Pillow v. Frink

Filing 15

MEMORANDUM AND ORDER: The petition seeking relief under 28 U.S.C. § 2254 is DENIED, and this action is DISMISSED WITH PREJUDICE. Signed by Chief Judge William L. Campbell, Jr on 3/7/2025. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
BRIAN PILLOW #244136,
Petitioner,
v.
WARDEN MARTIN FRINK,
Respondent.

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NO. 1:21-CV-00066
JUDGE CAMPBELL
MAGISTRATE JUDGE HOLMES

MEMORANDUM OPINION AND ORDER
Petitioner Brian Pillow, an inmate of Trousdale Turner Correctional Center in Hartsville,
Tennessee, filed a pro se, in forma pauperis petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his conviction on three counts of selling 0.5 grams or more of cocaine
in a drug-free zone for which Petitioner is serving a sentence of twelve years of imprisonment in
the Tennessee Department of Correction. (Doc. No. 1).
Respondent filed an Answer to the petition in which he asks the Court to dismiss the
petition with prejudice. (Doc. No. 13).
The petition is ripe for review, and this Court has jurisdiction pursuant to 28 U.S.C.
§ 2241(d). Having fully considered the record, the Court finds that an evidentiary hearing is not
needed, and Petitioner is not entitled to relief. See Christian v. Hoffner, No. 17-2105, 2018 WL
4489140, at *2 (6th Cir. May 8, 2018) (“A district court is not required to hold an evidentiary
hearing if the record ‘precludes habeas relief.’”) (quoting Schriro v. Landrigan, 550 U.S. 465,
474 (2007))). The petition therefore will be denied, and this action will be dismissed.

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I. PROCEDURAL HISTORY
The Maury County Grand Jury indicted Petitioner on three counts of selling 0.5 grams or
more of cocaine in a drug-free zone. (Doc. No. 12-1 at PageID# 82-84). Petitioner proceeded to
trial, where a jury convicted him as charged. State v. Pillow, No. M2014-01355-CCA-R3-CD,
2016 WL 1270263, at *1 (Tenn. Crim. App. Mar. 31, 2016), perm. appeal denied, (Tenn. Aug.
18, 2016). The trial court sentenced Petitioner to twelve years of imprisonment. Id.
On direct appeal, the Tennessee Court of Criminal Appeals affirmed Petitioner’s
convictions, id., and the Tennessee Supreme Court denied Petitioner’s application for
discretionary review on August 18, 2016. (Doc. No. 12-13 at PageID# 723).
Petitioner then pursued post-conviction relief by timely filing a pro se petition on March
14, 2017. (Doc. No. 12-14 at PageID# 732-67). The post-conviction court appointed postconviction counsel, who amended the petition. (See id. at Pag ID# 789). After conducting an
evidentiary hearing, the post-conviction Court denied relief. (Doc. No. 12-14 at PageID# 792800).
On appeal of denial of post-conviction relief, the Tennessee Court of Criminal Appeals
affirmed. Pillow v. State, No. M2018-01275-CCA-R3-PC, 2020 WL 7040532, at *1 (Tenn.
Crim. App. Dec. 1, 2020), perm. appeal denied, (Tenn. Mar. 17, 2021). On March 17, 2021, the
Tennessee Supreme Court denied discretionary review. Id.
Petitioner filed the instant petition on October 21, 2021, by placing it in the prison
mailing system. (Doc. No. 1 at PageID# 7). This is Petitioner’s first federal collateral challenge
to the constitutionality of his confinement under the at-issue judgment of conviction.

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The Court directed Respondent to respond to the petition and specifically to Petitioner’s
tolling argument. (Doc. No. 7). Respondent has now responded (Doc. No. 13), and Petitioner
filed a response to the response (Doc. No. 14).
II. STATEMENT OF FACTS
The Tennessee Court of Criminal Appeals summarized the proof adduced at Petitioner’s
trial as follows:
At trial, Columbia Police Detective Jason Dark testified that in May 2012, Kevin
Odie, a “street-level” drug dealer, was charged with narcotics offenses.
Thereafter, Odie approached the District Attorney General and offered to work as
a confidential informant in an attempt to obtain leniency on his charges. Odie
spoke with Detective Dark about purchasing drugs from certain individuals,
including the Appellant.
Detective Dark said that Odie purchased crack cocaine from the Appellant on
three occasions: May 2, 2012; May 4, 2012; and May 11, 2012. The procedures
before and after each transaction were largely identical. Odie telephoned the
Appellant, who agreed to sell the drugs and gave directions to a specific location.
Immediately after each call, officers searched Odie and his vehicle to ensure he
had no contraband. The officers photocopied the money to be used during the
purchase then gave Odie the cash to purchase two grams of cocaine. On May 2,
Odie was given $100; on May 4, he was given $130; and on May 11, he was
given $150. Detective Dark did not know why the price continually increased.
Detective Dark recalled that before each transaction, Odie was equipped with an
audio/video recording device. The recording equipment was set up so that
Detective Dark could hear the transaction as it occurred, but he could not view the
video until he recovered the device from Odie and downloaded the recording to a
computer.
Detective Dark said that after being searched and given money, Odie drove to 501
Martin Drive as directed by the Appellant. The location was approximately 698
feet from Fairview Park. The May 2 purchase occurred in a shed on the property,
the May 4 purchase occurred in the yard, and the May 11 purchase occurred
inside a maroon sport utility vehicle (SUV) that was parked in the driveway.
Detective Dark said that the SUV was registered to Tonya Perry, who had
“associated with” the Appellant.
Detective Dark said that after each purchase, Odie met with the police and gave
them a substance that was packaged in a plastic sandwich baggie and appeared to
be crack cocaine. The detective sent the substances to the Tennessee Bureau of
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Investigation (TBI) crime laboratory for testing. He said that the amount of drugs
Odie received was larger than the amount the police typically obtained for the
amount of money provided.
On cross-examination, Detective Dark said that the price for one gram of crack
cocaine was usually $100; however, Odie received more than two grams during
each purchase. Odie was given $150 for the third transaction. After the
transaction, Odie returned $10 and explained that he paid $140 for the drugs.
Detective Dark said that prior to each transaction, Odie’s vehicle was searched in
a well-lit garage. He could not recall whether he or another officer searched the
vehicle but stated that [“][i]t’s just protocol. It’s something we do. He explained
that the officers did not “strip search” an informant but that all of the informant’s
pockets were checked. He did not check inside Odie’s socks or shoes because he
trusted Odie.
Detective Dark stated that the Appellant was not arrested on the day of the last
transaction; however, he was arrested in December 2012 after the grand jury
returned an indictment against him. At the time of his arrest, the Appellant was in
possession of $1,400 in cash. None of the bills matched the serial numbers of the
cash used in the controlled purchases.
Detective Dark said that while working as a confidential informant, Odie made
over 100 controlled buys from approximately forty individuals.
Kevin Odie testified that he had three prior felony convictions, two for selling
crack cocaine and one for selling marijuana. He also had two pending charges of
selling crack cocaine in a school zone and one pending charge of selling
marijuana. He volunteered to buy crack cocaine for the police, hoping that his
assistance would keep him from being incarcerated.
Odie testified that his nickname was “Kap.” He had known the Appellant, whose
nickname was “Bear,” for approximately one year. Odie’s first purchase of crack
cocaine from the Appellant occurred on May 2, 2012. On that day, Odie called the
Appellant, and they arranged to meet so that Odie could buy one gram of cocaine.
The Appellant told Odie the crack cocaine would cost $100. Odie went to the
meeting with a woman he “used to call [his] wife.” Prior to leaving for the
meeting, Odie, his companion, and the inside of the white Ford Explorer Odie was
driving were searched by the police. The officers found no money or drugs. The
police equipped Odie with recording equipment and provided him with money
prior to the transaction. The video recording, which was played for the jury,
captured the entire transaction. As the recording was played, Odie explained what
was depicted. The video showed Odie driving to the meeting. During the drive, he
called the Appellant, who told him to come to a location near Fairview Park. Prior
to his arrival, Odie called the Appellant to let him know he was on his way.
During the conversation, the Appellant gave directions to his exact location. As
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they talked, Odie told the Appellant, “‘I got a bill,’” which meant $100. The
Appellant responded, “‘I gotcha,’” and indicated that Odie should “come on.”
Odie identified his and the Appellant’s voices on the recording.
Odie said that after approximately ten or fifteen minutes, he arrived at the
designated location. He saw a white house with an unattached brown shed, which
he identified on the recording. As he walked toward the shed, the Appellant
opened the door. Odie identified the Appellant as the person seen on the
recording. Odie stepped inside the shed and saw another man with the Appellant.
The Appellant said that he did not know whether Odie “wanted it soft or hard,”
meaning powder or crack cocaine, respectively. Odie indicated he wanted crack
cocaine. Odie explained that the video showed the Appellant getting the drugs out
of a “dope sack.” The Appellant weighed the crack cocaine then told Odie, “‘I
gave you 2.5 [grams],’” which was more than Odie had requested. Odie said that
he would “definitely holler back at him again” for more crack cocaine. After the
Appellant gave Odie the crack cocaine, Odie put $100 on the table; however, he
never saw the Appellant pick up the money. Afterward, Odie returned to the
Explorer, called Detective Dark, and advised him that he was on his way to meet
with the officers. Odie did not stop anywhere along the way. As soon as he
arrived at the designated location, Odie relinquished the crack cocaine to the
officers and described the transaction.
Odie said that on May 4, 2012, he again met with the officers prior to meeting
with the Appellant.1 The police searched Odie, his vehicle, and his female
companion and set up the recording equipment. The recording of the transaction
was played for the jury, during which Odie again explained what was happening
and identified the Appellant. Odie said that he thought he was supposed to try to
buy a larger amount of crack cocaine. Once in Columbia, Odie called the
Appellant, but the Appellant was at a barbershop and promised to call Odie when
he left the shop. The Appellant called a short while later and told Odie to return to
the location of their previous meeting. When Odie arrived, the Appellant walked
toward Odie and handed him a cigarette pack containing crack cocaine. Odie gave
the Appellant $130. Odie told the Appellant that he would likely “holler at” him
again. When the transaction was complete, Odie called Detective Dark and
arranged to meet the officers. Upon arrival, Odie relinquished the drugs and
provided details of the encounter.
Odie said that the final purchase took place on May 11, 2012, at the same location
near Fairview Park. Once again, the police gave Odie recording equipment and
searched Odie and his vehicle before he left. The recording of the transaction was
played for the jury, and Odie narrated what transpired on the video. When Odie
arrived at the location, the Appellant was sitting in the driver’s seat of a maroon
SUV, and a man named Huey was sitting in the front passenger seat. Odie got into
the backseat of the vehicle. The Appellant handed Odie the crack cocaine without
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On cross-examination, Odie stated that he met with the police before and after the transactions at a “garage out
there off Main Sail or Impact Drive.”

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turning around and indicated that he was giving Odie three grams of crack
cocaine. Odie told the Appellant he had $150, but the Appellant said the price was
only $140. Odie kept $10 and gave the Appellant $140. Afterward, Odie met with
the officers, returned the $10, and relinquished the crack cocaine.
Odie said that during each transaction, he dealt exclusively with the Appellant.
The location of the transactions and the price of the drugs were determined by the
Appellant.
The State then asked the trial court to have the Appellant “step forward before the
jury and display his bare arms to the jury.” Following the trial court’s instructions,
the Appellant removed his long-sleeved shirt, rolled up the sleeves of his t-shirt,
and showed his arms, which were tattooed, to the jury.
On cross-examination, Odie said that the State had not promised him anything for
his assistance but that he hoped his cooperation would work in his favor on his
pending charges. He acknowledged that he made thirty or forty controlled drug
buys for the police and that the purchases were made from several individuals.
On redirect, Odie acknowledged that he was in “big trouble” as a result of his
pending charges and that he had volunteered to help the State, hoping he could
avoid returning to prison. He stated, however, that the State never asked him to
purchase drugs specifically from the Appellant. Odie said that he did not see the
Appellant pick up the money during the first transaction; however, he left the
money on the table for the Appellant in exchange for the crack cocaine.
After Odie testified, the parties stipulated that Fairview Park was a drug free zone
pursuant to Tennessee Code Annotated section 39-17-432(b)(1).
Brett Trotter, a forensic scientist with the TBI, testified that he received three
separate packages from the Columbia Police Department. Each package contained
a plastic sandwich bag containing crack cocaine. The first bag contained 2.39
grams, the second bag contained 2.56 grams, and the third bag contained 2.90
grams.
The jury found the Appellant guilty of three counts of selling .5 grams or more of
cocaine in a drug-free zone. The trial court imposed concurrent sentences of
twelve years for each offense. On appeal, the Appellant contends that the trial
court erred by requiring the Appellant to expose the tattoos on his arms to the jury
and by admitting still photographs of his tattoos into evidence. Additionally, the
Appellant challenges the sufficiency of the evidence sustaining his convictions.
State v. Pillow, No. M2014-01355-CCA-R3-CD, 2016 WL 1270263, at *1-3 (Tenn.
Crim. App. Mar. 31, 2016).

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The Tennessee Court of Criminal Appeals summarized the proof adduced at Petitioner’s
post-conviction hearing as follows:
At the post-conviction hearing, Petitioner testified that he had three meetings with
trial counsel prior to trial. They discussed a plea offer during one of those
meetings. Petitioner agreed that the State made one plea offer to him but he
understood that trial counsel was seeking a better offer. Petitioner testified: “So I
wouldn’t took [sic] the offer because he’s saying he could possibly get me a better
plea agreement. He didn’t say for sure that he was going to but he was going to let
me know if he was or wasn’t.” Petitioner claimed that no one told him that the
first plea offer was a final offer. He said that trial counsel came to the Turney
Center and spoke with him three days prior to the trial date. Petitioner testified
that trial counsel asked if he was ready for trial and noted that the State’s plea
offer was “off the table.” He claimed that trial counsel never told him that there
was a “timetable’ [sic] for acceptance of the State'’ offer or that the offer was a
final one. Petitioner testified that he did not give the plea offer the same
consideration that he would have given had he known that the offer was a final
offer. Petitioner asserted that he realized the morning of trial that no plea offer
would be accepted.
Petitioner testified that he felt that Kevin Odie’s testimony at trial was untruthful
because he said that no promises or deals had been made with him prior to his
testimony in Petitioner’s case. Petitioner asserted that Mr. Odie failed to
acknowledge at trial that his bond had been significantly reduced in exchange for
agreeing to work for police, which Petitioner said that he found out by reading
this Court’s opinion in State v. Travis Lindsey, M2015-01954-CCA-R3-CD, 2016
WL 5937835 (Tenn. Crim. App. Oct. 12, 2016). As mentioned in that opinion,
Officer Gray testified on cross-examination that Mr. Odie had pending charges for
selling drugs and that Mr. Odie contacted police with information related to
purchasing cocaine. As a result of his cooperation with police, Mr. Odie’s bond
was reduced on April 5, 1012, from $100,000 to $2,500. Officer Gray admitted
that Mr. Odie’s bond was reduced in order for him to help the police. He also
agreed that “an informant who testified at trial generally received more
consideration than one who remained confidential.” Id. at *2.
Petitioner asserted at the post-conviction hearing that the State should have
corrected Mr. Odie’s perjured testimony at his trial. He further asserted that the
State knew that “deals” had been made with Mr. Odie, and Petitioner’s trial
counsel should have known. Petitioner believed that Mr. Odie’s dishonesty on the
witness stand about the bond reduction was one of Petitioner’s “greatest
arguments” on post-conviction and would have affected the outcome of his case.
Petitioner was aware that Mr. Odie ultimately pled guilty in his own case and
received a two-year suspended sentence.

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On cross-examination, Petitioner agreed that he had several drug convictions and
a conviction for unlawful possession of a firearm on his record. All of the drug
convictions involved possession of cocaine with intent to sell or the sale of
cocaine.
Petitioner testified that his discussions with trial counsel went in circles, and trial
counsel told him that he might be able to get him a better deal if given more time.
He also claimed that trial counsel told him that he did not feel as though he could
ever win Petitioner’s case. Petitioner testified that the State’s plea offer was for
the minimum sentence of “[e]ight years at 100 percent.” He said that trial counsel
did not explain the elements of the crime that he was charged with but he
explained the sentencing range for the crimes. Petitioner thought that he faced a
potential sentence of thirty-six years if convicted.
Petitioner testified that in the case of State v. Travis Lindsey, Officer Gray
testified that Mr. Odie’s bond reduction was “part of a deal.” He said:
Then Kevin O[die] further testified and agreed with Officer Gray
saying that this was part of a deal. So I automatically assumed that
my lawyer should have knew [sic] about this deal and should have
br[ought] this deal to me. That could have also made me, I don’t
want to go to trial, I'm going to go ahead and take this deal. But I
wouldn’t have d[one] none of that with my lawyer telling me
you’re going to give me a better deal.
Petitioner testified that during Petitioner’s trial, trial counsel asked Mr. Odie if
any deals or promises had been made to him, and Mr. Odie said no.
Trial counsel testified that he met with Petitioner after being appointed to
represent him. He went over each element of the offense with Petitioner and told
him that the State would be required to prove each element beyond a reasonable
doubt. Trial counsel testified that given the evidence in discovery, Petitioner had a
very good chance of being found guilty at trial. Trial counsel did not have a plea
offer from the State at the time. Trial counsel testified that the State eventually
made a plea offer, and trial counsel timely communicated the offer to Petitioner.
He agreed that there were scheduling orders used in Petitioner’s case, and there
was a plea or settlement deadline in the case. Trial counsel testified that he
communicated any plea offers to Petitioner prior to the plea or settlement
deadline. He further testified that he spoke with Petitioner about the settlement
deadline. Trial counsel asserted: “And that’s really one of the main points that I
spoke to [Petitioner] about.” He never advised Petitioner not to worry about the
original plea offer because he was going to obtain a better offer. However, trial
counsel testified:
I did talk to him about the possible better offer. I told [Petitioner]
the offer, which was eight years at 100 percent. And it was a 100
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percent sentence because it was within a thousand feet of Fairfield
(sic) Park. And like I said a while ago, I went over each element of
that offense with him. I told him that, look, we have got a plea
deadline date. That is what is on the table. You don’t mess with
Judge Hargrove when it comes to plea deadlines. You will go to
trial if you don’t get it done.
He was -- and I was very sympathetic to him. He was very
concerned about his little girl, I believe, that he had just had. And
he -- he was very immersed in that really more so than his case.
And I have never been in his position. I can certainly understand
that. But he was, no, I just can’t leave my little girl. And I told him,
I said, look, the minimum time that you can get if you go to trial is
eight years at 100 percent. That is if Judge Hargrove decides, if
you are convicted of all three, that is if Judge Hargrove decides to
run each of the offenses together, run them concurrently, and
sentence you to the lowest number of years within the range, which
is eight years. I said the worse [sic] case scenario would be for you
to be sentenced to 12 years on each offense.
***
And Judge Hargrove ran them consecutively. And I said, given
your prior background, given your criminal history, and given
Judge Hargrove’s reputation as a tough judge, fair but tough, she
might do that. And I urged [Petitioner] to think about his daughter
in the manner of, you know, if you want to see your daughter, you
know, you might want to take this plea. You have an opportunity
to knock of[f] 15 percent and get it down to 85 percent for which
he would have to serve. I said if you go to trial and you are
convicted and the worst happens, you won't ever see your daughter
grow up.
Trial counsel testified that he did not place Petitioner’s rejection of the plea offer
in writing. He asserted that he last discussed the plea offer with Petitioner and
reminded him of the plea deadline during a visit with Petitioner at the Turney
Center prison. Trial counsel testified:
I said, what I had told him at first, as I testified earlier, was that,
okay, this is your plea deadline. This is your plea offer; however,
you need to look at this as concrete. This, you have to do this if
you want to guarantee and lock in this plea offer, if Judge
Hargrove would have accepted it. I believe Her Honor would have.
But I can try to get them to take the within 1,000 feet of a park, or
whatever, off because anywhere you go in this town you are within
1,000 feet of a park or a school or a church or somewhere. And
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there is nowhere you could sell drugs in this town and not be
within a thousand feet of something like that, just about.
On cross-examination, trial counsel agreed that he filed a motion to withdraw as
Petitioner’s counsel. A portion of the motion contained the following language:
Undersigned counsel received an offer from Assistant District
Attorney Brent Cooper and undersigned counsel conveyed that
offer to the defendant and told the defendant that this Court
required defendants to accept and enter into plea agreements
roughly one month prior to the scheduled trial date. Undersigned
counsel further explained to the defendant that if a criminal
defendant did not so timely enter into a plea agreement, that this
Court would only allow such a defendant to either, one, plead
guilty to all charges in the indictment and have a subsequent
sentencing hearing, in other words a blind plea, or have a jury trial.
Trial counsel testified that he explained the scheduling order, which contained the
plea deadline date, to Petitioner.
Pillow v. State, No. M2018-01275-CCA-R3-PC, 2020 WL 7040532, at *3-6 (Tenn. Crim.
App. Dec. 1, 2020).
III. STANDARD OF REVIEW
The petition in this case is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). The AEDPA was enacted “to reduce delays in the execution of state and
federal criminal sentences . . . and to further the principles of comity, finality, and federalism.”
Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal citations and quotation marks omitted).
As the Supreme Court explained, the AEDPA “recognizes a foundational principle of our federal
system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow,
571 U.S. 12, 19 (2013). The AEDPA, therefore, “erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state court.” Id.
One of the AEDPA’s most significant limitations on the federal courts’ authority to issue
writs of habeas corpus is found in 28 U.S .C. § 2254(d). Under the AEDPA, the court may grant

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a writ of habeas corpus on a claim that was adjudicated on the merits in state court if that
adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405 (2000). Under Section 2254(d)(1), a
state court’s decision is “contrary to” clearly established federal law “‘if the state court applies a
rule that contradicts the governing law set forth in [Supreme Court] cases’ or ‘if the state court
confronts a set of facts that are materially indistinguishable from a decision [of the Supreme
Court] and nevertheless arrives at a [different result].’” Hill v. Curtin, 792 F.3d 670, 676 (6th
Cir. 2015) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). “Under the
‘unreasonable application’ clause of [Section] 2254(d)(1), habeas relief is available if ‘the state
court identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.’” Id. (quoting Harris v.
Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008)). A state court’s application is not unreasonable
under this standard simply because a federal court finds it “incorrect or erroneous”—instead, the
federal court must find that the state court’s application was “objectively unreasonable.” Id.
(quoting Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)).
To grant relief under Section 2254(d)(2), a federal court must find that “the state court’s
factual determination was ‘objectively unreasonable’ in light of the evidence presented in the
state court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002). State court
factual determinations may be found unreasonable only “if it is shown that the state court’s

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presumptively correct factual findings are rebutted by ‘clear and convincing evidence’ and do
not have support in the record.” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting
Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007)). “[I]t is not enough for the petitioner to
show some unreasonable determination of fact; rather, the petitioner must show that the resulting
state court decision was ‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d
242, 250 (6th Cir. 2011) (citing Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)). As the
Supreme Court has advised, “[t]he question under AEDPA is not whether a federal court
believes the state court's determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473
(2007) (citing Williams, 529 U.S. at 410). Subject to Habeas Rule 7, review under § 2254(d) (1)
“is limited to the record that was before the state court that adjudicated the claim on the merits.”
Cullen v. Pinholster, 563 U.S. 170, 182 (2011).
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available
state remedies, 28 U.S.C. § 2254(b), thereby giving the State the ‘opportunity to pass upon and
correct’ alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (citations omitted). “To provide the State with the necessary ‘opportunity,’ the prisoner
must ‘fairly present’ his claim in each appropriate state court (including a state supreme court
with powers of discretionary review), thereby alerting that court to the federal nature of the
claim.” Id. (citation omitted); Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (the substance of
the claim must have been presented as a federal constitutional claim). Thus, each and every
claim set forth in the federal habeas corpus petition must have been presented to the state
appellate court. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Pillette v. Foltz, 824
F.2d 494, 496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and

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factual substance of every claim to all levels of state court review”). In Tennessee, a petitioner is
“deemed to have exhausted all available state remedies for [a] claim” when it is presented to the
TCCA. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39).
Claims that are not exhausted are procedurally defaulted and “ordinarily may not be considered
by a federal court on habeas review.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002).
A procedural default can occur in one of two ways. First, a procedural default may occur
if the state court actually “relied on the procedural bar as an independent basis for its disposition
of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). Second, if a petitioner fails to
properly exhaust a claim in state court, and the claim can no longer be raised in state proceedings
because of a failure to follow state procedure for presenting such a claim, the claim is technically
exhausted (given that there is nothing additional the petitioner could do to obtain relief in state
court), but a petitioner is not automatically entitled to present his claim on federal habeas review,
as his claim is procedurally defaulted. Woodford v. Ngo, 548 U.S. 81, 126 (2006).
“In order to gain consideration of a claim that is procedurally defaulted, a petitioner must
demonstrate cause and prejudice for the failure, or that a miscarriage of justice will result from
the lack of review.” Id. at 386. The burden of showing cause and actual prejudice to excuse
defaulted claims is on the habeas petitioner. Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman). A petitioner may establish
cause by “show[ing] that some objective factor external to the defense impeded counsel's efforts
to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Objective impediments include an unavailable claim or interference by officials that made
compliance impracticable. Id.

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Constitutionally ineffective assistance of trial or appellate counsel may constitute cause.
Murray, 477 U.S. at 488-89. Generally, however, if a petitioner asserts ineffective assistance of
counsel as cause for a default, that ineffective assistance claim must itself have been presented to
the state courts as an independent claim before it may be used to establish cause. Id. If the
ineffective assistance claim is not presented to the state courts in the manner that state law
requires, that claim is itself procedurally defaulted and can be used as cause for the underlying
defaulted claim only if the petitioner demonstrates cause and prejudice with respect to the
ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).
Petitioners in Tennessee also can establish “cause” to excuse the procedural default of a
substantial claim of ineffective assistance of trial counsel by demonstrating the ineffective
assistance of post-conviction counsel in failing to raise the claim in initial review post-conviction
proceedings. See Martinez v. Ryan, 566 U.S. 1, 5-6 (2012) (creating an exception to Coleman
where state law prohibits ineffective assistance claims on direct appeal); Trevino v. Thaler, 569
U.S. 413, 429 (2013) (extending Martinez to states with procedural frameworks that make
meaningful opportunity to raise ineffective assistance claim on direct appeal unlikely); Sutton v.
Carpenter, 745 F.3d 787, 792 (6th Cir. 2014) (holding that Martinez and Trevino apply in
Tennessee). The Supreme Court's creation in Martinez of a narrow exception to the procedural
default bar stemmed from the recognition, “as an equitable matter, that the initial-review
collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have
been sufficient to ensure that proper consideration was given to a substantial claim.” Martinez,
566 U.S. at 13. In other words, Martinez requires that the ineffective assistance of postconviction counsel occur during the “initial-review collateral proceeding,” and that “the
underlying ineffective-assistance-of-trial-counsel claim [be] a substantial one, which is to say

14

that the prisoner must demonstrate that the claim has some merit.” See id. at 13-15. Importantly,
Martinez did not dispense with the “actual prejudice” prong of the standard for overcoming
procedural default first articulated by the Supreme Court in Coleman.
To establish prejudice, a petitioner must demonstrate that the constitutional error “worked
to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir.
1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “When
a petitioner fails to establish cause to excuse a procedural default, a court does not need to
address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (citations
omitted).
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the Supreme Court also has recognized a narrow exception to the cause
requirement where a constitutional violation has “probably resulted” in the conviction of one
who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004)
(citing Murray, 477 U.S. at 496). A petitioner must show “that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v.
Perkins, 569 U.S. 383, 399 (2013) (internal quotation marks omitted) (quoting Schlup v. Delo,
513 U.S. 298, 327 (1995)). For a petitioner to “pass through the gateway” and be permitted to
argue the merits of his defaulted claims, he must show “evidence of innocence so strong that a
court cannot have confidence in the outcome of the trial unless the court is also satisfied that the
trial was free of non-harmless constitutional error.” Id. at 401 (internal quotation marks omitted)
(quoting Schlup, 513 U.S. at 316).
With these principles in mind, the Court will turn to the examination of the claims raised
in Pillow’s petition for habeas relief.

15

IV. ANALYSIS
Petitioner is not entitled to relief under Section 2254 because his claims are without merit
or or are procedurally defaulted without sufficient cause. The Court will address each category of
claims in turn.2
A. Exhausted Claims
The Court begins with Petitioner’s exhausted claims. They are 1) Ground One
(ineffective assistance of counsel based on trial counsel’s failure to communicate the deadline on
the State’s plea offer) and 2) Ground Three (Brady and Napue claims). The TCCA’s resolution
of these claims was not unreasonable.
Within this section the Court also will address Ground Five, a claim of structural error
that relies on a Supreme Court decision that had not yet been issued at the time of Petitioner’s
post-conviction proceedings. That claim does not provide relief to Petitioner either.
1. Ineffective Assistance of Counsel (Ground One)
Petitioner’s first ground for relief alleges that trial counsel was deficient in two ways, but
only one of those subclaims is exhausted. The exhausted subclaim is that trial counsel provided
ineffective assistance by “failing to clearly communicate the [] deadline on state’s plea offer”
and “by allowing the deadline for the offer to lapse, trial counsel forced appellant to go to trial,
prejudicing petitioner with an extension of four (4) additional years beyond the original plea
offer added to his sentence” (Doc. No. 1 at PageID# 14).
In his post-conviction proceedings, Petitioner argued that “trial counsel rendered
deficient performance by failing to inform him of the deadline set by the trial court for accepting
the State’s plea offer.” Pillow, 2020 WL 7040532, at *7. The post-conviction court denied relief,

2

The Court need not address Petitioner’s tolling argument. Respondent concedes that the petition was timely filed.
(Doc. No. 13 at PageID# 999-1001).

16

crediting trial counsel’s testimony and finding that “[t]he Court has no doubt that [trial counsel]
explained to [Petitioner] the deadline for accepting a plea agreement and entering a plea.” Id. at
*8.
On appeal of the denial of post-conviction relief, the TCCA addressed the claim on the
merits and found that Petitioner was not entitled to relief. Id. Specifically, the TCCA found that
the record did “not preponderate against the post-conviction court’s factual findings,” noting trial
counsel’s testimony at the post-conviction hearing and the language of trial counsel’s motion to
withdraw. Id. The TCCA pointed out that the post-conviction court had found that trial counsel’s
testimony was more credible than Petitioner’s testimony and the TCCA does not re-weight or reevaluate the credibility determinations made by the post-conviction court. Id.
Here, the record reflects that it was not unreasonable for the TCCA to conclude that the
evidence did not preponderate against the post-conviction court’s findings. During Petitioner’s
post-conviction hearing, trial counsel testified that he timely communicated the plea offer to
Petitioner. (Doc. No. 12-16 at PageID# 869). Trial counsel further testified that the parties
operated under the trial court’s scheduling order, which established a “plea settlement deadline”,
described by counsel as “the important one in this case” because “[i]t was very rare for Judge
Hargrove . . . to accept a plea after the plea deadline date.” (Id. at PageID# 870-71). Trial counsel
reiterated that the settlement deadline was “really one of the main points that [he] spoke to
[Petitioner] about.” (Id. at PageID# 871). Trial counsel emphatically stated that he did not ever
tell Petitioner “[Y]ou know, don’t worry about this offer, I’m going to get you a better offer.”
(Id.)
Petitioner, who bears the burden here, fails to explain why the TCCA’s decision was
contrary to, or involved an unreasonable application of, clearly established federal law, or that

17

the decision was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Petitioner does not provide any evidence to contradict
the state courts’ findings, which are supported by the record. Instead, he simply argues that the
state courts “failed to give any weight or consideration to available evidence which supported
[his] position.” (Doc. No. 1 at PageID# 18). The state court’s determinations are entitled to a
presumption of correctness in the absence of clear and convincing evidence to the contrary, see
28 U.S.C. § 2254(e)(1), which Petitioner has not submitted.
Consequently, the Court finds that Petitioner has not shown that he is entitled to relief on
this claim because the TCCA’s determination was not contrary to law. Neither was the TCCA’s
determination based on an unreasonable applicable of the law to the facts. This subclaim is
without merit and will be dismissed.
2. Brady and Napue Claims (Ground Three)
In Ground Three of the petition, Petitioner raises claims pursuant to Brady v. Maryland,
373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959).
These claims are based on Petitioner’s contention that the State’s informant and key
witness, Kevin Odie, committed perjury at Petitioner’s trial by testifying that he had not been
promised anything by the State in exchange for his cooperation. (Doc. No. 1 at Page ID# 22-26).
Petitioner developed this argument after he read the decision in State v. Lindsey, No. M201501954-CCA-R3-CD, 2016 WL 59378325 (Tenn. Crim. App. Oct. 12, 2016), and learned that
Odie’s bond for his own charges had been reduced from $100,000 to $2,500 so that he could
work for the police as an informant. According to Petitioner, the State allowed perjured
testimony at Petitioner’s trial and violated Brady by not informing trial counsel of the bond
arrangement with Odie. Petitioner also contends that the State unconstitutionally permitted Odie

18

to falsely testify that he received nothing in exchange for his work as a confidential informant
under Napue. (Doc. No. 1 at PageID# 22-26).
The TCCA addressed this claim on its merits during its review of Petitioner’s postconviction appeal. The TCCA began3 by correctly setting forth the relevant law governing a
Brady claim. Pillow, 2020 WL 7040532, at at *9. The court then cited relevant Tennessee case
law concerning false testimony. Id. Ultimately, the TCCA determined that Petitioner was not
entitled to relief on this claim under Brady or Napue, explaining:
As pointed out by the State, trial counsel was not questioned about this issue at
the post-conviction hearing to determine what he knew or did not know about Mr.
Odie’s bond reduction. Also, the trial prosecutor was not called as a witness. The
only proof presented was Petitioner’s testimony that he read the Travis Lindsey
case and learned of the bond reduction. He further asserted that the State should
have corrected Mr. Odie’s perjured testimony at his trial and that the State knew
that “deals” had been made with Mr. Odie, and Petitioner’s trial counsel should
have known of the deals. Petitioner believed that Mr. Odie’s dishonesty on the
witness stand about the bond reduction was one of Petitioner's “greatest
arguments” on post-conviction and would have affected the outcome of his case.
However, Petitioner failed to show that the State suppressed the information or
knowingly used false information. As argued by the State in its brief, trial counsel
could have possessed the information about Mr. Odie’s bond arrangement but
chose not to use it. Additionally, it is not clear from the record that Mr. Odie
actually committed perjury. Mr. Odie was asked at Petitioner’s trial only if he was
“promised anything” in exchange for working with the State. Brian Pillow, 2016
WL 1270263, at *2-3. It appears that the purpose of this line of questioning was
to determine whether Mr. Odie was promised a favorable settlement of his own
pending criminal charges. He admitted at Petitioner’s trial that he was seeking
favor with the State but had no deal in place. This testimony was not false.
Petitioner also has not demonstrated that Mr. Odie’s bond reduction was material
to Petitioner’s case since the jury was already aware that Mr. Odie had motivation
to lie in order to help his own case. Furthermore, as pointed out by the State, the
revelation of Mr. Odie’s bond reduction in the Lindsey case did not help the
defendant in that case who was convicted of similar drug offenses as Petitioner.
Travis Lindsey, 2016 WL 5937835, at *1.
3

The court noted that the State argued that the issue was waived because Petitioner had withdrawn this claim in his
amended post-conviction petition filed by post-conviction counsel. But the TCCA concluded that, “[a]lthough
Petitioner abandoned the claim concerning Mr. Odie’s alleged perjured testimony in his amended post-conviction
petition, and the post-conviction court did not make specific findings concerning this ground for relief, evidence,
though scant, was presented at the post-conviction hearing on this ground.” Pillow, 2020 WL 7040532, at *10.
Having so concluded, the court reviewed the claim on its merits.

19

Pillow, 2020 WL 7040532, at *10.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the suppression
by the prosecution of evidence favorable to the accused upon request 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.” Id. at 87. Evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.” Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (internal quotation marks
omitted). As the Supreme Court explained:
The question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of
confidence. A “reasonable probability” of a different result is accordingly shown
when the government’s evidentiary suppression “undermines confidence in the
outcome of the trial.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678
(1985)). “[T]he materiality of withheld evidence may be determined only by evaluating the
evidence collectively.” Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003). “Evidence
that is ‘merely cumulative’ to evidence presented at trial is ‘not material for purposes of Brady
analysis.’” Brooks v. Tenn., 626 F.3d 878, 893 (6th Cir. 2010) (quoting Carter v. Mitchell, 443
F.3d 517, 533 n.7 (6th Cir. 2006)). Materiality for Brady purposes is a “difficult test to meet,”
and must be determined in light of the totality of the evidence, including the weight of the
evidence of the petitioner’s guilt. See Montgomery v. Bobby, 654 F.3d 668, 678 (6th Cir. 2011).
Thus, to prevail on a Brady claim, the petitioner must prove that the evidence at issue was
favorable to the defense, that the State willfully or inadvertently suppressed the evidence, and

20

that, as a result, the petitioner was prejudiced. Brooks, 626 F.3d 878, 890 (citing Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)).
Here, with respect to Petitioner’s Brady claim, the TCCA reasonably found that the
Petitioner had not established that the State suppressed the evidence at issue. There is no proof
establishing that the State withheld information or knowingly used false information about
Odie’s bond arrangement. Petitioner did not prove that trial counsel was aware of Odie’s bond
reduction. Indeed, Petitioner failed to question trial counsel about his knowledge of the
reduction. The trial prosecutor was not called as a witness. And as the TCCA noted, the record
does not conclusively establish that Odie committed perjury. Odie admitted he wanted
consideration from the State on his own charges when trial counsel questioned him to see if he
“was promised a favorable settlement[.]” Pillow, 2020 WL 7040532, at *10.
The TCCA also reasonably found that Odie’s bond reduction was immaterial to
Petitioner’s case. The court made this finding based on two reasons: (1) “the jury was already
aware that Mr. Odie had motivation to lie in order to help his own case[,]” and (2) the
information did not help the Lindsey defendant who was convicted of similar drug offenses as
Lindsey. Pillow, 2020 WL 7040532, at *10. Accordingly, the state court’s rejection of
Petitioner’s Brady claim was not contrary to, or unreasonable application of, federal law. The
claim, therefore, will be dismissed.
Turning to Petitioner’s Napue claim, which he also raises in Ground Three, “a conviction
obtained through the use of false evidence, known to be such by representatives of the State”
deprives a defendant of due process. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also Giglio
v. United States, 405 U.S. 150, 153 (1972); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim.
App. 1993). “The same result obtains when the State, although not soliciting false evidence,

21

allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269. Therefore, when a witness
testifies falsely, either on direct or cross-examination, the state has an affirmative duty to correct
such false testimony. Spurlock, 874 S.W.2d at 617.
The TCCA’s Napue application was reasonable. As discussed above, it was not
unreasonable to conclude that Odie’s testimony was immaterial because the jury knew Odie’s
criminal history and his incentive to lie “to help his own case.” Pillow, 2020 WL 7040532, at
*10. It also was not unreasonable for the TCCA to conclude that “it is not clear from the record”
that Odie’s testimony was false because he admitted he wanted consideration from the State on
his own charges when trial counsel questioned him to see if he “was promised a favorable
settlement[.]” Id. Petitioner has not “rebutted by clear and convincing evidence” the TCCA’s
factual determinations, which have support in the record. Pouncy, 846 F.3d at 158.
Consequently, the Court finds that Petitioner has not shown that he is entitled to relief on
this claim because the TCCA’s determination was not contrary to law. Neither was the TCCA’s
determination based on an unreasonable application of the facts. Ground Three is without merit
and will be dismissed.
3. McCoy Claim (Ground Five)
In his Petitioner’s fifth claim, he alleges that trial counsel conceded Petitioner’s guilt in
violation of his right to autonomy as outlined in McCoy v. Louisiana, 584 U.S. 414 (2018). (See
Doc. No. 1 at PageID# 28-20). In McCoy, the Supreme Court held:
a defendant has the right to insist that counsel refrain from admitting guilt, even
when counsel’s experienced-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty.... [I]t is the defendant’s
prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt
in the hope of gaining mercy at the sentencing stage, or to maintain his innocence,
leaving it to the State to prove his guilt beyond a reasonable doubt.

22

Id. at 1505. The Sixth Circuit Court of Appeals, in an unpublished decision, has concluded that
McCoy does not apply retroactively on collateral review. See Pennebaker v. Rewerts, No. 211216, 2021 WL 7237920, at *3 (6th Cir. Sept. 10, 2021) (“McCoy is not a new rule of
constitutional law that applies retroactively.”). Other Circuits have similarly held. See KelloggRoe v. Gerry, 19 F.4th 21, 26 (1st Cir. 2021) (“McCoy added a new item to [the] list” of
“[f]undamental decisions reserved to the client[.]”); Smith v. Stein, 982 F.3d 229, 233-34 (4th
Cir. 2020) (holding that McCoy did not apply retroactively on collateral review or provide a basis
for extending the § 2254 statute of limitations, because it was not a substantive rule and, even if
it was a new procedural rule, it did not constitute a “watershed” rule); Christian v. Thomas, 982
F.3d 1215, 1222, 1225 (9th Cir. 2020) (“assum[ing] without deciding that McCoy did indeed
create a new rule of constitutional law and that it was previously unavailable to [the petitioner]”
but holding that “the Supreme Court has not made McCoy v. Louisiana retroactive to cases on
collateral review”). Thus, because McCoy does not apply retroactively to cases on collateral
review, Petitioner cannot rely on McCoy for relief in this collateral attack. See e.g., French v.
Burt, No. 1:17-cv-837, 2021 WL 5018808, at *13 n.6 (W.D. Mich. Apr. 5, 2021) (where
petitioner argued that trial counsel usurped petitioner’s decision when counsel conceded guilt at
trial, finding petitioner’s reliance on McCoy “misplaced” because the case “announced a new
rule of criminal procedure which is not retroactive” in petitioner’s collateral proceeding); United
States v. Allen, No. 5:19-cv-60, 2020 WL 3865094, at *5-6 (E.D. Ky. Feb. 28, 2020) (collecting
cases for the proposition that McCoy “announced a new rule of criminal procedure” since its
holding “was not dictated by precedent.”); Cody v. Sheldon, No. 1:18-cv-1787, 2020 WL
9460507, at *33 (N.D. Ohio Mar. 24, 2020), report and recommendation adopted 2021 WL
1437557 (N.D. Ohio Apr. 16, 2021), appeal filed sub nom. Cody v. McConahay, No. 21-3462

23

(6th Cir. May 18, 2021); Elmore v. Shoop, No. 1:07-cv-776, 2019 WL 5287912, at *6-7 (S.D.
Ohio Oct. 18, 2019), report and recommendation adopted 2020 WL 3410764, at *13 (S.D. Ohio
June 22, 2020).
Even if error based on McCoy were available to Petitioner, it does not appear that defense
counsel’s decision to stipulate that “Fairview Park was a drug free zone pursuant to Tennessee
Code Annotated section 39-17-432(b)(1)” would have implicated McCoy, as there is no
suggestion that counsel conceded the defendant’s guilt. Instead, counsel conceded an element of
the offense. See Peoples v. Fitz, No. 3:15-cv-666, 2024 WL 3970681, at *20 (M.D. Tenn. Aug.
28, 2024) (Trauger, J.) (where petitioner “only argued that counsel conceded ‘an element of the
offense’ . . . counsel did not concede his client’s guilt”). Thus, even if McCoy applied
retroactively, Petitioner has not established a structural violation of the Sixth Amendment and is
not entitled to relief on the merits of his claim.
B. Procedurally Defaulted Claims
Petitioner procedurally defaulted three claims, two of which are ineffective assistance of
counsel claims: Ground One (counsel’s failure to secure the sequestration of witnesses during
Petitioner’s post-conviction hearing); Ground Two (Petitioner’s relationship with counsel had
deteriorated to such an extent that, by the time of trial, there was a conflict of interest in
counsel’s representation); and Ground Four (counsel’s failure to investigate and to call
Petitioner’s uncle to testify at trial). Petitioner has not demonstrated cause and prejudice to
excuse the defaults. Neither does Petitioner assert that a fundamental miscarriage of justice will
occur if the Court does not excuse these defaults and review these claims on the merits. These
claims are therefore barred from review in this court.

24

Arguably, in Ground Five Petitioner raises an additional ineffective assistance of counsel
claim based on trial counsel’s stipulation that the Fairview Park was a drug-free zone. The Court
also addresses that claim in this section. That claim, like the others, does not provide relief.
1. Ineffective Assistance of Counsel (Ground One)
Petitioner next alleges that counsel was ineffective because he failed to secure the
sequestration of witnesses during Petitioner’s post-conviction hearing. (See Doc. No. 1 at
PageID# 16). According to Petitioner, counsel’s “failure to invoke the rule of sequestration
caused the hearing to not be fair and resulted in prejudice because it allowed trial counsel
Johnson to tailor his testimony to match that needed by the state.” (Id.)
Petitioner did not raise this claim during his post-conviction proceedings. Consequently,
he has waived the claim for purposes of federal habeas corpus review. 28 U.S.C. § 2254(c);
Coleman, 501 U.S. at 732. As noted above, the Court can only review a defaulted claim if
Petitioner establishes cause for the default and actual prejudice or that the Court’s failure to
address these claims would result in a fundamental miscarriage of justice.
Petitioner does not acknowledge his default of these claims. He does not attempt to
establish cause or prejudice to excuse the defaults. Neither does he argue that a fundamental
miscarriage of justice would occur if the Court does not excuse the defaults and address the
claims on the merits. This claim therefore barred from review in this court.
To the extent Petitioner raises this claim outside of the ineffective assistance of counsel
context and argues that the trial court should have sequestered the post-conviction witnesses, the
Sixth Circuit has consistently held that alleged errors in post-conviction proceedings “do not
directly challenge the judgment pursuant to which a petitioner is in custody[.]” Rockwell v.
Palmer, 559 F. Supp. 2d 817, 831 (W.D. Mich. 2008) (citing Roe v. Baker, 316 F.3d 557, 571
25

(6th Cir. 2002), and Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002)). That is because a claim
“related to collateral post-conviction proceedings, even if resolved in the petitioner’s favor,
would not ‘result [in] . . . release or reduction in . . . time served or in any other way affect his
detention because [the court] would not be reviewing any matter directly pertaining to his
detention.’” Id. (quoting Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986)).
2. Conflict of Interest in Counsel’s Representation (Ground Two)
In Ground Two, Petitioner alleges that his representation with trial counsel had
deteriorated to such an extent that, by the time of trial, there was a conflict of interest in
counsel’s representation. (Doc. No. 1 at PageID# 19-21).
In his post-conviction proceedings, Petitioner alleged that “he expressed ‘absolute
frustration’ and ‘dissatisfaction’ on the morning of his trial with trial counsel and requested new
counsel.” Pillow, 2020 WL 7040532, at *8. The court denied Petitioner’s request but appointed
co-counsel to sit with trial counsel throughout the trial. Petitioner’s post-conviction petition was
denied and, on the appeal of denial of post-conviction relief, Petitioner argued that “if the court
believed the remedy to a conflict between appointed counsel and his client was to appoint cocounsel, the court should have ordered a continuance to allow co-counsel time to prepare.” Id.
The TCCA found that, although Petitioner raised the issue of co-counsel being appointed
in his original petition, he abandoned this issue in his amended petition. Pillow, 2020 WL
7040532, at *8. The TCCA further found that there was no evidence presented at the postconviction hearing in support of this claim other than trial counsel’s testimony that he did not
recall co-counsel being in any way involved at Petitioner’s trial. Id. There was no testimony
about a continuance presented at the post-conviction hearing. The TCCA noted that co-counsel

26

did not testify at the post-conviction hearing, and the post-conviction court made no findings on
this issue. Id. The court ultimately found this claim was waived. Id.
Additionally, the TCCA found that this claim is not cognizable in a post-conviction
proceeding and should have been raised on direct appeal. “A post-conviction petition is not a
vehicle to review errors of law as a substitute for direct appeal.” French v. State, 824 S.W.2d
161, 163 (Tenn. 1992); see Tenn. Code Ann. § 40-30-106(g) (“A ground for relief is waived if
the petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented ...”).
“[A] federal court may not review federal claims that were procedurally defaulted in state
court—that is, claims that the state court denied based on an adequate and independent state
procedural rule.” Davila v. Davis, 582 U.S. 521, 527 (2017) (citing Beard v. Kindler, 558 U.S.
53, 55 (2009)). When determining whether a claim has been procedurally defaulted based on an
adequate and independent state procedural rule, the court applies the following test:
(1) the court must determine that there is a state procedural rule with which the
petitioner failed to comply; (2) the court must determine whether the state courts
actually enforced the state procedural sanction; (3) the state procedural rule must
have been an adequate and independent state procedural ground upon which the
state could rely to foreclose review of a federal constitutional claim; and (4) if the
court has determined that a state procedural rule was not complied with and that
the rule was an adequate and independent state ground, then the petitioner must
demonstrate that there was cause for his failure to follow the rule and that actual
prejudice resulted from the alleged constitutional error.
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Here, Tenn. Sup. Ct. R. 28 § 8(D)(4) constitutes an adequate and independent state-law
ground for procedural default. See McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (quoting
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (Tennessee’s waiver rule is “an ‘adequate

27

and independent’ state ground on which the state can rely to foreclose review of a federal
constitutional claim.”)). The TCCA’s decision clearly shows that Petitioner did not comply with
this state procedural rule by failing to incorporate this claim into his amended petition, thus
barring it from presentation at the evidentiary hearing. (See Doc. No. 12-14 at Page ID# 758-59,
790) (noting that post-conviction counsel declined to raise the claim). The TCCA enforced this
state procedural rule against Petitioner considering its citation and application in its opinion.
The same is true concerning the TCCA’s citation and application of Tenn. Code Ann. §
40-30-106(g). The rule states that claims are waived if they are not presented to the first court of
competent jurisdiction, which occurred here since Petitioner could have raised this claim on
direct appeal but did not. (See generally Doc. No. 12-8 at Page ID# 633-65). The TCCA
enforced this rule against Petitioner as shown in its opinion. See Pillow, 2020 WL 7040532, at
*9. Thus, the first two Monzo prongs are satisfied in this case.
Turning to the third Monzo prong, these two state procedural rules (Tenn. Sup. Ct. R. 28
§ 8(D)(4) and Tenn. Code Ann. § 40-30-106(g)) constitute adequate and independent state-law
grounds for default purposes. A state procedural rule is “adequate” if the rule was “firmly
established and regularly followed by the time as of which it [was] to be applied.” Fautenberry v.
Mitchell, 515 F.3d 614, 640-41 (6th Cir. 2008) (emphasis omitted). Thus, this Court must
determine “whether, at the time of the petitioner’s actions giving rise to the default, the petitioner
… [was] deemed to have been apprised of the rule’s existence.” Id. at 641.
Tenn. Sup. Ct. R. 28 § 8(D)(4) satisfies this test. Petitioner pursued post-conviction relief
from 2017 until 2021. (Doc. No. 12-14 at Page ID# 766; Doc. No. 12-23 at Page ID# 990). The
TCCA enforced this procedural rule against other petitioners before and during Petitioner’s postconviction proceedings. See e.g., Stewart v. State, No. E2019-00859-CCA-R3-ECN, 2020 WL

28

7240300, at *9 (Tenn. Crim. App. Dec. 9, 2020) (citing the rule for the point that the evidentiary
hearing “shall be limited to issues raised in the petition”); Woods v. State, No. W2016-00188CCA-R3-PC, 2016 WL 6596101, at *5 (Tenn. Crim. App. Nov. 7, 2016) (finding that “these
arguments were not presented to the post-conviction court, have no factual basis in the record
before us, and are therefore waived on appellate review.”). Further, a sister court previously
found that this rule is an adequate and independent state-law rule. See Grasty v. Parris, No. 1:17cv-247, 2019 WL 4545600, at *6 (E.D. Tenn. Sept. 19, 2019). The same is true for Tenn. Code
Ann. § 40-30-106(g). See Hollis v. Perry, No. 3:17-cv-626, 2018 WL 6181354, at *30 (M.D.
Tenn. Nov. 27, 2018) (citing Coe v. Bell, 161 F.3d 320, 331 (6th Cir. 1998)), certificate of
appealability denied, No. 19-5051, 2019 WL 3206686 (6th Cir. Apr. 24, 2019) (finding that this
rule constituted an adequate and independent state rule for procedural default). Monzo’s third
prong is satisfied.
Finally, Petitioner does not offer cause or prejudice to excuse his default. Construing the
pro se petition liberally, the Court could infer that Petitioner asserts his complaints against postconviction counsel as cause. (See Doc. No. 1 at PageID# 20, 31-34). Even then, the argument
fails. “Cause” to excuse a procedural default turns on “whether the prisoner can show that some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Coleman, 501 U.S. at 753. Alleged ineffectiveness of post-conviction counsel
does not constitute cause to excuse a default because Petitioner has no right to post-conviction
counsel, absent Martinez and Trevino’s equitable exceptions. Id. at 752-53. However, “Martinez
and Trevino’s equitable exception allowing the ineffective assistance of post-conviction counsel
to constitute cause for procedural default applies only to claims of ineffective assistance of trial
counsel; it does not apply to any other claims, including ineffective assistance of appellate
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counsel.” Hale v. Shoop, No. 1:18-cv-504, 2021 WL 1215793, at *98 (N.D. Ohio Mar. 31, 2021)
(citing Martinez, 566 U.S. at 9; Trevino, 569 U.S. at 422). Thus, Martinez affords no relief here.
In summary, Petitioner does not acknowledge his default of this claim. He does not
attempt to establish cause or prejudice to excuse the defaults. Neither does he argue that a
fundamental miscarriage of justice would occur if the Court does not excuse the defaults and
address the claim on the merits. This claim is therefore barred from review in this court.
3. Ineffective Assistance of Counsel (Ground Four)
In Ground Four, Petitioner alleges that trial counsel should have investigated and called
Petitioner’s uncle to testify at trial. (Doc. No. 1 at PageID# 26-28). According to Petitioner, his
uncle would have taken responsibility for selling the drugs to Odie, providing Petitioner a “thirdparty defense” to the charges. (See id.)
Petitioner did not raise this claim to the TCCA on post-conviction appeal. (See generally
Doc. No. 12-17 at PageID# 909-28; Pillow, 2020 WL 7040532, at *1-10). Because Petitioner did
not present this claim to the TCCA on post-conviction appeal, the first court of competent
jurisdiction, he procedurally defaulted this claim. 28 U.S.C. § 2254(c); Coleman, 501 U.S. at
732. He therefore has waived that claim for purposes of federal habeas corpus review. The Court
can only review this defaulted claim if Petitioner establishes cause for the default and actual
prejudice or that the Court’s failure to address these claims would result in a fundamental
miscarriage of justice.
Petitioner acknowledges the claim’s default and invokes the equitable exception provided
by Martinez. (See Doc. No. 1 at PageID# 28, 31-34, 37-38). Martinez requires that the
ineffective assistance of post-conviction counsel occur during the “initial-review collateral
proceeding,” and that “the underlying ineffective-assistance-of-trial-counsel claim [be] a

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substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit.” Here, Martinez provides no relief for two reasons.
First, Petitioner litigated this claim during his post-conviction evidentiary hearing, which
was the initial collateral review proceeding in this matter. (See Doc. No. 12-14 at Page ID# 79899; Doc. No. 12-16 at Page ID# 837, 853-54, 878-79, 891). The default occurred on postconviction appeal when Petitioner did not litigate the claim before the TCCA. (See generally
Doc. No. 12-17 at Page ID# 909-28); Pillow, 2020 WL 7040532, at *1-10. “‘[A]ttorney error at
state postconviction appellate proceedings cannot excuse procedural default under the MartinezTrevino framework.’” Middlebrooks, 843 F.3d at 1136 (quoting West v. Carpenter, 790 F.3d
693, 699 (6th Cir. 2015). Thus, Petitioner cannot show that the alleged effective assistance of
post-conviction counsel occurred during the “initial-review collateral proceeding” as Martinez
requires.
Second, the defaulted claim is not substantial. In demonstrating a substantial claim of
ineffective assistance of trial counsel, the petitioner must prove prejudice under Strickland. See
McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 752 (6th Cir. 2013) (“To be
successful under Trevino, [a petitioner] must show a ‘substantial’ claim of ineffective assistance,
and this requirement applies as well to the prejudice portion of the ineffective assistance claim.”
(internal citations omitted)). Under Strickland, a petitioner can prove prejudice by showing “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. 668, 694. As one court explains,
describing the interplay between Coleman (relating to the prejudice requirement for excusing
procedural default of a claim, whether under Martinez or otherwise) and Strickland (relating to
the prejudice requirement for an underlying ineffective assistance of counsel claim):

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The “actual prejudice” requirement of Coleman and the prejudice requirement of
Strickland overlap such that in many habeas cases seeking to overcome
procedural default under Martinez, it will be more efficient for the reviewing
court to consider in the first instance whether the alleged underlying ineffective
assistance of counsel was “substantial” enough to satisfy the “actual prejudice”
prong of Coleman. If not, because the “cause and prejudice” standard is
conjunctive rather than disjunctive, the reviewing court would have no need to
consider whether the petitioner has established cause to overcome the procedural
default, in the form of ineffective assistance of post-conviction counsel.
Thorne v. Holloway, No. 3:14-cv-0695, 2014 WL 4411680, at *23 (M.D Tenn. Sept. 8, 2014).
The Supreme Court has defined this required “substantial” showing as a showing that the claim
has some merit. Martinez, 566 U.S. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322, (2003)).
The threshold inquiry “does not require full consideration of the factual or legal basis supporting
the claims.” Miller-El, 537 U.S. at 336, 338.
Martinez, however, provides no relief here because the defaulted claim does not have
merit. 566 U.S. at 14. Trial counsel testified that he decided against calling Petitioner’s uncle to
testify under “the theory of criminal defense called plan B” because there was “a danger” that, in
doing so, the prosecution could have requested that it be allowed to introduce evidence of
Petitioner’s prior convictions. (Doc. No. 12-16 at Page ID# 878-79, 891). This testimony
established that trial counsel strategically decided against putting forth this defense theory, and
this reasonable trial strategy is now “virtually unchallengeable.” See Strickland, 466 U.S. at 68890. Petitioner cannot satisfy the performance prong; thus, the claim fails.
Even assuming arguendo that trial counsel performed deficiently, Petitioner has not
established that he was prejudiced by the purported failure of trial counsel to call Petitioner’s
uncle to testify. See Coleman, 501 U.S. at 750. As noted by the TCCA on direct appeal, the
evidence supported the jury’s finding “beyond a reasonable doubt that the Appellant sold .5
grams or more of cocaine in a drug-free zone on three occasions.” Pillow, 2016 WL 1270263, at

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*8. Had trial counsel called the uncle to testify and, as trial counsel feared, the prosecution used
the uncle’s testimony as a way to convince the trial court to admit evidence of Petitioner’s prior
convictions, there would have been even more evidence against Petitioner.
This meritless claim is not substantial, and Petitioner has not shown that he was
prejudiced by post-conviction counsel’s failure to raise it. Therefore, Petitioner cannot
demonstrate cause and prejudice to excuse his procedural default of this claim. The claim is
without merit and will be dismissed.
4. Ineffective Assistance of Counsel (Ground Five)
To the extent Petitioner contends that trial counsel provided ineffective assistance of
counsel by stipulating that the Fairview Park was a drug-free zone, the claim is procedurally
defaulted. While Petitioner raised this factual predicate as a Strickland claim in his postconviction proceedings (and the post-conviction court denied relief after finding that trial counsel
strategically decided to stipulate to this matter) (Doc. No. 12-14 at Page ID# 755, 797; Doc. No.
12-16 at Page ID# 875), the claim was defaulted on post-conviction appeal when Petitioner
failed to raise the issue in his brief. (See generally Doc. No. 12-17 at Page ID# 909-28). Further
litigation of this claim in state court is now barred by the waiver rule. See Tenn. Code Ann. § 4030-106(g).
Petitioner cannot use Martinez to escape this default because he litigated the claim in the
initial collateral-review proceeding before defaulting it on collateral appeal. Thus, Middlebrooks
bars further review of this claim under Martinez. 843 F.3d at 1136.
Even if the claim could be addressed on the merits, Petitioner has not shown that trial
counsel’s stipulation constituted constitutionally deficient performance. The record shows that
trial counsel investigated the requisite distance of the park from the crime scene and discovered

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the drug sales occurred “within 1,000 feet because of that, because of that website put out by the
government of the state.” (Doc. No. 12-16 at PageID# 876). Trial counsel testified during
Petitioner’s post-conviction hearing that counsel therefore hoped to “gloss [the element] over”
through stipulation because challenging the element would be futile and “would have just piled
his guilt on, made him look worse.” (Id.) Counsel also testified that, as a matter of strategy, he
was of the opinion that “just being the one to read the stipulation in the courtroom sort of makes
it sound like you won the argument.” (Id. at PageID# 874). Counsel’s strategic decisions
pertaining to the drug-free zone stipulation were based on his reasonable investigation and
cannot now be second-guessed. Thus, Petitioner cannot satisfy Strickland’s performance prong.
This claim fails.
C. Summary
In summary, Petitioner’s exhausted claims lack merit. Those claims are Ground One
(ineffective assistance of counsel based on trial counsel’s failure to communicate the deadline on
the State’s plea offer); Ground Three (Brady and Napue claims); and Ground Five (McCoy
claim).
Petitioner’s other claims are procedurally defaulted without sufficient cause, and
Petitioner has not shown that failure to consider those claims on the merits will result in a
fundamental miscarriage of justice. Those claims are Ground One (ineffective assistance of
counsel based on counsel’s failure to secure the sequestration of witnesses during Petitioner’s
post-conviction hearing); Ground Two (Petitioner’s relationship with counsel had deteriorated to
such an extent that, by the time of trial, there was a conflict of interest in counsel’s
representation); Ground Four (ineffective assistance of counsel based on counsel’s failure to call

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Petitioner’s uncle to testify at trial); and Ground Five (ineffective assistance of counsel claim
based on trial counsel’s stipulation that the Fairview Park was a drug-free zone).
V. CONCLUSION
For the reasons set forth herein, the petition seeking relief under 28 U.S.C. § 2254 is
DENIED, and this action is DISMISSED WITH PREJUDICE.
In so ruling, the Court notes that it does not write on a clear slate in adjudicating the
petition. The Court does not resolve the petition by deciding, for example, whether Petitioner
was in fact guilty (and if so, of what), whether Petitioner should have been convicted by the jury
(and if so, of what), or even whether it personally believes in the first instance that Petitioner’s
claims are meritorious. Instead, as discussed herein in detail, the Court applies established
principles to determine the extent to which it can review Petitioner’s claims at all, and, for those
claims that it determines it can review, it applies the demanding standards of AEDPA.
VII. CERTIFICATE OF APPEALABILITY
Federal Rule of Appellate Procedure 22 provides that an appeal of the denial of a habeas
petition may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing § 2254 Cases requires that a district court issue or deny a
COA when it enters a final order. A COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). The district court must either issue a COA indicating which issues satisfy the required
showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed.
R. App. P. 22(b).
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Because jurists of reason would not disagree with the resolution of Petitioner’s claims,
the Court DENIES a COA. However, Petitioner may seek a COA from the Sixth Circuit.
It is so ORDERED.
______________________________________
WILLIAM L. CAMPBELL, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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