely was not the result of scavenger
activity. The victim’s blood was found in the trunk of the car the defendant
and Ms. Cummins had used that day. The defendant had attended church
the following day and broke down crying at church. The State put on proof
that the defendant had cut the victim’s picture out of a photo album, and
Ms. Cummins’s mother testified that the defendant wouldn’t let her speak
with Ms. Cummins unless she was on speaker phone and that she had seen
Ms. Cummins with bruises. The defense put on proof that Ms. Cummins
had, in a conversation with an inmate who was housed with her in prison,
confessed to killing someone and that she told the victim’s aunt by
telephone that she had killed the victim. The defense proof also included
5

evidence that Ms. Cummins had choked a woman with whom she was
fighting and that she had thrown a boiling teapot at the victim’s head. The
jury convicted the defendant of first degree murder.
Cummins I, 2012 WL 5193393, at *1–3.
The TCCA summarized the evidence presented at the post-conviction evidentiary
hearing, as follows:
The petitioner testified at the hearing that he and his appointed counsel did
not learn about Mr. Smith until the morning of the trial, despite the fact that
the prosecutor had learned of his existence the previous Friday. The
petitioner believed that, had the prosecutor informed them of the witness
when he first learned of him, trial counsel would have had time to
investigate Mr. Smith’s background and proposed testimony. For instance,
had trial counsel known earlier of Mr. Smith’s claim that the petitioner had
shown him photographs of the victim’s body, counsel could have presented
evidence to show that the petitioner was not provided any photographs of
the victim in discovery and had no photographs in his possession.
The petitioner complained that trial counsel not only failed to object to the
prosecutor’s statement in opening that the petitioner was “cooking meth,”
but also himself made a similar prejudicial comment in his closing
argument. He further complained about counsel’s having raised only a
single issue on direct appeal and not having ensured that the entire record of
the trial was included in the record on appeal. The petitioner said he
believed that all four of the issues counsel raised in the motion for new trial
should have been raised in the direct appeal.
On cross-examination, the petitioner acknowledged that trial counsel was
provided with Mr. Smith’s criminal history and was given the opportunity
to interview Mr. Smith. He further acknowledged that the jury heard Mr.
Beersdorf’s testimony, which contradicted Mr. Smith’s testimony about the
petitioner’s alleged confession to the crime. On redirect examination, he
recalled that trial counsel met with him only three times prior to trial.
According to his testimony, trial counsel promised to meet with him on the
Saturday and Sunday immediately prior to trial to review the case and to
prepare him to testify, but trial counsel “never showed up.”
On recross examination, the petitioner testified that he wanted to testify at
trial but, because trial counsel never prepared his testimony and told him
that counsel’s wife thought he should not testify, he agreed not to take the
stand. The petitioner acknowledged, however, that he did not allege in his
petition that trial counsel had forced him not to testify. He further
6

acknowledged that he had thirty-four felony forgery convictions, which the
State could have used to impeach his testimony.
Trial counsel, called as a witness by the State, testified that the petitioner’s
use and production of methamphetamine was an issue that was “so
intertwined” in the facts of the case that he did not “see any way that that
could be taken out.” As for his having raised only the single issue on
appeal, trial counsel explained that he thought the trial judge had ruled in
the defense’s favor on a lot of the issues throughout trial, thus “limiting
what [they] could do on appeal just because those issues weren't there.”
Counsel said he did not believe, given the evidence, that he could have
raised a sufficiency of the evidence issue with a “straight face.” Counsel
stated that his investigator found witnesses who were able to testify that the
petitioner’s wife had confessed to the murder.
Trial counsel testified that he met with the petitioner “quite a bit, especially
. . . when [they] were getting ready for . . . trial.” He discussed with the
petitioner the possibility of his testifying, including the fact that he had
thirty-four felony forgery convictions and had given two different stories to
the police about the crime. Trial counsel said the petitioner was “[a]ll for
not testifying” at the conclusion of their discussions. At one point during
trial, the petitioner mentioned a desire to testify, but he changed his mind
after another discussion with counsel in which counsel again advised him
not to testify. Counsel recalled that he probably discussed the issue with his
wife, who had witnessed a good portion of the trial, and also probably
conveyed to the petitioner his wife’s opinion that the petitioner should not
testify. He said, however, that whether or not to testify was ultimately the
petitioner’s decision.
Trial counsel testified that he objected to the last minute jailhouse witness
and moved for a continuance, which was denied. He said that Mr. Smith
was a devastating witness and that the more he cross-examined him, “the
worse it got.” He was given Mr. Smith’s criminal record and afforded an
opportunity to talk to him before trial, but Mr. Smith declined to speak with
him.
Trial counsel testified that he issued a subpoena for Jamie Staggs, who had,
supposedly, seen the petitioner turn “white as a sheet” when Mr. Staggs
asked him about the victim. Counsel said he had no knowledge of Mr.
Staggs having confessed to the murder, and if he had had that information,
he could have put him on the stand and questioned him about it. Trial
counsel testified that he provided discovery to the petitioner, which would
have included copies of the photographs in the case.

7

On cross-examination, trial counsel testified that the prosecutor told him
during a telephone conversation on the Sunday before trial that he might
have a surprise for him at trial. He said he told the prosecutor that he hated
surprises and asked him to let him know what it was, but the prosecutor
chose not to reveal the nature of the surprise, or the name of the witness,
until the morning of trial. He agreed that had he known about the witness a
month before trial, he could have thoroughly investigated his background
and tried to talk to him about his testimony. Trial counsel said he knew he
prepared for the trial over the weekend, but he could not recall if he visited
the petitioner in the jail on that Saturday or Sunday. Finally, trial counsel
testified that, in his opinion, arguing against the sufficiency of the evidence
on direct appeal would have been “frivolous” given the amount of evidence
against the petitioner.
The petitioner testified in rebuttal that the only photograph he ever received
was one of an automobile; he never had any photographs of the victim’s
body or remains in his possession.
On May 22, 2014, the post-conviction court entered an order denying the
petition, finding that the petitioner’s claim of prosecutorial misconduct
based on the late disclosure of the witness was an issue that had already
been litigated on direct appeal and that the petitioner failed to show either a
deficiency in counsel’s performance or a resulting prejudice to his case.
Cummins II, 2015 WL 4126737, at *3–4.
III.

ISSUES PRESENTED FOR REVIEW
In his pro se petition, Petitioner raises the following claims:
1. His right to due process was violated when:
a. The trial court refused to grant a continuance
b. The prosecutor deliberately concealed a material witness until the day of trial
c. The prosecutor deliberately admitted evidence regarding Petitioner’s prior bad
acts
2.

Ineffective assistance of trial counsel for:
a. failing to object to admission of prior bad acts evidence against Petitioner
b. improperly influencing Petitioner not to testify
8

c. not calling a witness from jail to contradict Brian’s Smith’s testimony that
Petitioner showed him photographs of the victim’s body
(Doc. No. 1; Doc. No. 35.)
IV.

STANDARD OF REVIEW
This matter is governed by the provisions of the Antiterrorism and Effective Death

Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). See Penry v. Johnson, 532 U.S.
782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 565 U.S. 65, 66 (2011);
Felkner v. Jackson, 562 U.S. 594, 597 (2011). “AEDPA requires heightened respect for state
court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir.
2006). “State-court factual findings . . . are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S. Ct. 2187,
2199-2200 (2015) (citations and internal quotations omitted).
If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28
U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555
U.S. 179, 190 (2009). AEDPA prevents federal habeas “retrials” and “ensure[s] that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693
(2002).

It prohibits “using federal habeas corpus review as a vehicle to second-guess the

reasonable decisions of state courts.” Parker v. Matthews, 567 U.S. 37, 38 (2012).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings,
and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.
9

Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly
established, this court may not rely on the decisions of lower federal courts. Lopez v, Smith, 135
S. Ct.1, 4 (2014); Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir. 2000). Moreover, “clearly
established Federal law” does not include decisions of the Supreme Court announced after the
last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 39 (2011). Thus, the
inquiry is limited to an examination of the legal landscape as it would have appeared to the
Tennessee state courts in light of Supreme Court precedent at the time of the state-court
adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644-45 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v.
Richter, 562 U.S. 86, 102 (2011); see Burt v. Titlow, 134 S. Ct. 10, 16 (2013); Metrish v.
Lancaster, 569 U.S. 351, 357-58 (2013); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Indeed,
“habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error corrections through appeal.” Harrington, 562 U.S. at 102-03
(citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
Under AEDPA, 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the 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.”
10

Ayala, 135 S. Ct. at 2198; see also White v. Wheeler, 136 S. Ct. 456, 460 (2015) (explaining that
the Supreme Court, “time and again, has instructed that AEDPA, by setting forth necessary
predicates before state-court judgments may be set aside, ‘erects a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudicated in state court.’) (internal citation
omitted).
A federal habeas court may issue the writ under the “contrary to” clause if the state court
applies a rule different from the governing law set forth in United States Supreme Court cases, or
if it decides a case differently than the United States Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06).
The court may grant relief under the “unreasonable application” clause “if the state court
correctly identifies the governing legal principle from United States Supreme Court decisions but
unreasonably applies it to the facts of the particular case. Id. A federal habeas court may not
find a state adjudication to be “unreasonable” “simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.” Williams, 529 U.S. at 411; accord Bell, 535 U.S. at 699.
Rather, the issue is whether the state court’s application of clearly established federal law is
“objectively unreasonable.”

Williams, 529 U.S. at 409.

“[R]elief is available under

§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could be no ‘fairminded disagreement’
on the question.” White v. Woodall, 134 S. Ct. 1697, 1706-07 (2014) (quoting Harrington, 562
U.S. at 103).

11

V.

DISCUSSION
A. Due Process Violations
1. The trial court refused to grant a continuance
Petitioner claims that the trial court violated his right to a fair trial when it denied

his request for a continuance after the prosecutor revealed on the morning of trial that he
intended to call as a witness Brian Smith, an inmate who had been housed with
Petitioner. Respondent argues that Petitioner is not entitled to relief on this claim.
The TCCA considered this claim on direct appeal:
The defendant contends that he is entitled to a new trial because the trial court
erred in denying his request for a continuance. The denial of a continuance falls
within the discretion of the trial court, and the trial court’s decision will not be
overturned absent a clear showing of abuse of discretion to the prejudice of the
defendant. State v. Wilson, 164 S.W.3d 355, 362 (Tenn.Crim.App. 2003).
Tennessee Code Annotated section 40–17–106 states:
It is the duty of the district attorney general to endorse on each indictment
or presentment, at the term at which the indictment or presentment is found,
the names of the witnesses as the district attorney general intends shall be
summoned in the cause, and sign each indictment or presentment name
thereto.
The prosecution’s failure to include a witness in the indictment does not
automatically entitle a defendant to relief, however. This statute is merely
directory, and a witness whose name is omitted from the indictment is not
necessarily disqualified from testifying, State v. Hutchison, 898 S.W.2d 161, 170
(Tenn. 1994). The purpose of the statute is to prevent the defense from being
surprised by evidence at trial. State v. Kilpatrick, 52 S.W.3d 81, 87
(Tenn.Crim.App. 2000). The defendant is therefore not entitled to relief unless he
can demonstrate prejudice. Hutchison, 898 S.W.2d at 170. The relevant
prejudice is not that resulting from the testimony offered at trial but any prejudice
that results from the defendant’s lack of notice regarding the witness’s
appearance. Wilson, 164 S.W.3d at 362.
The defendant contends that he was prejudiced by his inability to investigate (1)
the inmate’s familiarity with the case, including any interaction with friends of the
victim who could have informed the inmate about the details of the case; (2)
biases the inmate may have had against the defendant; (3) the inmate’s reputation
12

for truthfulness in his community; (4) whether the inmate, Mr. Beersdorf, and the
defendant were actually housed together at the time of the alleged conversation;
and (5) an “infinite number of leads” derived from the above investigations. He
also argues that he was unable to effectively cross-examine the witness. Prejudice
is usually established at a proceeding subsequent to trial. State v. Morris, 750
S.W.2d 746, 749 (Tenn.Crim.App. 1987). The defendant’s assertions that he was
prejudiced by inadequate time to investigate the inmate’s claims are speculative
and conclusory. The defendant has failed to make any concrete showing of
prejudice. The inmate refused to speak with defense counsel, and there is no
reason to think delay would have changed his mind. The defense has pointed to
no evidence which could have been used to undermine the inmate’s testimony had
it come to light prior to trial. In this case, there was “no showing in post-trial
proceedings that had the defendant had more time he could have impeached or
refuted the testimony of the witness[ ].” State v. Underwood, 669 S.W.2d 700,
703 (Tenn.Crim.App. 1984).
* * *
The prosecution provided the defense with the witness’s criminal history to aid in
cross-examination, and the witness was thoroughly cross-examined. The trial
court extended the trial for an extra day in order to allow the defense to call Mr.
Beersdorf to testify. The defendant also used the testimony of Mr. Holt to
impeach the inmate’s claims that the defendant had confessed. In similar
circumstances, we have held that the trial court did not abuse its discretion in
denying a continuance. See Hutchison, 898 S.W.2d at 170–171 (finding no
prejudice when the defendant was notified of previously unavailable witness on
first day of trial, the State provided the defendant with the witness’s criminal
record, and defense counsel interviewed and cross-examined the witness); Harris,
839 S.W.2d 69 (denying relief where the witness came to light four days prior to
trial, the defendant was notified, and the defendant had the opportunity to crossexamine the witness and to discredit the witness by calling the witness’s mother
to testify); Kilpatrick, 52 S.W.3d at 87 (denying relief because “nothing would
have been gained by the defense had the trial been continued to a later date” and
because defendant should have known witnesses would testify regarding the chain
of custody); State v. Gilbert, 612 S.W.2d 188, 191 (Tenn.Crim.App. 1980)
(holding that a witness was properly allowed to testify although the prosecution
only discovered the witness on the morning of trial, when the testimony was
duplicative and when there was no indication that the witness’s testimony “would
have been different if defense counsel had been permitted to interview him
earlier”). We conclude that the trial court did not err.
Cummins, 2012 WL 5193393, at *3–4; see also Doc. No. 14-12 at Page ID# 1122-23.

13

Deciding whether to grant a continuance is traditionally within the discretion of the trial
judge, and it is not every denial of a request for more time that violates due process even if the
party fails to offer evidence or is compelled to defend without counsel.” Ungar v. Sarafite, 376
U.S. 575, 589 (1964). However, in criminal proceedings, a trial court’s denial of a continuance
can rise to the level of a due process violation when there is an unreasonable and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay. See Burton v.
Renico, 391 F.3d 764, 772 (6th Cir. 2004). “There are no mechanical tests for deciding when a
denial of a continuance is so arbitrary as to violate due process.” Ungar, 376 U.S. at 589.
Whether the denial of a continuance violates due process depends upon “the circumstances
present in every case, particularly in the reasons presented to the trial judge at the time the
request is denied.” Id. Additionally, to obtain habeas relief, a petitioner must demonstrate that
the denial of his request for a continuance resulted in actual prejudice to his defense. Burton,
391 F.3d at 772; see also Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003). A petitioner
demonstrates actual prejudice by showing that additional time would have benefitted the defense.
Powell, 332 F.3d at 396.
Petitioner has failed to establish actual prejudice in that he has not demonstrated how a
continuance would have benefited his defense. On the morning of trial, when the prosecutor
explained to the trial court that he planned to call Mr. Smith as a witness, the prosecutor also
disclosed the substance of what Mr. Smith was expected to testify about. (Doc. No. 14-2 at Page
ID## 187-200 (explaining that Mr. Smith was expected to testify about a conversation that took
place between him, Petitioner and Steven Beersdorf, who was incarcerated with Petitioner and
Mr. Smith, regarding Mr. Beersdorf’s desire to do harm to another inmate who was expected to
testify against Mr. Beersdorf and that Mr. Smith was expected to testify that he heard Petitioner
14

say “I can kill somebody. I’ve done it before.” Additionally, Mr. Smith was expected to testify
about a conversation that he alone had with Petitioner in which Petitioner gave details about how
he killed the victim.) As such, Petitioner’s trial counsel was given a lot of information about Mr.
Smith’s testimony; information that the prosecutor would not normally have to reveal prior to
trial. (See Doc. No. 14-2 at Page ID# 194 (noting that while the prosecutor is required to reveal
exculpatory evidence, none of the information Mr. Smith had was exculpatory. Additionally,
noting that although the prosecutor is not required to disclose the substance of Mr. Smith’s
testimony, he was doing so to be fair to the defense); see also Doc. No. 14-7 at Page ID# 765-67,
771.)
In the interest of fairness, the trial court issued an order directing the Tennessee
Department of Corrections (TDOC) to transport Mr. Beersdorf to the courthouse so that trial
counsel could interview him, and so that he could testify at trial. (Doc. Nos. 14-2 at Page ID#
195; Doc. No. 14-9 at Page ID#1050.)

The trial court also directed the prosecutor to assist

Petitioner’s trial counsel in obtaining Mr. Smith’s criminal record, which the prosecutor did, so
that Petitioner’s counsel could cross-examine Mr. Smith. (Doc. No. 14-2 at Page ID## 195,
198.) At trial, Petitioner’s trial counsel effectively cross-examined Mr. Smith. Under trial
counsel’s questioning, Mr. Smith conceded that he was incarcerated for forgery, a crime of
dishonesty, that Petitioner “got upset” with him because Mr. Smith called prison guards to
intervene in an incident involving Petitioner and several other inmates and that since the time of
this incident Petitioner had “animosity” toward Mr. Smith. (Id. at Page ID## 672, 674-76.)
Additionally, the trial court extended the trial by one day to allow Petitioner to obtain Mr.
Beersdorf’s testimony. (Doc. No. 14-7 at Page ID# 861-62.) Ultimately, not only did Mr.

15

Beersdorf testify during the defense case, 3 but Jeremy Holt, a man who had been incarcerated
with Mr. Smith also testified. (Doc. No. 14-7 at Page ID# 844-854.) Although Mr. Beersdorf’s
testimony remains a mystery, Mr. Holt testified that Mr. Smith asked Mr. Holt if he knew
Petitioner and told him that “they was [sic] trying to get [Mr. Smith] to testify against
[Petitioner], but . . . [Mr. Smith] didn’t know anything about [Petitioner’s case] and [Mr. Smith]
asked [Mr. Holt] if [he] did.” (Id. at Page ID# 845.)
Petitioner has not specifically identified any investigation he wanted to, but could not do
because the trial court denied his request for a continuance. However, in the TCCA, Petitioner
raised five areas of investigation he could have pursued if he had been given a continuance: (1)
Mr. Smith’s familiarity with the case; (2) any biases Mr. Smith had against Petitioner; (3) Mr.
Smith’s reputation for truthfulness; (4) whether Mr. Smith and Mr. Beersdorf were actually
housed together; and (5) “an infinite number of leads” derived from the above investigations.
See Cummins I, 2012 WL 5193393. The TCCA found these assertions to be “speculative and
conclusory” and found that Petitioner failed to show that he had been prejudiced. Id.
Even if Petitioner had raised these issues here, he would fare no better. The alleged areas
of investigation Petitioner identifies could have or were explored via cross-examination. For
example, the best source of information for how much Mr. Smith knew about the Petitioner’s
case was Mr. Smith himself, and Petitioner’s trial counsel vigorously questioned Mr. Smith
about what he knew. See Doc. No. 14-5 at Page ID## 674, 676 (trial counsel questioning Mr.
Smith about what Petitioner told him about the case when Petitioner allegedly showed Mr. Smith
pictures of the victim); Id. at Page ID## 674, 677 (trial counsel questioning Mr. Smith about why
3

Unfortunately, the transcript containing Mr. Beersdorf’s testimony was not made part of the
record before the TCCA and is not part of the record here. See Cummins I, 2012 WL 5193393,
at * 2
16

Petitioner chose to discuss his case with Mr. Smith)). Petitioner does not suggest what additional
information he could have obtained or how he would have obtained it if the case had been
continued. Petitioner claims that if given more time he would have tested Mr. Smith’s bias
against Petitioner, but counsel did test Mr. Smith for bias on cross-examination when he
questioned Mr. Smith about the “animosity” between Petitioner and Mr. Smith. (See id. at Page
ID## 674-77.) Again, Petitioner fails to suggest what additional information he needed or how
he would have obtained such information. Petitioner claims that he would have tested Mr.
Smith’s reputation for truthfulness if the trial had been continued. Petitioner’s counsel did test
Mr. Smith’s reputation for truthfulness by obtaining the testimony of Jeremy Holt who testified
that Mr. Smith knew nothing about Petitioner’s case. (See Doc. No. 14-7 at Page ID# 845.)
Petitioner would have investigated whether Mr. Smith and Mr. Beersdorf were actually housed
together, but Petitioner’s counsel had both men on the witness stand and counsel clearly
questioned Mr. Smith regarding the details of his housing situation. (Id. at Page ID# 673, 67778.) Finally, Petitioner claims each of these investigations would have opened up avenues for
additional investigation, yet he fails to even suggest what he believes might have been found and
how it would have benefitted his case.
Based on the foregoing, Petitioner has failed to demonstrate that a continuance would
have benefitted his case. As such, he cannot establish that he was prejudiced by the trial court’s
decision to deny a continuance. Petitioner is not entitled to relief on this claim.

17

2. The prosecutor deliberately concealed a material witness until the day
of trial
Petitioner claims that the prosecutor violated his right to due process when he
intentionally concealed a material witness until the day of trial. Respondent argues that this
claim is without merit.
The TCCA considered this claim in connection with Petitioner’s post-conviction appeal:
The petitioner argues that he is entitled to a new trial because the prosecutor
deliberately concealed a material witness until the morning of trial, violating his
due process rights to a fair trial and prejudicing his defense. The post-conviction
court made the following findings of facts and conclusions of law with respect to
this claim:
Petitioner claims the prosecution failed to timely disclose as a witness an
inmate who had been in jail with Petitioner. This same issue was raised
on appeal in the context of the Trial Court erring by failing to grant a
continuance because the witness was not disclosed to Petitioner until the
morning of the first day of the trial. The Court of Criminal Appeals fully
addressed the State’s last minute disclosure of the witness, the reasons
for the State not disclosing the witness earlier, the steps taken by the
Court to minimize any prejudice to the defense, and whether the Court
erred in refusing to grant a continuance. The Court of Criminal Appeals
found no reversible error and affirmed the Trial Court. Petitioner’s
ground for relief related to prosecutorial misconduct is without merit
because the matter was previously determined by [the] Court of Criminal
Appeals.
We agree with the post-conviction court that the petitioner’s “prosecutorial
misconduct” claim was determined by this court on direct appeal when we
addressed whether the trial court erred by denying the motion for a continuance.
Accordingly, we conclude that the petitioner is not entitled to post-conviction
relief on the basis of this claim.
Cummins II, 2015 WL 4126737, at *6. With respect to the prosecutor’s behavior in revealing
that Mr. Smith would be added to the State’s witness list on the morning of trial, the TCCA
stated:
[T]he defendant has shown “[n]o prejudice, bad faith, or undue advantage” on the
part of the State. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992). Although the
18

inmate testified that he had informed an administrator at the prison regarding his
testimony approximately four months before the trial, it appears that the
prosecution was not actually aware of the inmate’s claims until the Friday before
trial, and the prosecution did not have the opportunity to fully interview him and
evaluate his potential as a witness until the day of trial, when it promptly
informed the defendant that the witness would be called. The defendant has not
shown that the State acted in bad faith or obtained an undue advantage. See
Underwood, 669 S.W.2d at 703 (“Although an officer apparently had known of
these witnesses for a considerable length of time, for various reasons, the district
attorney general had not.”).
As explained above on the morning of trial, the prosecutor revealed for the first time that
he intended to call Mr. Smith as a witness. In addition to setting forth the substances of Mr.
Smith’s testimony, the prosecutor also explained when and how he first learned about the
existence of Mr. Smith and his potential usefulness as a witness at trial.

The prosecutor

explained that:
I was called late Friday afternoon. It must have been after four o’clock,
and told that an inmate by the name of Brian Smith wished to talk to Chief Gerald
Baer, concerning Mr. Cummins’ case.
I asked Mr. Baer to get him out. He talked with him, called me back. I
went to the jail. Talked with Inmate Smith and Inmate Smith, basically, related
that he had overheard at least one and maybe two conversations in which Mr.
Cummins was bragging about this murder and -- and giving some detail, not
generally known to the public, about the murder.
Mr. Smith is serving a violation of probation. He lacks about a month
having his sentence expired. No -- no deal is in place with Mr. Smith by any
state, form, or fashion, other than he asked not to be housed with the Defendant, if
he was going to testify against him.
Given the lateness of the hour, I had to communicate this with General
Cooper and with some others in my office, and decide whether we wanted to even
try to use that, at this point.
There was certainly nothing Brady that he -- that he told me about, that
would have been exculpatory, that I would have had to have turned over, Judge.
This morning, logistically, was the first morning we could really sit down
and have a serious discussion with Mr. Smith, Inmate Smith.
19

And we have now decided that, yes, we would like to use him.
As soon as that decision was made, probably at ten o’clock this morning, I
made Mr. Butler aware that I was adding him to the witness list.
Now, I understand Mr. Butler now wants a continuance because of that.
The only -- the only other thing I would tell the Court in complete,
absolute candor is that Inmate Smith, about two months ago, related to members
at the jail, apparently, that he had overheard one of these conversations in which
Mr. Cummins was a participant, along with some others about the Beersdorf case.
And Your Honor may or may not be familiar with that.
But that there was an inmate at the jail that was going to be a witness for
the State in the Beersdorf case. And there was a discussion had concerning ways
that they might get him not to testify.
And that information was related to me by law enforcement personnel, but
it was it was -- it was concerning the Beersdorf case.
It wasn’t concerning this case.
I don’t know. I don’t have any idea -- I did not get any information
concerning statements made by the Defendant in this case. And I didn’t make any
notes about it and I have zero recollection.
So even though this reared its head in connection with the Beersdorf case,
several months ago, in absolute candor, it was nothing that was made known to
the State concerning Chris Cummins or what Chris Cummins would say.
(Doc. No. 14-2 at Page ID## 187-90.) The prosecutor reiterated and emphasized that nothing
Mr. Smith had to say was exculpatory and that the prosecutor had no obligation under state law
other than to place Mr. Smith on his witness list within a certain time-period, which the
prosecutor conceded was unavoidably violated. (See Id. at Page ID## 194, 200.)
Under Brady v. Maryland, 373 U.S. 83 (1963) “suppression by the prosecution of
evidence favorable to an accused . . . violates due process where the evidence is material, either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87. The Supreme Court has held that “[t]here are three components of a true Brady
20

violation:

[t]he evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999). Prejudice (and materiality) is established by showing that “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. at 281 (quoting Bagley, 473 U.S. at 682); see also
Cone v. Bell, 556 U.S. 449, 469-73. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Bagley, 473 U.S. at 682.
There is no reasonable basis from which to argue that Mr. Smith’s testimony was
exculpatory, it was anything but that, and Petitioner does not try. Thus, Petitioner cannot
establish a Brady violation. Even if Mr. Smith’s testimony were exculpatory, the Petitioner still
could not establish a Brady violation because, as thoroughly explained above, he cannot establish
that he was prejudiced by the late disclosure of Mr. Smith. Moreover, generally speaking, Brady
does not apply to delayed disclosure, but only to a complete failure to disclose. See United
States v. Davis, 306 F.3d 398, 421 (6th Cir.2002).
To the extent that Petitioner intends to argue that the prosecutor’s failure to disclose that
Mr. Smith would be called as a witness until the morning of trial violated a state or local rule of
procedure, he is not entitled to habeas relief. “[A] federal court may issue the writ to a state
prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.’” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (quoting 28 U.S.C. §
2254(a)). A habeas petition must “state facts that point to a ‘real possibility of constitutional
error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes
on Rule 4, Rules Governing Habeas Corpus Cases). The federal courts have no power to
21

intervene on the basis of a perceived error of state law. Wilson, 131 S. Ct. at 14; Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 67-68 (1991).
Based on the foregoing, Petitioner is not entitled to relief on this claim.
3. The prosecutor deliberately and improperly admitted evidence
regarding Petitioner’s prior bad acts
In his reply to Respondent’s answer to the petition, Petitioner appears to raise, for the
first time, a claim that the prosecutor violated his due process rights by deliberately and
improperly admitting evidence of Petitioner’s prior bad acts. 4 “[A] traverse or reply to an
answer to a habeas petition is not the proper pleading for a habeas petitioner to raise additional
grounds for relief. Burns v. Lafler, 328 F. Supp. 2d 711, 724 (E.D. Mich. 2004). A [federal
habeas] court cannot consider new issues raised in a traverse or reply to the State’s answer.” Id.
Moreover, even if the Court could consider a claim first raised in Petitioner’s reply, this
claim is procedurally defaulted. See Cone v. Bell, 243 F.3d 961, 967 (6th Cir. 2001) rev’d on
other grounds, 535 U.S. 635 (2002). (concluding that “[i]f the claims presented in the federal
court were never actually presented in the state courts, but a state procedural rule now prohibits
the state court from considering them, the claims are considered exhausted, but are procedurally
barred”); see also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (concluding that “[w]hen a
state-law default prevents the state court from reaching the merits of a federal claim, that claim
can ordinarily not be reviewed in federal court.”) In his reply, Petitioner recognizes that this
claim is procedurally defaulted, but relying on Martinez v. Ryan, 132 S.Ct. 1309 (2012) and its
progeny, argues that the ineffective assistance of his appellate and post-conviction counsel was
the cause for the procedural default of this claim. Once again, Petitioner cannot raise this claim
4

Respondent does not address this claim in his response.
22

for the first time in his reply, but even if he could he would not be entitled to relief. “Inadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial. Id. at 1315 (emphasis added). The
Sixth Circuit has strictly enforced the limitation on the scope of Martinez, explaining that “[w]e
will assume that the Supreme Court meant exactly what it wrote.” Hodges v. Colson, 727 F.3d
517, 531 (6th Cir. 2013) (holding that ineffective assistance of post-conviction counsel did not
excuse default of substantive mental-competence claim or of ineffective-assistance-of-appellatecounsel claim). 5 The claim Petitioner raises in his reply is a claim for prosecutorial misconduct
and not ineffective assistance of trial counsel. Thus, Martinez cannot save this claim. As such,
the Court cannot, and does not, consider it.
B. Ineffective Assistance of Counsel
Petitioner alleges that his trial counsel was ineffective for a number of reasons. In
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a twopart test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of
ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s performance fell
below an objective standard of reasonableness; and (2) that counsel’s deficient performance
prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court
considering a claim of ineffective assistance must “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
defendant bears the burden of overcoming the presumption that the challenged action might be
5

Very recently, the Supreme Court confirmed its hesitance to expand the scope of Martinez. See
Davila v. Davis¸137 S.Ct. 2058, 2065 (2017) (stating the “[p]etitioner asks us to extend Martinez
to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective
assistance of appellate counsel when a prisoner’s state postconviction counsel provides
ineffective assistance by failing to raise that claim. We decline to do so.”)
23

considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see
also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic
decisions were hard to attack). The court must determine whether, in light of the circumstances
as they existed at the time of counsel’s actions, “the identified acts or omissions were outside the
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court
determines that counsel’s performance was outside that range, the defendant is not entitled to
relief if counsel’s error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is
“doubly” deferential. Harrington, 562 U.S. at 105 (citing Mirzayance, 556 U.S. at 123); see also
Titlow, 134 S. Ct. at 13; Cullen, 563 U.S. at 189; Moore, 562 U.S. at 122.

In those

circumstances, the question before the habeas court is “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id.; Jackson v. Houk, 687 F.3d 723,
740-41 (6th Cir. 2012) (stating that the “Supreme Court has recently again underlined the
difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .”) (citing
Richter, 562 U.S. at 101-02).
Relying on the standard set forth in Strickland, the TCCA considered Petitioner’s
ineffective assistance of counsel claims as follows:
The petitioner argues on appeal that counsel was ineffective for not objecting to
evidence that the petitioner manufactured methamphetamine, for improperly
influencing the petitioner not to testify, and for not calling a witness from the jail
to contradict Brian Smith’s testimony that the petitioner showed him a photograph
of the victim’s body. The record, however, supports the post-conviction court’s
findings that the petitioner failed to show either a deficiency in counsel’s
performance or prejudice to the petitioner’s case. Trial counsel’s testimony,
which was accredited by the post-conviction court, established that counsel had
several discussions with the petitioner about testifying and advised him of the
24

reasons he thought he should not testify, but left the ultimate decision to the
petitioner. Trial counsel also explained that the methamphetamine evidence was
so intertwined with the facts of the case that he saw no way to exclude it from the
trial. As for counsel’s failure to call a witness to contradict Brian Smith’s
testimony that the petitioner showed him a photograph of the victim, counsel was
not even made aware of Mr. Smith’s existence until the morning of trial.
Furthermore, since Mr. Smith refused to talk to counsel, counsel had no way of
knowing in any detail what the substance of his testimony would be. In sum, the
petitioner has not met his burden of demonstrating that he was denied the
effective assistance of counsel. Accordingly, we conclude that the petitioner is
not entitled to post-conviction relief on the basis of this claim.
Cummins II, 2015 WL 4126737, at *5.
1. Trial Counsel was Ineffective for Failing to Object to the Admission of
Prior Bad Acts Evidence
Petitioner claims that his trial counsel was ineffective for failing to object to the
admission of prior bad acts evidence against Petitioner. Specifically, Petitioner argues that trial
counsel should have objected to testimony at trial related to his alleged use and production of
methamphetamine. Respondent argues that Petitioner is not entitled to relief on this claim.
There is no clearly established Supreme Court precedent that holds that a state court
violates the Due Process Clause by permitting propensity evidence in the form of other bad acts
evidence. In Estelle v. McGuire, the Supreme Court declined to hold that the admission of prior
acts evidence violated due process. Estelle, 502 U.S. at 75. The Court stated in a footnote that,
because it need not reach the issue, it expressed no opinion as to whether a state law would
violate due process if it permitted the use of prior crimes evidence to show propensity to commit
a charged crime. Id. at 75 n.5. While the Supreme Court has addressed whether prior acts
testimony is permissible under the Federal Rules of Evidence, see Old Chief v. United States,
519 U.S. 172 (1997); Huddleston v. United States, 485 U.S. 681 (1988), it has not explicitly
addressed the issue in constitutional terms. The Sixth Circuit has found that “[t]here is no clearly
25

established Supreme Court precedent which holds that a state violates due process by permitting
propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496,
512 (6th Cir. 2003).
Moreover, an inquiry whether evidence was properly admitted or improperly excluded
under state law “is no part of the federal court’s habeas review of a state conviction [for] it is not
the province of a federal habeas court to re-examine state-court determinations on state-law
questions.” Estelle, 502 U.S. at 67-68. Rather, “[i]n conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United
States.” Id. at 68. State-court evidentiary rulings cannot rise to the level of due process
violations unless they offend some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.
2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001).
Thus, this Court cannot inquire into the propriety of the state court’s admission of other acts
evidence.
Even if the Court could consider whether the prior bad acts evidence was improperly
admitted, and thus, whether trial counsel was ineffective for failing to object to the admission of
such evidence, Petitioner still would not be entitled to relief. First, trial counsel testified at the
post-conviction hearing that he had filed a motion to prevent the prosecutor from “bringing up
any prior bad acts or anything that [Petitioner] may have had in his past.” (Id.; see also Doc. No.
14-1 at Page ID# 94 (Petitioner’s request for hearing regarding the admissibility of prior bad acts
and convictions.) The record does not disclose whether a hearing was ever held on this motion
or what might have transpired during such a hearing, and neither party has endeavored to
enlighten the Court. Nevertheless, Petitioner is not entitled to habeas relief on this claim because
26

the evidence was clearly admissible. Even if the evidence was not admissible and counsel failed
to object, and such a failure amounted to deficient performance, Petitioner has not established
prejudice.
“Evidence of other crimes, wrongs, or acts” is inadmissible character evidence if offered
to show a defendant’s “action in conformity with [a] character trait.” Tenn. R. Evid. 404(b);
State v. Parton, 694 S.W.2d 299, 654 (Tenn. 1997). “The terms of this rule establish that
character evidence cannot be used to prove that a person has a propensity to commit a crime.”
State v. McCary, 119 S.W.3d 226, 243 (Tenn.Crim.App. 2003) (citing State v. Adkisson, 899
S.W.2d 626 (Tenn.Crim.App.1994)). Yet, such evidence of other acts may be admissible for
other non-propensity purposes, such as “to establish motive, intent, identity, absence of mistake,
or common plan or scheme” or “contextual background.” State v. Little, 402 S.W.3d 202, 210
(Tenn. 2013).
As the TCCA noted, Petitioner’s counsel testified at the state post-conviction hearing that
testimony regarding Petitioner’s production and use of methamphetamine “was so intertwined in
these facts that I really didn’t see any way that that could be taken out.” (Doc No. 14-16 at Page
ID# 1292; see also Cummins II, 2015 WL 4126737, at *5. The state post-conviction court noted
that there was testimony at trial that Petitioner’s methamphetamine production and use was
causing marital difficulties and that his wife, Krystal Cummins, had threated to leave him if he
did not stop using and making methamphetamine.

(Doc. No. 14-15 at Page ID# 1202.)

Additionally, Ms. Cummins testified that she had asked the victim, who was also the father of
Ms. Cummins two young children, to help her dispose of items that Petitioner used to make
methamphetamine. (Id.) Ms. Cummins testified that a week before the victim was killed, she
and the victim had taken and buried Petitioner’s methamphetamine making supplies so that he
27

could not find them in an effort to stop him from using them, and that Petitioner was angry with
her and the victim as a result. (Doc. No. 14-2 at Page ID# 284-88.) Ms. Cummins also testified
that the victim was at her home on the day he was killed because he was helping her to leave
Petitioner because he would not stop making and using methamphetamine. (Doc. No. 14-2 at
Page ID# 290-293.)
Although it is unclear whether the trial court held the required hearing under 404(b), 6
there is ample reason to believe that if such a hearing was held, the trial court found the evidence
admissible. At a minimum, Ms. Cummins’ testimony about Petitioner’s use and production of
methamphetamine set the contextual background for the events that ultimately transpired. Ms.
Cummins testimony explained why she wanted to leave Petitioner, why the Petitioner might have
wanted to kill the victim and why the victim was present at the Cummins’ home on the day that
he was killed. Further, the TCCA concluded that Petitioner’s counsel was not ineffective for
failing to object to the admission of the testimony regarding methamphetamine.
Even if the Court were to assume that trial counsel was deficient for not objecting to the
admission of the prior bad acts evidence, Petitioner has failed to establish prejudice. There was
ample evidence at trial to establish that the Petitioner killed the victim. See Doc. No. 14-2 at
Page ID## 293-305 (testimony of Krystal Cummins describing the murder); Doc. No. 14-4 at
Page ID# 506 (testimony of Sergeant Cody Mayes with the Wayne County Sheriff’s Department
regarding blood in the trunk of Petitioner’s car); Id. at Page ID## 541-43 (testimony of Diane

6

To determine the admissibility of evidence under Tenn. R. Evid. 404(b), the trial court must (1)
hold a hearing upon request outside the jury’s presence; (2) determine that a material issue exists,
other than conduct conforming with a character trait and upon request that on the record the
material issue, the ruling and the reasons for admitting the evidence; and (3) exclude the
evidence if its probative value is outweighed by the danger of unfair prejudice.
28

Lay identifying Petitioner as the owner of the car in which the blood was found); Id. at Page
ID## 544-550 (testimony of David Miller preacher and employee of the Indian Creek Baptist
Association regarding Petitioner’s break-down at Grace Baptist Church); Id. at Page ID## 584634 (testimony of Investigator Kenneth Martin with the Wayne County Sheriff’s Department
regarding Krystal Cummins efforts to corroborate her statements to the police about how and
why the victim was killed and the events that took place before and after the victim’s death).
Thus even if trial counsel was deficient for failing to keep the methamphetamine testimony out,
Petitioner has not demonstrated how this evidence prejudiced his case. Petitioner is not entitled
to relief on this claim.
2. Improperly Influencing Petitioner Not to Testify
Petitioner claims that his trial counsel improperly influenced him not to testify at trial.
Respondent argues that this claim is without merit.
In United States v. Stover, 474 F.3d 904 (6th Cir. 2007), the Sixth Circuit stated:
Although the ultimate decision whether to testify rests with the defendant, when a
tactical decision is made not to have the defendant testify, the defendant’s assent
is presumed. United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). . . .
Barring any statements or action from the defendant indicating disagreement with
counsel or the desire to testify, the trial court is neither required to sua sponte
address a silent defendant and inquire whether the defendant knowingly and
intentionally waived the right to testify, nor insure that the defendant has waived
the right on the record. Joelson, 7 F.3d at 177. See also United States v. Ortiz, 82
F.3d 1066, 1069 n. 8 (D.C. Cir. 1996) (noting the agreement of the First, Third,
Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits that the trial court does not
have a duty to sua sponte conduct an on-the-record colloquy regarding waiver)
A defendant who wants to testify can reject defense counsel’s advice to the
contrary by insisting on testifying, communicating with the trial court, or
discharging counsel. Joelson, 7 F.3d at 177. At base, a defendant must “alert the
trial court” that he desires to testify or if there is a disagreement with defense
counsel regarding whether he should take the stand. Pelzer [v. United States, 105
F.3d 659 (Table), 1997 WL 12125, at * 2 (6th Cir. Jan. 13, 1997) (unpublished)].
When a defendant does not alert the trial court of a disagreement, waiver of the
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right to testify may be inferred from the defendant’s conduct. Waiver is presumed
from the defendant’s failure to testify or notify the trial court of the desire to do
so. Joelson, 7 F.3d at 177.
Stover, 474 F.3d at 908-09 (quoting United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000)).
Prior to accepting Petitioner’s waiver of his right to testify, the trial court conducted a
Momon hearing 7 in which trial counsel engaged in a colloquy on the record, but outside the
presence of the jury, with Petitioner to ensure that Petitioner’s was knowingly and voluntarily
waiving his right to testify. (See Doc. No. 14-7 at Page ID## 855-59.) At that hearing, in which
the Petitioner was placed under oath, Petitioner conceded that he understood that he had a
constitutionally protected right to testify, that he had discussed his right to testify with trial
counsel, that he understood that he alone had the right to decide whether he testified and that he
understood that the jury would be instructed not to consider his failure to testify for any purpose.
(Doc. No. 14-7 at Page ID## 856-59.) The court took a lunch break before concluding the
Momon hearing so that trial counsel and Petitioner could discuss one more time whether, in light
of the evidence presented in the State’s case in chief, Petitioner should testify. (Id. at Page ID#
859.) Upon returning to court and while still under oath, the trial court asked Petitioner whether
he intended to testify and Petitioner responded, “I have decided not to testify.” (Id.) The trial
court further asked Petitioner whether he understood that he had a right to testify and whether he
was deciding not to testify of his own free well, to which Petitioner responded, “Yes.” (Id. at
Page ID# 860.)
7

In Momon v. State of Tennessee, 18 S.W. 3d 152 (Tenn. 2000) the Tennessee Supreme Court
recognized that “the right of a criminal defendant to testify in his or her own behalf is a
fundamental constitutional right.” Id. at 161. Accordingly, the court held that, “the right may
only be waived personally by the defendant.” Id. Because the right to testify is both fundamental
and personal, it “may only be waived if there is evidence in the record demonstrating ‘an
intentional relinquishment or abandonment of a known right or privilege.’” Id. at 162 (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
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Moreover, trial counsel testified at the post-conviction hearing that he met with Petitioner
several times to discuss whether Petitioner should testify. (Doc. No. 14-16 at Page ID## 130809.) Trial counsel explained that he recommended that Petitioner should not testify because
Petitioner had already provided two inconsistent statements to law enforcement officers, and
counsel was concerned that Petitioner’s trial testimony would amount to yet another inconsistent
statement. (Id. at Page ID## 1309-10.) Additionally, Petitioner had thirty-four convictions for
forgery and counsel feared that the prosecutor would “beat [Petitioner] over the head with them”
during cross-examination. (Id. at Page ID# 1309.) Trial counsel testified that although he
recommended that Petitioner not testify, he left the decision up to Petitioner. (Id. at Page ID##
1340-41.) Although Petitioner faulted trial counsel for not preparing him to testify, (Id. at Page
ID## 1285-86), he conceded that he advised the trial court under oath that he had decided not to
testify and that he had not been coerced to give up his right to testify (Id. at Page ID #1287.)
The state court reasonably determined that trial counsel was not deficient in advising the
Petitioner regarding whether or not he should testify. Despite having ample opportunity to do so,
Petitioner did nothing to alert the court to his desire to testify. Furthermore, Petitioner testified
under oath during the Momon hearing and unequivocally expressed his intention not to testify.
Although Petitioner seeks to disavow his decision not to testify, he cannot do so. “[S]olemn
declarations in open court carry a strong presumption of verity,” Blackledge v. Allison, 431 U.S.
63, 74 (1977), and the Court is entitled to rely on those statements and the testimony of trial
counsel.

Petitioner has failed to establish that counsel was deficient in connection with

Petitioner’s decision not to testify.
Even if counsel had been deficient however, Petitioner does not offer any evidence to
suggest how his case was prejudiced by his failure to testify. As noted above, there was ample
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evidence to convict Petitioner and Petitioner does not suggest how his failing to testify might
have altered the outcome of the trial. Petitioner is not entitled to relief on this claim.
3. Failure to Call a Witness from the Jail to contradict Brian Smith’s
Testimony that Petitioner showed him Photographs of the Victim’s
Body
Petitioner claims that his trial counsel was ineffective for failing to obtain testimony from
someone familiar with jail policy to rebut Mr. Smith’s testimony that Petitioner showed him
pictures of the victim’s skeleton. Petitioner contends that jail policy would have prohibited him
from keeping pictures depicting the victim’s remains however, Petitioner has never produced any
evidence of such a policy or a witness who could have testified about such a policy, despite
being represented by counsel at the post-conviction hearing. Moreover, trial counsel impeached
Mr. Smith by establishing that Mr. Smith had been convicted of a crime of dishonesty (Doc. No.
14-5 at Page ID# 673) and that Mr. Smith was hostile toward Petitioner because of an incident
that took place while they were incarcerated together (Id. at Page ID## 674-76.) Trial counsel
also attempted to catch Mr. Smith in a lie when he asked whether Petitioner had shown him color
pictures or black and white pictures, because trial counsel knew that Petitioner had received only
a black and white photocopy of the discovery in his case. (Id. at Page ID# 676.) Trial counsel
also obtained the testimony of Mr. Holt, who testified that Mr. Smith did not know anything
about Petitioner’s case, and Mr. Beersdorf, although his testimony is unknown there is no
evidence that Mr. Beersdorf corroborated Mr. Smith’s testimony. (See Doc. No. 14-16 at Page
ID# 1364.)
Petitioner has failed to demonstrate that counsel was deficient for not obtaining a witness
to testify about jail policy regarding prisoners keeping pictures of their victim’s and, as such, he
has failed to establish entitlement to relief.
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VI

CONCLUSION
For the foregoing reasons, the habeas corpus petition will be denied and this matter

dismissed with prejudice.
The Court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a § 2254 petitioner. Rule 11, Rules Gov’g § 2254 Cases. Petitioner may not
take an appeal unless a district court judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App.
P. 22(b)(1). A COA may issue only if Petitioner “has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” is made when
Petitioner demonstrates that “’reasonable jurist could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different matter or that the issues presented were
“adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000).)
In this case, the issues raised in the petition do not merit further review. Thus, the Court
will deny a COA. Petitioner may, however, seek a COA directly from the Sixth Circuit Court of
Appeals. Rule 11(a), Rules Gov’g § 2254 Cases.
An appropriate order is filed herewith.

___________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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