Cross v. Lee

Filing 19

REPORT AND RECOMMENDATION re 14 MOTION for Leave to to File an Amended Petition for Writ of Habeas Corpus and Memorandum of Law filed by Shaun R. Cross. For these reasons, the Magistrate Judge RECOMMENDS that the Petitioner's Motion for Leave to File an Amended Petition (Doc. No. 14) be DENIED. The parties have fourteen (14) days after being served with a copy of this Report and Recommendation (R&R) to serve and file written objections to the findings and recommendation proposed h erein. A party shall respond to the objecting party's objections to this R&R within fourteen (14) days after being served with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal. Signed by Magistrate Judge Joe Brown on 8/30/2018. (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
SHAUN CROSS,
Petitioner,
v.
RANDY LEE, WARDEN,
Respondent.

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No. 1:17-cv-00066
Judge Campbell/Brown

To: The Honorable William L. Campbell, Jr., United States District Judge
REPORT AND RECOMMENDATION
Petitioner Shaun Cross, a state prisoner at the Trousdale Turner Correctional Center in
Hartsville, Tennessee, filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254.
This matter is before the Court on Petitioner’s Motion for Leave to File an Amended Petition.
(Doc. No. 14). The Respondent filed a response in opposition. (Doc. No. 15). For the reasons set
forth below, the Magistrate Judge RECOMMENDS that the Petitioner’s Motion for Leave to File
an Amended Petition (Doc. No. 14) be DENIED.
I. FACTS AND PROCEDURAL BACKGROUND
The Circuit Court for Marshall County, Tennessee, succinctly summarized the factual
background in Petitioner’s state criminal case as follows:
The Defendant [Shaun Cross] was one of several defendants charged in connection
with a drug deal that was aborted when the drug dealers became suspicious that a
sale of cocaine to an individual in Marshall County might have been arranged by a
CI. The Defendant was a passenger in a vehicle which was delivering an ounce of
cocaine to a CI for $1,400.00. When the vehicle approached the prearranged
exchange site, the dealers suddenly drove off without effectuating the sale. The car
was subsequently stopped and Ms. Laura Carter was found to be in possession of
26.93 grams of cocaine, which she said the Defendant had handed to her when the

stop occurred. Ms. Carter had brokered the deal between the Defendant and the CI.
Another defendant was tried and convicted by a jury.
(Doc. No. 11-1 at 73).
A grand jury indicted Petitioner on one count of possession with intent to sell 26 grams or
more of cocaine, and one count of possession with intent to deliver 26 grams or more of cocaine.
(Id. at 39–42). The court appointed attorney Debbie Zimmerle (“original counsel”) to represent
Petitioner. (Doc. No. 1 at 2; Doc. No. 11-1 at 39–42). At some point, Petitioner’s family hired
attorney Brock Parks (“successor counsel”) to represent Petitioner as well. (Doc. No. 1 at 2; Doc.
No. 11-2 at 48).
On October 2, 2014, Petitioner pleaded guilty to the charge for possession with intent to
sell, and the state dismissed the charge for possession with intent to deliver. (Doc. No. 11-1 at 4142). As part of the plea agreement, Petitioner agreed to serve a sentence of 25 years’ imprisonment
as a persistent offender. (Id. at 39, 42). At the plea acceptance hearing, the trial court judge
explained what the state would be required to prove to convict Petitioner of possession with intent
to sell 26 grams or more of cocaine. (Doc. No. 11-3 at 12–14). Among other things, the judge
specifically explained that the state would have to prove that Petitioner “knowingly possessed
cocaine.” (Id. at 12). The judge stated:
There are two kinds of possession in the law: Actual and constructive. A person
who has direct, physical control over an object at a given time is in actual possession
of it. If you had the cocaine in your right hand, you have actual, direct possession
of it.
On the other hand, a person who does not have actual possession, but knowingly
has both the power and the intention at a given time to exercise dominion and
control over an object is then in constructive possession of it. So, two ways to have
possession of that cocaine.

2

(Id. at 13). Petitioner testified that he did not have any questions about the judge’s explanation of
the state’s burden of proof to convict him of possession with intent to sell. (Id. at 13–14). The state
presented a factual basis for the plea, and the judge then questioned Petitioner as follows:
Q.

All right. You were there that day. You were the one bringing the cocaine.
The deal was brokered by Ms. Carter, okay, but you were the source of the
cocaine. You then handed it off to her to conceal it when y’all realized
something was up, right?

A.

(Witness nodded head.)

Q.

Okay. So, you were in possession of it, and you were there for the purpose
of selling it?

A.

Yes, sir.

Q.

That’s why you were possessing that dope on that occasion, right?

A.

Yes, sir.

Q.

Do you have any doubt that it was over 26 grams?

A.

No, sir.

Q.

Okay. All right. So, you see how what you did fits the elements of the
crime?

A.

Yes, sir.

Q.

Okay. All right. Have you and your attorneys discussed privately, before
today, the definitions of possession for sale or resale and possession for
delivery of a Schedule II controlled substance?

A.

Yes, sir.

Q.

Okay. Have you and your attorneys discussed privately, before today, the
proof that the State of Tennessee says they have against you in these cases?

A.

Yes, sir.

Q.

And have you and the Public Defender, I mean, have you and your
attorneys discussed privately, before today, the punishment you might face
if you went to trial and were convicted of one or both of these two charges
against you?
3

A.

Yes, sir.

(Id. at 17–19). The judge also asked Petitioner if anyone threatened him “in any way to get [him]
to take the deal,” and Petitioner responded “No, sir.” (Id. at 23). The judge then accepted
Petitioner’s guilty plea after finding that there was a factual basis for the plea, that Petitioner was
competent to enter the plea, and that Petitioner entering the plea knowingly, voluntarily, and
understandingly. (Id. at 25–26).
On September 21, 2015, the Marshall County Circuit Court received Petitioner’s pro se
state post-conviction petition. (Doc. No. 11-1 at 3–22). Petitioner asserted the following claims in
the pro se petition: (1) his guilty plea was involuntary because it was induced by original counsel
Debbie Zimmerle’s statement that, if he did not plead guilty, he would be “faced with an all[]white jury . . . And they are going to hang you”; (2) his counsel were ineffective in their
investigation and preparation for trial; (3) his counsel were ineffective in their preparation “to
present mitigating factors at sentencing hearing”; (4) his counsel were ineffective during plea
negotiations; and (5) his conviction was unconstitutional due to the cumulative effect of the errors.
(Id. at 15–20). The court appointed attorney Wesley Hall, IV (“post-conviction counsel”) to
represent Petitioner. (Id. at 56–57).
The court held an evidentiary hearing on March 11, 2016,1 at which post-conviction
counsel stated that he would focus on Zimmerle’s alleged statement to Petitioner about the
consequences of failing to plead guilty; specifically, whether the statement “fell below the
objective standard of reasonableness,” and undermined Petitioner’s ability to “make an intelligent

1

An order setting the evidentiary hearing reflects that Petitioner’s pro se post-conviction petition “was amended by
appointed counsel” (Doc. No. 11-1 at 58), but there is not a separate document styled as an amended post-conviction
petition in the technical record filed by the Respondent. Further, the Memorandum Opinion ruling on the postconviction petition does not refer to any amended petition. (See id. at 73–80). Accordingly, the Court infers that
Petitioner’s initial pro se post-conviction petition was the operative petition in the Marshall County Circuit Court.

4

decision regarding a plea offer.” (Doc. No. 11-2 at 5). The Tennessee Court of Criminal Appeals
(“TCCA”) summarized the hearing testimony as follows:
Original counsel [Debbie Zimmerle] testified that she was appointed to represent
the Petitioner. Original counsel recalled discussing the facts of the case with the
Petitioner, reviewing the discovery materials with him, and discussing with him the
fact that he had enough prior convictions to qualify as a career offender. Original
counsel advised the Petitioner that he faced a minimum sentence of thirty years to
be served at sixty percent if convicted at trial. Original counsel testified that the
Petitioner understood and wanted to go forward with a jury trial.
Original counsel admitted that during these initial discussions, she spoke to the
Petitioner about the possible composition of the jury, the demographics of Marshall
County, and that, in her opinion, Marshall County was “a particularly conservative
jurisdiction.” Original counsel denied that she told the Petitioner that “he was going
to get an all-white jury.” She also denied that she told the Petitioner that the jury
would “hang” him, stating that she did not “think [she] would use a term like that .
. . [e]ven figuratively.” Original counsel testified that after her discussion with the
Petitioner about the possible composition of the jury, “he still chose to go forward
with a jury trial.”
As the trial date neared, the Petitioner’s family hired a different attorney to
represent him. Due to the closeness of the scheduled trial date, the trial court
ordered original counsel to continue to represent the Petitioner and to assist
successor counsel [Brock Parks] in preparing for trial. Original and successor
counsel then received supplemental discovery from the State. The supplemental
discovery included recordings of phone calls the Petitioner had made from jail.
Both original and successor counsel reviewed the recordings and discussed them
with the Petitioner.
Original counsel believed that the recordings were “very incriminating.” Original
counsel recalled that the recordings contained “an admission” by the Petitioner that
was “pretty close to a confession.” After reviewing the recordings, the Petitioner
wanted to reopen plea negotiations. Original counsel testified that “it was not until
[they] received [the] supplemental discovery that [the Petitioner] chose to enter the
plea.” Given the nature of the supplemental discovery, the trial court broke with its
normal policy and allowed the Petitioner to enter a guilty plea a few days before
the scheduled trial date.
Successor counsel recalled that the Petitioner raised “the issue of the jury and jury
makeup” and that they had “a discussion about just juries in general.” However,
successor counsel did not recall the Petitioner’s ever stating to him that original
counsel had “made the statement that he’d be tried by an all-white jury.” Successor
counsel testified that had the Petitioner made such a claim he would have, “[a]t a
minimum,” spoken to original counsel about it. Furthermore, successor counsel
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testified that the Petitioner wanted to proceed to trial even after their discussion
about juries.
Successor counsel testified that it was only after they had received and reviewed
the supplemental discovery that the Petitioner decided to plead guilty. Successor
counsel agreed with original counsel’s assessment of the recordings. Successor
counsel testified that the recordings were “a hurdle too high to overcome given the
risk involved.” Successor counsel negotiated the plea agreement with the State and
was able to get the State to reduce its original offer of a thirty-year sentence to be
served at sixty percent to a sentence of twenty-five years to be served at forty-five
percent. Successor counsel testified that he was not able to attend the plea
submission hearing, but that he reviewed the plea agreement with the Petitioner
before the hearing.
The Petitioner claimed that his family hired successor counsel because original
counsel urged him to accept the plea offer of twenty-five years. The Petitioner
further claimed that he did not want to accept the plea agreement because he “wasn't
in possession of the drugs.” Contrary to the testimony of original and successor
counsel, the Petitioner testified that he accepted the plea offer after original counsel
told him “it was going to be an all-white jury” and that he “was going to be found
guilty if [he] went to trial.” The Petitioner denied that he pled guilty because of the
recordings of his jail phone calls. However, the Petitioner admitted that original
counsel’s alleged statement about the possible jury composition was not the only
reason that he pled guilty.
The Petitioner claimed that he told successor counsel about the “all-white jury”
comment but that successor counsel “never responded on it.” The Petitioner
admitted that he told the trial court during the plea submission hearing that he was
satisfied with the performance of both original and successor counsel. The
Petitioner also admitted that he told the trial court that no one had threatened him
into pleading guilty. The Petitioner claimed that he did not tell the trial court about
original counsel’s alleged threat because “it was [a] no-win situation.”
Cross v. State of Tennessee, No. M2016–01578–CCA–R3–PC, 2017 WL 2782200, at *1–2 (Tenn.
Crim. App. June 27, 2017).
On June 21, 2016, before ruling on the post-conviction petition, the Marshall County
Circuit Court received Petitioner’s pro se “Motion to Reconsider Post Conviction.” (Doc. No. 111 at 64–70). Along with the pro se motion, Petitioner submitted a handwritten, signed, and
notarized statement from co-defendant Laura Carter, stating: “I claim the ounce as mine, I’m doing
time for it. It was on me and I’m writing you this to let you know I’m the guilty on fascilitation
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possession [sic]. You not guilty on having an ounce—I am. This is my statement.” (Doc. No. 111 at 71 (emphasis in original)). Carter’s statement was dated February 17, 2016. (Doc. No. 11-1 at
71). Relying on this statement, Petitioner argued that his guilty plea was not knowing and
voluntary, and that counsel were ineffective for allowing him to enter the plea agreement. (Doc.
No. 11-1 at 65–69).
On June 30, 2016, the court denied Petitioner’s state post-conviction petition. (Doc. No.
11-1 at 81). The TCCA summarized the trial court’s ruling as follows:
[T]he post-conviction court accredited the testimony of original and successor
counsel over the Petitioner’s testimony. The post-conviction court found that
original counsel never made the threatening statements claimed by the Petitioner.
Furthermore, the post-conviction court concluded that the Petitioner had failed to
show that he pled guilty because of the alleged statements. The post-conviction
court found that the Petitioner chose to accept the plea agreement after he received
the incriminating recordings of his jail phone calls.
Cross, 2017 WL 2782200, at *1–2.
On July 8, 2016, the trial court dismissed Petitioner’s pro se motion to reconsider because
it did not demonstrate any of the three grounds2 necessary to “reopen[] the evidence at the
evidentiary hearing on a petition for post-conviction relief.” (Doc. No. 1 at 14).3 On July 29, 2016,
Petitioner filed a Notice of Appeal. (Doc. No. 11-1 at 82–83). In a letter from his post-conviction
counsel to Petitioner dated August 1, 2016, his post-conviction counsel stated, “I have filed your

2
Under Tenn. Code Ann. § 40-30-117(a), a motion to reopen a post-conviction proceeding is “only available when
the petitioner can establish by clear and convincing evidence that either (1) an appellate court has made a final ruling
recognizing a new constitutional right that requires retroactive application; (2) new scientific evidence has come to
light that establishes the petitioner is ‘actually innocent of the offense or offenses for which the petitioner was
convicted;’ or (3) the petitioner’s sentence was enhanced due to a previous conviction which was later found to be
invalid.” Keen v. State of Tennessee, 398 S.W.3d 594, 607 (Tenn. 2012) (quoting Tenn. Code Ann. § 40-30-117(a)(2)).
“The petitioner must assert a sufficient factual basis for his claim that, if taken as true, would establish that he is
entitled to relief.” Wren v. State of Tennessee, No. W2017-00500-CCA-R3-PC, 2017 WL 4331054, at *2 (Tenn. Crim.
App. Sept. 28, 2017) (citing Tenn. Code Ann. § 40-30-117(a)(4), (b)).
3

The order dismissing Petitioner’s pro se motion to reconsider is not in the technical record filed by the Respondent,
but Petitioner attached it to the pro se habeas corpus petition in this Court. The technical record does, however, include
an order setting a hearing on Petitioner’s pro se motion to reconsider for July 8, 2016. (Doc. No. 11-1 at 72). The date
and subject matter of this scheduling order is consistent with the order attached to the habeas petition.

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Notice of Appeal . . . . We will aver that the trial court erred in not reopening your petition or in
not reconsidering new proof in your post-conviction petition.” (Doc. No. 1 at 15).
On June 27, 2017, the TCCA affirmed the denial of Petitioner’s state post-conviction
petition. (Doc. No. 11-6 at 1–3); Cross, 2017 WL 2782200. In doing so, the TCCA stated that the
“gravamen” of Petitioner’s post-conviction petition “was that the Petitioner had been ‘terrorized’
into pleading guilty when one of his trial attorneys threatened him by stating that he would face
‘an all[-]white jury’ that would ‘hang’ him if he did not accept the State’s plea offer.” Id. at *1.
The TCCA recognized that “[t]he petition raised other grounds for post-conviction relief,” but
noted that this ground was “the main issue addressed at the post-conviction hearing and the only
issue raised on appeal. Additionally, the Petitioner’s post-conviction counsel at the post-conviction
hearing and on appeal couched this issue as one of ineffective assistance of counsel, unlike the pro
se petition.” Id. at *1 n.1. Ultimately, the TCCA held that “[t]here [was] no proof in the record
before us that would preponderate against” the post-conviction court’s decision to credit “the
testimony of original and successor counsel that the statements alleged in the petition were never
made.” Id. at *3. “Furthermore,” the TCCA held, “the evidence at the post-conviction hearing
established that the Petitioner chose to plead guilty after reviewing the State’s supplemental
discovery.” Id. Petitioner did not file an application for permission to appeal the denial of his postconviction petition in the Tennessee Supreme Court. (Doc. No. 1 at 4).
On July 17, 2017, this Court received Petitioner’s pro se habeas corpus petition under 28
U.S.C. § 2254. (Doc. No. 1). On October 16, 2017, Respondent filed an Answer, arguing that
Petitioner’s claims are either procedurally defaulted or not cognizable, and that Petitioner requests
relief that is not available in federal habeas corpus proceedings. (Doc. No. 12 at 12–17).

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On December 12, 2017, the Court received Petitioner’s Motion for Leave to File an
Amended Petition (Doc. No. 14), with an attached Amended Petition for the Great Writ of Habeas
Corpus Relief and Memorandum of Law (Doc. No. 14-1). Petitioner seeks to add a range of claims
for ineffective assistance of counsel—at trial, on post-conviction initial review, and on postconviction appeal. (Doc. No. 14 at 1–2). The Respondent filed a response in opposition, arguing
that amendment would be futile because Petitioner’s proposed claims are either procedurally
defaulted or without merit. (Doc. No. 15 at 3).
II. STANDARD OF REVIEW
Rule 15 of the Federal Rules of Civil Procedure governs the amendment of habeas corpus
petitions in federal court. Mayle v. Fenix, 545 U.S. 644, 655 (2005). Under Rule 15(a)(1), a party
may “amend its pleading once as a matter of course” within either 21 days of serving it, or 21 days
after the opposing party files a response or motion. “In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). Where, as here, the opposing party does not give written consent, district courts should
“freely give leave when justice so requires.” Id. In determining whether justice requires the court
to grant leave to amend a habeas petition, “courts consider several factors, including ‘undue delay
in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to
cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of
amendment.’” Oleson v. United States, 27 F. App’x 566, 569 (6th Cir. 2001) (quoting Coe v. Bell,
161 F.3d 320, 341 (6th Cir. 1998)).
III. ANALYSIS
Respondent argues that Petitioner’s motion to amend raises claims that are futile because
they are procedurally defaulted and without merit. (Doc. No. 15 at 3). To obtain relief through a

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habeas corpus petition, a state prisoner generally must exhaust all available state remedies. 28
U.S.C. § 2254(b); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The exhaustion requirement “is
satisfied ‘when the highest court in the state in which the petitioner was convicted has been given
a full and fair opportunity to rule on the petitioner’s claims.’” Kelly v. Lazaroff, 846 F.3d 819, 827
(6th Cir. 2017) (quoting Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990)). As the Sixth
Circuit has explained, this “requires that the same claim under the same theory be presented to the
state courts before raising it in a federal habeas petition.” Wagner v. Smith, 581 F.3d 410, 417 (6th
Cir. 2009) (citations omitted). In Tennessee, a petitioner will “be deemed to have exhausted all
available state remedies for that claim” when the claim is presented to the Tennessee Court of
Criminal Appeals. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct.
R. 39).
Here, Petitioner has only exhausted one claim in the state courts—a claim for ineffective
assistance of trial counsel based on original counsel Debbie Zimmerle’s alleged statement that, if
he did not plead guilty, he would face an all-white jury that would hang him. As the TCCA
explained in affirming the denial of Petitioner’s state post-conviction petition, this alleged
statement was the “only issue raised on appeal,” and Petitioner’s post-conviction counsel “couched
this issue as one of ineffective assistance of counsel, unlike the pro se petition.” Cross, 2017 WL
2782200, at *1 n.1. This description is supported by the Petitioner’s post-conviction appellate
brief, which argues only that Petitioner’s trial counsel was ineffective in “guiding him with regard
to entering a plea of guilty” because he “would have followed through with his trial had it not been
for the fear elicited by the racial composition commentary from” Zimmerle. (Doc. No. 11-4 at 13–
14). The TCCA affirmed the trial court’s denial of this claim, holding that there was not any “proof
in the record . . . that would preponderate against” the trial court’s finding that “the statements

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alleged in the petition were never made.” Cross, 2017 WL 2782200, at *3. The TCCA also found
that “the evidence at the post-conviction hearing established that the Petitioner chose to plead
guilty after reviewing the State’s supplemental discovery.” Id. Accordingly, this is the only claim
that has been adequately exhausted.
A claim may be “technically exhausted, yet procedurally defaulted” where “a petitioner
fails to present a claim in state court, but that remedy is no longer available to him.” Atkins v.
Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones v. Bagley, 696 F.3d 475, 483–84 (6th
Cir. 2012)). Because Petitioner may not file “more than one (1) petition for post-conviction relief
. . . attacking a single judgment,” Tenn. Code Ann. § 40-30-102(c), the proposed claims in his
motion to amend are procedurally defaulted.
Petitioner’s proposed claims all relate to ineffective assistance of counsel, and they are
generally based on the same premise—that he did not possess the cocaine. Petitioner seeks to add
claims that his trial counsel was ineffective in four ways: first, by failing to advise him that “his
mere presence as a passenger in a car from which the police recover contraband . . . does not
establish possession”; second, by coercing Petitioner to plead guilty when they should have known
that the cocaine “was in the sole possession of Laura Carter”; third, by “threaten[ing] him” that he
would “get 30 years at 60%” if he went to trial; and fourth, by failing to present Carter’s February
2017 statement to the trial court before he pleaded guilty in October 2014. (Doc. No. 14 at 1–2;
Doc. No. 14-1 at 2). Petitioner also seeks to add claims that post-conviction counsel was
ineffective, both at the post-conviction trial court and on post-conviction appeal, for failing to
argue that trial counsel were ineffective for coercing Petitioner to plead guilty when they should
have known Carter solely possessed the cocaine. (Doc. No. 14 at 1). As to his post-conviction
appeal, Petitioner asserts that counsel was ineffective in two additional ways: first, by failing to

11

present the claim that his plea was not knowing and voluntary; and second, by failing to present
evidence of Carter’s February 2017 statement. (Doc. No. 14-1 at 2).
In order to overcome the procedural default of Petitioner’s proposed claims, he must
“establish ‘cause’ and ‘prejudice,’ or a ‘manifest miscarriage of justice.’” Middlebrooks v.
Carpenter, 843 F.3d 1127, 1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790–
91 (6th Cir. 2014)). “Habeas petitioners cannot rely on conclusory assertions of cause and
prejudice to overcome procedural default; they must present affirmative evidence or argument as
to the precise cause and prejudice produced.” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir.
2006) (citing Tinsley v. Million, 399 F.3d 796, 806 (6th Cir. 2005)).
Petitioner argues that his post-conviction counsel’s ineffectiveness is cause to excuse the
procedural default of these claims. (Doc. No. 14-1 at 4–5). Typically, “attorney error committed
in the course of state postconviction proceedings . . . cannot supply cause to excuse a procedural
default that occurs in those proceedings.” Davila v. Davis, 137 S. Ct. 2058, 2065 (2017)
(discussing Coleman v. Thompson, 501 U.S. 722, 755 (1991)). In Martinez v. Ryan, however, the
Supreme Court announced a narrow exception to this rule in circumstances “where state law
requires prisoners to raise claims of ineffective assistance of trial counsel ‘in an initial-review
collateral proceeding,’ rather than on direct appeal.” Id. (discussing Martinez v. Ryan, 566 U.S. 1,
16–17 (2012)). “[I]n those situations, ‘a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if’ the default results from the
ineffective assistance of the prisoner’s counsel in the collateral proceeding.” Id. (quoting Martinez,
566 U.S. at 17).
Thus, although Petitioner seeks to use the narrow exception established in Martinez to
demonstrate cause for the procedural default of all of his claims, he may only do so for his proposed

12

claims of ineffective assistance of trial counsel. See Hodges v. Colson, 727 F.3d 517, 530–31 (6th
Cir. 2013) (“Inadequate assistance of counsel at initial review collateral proceedings may establish
cause for a procedural default of a claim of ineffective assistance at trial.”) (emphasis in original);
see also Coleman, 501 U.S. at 752 (“There is no constitutional right to an attorney in state postconviction proceedings.”). “Moreover, 28 U.S.C. § 2254(i) bars a claim of ineffective assistance
of post-conviction counsel as a separate ground for relief . . . .” Id. at 531 (citing Martinez, 566
U.S. at 17). Accordingly, amendment of the Petition to add claims for ineffective assistance of
post-conviction counsel, at either the post-conviction trial court or on post-conviction appeal,
would be futile. Petitioner’s request to do so should therefore be denied.
To determine whether Petitioner has demonstrated cause to overcome the procedural
default of his remaining proposed claims for ineffective assistance of trial counsel (“IATC”) under
Martinez, the Court considers “(1) whether state post-conviction counsel was ineffective; and (2)
whether [Petitioner’s] claims of ineffective assistance of counsel were ‘substantial.’” Atkins, 792
F.3d at 660 (citations omitted). If Petitioner demonstrates “cause,” then the Court must consider
“whether [he] can demonstrate prejudice.” Id. And if Petitioner has established both “cause” and
“prejudice,” only then would the Court “evaluate [his] claims on the merits.” Id. (citations
omitted). Here, Petitioner fails to demonstrate that his proposed IATC claims are “substantial,” so
he has not established cause to overcome their procedural default.
“A substantial claim is one that has some merit and is debatable among jurists of reason.”
Abdur’Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015) (citing Martinez, 566 U.S. at 14).
“In the converse, a claim is insubstantial when ‘it does not have any merit,’ ‘is wholly without
factual support,’ or when ‘the attorney in the initial-review collateral proceeding did not perform

13

below constitutional standards.’” Porter v. Genovese, 676 F. App’x 428, 432 (6th Cir. 2017)
(quoting Martinez, 566 U.S. at 15–16).
First, Petitioner asserts that trial counsel was ineffective for failing to advise him that “his
mere presence as a passenger in a car from which the police recover contraband . . . does not
establish possession.” (Doc. No. 14 at 1). The premise that Petitioner’s conviction is based on his
“mere presence . . . in a car,” however, is mistaken. At the plea acceptance hearing, the trial judge
explained what the state must prove to convict Petitioner of possession with intent to sell 26 grams
or more of cocaine. Among other things, the judge specifically advised Petitioner that the state had
to prove he “knowingly possessed cocaine,” and that the state could do so by proving either actual
or constructive possession. The state then presented a detailed factual basis for Petitioner’s guilty
plea, after which Petitioner confirmed that he brought the cocaine, that he had physical control of
the cocaine prior to officers stopping the vehicle, and that he gave the cocaine to co-defendant
Linda Carter and instructed her to conceal it when they were stopped. Accordingly, the state’s
factual basis for the plea and Petitioner’s own testimony reflect that he had both actual and
constructive possession of the cocaine. Petitioner should not, therefore, be permitted to amend the
Petition to add a claim based on the premise that his conviction for possessing cocaine was based
on his “mere presence as a passenger in a car from which the police recover contraband.”
Second, Petitioner asserts that trial counsel was ineffective in coercing Petitioner to plead
guilty when they should have known that the cocaine “was in the sole possession of Laura Carter.”
(Doc. No. 14 at 1). As explained in the preceding paragraph, however, the fact that officers
recovered the cocaine from Carter, rather than the Petitioner, does not answer the question of
whether Petitioner possessed it under Tennessee law. Indeed, Petitioner testified that he brought
the cocaine and gave it to Carter to conceal when the officers initiated a stop of the vehicle. Based

14

on the evidence presented prior to Petitioner’s pleading guilty, Petitioner’s trial counsel did not
have any reason to believe that Carter solely possessed the cocaine. Trial counsel, therefore, could
not have coerced Petitioner to plead guilty despite that knowledge, and this potential claim is
without merit.
Third, Petitioner asserts that trial counsel was ineffective in “threaten[ing] him” that he
would “get 30 years at 60%” if he went to trial. (Doc. No. 14-1 at 2). This claim is also without
merit. At the evidentiary hearing on Petitioner’s state post-conviction petition, original counsel
Debbie Zimmerle testified that she “advised the Petitioner that he faced a minimum sentence of
thirty years to be served at sixty percent if convicted at trial.” Cross, 2017 WL 2782200, at *1.
Petitioner does not dispute that this advice was an accurate reflection of his sentence if he was
convicted at trial,4 and there is not any evidence that original counsel presented this advice in a
manner that was threatening. Accordingly, Petitioner should not be permitted to amend the Petition
to add this claim.
Fourth, Petitioner asserts that trial counsel was ineffective in failing to present Linda
Carter’s February 2017 statement to the trial court before he pleaded guilty in October 2014. (Doc.
No. 14 at 2). This claim has no basis in fact—counsel could not have presented the trial court with
a statement years before that statement was made.
Finally, Petitioner argues that Carter’s statement claiming responsibility for possessing the
cocaine is “newly discovered evidence” establishing his “actual innocence.” (Doc. No. 14-1 at 3).
While actual innocence is not an independent basis for habeas relief, “a petitioner’s showing of a

4

Both original counsel and Petitioner testified at the evidentiary hearing on Petitioner’s state post-conviction petition
that he was a career offender. (Doc. No. 11-2 at 9, 41). Petitioner’s indictment charged him with two Class B felonies.
(Doc. No. 11-1 at 39–42); Tenn. Code Ann. § 39-17-417(c)(1). Under Tenn. Code Ann. § 40-35-108(c), a career
offender “shall receive the maximum sentence within the applicable Range III.” The Range III sentence for a Class B
felony is “not less than twenty (20) nor more than thirty (30) years,” Tenn. Code Ann. § 40-35-112(c)(2), and the
release eligibility for a career offender “shall occur after service of sixty percent (60%) of the actual sentence imposed
less sentence credits earned and retained by the defendant,” Tenn. Code Ann. § 40-35-501(f).

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credible claim of innocence allows him to skirt a procedural defect in his claim so that a federal
court may address his allegation of constitutional error.” Davis v. Bradshaw, No. 17-3262, 2018
WL 3913103, at *8 (6th Cir. Aug. 16, 2018) (citing Schlup v. Delo, 513 U.S. 298, 315 (1995)).
“To be credible, such a claim requires petitioner to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Souter v. Jones, 395 F.3d
577, 590 (6th Cir. 2005) (quoting Schlup, 513 U.S. at 324). A petitioner must establish “that ‘it is
more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable
doubt.’” Stojetz v. Ishee, 890 F.3d 175, 208 (6th Cir. 2018) (quoting Schlup, 513 U.S. at 327). This
“actual innocence exception should ‘remain rare’ and ‘only be applied in the extraordinary case.’”
Souter, 395 F.3d at 590 (quoting Schlup, 513 U.S. at 321) (internal quotation marks omitted).
Here, Carter’s statement does not establish Petitioner’s actual innocence. Her statement
plainly contradicts Petitioner’s plea hearing testimony, which reflected that Petitioner brought the
cocaine, and only gave it to Carter to hide after officers initiated a stop of the vehicle. Plea hearing
testimony “‘constitute[s] a formidable barrier in any subsequent collateral proceedings’ because
‘[s]olemn declarations in open court carry a strong presumption of verity.’” Calvey v. Burt, No.
17-1926, 2018 WL 2015779, at *3 (6th Cir. Apr. 30, 2018) (quoting Blackledge v. Allison, 431
U.S. 63, 73–74 (1977)). Additionally, the Court “may consider how the timing of [Carter’s
statement] and the likely credibility of the affiant[ ] bear on the probable reliability of” the
statement. Benning v. Warden, Lebanon Corr. Inst., 345 F. App’x 149, 161 (6th Cir. 2009)
(quoting Schlup, 513 U.S at 332). It is well-established that one co-defendant’s statement that
exculpates another co-defendant may be “highly suspect” where, as here, both defendants had
already “been convicted and were covered by double jeopardy.” In re Byrd, 269 F.3d 585, 605–06

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(6th Cir. 2001) (collecting cases). Post-conviction statements like Carter’s “are inherently suspect
because codefendants may try to assume full responsibility for the crime without any adverse
consequences.” Allen v. Yukins, 366 F.3d 396, 605 (6th Cir. 2004). In this case, Carter’s statement
is simply not sufficiently credible to overcome the extraordinarily high standard Petitioner must
meet for the Court to excuse the procedural default of his proposed claims due to actual innocence.
IV. RECOMMENDATION
For these reasons, the Magistrate Judge RECOMMENDS that the Petitioner’s Motion for
Leave to File an Amended Petition (Doc. No. 14) be DENIED.
The parties have fourteen (14) days after being served with a copy of this Report and
Recommendation (“R&R”) to serve and file written objections to the findings and
recommendation proposed herein. A party shall respond to the objecting party’s objections to this
R&R within fourteen (14) days after being served with a copy thereof. Failure to file specific
objections within fourteen (14) days of receipt of this R&R may constitute a waiver of further
appeal. 28 U.S.C. § 636(b)(1); Rule 8(b) of Rules Governing § 2254 Cases; Thomas v. Arn, 474
U.S. 140, 155 (1985).
ENTERED this ____ day of __________, 2018.
30th
August
________________________
Joe B. Brown
United States Magistrate Judge

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