Myers v. State of Tennessee
Filing
64
REPORT AND RECOMMENDATION re 1 Petition: For the reasons explained above, the undersigned RECOMMENDS that the petition be DENIED and that the petitioner's claims be DISMISSED with prejudice. The undersigned further RECOMMENDS that a certif icate of appealability issue only as to the questions of whether Myers was effectively abandoned by his post-conviction attorneys in order to establish cause under Maples for his procedurally defaulted claims and as to whether Martinez should be interpreted to apply to the facts of the petitioner's case as it pertains to Claims 8-20. Signed by Magistrate Judge E. Clifton Knowles on 3/29/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
RAYMOND DOUGLAS MYERS,
Petitioner,
v.
STATE OF TENNESSEE,
Respondent.
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No. 2:11-cv-00045
Chief Judge Sharp
To: The Honorable Kevin H. Sharp, Chief United States District Judge
REPORT AND RECOMMENDATION
For the reasons explained below, the undersigned RECOMMENDS that the petition for writ
of habeas corpus (Docket No. 1) be DENIED, and that this action be DISMISSED with prejudice.
The undersigned further RECOMMENDS that a certificate of appealability only issue as to the
questions of whether Myers was effectively abandoned by his post-conviction attorneys in order to
establish cause under Maples for his procedurally defaulted ineffective assistance of counsel claims
and as to whether Martinez should be interpreted to apply to the facts of the petitioner’s case as it
pertains to Claims 8-20.
I.
INTRODUCTION AND BACKGROUND
The petitioner, Raymond Douglas Myers,1 has filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. (Docket No. 1). The petitioner is an inmate at the Morgan County
1
Throughout this memorandum, Raymond Douglas Myers is referred to as “petitioner,” “defendant,” and
“appellant” interchangeably.
1
Correctional Complex in Wartburg, Tennessee. The petitioner challenges the legality of his
confinement under a 2002 judgment of the Criminal Court for Putnam County, Tennessee,
convicting him of three counts of first degree murder, two counts of felony murder, one count of
aggravated arson, and one count of conspiracy to commit murder in connection with the deaths of
Dianne Watts, her daughter Jessica Watts, and Jessica’s friend, Chelsea Smith.2 (Docket No. 38-7).3
The trial court sentenced the defendant to consecutive life sentences without the possibility of parole
for the first degree murder convictions and to a consecutive 24-year sentence for the aggravated
arson conviction. (Docket No. 38-8).
On direct appeal of his convictions and sentence, Myers raised the following claims: (1) that
the evidence is insufficient to support his convictions; (2) that Tennessee’s first degree murder
sentencing statute is unconstitutional; and (3) that the trial judge improperly instructed the jury
regarding the State’s burden of proof. (Docket No. 21-3). On April 29, 2004, the Tennessee Court
of Criminal Appeals affirmed the petitioner’s convictions and sentence. (Docket No. 21-5).
Thereafter, Myers filed an application for permission to appeal with the Tennessee Supreme Court
raising the following issues: (1) whether the evidence is sufficient to support the verdict and (2)
whether the jury charge on circumstantial evidence effectively reduced the burden of proof of the
State. (Docket No. 21-6). On November 8, 2004, the Tennessee Supreme Court denied petitioner’s
application for permission to appeal. (Docket No. 21-7).
2
The petitioner’s convictions for felony murder and the conspiracy to commit murder conviction were
subsequently merged by the trial court with the three convictions for first degree murder. State v. Myers, 2004 WL
911280, at *5 n.1 (Tenn. Ct. Crim. App. Apr. 29, 2004).
3
For ease of reference, the page numbers cited herein refer to the “PAGE ID” numbers of the technical record
filed by the respondent, which are the right-most numbers on the line of text imprinted on documents by the court’s
docketing system. (Docket Nos. 21 and 38 & Attachs.).
2
On July 25, 2005, Myers filed a pro se petition for post-conviction relief in the Putnam
County Criminal Court. (Docket No. 21-8 at p. 282). Myers filed pro se amendments to the petition
for post-conviction relief on March 25, 2008, and March 6, 2009. (Docket No. 21-8 at p. 316; Docket
No. 21-9 at p. 440). Following an evidentiary hearing held August 14, 2009, the post-conviction
court denied relief. (Docket No. 21-10 at p. 598).
Myers appealed. (Docket No. 21-13 at p. 806). On appeal to the Tennessee Court of
Criminal Appeals, he claimed that he received ineffective assistance of counsel, contending that trial
counsel’s performance was deficient because he failed to adequately prepare and investigate and
because he failed to call witnesses beneficial to petitioner’s case, specifically Dan McInnis, Terry
Coppinger, and Jimmy Bonner. (Id.) Myers further asserted as grounds for ineffective assistance of
counsel that trial counsel was generally incompetent. (Id.) On August 23, 2010, the Court of
Criminal Appeals affirmed the denial of post-conviction relief. (Docket No. 21-15 at p. 854).
In his application for a Rule 11 appeal to the Tennessee Supreme Court, Myers challenged
the following: (1) the lower courts’ findings that Myers failed to establish ineffective assistance of
counsel based upon trial counsel’s failure to call Jimmy Bonner as a witness; (2) the lower courts’
findings that the testimony of Frost, Shepard, Borlund, Isbell, and Myers did not establish that trial
counsel failed to present all defenses or was incompetent; (3) the lower courts’ findings that Myers
failed to establish ineffective assistance of counsel based upon trial counsel’s failure to fully
investigate the case and call Terry Coppinger and Dan McInnis as witnesses; and (4) whether Myers
established ineffective assistance of counsel based upon trial counsel’s failure to call or properly
cross-examine Spangler, Humphrey, McCormick, and Raymond. (Docket No. 21-16). The Tennessee
Supreme Court denied permission to appeal on January 13, 2011. (Docket No. 21-17).
3
On April 15, 2011, Myers timely filed the instant pro se petition for writ of habeas corpus.
(Docket No. 1). In his petition, Myers asserts twenty-one (21) grounds for relief. He names the
State of Tennessee as the respondent.
Upon its receipt, the court conducted a preliminary examination of the petition and
determined that the petitioner had stated a colorable claim for relief. Accordingly, the court entered
an order on April 28, 2011, directing the respondent to answer or otherwise respond to the petition,
the time for which was subsequently extended by the court. (Docket No. 6). The respondent filed
an answer in which it urged the court to deny the petition and dismiss the action. (Docket No. 20).
The petitioner filed a reply to the answer. (Docket No. 31).
On April 25, 2012, the petitioner filed a pro se motion seeking permission to brief the issue
of procedural default and cause for excusing the default in light of the United States Supreme
Court’s March 2012 decision in Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012). (Docket
No. 39). The court granted the motion (Docket No. 40), and the petitioner, having secured counsel,
filed his brief on July 6, 2012. (Docket No. 45). The petitioner’s counsel filed a supplemental brief
on May 8, 2013. (Docket No. 51).
Although the court’s order permitted the respondent to respond to the petitioner’s postMartinez brief (Docket No. 40), no response was filed. By order entered on October 2, 2015, the
court order the respondent to respond to the petitioner’s post-Martinez brief, specifically addressing
the issue of procedural default with regards to Claims 8-11 and 12-20. (Docket No. 55). The
respondent filed its brief on December 15, 2015. (Docket No. 60). The petitioner filed a response
to the brief. (Docket No. 63).
4
Upon consideration of the record, the court concludes that an evidentiary hearing is not
needed. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003)(an evidentiary hearing is not
required when the record conclusively shows that the petitioner is not entitled to relief). Therefore,
the court shall dispose of the petition as the law and justice requires. Rule 8(a), Rules — § 2254
Cases.
Jurisdiction and venue in this court are appropriate under 28 U.S.C. § 2241(d) because the
petitioner was convicted in the Criminal Court of Putnam County, Tennessee.
II.
SUMMARY OF THE EVIDENCE
A.
Trial
The following summary of the facts of the case is taken from the opinion of the Tennessee
Court of Criminal Appeals in State of Tennessee v. Raymond Douglas Myers, 2004 WL 911280, at
** 1-2 (Tenn. Ct. Crim. App. Apr. 29, 2004):4
On July 30, 1999, the McMinnville Fire Department responded to a
house fire. Inside the house, firefighters discovered the bodies of
Dianne Watts, her daughter Jessica Watts, and Chelsea Smith, Jessica
Watts’ friend who spent the night with her on July 29. Dianne Watts,
her daughter Jessica, and Dianne Watts’ boyfriend, the Defendant,
lived together in the house that burned. The Defendant had lived there
about six years. Investigators with the fire department determined that
the fire was deliberately set with an “ignitable liquid fuel” based upon
burn patterns and the presence of an accelerant in the bedrooms, in
the hallway, on the bed, and on the clothes of Chelsea Smith and
Jessica Watts. Firemen also recovered a metal baseball bat from the
hallway and a torque wrench from the area immediately at the front
door of the house.
4
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e)(1).(“In a
proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of
a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear and convincing evidence.”). The petitioner here
does not contest the appellate court’s statement of facts.
5
Dr. Bruce Levy, who performed the autopsies on the victims’ bodies,
testified that he identified five injuries to Chelsea Smith’s head and
one to her groin. She died as a result of the blunt-force injuries and
smoke inhalation. Dr. Levy testified that the injuries to Ms. Smith
were consistent with full-swing blows from the torque wrench. The
evidence of smoke inhalation indicates that Ms. Smith was alive
when the fire was set.
Dr. Levy also testified that he found two injuries on Jessica Watts’
head that he believed to have been caused by blows from the torque
wrench. The immediate cause for Ms. Watts’ death was smoke
inhalation.
With respect to Dianne Watts, Dr. Levy found two severe injuries to
her head that he believed were caused by the baseball bat. Raymond
DePriest, a forensic scientist with the Tennessee Bureau of
Investigation, testified that a DNA analysis of blood from the baseball
bat showed the blood to belong to Dianne Watts.
Four persons were indicted for the murders, arson, and conspiracy to
commit the murder of Diane Watts: the Defendant, the Defendant’s
friend Johnny Lee Lewis, the Defendant’s mother Clementine Myers,
and the Defendant’s brother Gary Myers. The State’s theory was that
the four of them conspired to kill Dianne Watts because she had
information regarding criminal activity in which they engaged. Gary
Myers’ house had been burglarized, and he and Clementine Myers
believed that Ms. Watts was responsible. Gary Myers had been
investigated for bankruptcy fraud and food stamp fraud, and the
conspirators thought Ms. Watts had information related to the
investigation for fraud.
The State offered the testimony of the Defendant’s estranged wife,
who heard him and Johnny Lewis talking about how Ms. Watts was
“running her mouth,” and that Clementine Myers wanted Ms. Watts
to “shut up.” The day before the murder, Mr. Lewis bought
approximately five two-gallon jugs of gasoline. Shortly after the
murders, the Defendant gave Mr. Lewis nine hundred dollars that
came from Clementine Myers. On the morning following the
murders, Gary Myers called the Defendant at approximately 6:20 a.m.
and tape recorded a brief portion of their conversation, which the
State characterized as an attempt to create an alibi for the Defendant.
Throughout the trial, the prosecution offered the testimony of
6
witnesses who had heard the Defendant, Johnny Lewis, and
Clementine Myers make incriminating statements and threats
regarding Ms. Watts. Several witnesses testified to details of the
burglary of Gary Myers’ house and the exchange of a stolen tractor
for methamphetamine by the Defendant and Mr. Lewis.
(Id.)
B.
Post-Conviction
The Tennessee Court of Criminal Appeals summarized the evidence presented at the postconviction hearing in its opinion affirming the trial court’s denial of post-conviction relief, as
follows:
The post-conviction court eventually held a hearing on the petition for
post-conviction relief. At the hearing, Petitioner presented several
witnesses. Dan McInnis testified that he was not called as a witness
at trial. According to Mr. McInnis, his testimony would not have been
helpful for the defense or the prosecution. Mr. McInnis stated that, if
called to testify at trial, he would have informed the jury that on July
30, 1999, he went to work between 7:30 and 8:30 a.m. When he
unlocked his shop door, he saw Petitioner coming around the corner.
Mr. McInnis waved at Petitioner, and Petitioner waved back.
Petitioner was walking in the direction of the grocery store in Viola.
Mr. McInnis also saw Petitioner driving a little car. Mr. McInnis
testified that Petitioner normally drove a pickup truck that had a loud,
distinct sound. On cross-examination, Mr. McInnis could not say for
certain what day he saw Petitioner.
Terry Coppinger testified to the post-conviction court that he lived
two houses away from Petitioner’s mother. Mr. Coppinger saw
Petitioner’s truck parked in Petitioner’s mother’s driveway the week
of the murders.
The truck was sitting in the yard between his mother’s house and the
neighbor’s house and had been sitting there for several days. Mr.
Coppinger confirmed that Petitioner’s truck had a loud, distinct
sound. Mr. Coppinger did not remember hearing the truck that week.
Mr. Coppinger typically left for work between 6:00 and 6:15 a.m. On
7
the morning of the murders, Mr. Coppinger took another way to work
and did not see if Petitioner’s truck was in the driveway at
Petitioner’s mother’s house.
Jim Bonner lived directly across the street from Petitioner’s mother’s
house. Mr. Bonner testified that he too saw Petitioner’s truck parked
outside the house the week of the murders. In fact, he heard Petitioner
complain that the truck was broken. Mr. Bonner recalled that the
truck stayed at the house from Tuesday to Saturday, the day of the
murders. Mr. Bonner recalled the distinct sound made by Petitioner’s
truck and testified that if it were started in the middle of the night, he
would have heard it.
Mr. Bonner testified at the post-conviction hearing that he saw
Petitioner’s truck on the morning of the murders. It was parked at
Petitioner’s mother’s house. Petitioner’s mother, Clementine Myers,
called Mr. Bonner that morning around 7:45 a.m. to tell him that
“Diane and them [sic] kids got burnt up.” Petitioner’s truck was still
parked at the house. When Mr. Bonner got to Ms. Myers’s house,
Petitioner’s brother Gary was there but Petitioner was not. Mr.
Bonner tried to go to the scene of the crime but was stopped by
authorities. When he got back to his house, Gary Myers was gone and
Petitioner was at his mother’s house.
Mr. Bonner admitted on cross-examination that he had given two
statements to authorities. Mr. Bonner did not mention seeing
Petitioner’s truck in either statement. Further, he admitted that he did
not tell anyone that the truck had been there for several days without
being moved. Mr. Bonner insisted that after he signed the statements
he called a police officer and told him about the truck.
Charles Frost acted as the mitigation specialist on the defense team.
When the case first started, Petitioner was potentially facing the death
penalty. Mr. Frost has a degree in social welfare. Mr. Frost visited
with Petitioner several times during his service on the case. He
gathered information about Petitioner’s social history and visited a
number of Petitioner’s family members in preparation for the case.
Mr. Frost spoke with trial counsel on a number of different occasions.
Mr. Frost expressed concern over the fact that the evidence pointed
to a fairly solid alibi defense by Petitioner. Mr. Frost did not think
that trial counsel was able to put together a defense. Mr. Frost
described trial counsel as confused, incoherent, and forgetful.
8
In examining the case, Mr. Frost felt that it was important to have a
jury that was less emotional. Mr. Frost did not think that trial counsel
appreciated the seriousness of jury selection. Mr. Frost testified that
trial counsel sometimes lost track of himself, both prior to and during
the trial. Mr. Frost did not think that trial counsel was mentally stable
enough to effectively represent Petitioner at trial.
On cross-examination, Mr. Frost admitted that this was the only
capital case he had ever worked on in his career. He acknowledged
that trial counsel was able to put together a solid defense surrounding
an alibi. Further, Mr. Frost admitted that he never expressed any
concern about trial counsel’s ability to the trial court.
Neca Shepard was next to testify at the post-conviction hearing. Ms.
Shepard worked with Tom Isbell as a private investigator on
Petitioner’s case. Ms. Shepard had limited communication with trial
counsel. She recalled two instances that she interacted with trial
counsel. On one occasion, trial counsel seemed forgetful and easily
confused. Ms. Shepard described trial counsel’s car as full of
documents. Ms. Shepard felt that there was a lot of material that was
uncovered during the investigation that should have been used at trial
but was unable to articulate the substance of this material to the
post-conviction court. On cross-examination, Ms. Shepard admitted
that Petitioner’s trial was the first capital case she had ever worked on
during her career.
Thomas Borlund, Jr., an assistant to the one of the investigators in
Petitioner’s case, testified at the hearing. Mr. Borlund was responsible
for compiling information on nearly 400 potential witnesses in
Petitioner’s case. Mr. Borlund was of the opinion that trial counsel
should have called more witnesses at trial. He agreed that it was
ultimately trial counsel’s decision and admitted that he had never
worked on a capital case before.
Thomas Isbell, a private investigator, worked closely with trial
counsel on Petitioner’s case. He was responsible for interviewing
numerous witnesses. Mr. Isbell felt that trial counsel did not use the
majority of the information that he secured prior to trial. Mr. Isbell
recalled a meeting on the day prior to trial during which he gave trial
counsel a list of forty witnesses that were essential to the trial. Trial
counsel repeatedly informed Mr. Isbell that he was relying on an alibi
defense. Mr. Isbell expressed concern that trial counsel was hanging
his hat on one defense rather than a total defense.
9
Mr. Isbell was under the impression that trial counsel was ineffective
due to his limited attention span, forgetfulness, and due to the fact
that he was easily confused. Mr. Isbell informed trial counsel that
Petitioner had a hernia surgery two weeks prior to the murders. Mr.
Isbell interviewed Petitioner’s doctor in preparation for trial and was
disappointed that trial counsel did not use this information.
Additionally, Mr. Isbell felt that trial counsel did a poor job of
cross-examining the State’s witnesses.
Mr. Isbell admitted that this was his first exposure to a capital case.
He acknowledged that trial counsel’s strategy from the beginning of
the investigation was to focus on an alibi defense. Mr. Isbell admitted
that he was not qualified to judge trial counsel’s effectiveness because
he is not an attorney. Further, Mr. Isbell did not express his concern
about trial counsel’s effectiveness to the trial court.
Petitioner took the stand at the hearing. According to Petitioner, trial
counsel was not easy to communicate with about the trial. Petitioner
stated that trial counsel would not listen to him, and Petitioner could
not “connect” with trial counsel. Petitioner stated that trial counsel
would not “listen” to what he had to say about the case. Petitioner
stated that the defense was that of an alibi. Petitioner felt that trial
counsel was often “confused.” However, Petitioner stated that trial
counsel “done [sic] pretty good starting off at the trial.” As the trial
progressed, Petitioner stated that trial counsel “wasn’t putting on the
proof or doing nothing [sic].”
Trial counsel testified at the hearing that he had been licensed to
practice law since March of 1962. Trial counsel had been involved in
several capital cases prior to representing Petitioner. Trial counsel
testified that he had experienced significant health problems since
Petitioner’s trial but did not “believe” that he had any health problems
during the trial. Trial counsel described the trial as “complex” and
that early on he decided to base his strategy on the fact that Petitioner
had an alibi. Trial counsel felt that the State did not “have enough
proof to convict” Petitioner at trial. Trial counsel recalled meeting
with the other attorney on the case “numerous” times prior to trial.
Trial counsel could not give a “specific number” of times that he met
with Petitioner prior to trial.
Trial counsel testified that he did everything in his power to secure a
not guilty verdict. Trial counsel was surprised by the guilty verdict
10
because he did not think that there was sufficient evidence to convict
Petitioner.
At the conclusion of the hearing, the post-conviction court
determined that the investigation into Petitioner’s case “was very
thorough” and that the record indicated that “all that the petitioner
asked for prior to trial was given to him.” The post-conviction court
commented specifically on the high volume of pro bono work that
was done for Petitioner prior to trial.
The post-conviction court also determined that trial counsel was not
ineffective for failing to call witnesses because the alibi defense was
a “great defense” that “generally stands on its own.” Further, the
post-conviction court found that Petitioner was given a full defense
in that trial counsel presented an alibi defense, argued that the
evidence was not sufficient, and questioned the motive presented by
the State for committing the murders. The post-conviction court did
not hear any testimony at the hearing that would have changed the
outcome of the case and did not hear of any additional defenses that
could have been presented.
The post-conviction court determined that there was no testimony
presented about any constitutional violations dealing with the jury.
Further, the post-conviction court determined that trial counsel was
not incompetent at Petitioner’s trial. The post-conviction court
commented that the circumstantial evidence was “very strong” and
that “there is nothing . . . to show that [trial counsel] was anything
other than an effective trial counsel at the time [of trial].”
The post-conviction court did not find any “competent” evidence of
prosecutorial misconduct that occurred at trial. Further, the
post-conviction court did not find that there were any “civil rights
violations of witnesses.”
Myers v. State, 2010 WL 3323748, at **2-6 (Tenn. Ct. Crim. App. Aug. 23, 2010).
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.”
11
Woodford v. Garceau, 538 U.S. 202, 206, 123 S. Ct. 1398, 155 L.Ed.2d 363 (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. ___, 134 S. Ct. 10, 15, 187 L.Ed.2d 348 (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 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).
The state court’s factual findings are presumed to be correct, and those findings can be
contravened only if the petitioner can show by clear and convincing evidence that the state court’s
factual findings were erroneous. 28 U.S.C. § 2254(e)(1). The petitioner is entitled to an evidentiary
hearing if he alleges sufficient grounds for issuance of the writ, relevant facts are in dispute, and the
state courts did not hold a full and fair evidentiary hearing. Sawyer v. Hofbauer, 299 F.3d 605, 610
(6th Cir. 2002). 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, 127
12
S. Ct. 1933, 167 L.Ed.2d 836, (2007) (citing Williams, 529 U.S. at 410). The Supreme Court has held
that 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, 131 S. Ct. 1388, 1398, 179
L.Ed.2d 557 (2011).
Further, “[b]efore 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). Claims which 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).
“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.” Alley, 307 F.3d at 386. A petitioner can establish cause in two ways. First, a
petitioner may “show 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. Second, 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
13
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 only be used as cause for the underlying
defaulted claim if the petitioner demonstrates cause and prejudice with respect to the
ineffective-assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452–53, 120 S. Ct. 1587, 146
L.Ed.2d 518 (2000).
Until recently, a prisoner could not demonstrate cause for default by claiming that he received
ineffective assistance of counsel during state post-conviction proceedings. See Coleman v.
Thompson, 501 U.S. 722, 752–53, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1992) (holding that attorney
error is not cause to excuse a default). The holding in Coleman was based on the premise that an
individual does not have a constitutional right to counsel in post-conviction proceedings, so the
prisoner “must bear the risk of attorney error that results in a procedural default.” Id. (internal
quotations omitted).
Martinez v. Ryan created a new basis for establishing “cause” to excuse a procedural default.
132 S. Ct 1309 (2012). Martinez carved out “a narrow exception” to Coleman’s general rule by
holding that “ineffective assistance of counsel at initial-review collateral proceedings ” could
establish “cause” to excuse a prisoner's procedural default. 132 S. Ct. at 1315. See Trevino v. Thaler,
569 U.S. ___, 133 S. Ct. 1911, 1921 (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). However, the Martinez exception does not “concern attorney errors in other
kinds of proceedings, including appeals from initial review collateral proceedings.” Id. at 1320.
14
The Supreme Court's creation in Martinez of a narrow exception to the procedural-default
bar stemmed from its 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, 132 S. Ct. at 1318.
In other words, 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 substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” See id. at 1318–19, 1320. 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, 501 U.S. at 750.
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, 102 S. Ct. 1584, 71 L.Ed.2d 816 (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 has also 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, 124 S. Ct.
1847, 158 L.Ed.2d 659 (2004) (citing Murray, 477 U.S. at 496).
15
IV.
CLAIMS OF THE PETITION
In his petition for writ of habeas corpus, Myers asserts the following the following grounds
for relief:
1. Whether the evidence was sufficient to support the petitioner’s convictions.
2. Whether the petitioner was denied his 5th, 6th, and 14th Amendment rights because of
the trial court’s erroneous charge to the jury which allegedly failed to require that the state prove all
elements of the petitioner’s offenses beyond a reasonable doubt.
3. Whether the petitioner was denied effective assistance of counsel when counsel failed to
call Jimmy Bonner as a witness at trial.
4. Whether the petitioner was denied effective assistance of counsel based upon trial
counsel’s mental incompetence.
5.
Whether the petitioner was denied effective assistance of counsel by trial counsel’s
alleged failure to investigate the petitioner’s case.
6. Whether the petitioner was denied effective assistance of counsel when trial counsel
failed to call Terry Coppinger as a witness at trial.
7. Whether the petitioner was denied effective assistance of counsel when trial counsel
failed to call Dan McInnis as a witness at trial.
8. Whether the petitioner was denied effective assistance of counsel based upon trial
counsel’s failure to call or properly cross-examine Robert Spangler.
9. Whether the petitioner was denied effective assistance of counsel based upon trial
counsel’s failure to call or properly cross-examine Shirley Humphrey.
10. Whether the petitioner was denied effective assistance of counsel based upon trial
16
counsel’s failure to call or properly cross-examine Shawn McCormick.
11. Whether the petitioner was denied effective assistance of counsel based upon trial
counsel’s failure to call or properly cross-examine Raymond Hicks Myers, Jr.
12. Whether the petitioner’s rights to due process, a fair trial, and a direct appeal under the
14th Amendment were violated by the state’s alleged suppression of exculpatory evidence regarding
Robert Spangler.
13. Whether the petitioner’s rights were violated by the state’s alleged suppression of
exculpatory evidence obtained from the residence of Dianne Watts, including a caller ID box and
numerous recorded telephone calls.
14. Whether the petitioner’s rights were violated by the state’s alleged suppression of
exculpatory evidence relating to Shirley Humphrey’s telephone records.
15. Whether the petitioner’s rights were violated by the state’s alleged suppression of
exculpatory evidence that Dianne Watts called Mike Brady and John Lewis at Humphrey’s residence
hours before the homicides.
16. Whether the petitioner’s rights were violated by the state’s alleged suppression of
exculpatory evidence that Jimmy Bonner had informed officials that petitioner’s truck had been at
the petitioner’s mother’s home at the time of the homicides.
17. Whether the petitioner’s rights were violated by the state’s alleged suppression of
exculpatory evidence John Lewis had been at the victim’s residence at the time of the murders and
that the petitioner was not there.
18. Whether the petitioner’s rights under the 14th Amendment were violated by the state’s
alleged suppression of exculpatory evidence concerning a private fire consultant, Stuart Bain.
17
19. Whether the petitioner’s rights under the 14th Amendment were violated by the state’s
alleged suppression of exculpatory evidence consisting of the names of Mark Petty and “other
individuals,” who had been considered suspects in the case.
20. Whether the petitioner’s rights under the 14th Amendment were violated by the state’s
alleged suppression of exculpatory evidence obtained from Shirley Humphrey that Toby Young, Tim
Meirs, Mike Brady, and others had committed the offenses.
21. The petitioner is actually innocent of the crimes for which he was convicted.
(Docket No. 1 at pp. 5-24).
V.
ANALYSIS
A.
Insufficiency of the Evidence (Claim 1)
1.
Exhaustion
The respondent concedes that the petitioner has exhausted this claim. (Docket No. 20 at p.
18).
2.
Merits
Myers first claims that the evidence presented at trial was insufficient to support his
convictions of the murders of Dianne Watts, Jessica Watts, and Chelsea Smith and his conviction
for aggravated arson. Myers raised this claim on direct appeal to the Tennessee Court of Criminal
Appeals, essentially arguing that the state’s evidence was entirely circumstantial and that his
witnesses supported his version of the events. (Docket No. 21-3).
The Tennessee Court of Criminal Appeals considered the petitioner’s sufficiency of evidence
claim in its opinion. (Docket No. 21-5). Therefore, this court must presume the correctness of the
state court’s factual determinations. 28 U.S.C. § 2254(e)(1). The petitioner may rebut this
18
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
On sufficiency of the evidence challenges, habeas relief is warranted “only where the court
finds, after viewing the evidence in the light most favorable to the prosecution, that no rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Tucker v.
Palmer, 541 F.3d 652, 656 (6th Cir. 2008)(internal quotation omitted); see also Jackson v. Virgina,
443 U.S. 307, 319 (1979)(“after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt”)(emphasis in original).
In considering the petitioner’s insufficiency of evidence claim in its opinion, the Tennessee
Court of Criminal Appeals began by setting forth the correct legal standard:
This Court must reject a convicted criminal defendant’s challenge to
the sufficiency of the evidence if, after considering the evidence in a
light most favorable to the prosecution, we determine that any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Hall, 8
S.W.3d 593, 599 (Tenn. 1999).
On appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable and legitimate inferences which may be
drawn therefrom. See Carruthers, 35 S.W.3d at 558; Hall, 8 S.W.3d
at 599. A guilty verdict by the trier of fact accredits the testimony of
the State’s witnesses and resolves all conflicts in the evidence in
favor of the prosecution’s theory. See State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised
by the evidence are resolved by the trier of fact, and this Court will
not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d at
236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own
inferences drawn from circumstantial evidence for those drawn by the
19
trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35
S.W.3d at 557.
Myers, 2004 WL 911280, at *2. The appellate court then considered the definition of the crimes
under state law and the evidence supporting the premeditated and intentional nature of the crimes:
Our criminal code defines first degree murder as “[a] premeditated
and intentional killing of another.” Tenn. Code Ann. §
39-13-202(a)(1). Given the testimony concerning the injuries to the
victims and the cause of the fire, the evidence clearly supports a
finding that the killings were premeditated and intentional.
Aggravated arson is the knowing damage of a structure by fire for an
unlawful purpose where there is a person present in the structure. See
Tenn. Code Ann. § 39-14-301(a)(2), -302(a)(1). The evidence reflects
that the fire was intentionally set with the use of accelerants. Dr. Levy
testified that two of the victims were alive at the time the fire was set.
Therefore, the proof is sufficient to support a finding that aggravated
arson was committed. The question that remains is whether the
evidence demonstrated beyond a reasonable doubt that the Defendant
committed the offense.
Id. at *3. Next, the court outlined the evidence submitted by the state as to the identity of the
perpetrator of the crimes against Watts, her daughter, and her daughter’s friend:
To connect the Defendant to the murders and the arson, the State first
called Brandy Hodges, who lived near the house in which the victims
died, which was rented by Dianne Watts. Ms. Hodges testified that
she got home at approximately 6:00 on the evening of July 29. At
around 11:00 that night, she saw Dianne Watts’ vehicle drive into the
driveway. Thereafter at about 1:00 a.m., she heard the Defendant’s
truck drive into the driveway of Ms. Watts’ house. She said that she
knew it was the Defendant’s truck because it had “an extremely loud
engine exhaust” on it, and she “had become pretty used to hearing it.”
Also, she never heard her dog bark, and her dog always barked when
unfamiliar people were near. On cross-examination, she admitted that
she did not see the Defendant’s truck or the Defendant that night. She
also admitted that she had heard other loud trucks that sounded
similar to the Defendant’s.
Shawn McCormick testified that he helped the Defendant work on a
20
vehicle about two weeks prior to the murders. They were using Mr.
McCormick’s tools, including a cracked torque wrench. Mr.
McCormick left the torque wrench in the basement of the house
where the Defendant lived with Ms. Watts. Mr. McCormick returned
some time prior to the murders to retrieve his tool box, but he
discovered that his torque wrench was missing. Several people,
including Ms. Watts’ daughter, her brother, her nephew, and her
sister, testified that they had been in her house shortly before the
murders, but had not seen a torque wrench.
The State also offered the testimony of several witnesses who had
heard the Defendant threaten to harm Ms. Watts. Minnie McReynolds
testified that the Defendant had been at her house putting up molding
a week or two before the murders. She said that Ms. Watts arrived
and asked the Defendant when he would be home, and the Defendant
stated that he was not going to go home with her. Ms. McReynolds
testified that after Ms. Watts left, she heard the Defendant say, “One
of these days I’m going to kill that bitch.” When Ms. Reynolds asked
him why he was so upset, he told her about a court date he had
coming up.
Shonda Myers, the Defendant’s daughter, testified that the Defendant
treated Ms. Watts “like a dog.” She also said that she had heard the
Defendant threaten to kill Ms. Watts, but she did not believe that he
meant it. She told investigators that, about two weeks before the
murders, she heard the Defendant say that “if people kept on messing
with him, he’d burn them out.”
Diana Ross, who cut the hair of both the Defendant and Ms. Watts,
testified that three or four weeks before the murders, the Defendant
told her that “he was going to burn her house down with her in it.”
Ms. Ross said that the Defendant was upset because his son Raymond
was living with Ms. Watts at the time.
The Defendant’s estranged wife, Shirley Humphrey, testified that she
heard the Defendant and Mr. Lewis talking about how Ms. Watts was
“running her mouth,” “pissing a lot of people off,” and needed to be
“shut up.” On one occasion, she was present while Mr. Lewis was on
the phone, and he told her he was talking to the Defendant. She heard
Mr. Lewis tell the Defendant to “make sure the little girl isn’t there.”
Dan Ogle, an agent with the Tennessee Bureau of Investigation,
interviewed the Defendant as part of his investigation of the murders.
21
He testified that he met the Defendant outside the police station. He
noticed that, while still in the parking lot, the Defendant removed his
belt and placed it inside his truck. This truck was later searched by a
police dog trained to pick up the scent of accelerants. The dog
focused intently on the belt that it found in the Defendant’s truck.
Later testing in a laboratory did not indicate the presence of an
accelerant on the Defendant’s belt. However, Randall Nelson, the TBI
laboratory technician, testified that it was possible that the belt
contained such a low level of the accelerant that his instruments failed
to pick it up, or it may have evaporated.
More importantly, Agent Ogle testified that he asked the Defendant
whether he had any tools at the house where he lived with Ms. Watts.
The Defendant replied:
Shawn McCormick brought tools to the house and fixed the rear-end
of my four-wheel-drive. Shawn McCormick left a torque wrench at
my house approximately one or two months before this fire. Dianne
brought this wrench from the basement to the livingroom and put it
next to the front door by the curtain vent. If you entered the front
door, this tool would be on your right. The color of the tool was
silver. Shawn used the wrench, but I never did use it.
Agent Ogle testified that he did not mention the torque wrench to the
Defendant, and no one outside of law enforcement knew its
significance as one of the murder weapons. He further stated that the
Defendant described the exact location where the investigators found
the torque wrench. However, according to his statement, the
Defendant had not been in Ms. Watts’ house since the Wednesday
before the murders, July 28, 1999. In his statement, the Defendant
also denied ever threatening to kill Ms. Watts or “burn her out.”
Agent Ogle interviewed the Defendant on the day the bodies were
discovered. He said the Defendant showed no emotion regarding the
deaths of Ms. Watts and her daughter, Jessica.
Id. at **3-4. The court also considered the testimony of the defendant’s alibi witnesses, ultimately
concluding that, after viewing the evidence in the light most favorable to the prosecution, a rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt:
22
The Defendant presented two alibi witnesses, Teresa Myers (his
ex-wife), and her mother, Clara Whipple. They both testified that the
Defendant stayed at their house in Winchester on July 29, 1999. Ms.
Whipple testified that she awoke the Defendant at 6:00 or 6:30 on the
morning of July 30.
Viewing the totality of this evidence in the light most favorable to the
State, we conclude that the evidence is legally sufficient to support
the findings of guilt beyond a reasonable doubt. Shortly before the
murders, the Defendant threatened to harm Ms. Watts, even saying
“he was going to burn her house down with her in it.” Shirley
Humphrey heard Johnny Lewis tell the Defendant to “make sure the
little girl isn’t there.” At around 1:00 on the morning of the murders,
Brandy Hodges heard the Defendant’s truck enter the driveway of Ms.
Watts’ house. She said that she recognized the Defendant’s truck
because it had “an extremely loud engine exhaust” on it, and she “had
become pretty used to hearing it.” Finally, Agent Ogle testified that,
when he asked the Defendant about tools, the Defendant mentioned
the torque wrench and described exactly where investigators located
it at the crime scene. However, several witnesses, including Ms.
Watts’ daughter, who had been in the house the day before the
murders, testified that there was no torque wrench in the living room
at that time. Although the Defendant offered two witnesses who
testified that he was in Winchester at the time of the murders, the jury
obviously discredited the testimony of these witnesses and found the
Defendant guilty. While not overwhelming, the proof is sufficient to
support the convictions.
Id. at *5.
“On a state prisoner's habeas petition challenging the insufficiency of the evidence,” such as
in the instant case, the court “must draw all available inferences and resolve all credibility issues in
favor of the jury's verdict.” Rodriguez v. Trombley, No. 2:06-cv-11795 , 2010 WL 120222, at *14
(E.D. Mich. Jan. 8, 2010). Because “[a]ttacks on witness credibility are simply challenges to the
quality of the prosecution's evidence, and not to the sufficiency of the evidence,” id. at *15, an
assessment of the credibility of witnesses is therefore generally beyond the scope of federal habeas
review of sufficiency of evidence claims. Marshall v. Lonberger, 459 U.S. 422, 434 (1983)(on
23
habeas review, a federal court does not reweigh the evidence or redetermine the credibility of the
witnesses whose demeanor was observed at trial). It is the province of the fact finder to weigh the
probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d
675, 679 (6th Cir. 1992). A habeas court must defer to the fact finder for its assessment of the
credibility of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003).
Here, the jury had the opportunity to consider all of the witnesses’ testimony. The jury
apparently discredited the testimony of Myers’s alibi witnesses, and this court will not second guess
the jury’s credibility determination. See Boyles v. Sherry, No. 2:06-cv-12207, 2008 WL 4793412,
*12 (E.D. Mich. Oct. 31, 2008). The court on habeas review must defer to the jury’s findings, made
beyond a reasonable doubt, that the witness testimony and the physical evidence supported the
prosecution’s charges.
Given the testimony adduced at trial, the court finds that the Tennessee Court of Criminal
Appeals’ decision to reject the petitioner’s insufficiency of evidence claim was not an unreasonable
application of the law. The appellate court corrected cited the applicable federal standard of review
from Jackson v. Virginia and reasonably decided the claim against the petitioner.
Nor has the petitioner shown that the state court’s decision was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding. Although
much of the evidence against the petitioner was circumstantial in nature, the Sixth Circuit has
expressly recognized that “[c]ircumstantial evidence alone is sufficient to sustain a conviction and
such evidence need not remove every reasonable hypothesis except that of guilt.” United States v.
Kelley, 461 F.3d 817, 824 (6th Cir. 2006)(citations omitted); see also United States v. Graham, 622
F.3d 445, 448 (6th Cir. 2010)(“[P]hysical evidence is not a prerequisite to sustaining a conviction.”).
24
The petitioner is therefore not entitled to relief on the basis of this claim.
B.
Jury Instructions (Claim 2)
1.
Exhaustion
The respondent concedes that the petitioner has exhausted this claim. (Docket No. 20 at p.
23).
2.
Merits
Myers’s second claim is that he was denied his Fifth, Sixth, and Fourteenth Amendment
rights because of the trial court’s erroneous charge to the jury. (Docket No. 1 at p. 6). Myers raised
this issue on direct appeal from his convictions, arguing that the trial court’s jury instruction “did not
require that all of the facts or elements of the crime be proved beyond a reasonable doubt.” (Docket
No. 21-3).
The trial court instructed the jury, in part, as follows:
When the evidence is made up entirely of circumstantial evidence,
then before you would be justified in finding the defendant guilty, you
must find that all the essential facts are consistent with the hypothesis
of guilt, as that is to be compared with all the facts proved; the facts
must exclude every other reasonable theory or hypothesis except that
of guilt; and the facts must establish such a certainty of guilt of the
defendant as to convince the mind beyond a reasonable doubt that the
defendant is the one who committed the offense. It is not necessary
that each particular fact should be proved beyond a reasonable doubt
if enough facts are proved to satisfy the jury beyond a reasonable
doubt of all the facts necessary to constitute the crime charged. Before
a verdict of guilty is justified, the circumstances, taken together, must
be of a conclusive nature and tendency, leading on the whole to a
satisfactory conclusion and producing in effect a moral certainty that
the defendant, and no one else, committed the offense.
Myers, 2004 WL 911280, at *6.
25
In considering the defendant’s challenge to the above jury instruction, the Tennessee Court
of Criminal Appeals first noted that the Tennessee Supreme Court had upheld an identical jury
instruction as a correct statement of the law in State v. Bane, 853 S.W.3d 483, 487-88 (Tenn. 1993).
Id. at *7. Next, the appellate court explained that the defendant’s reliance upon Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584,
122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) was misplaced because, while the two cases interpret the
United States Constitution to require that each fact or element that is a condition to the imposition
of a sentence above the statutory maximum must be decided by a jury beyond a reasonable doubt,
the cases do not mandate that each and every discrete fact indicating guilt in a criminal prosecution
be proven beyond a reasonable doubt. Id. Because all that is necessary is that the elements of the
charged offense be proven beyond a reasonable doubt, the appellate court determined that the trial
court’s instruction in this regard was proper and rejected the defendant’s claim. Id.
Myers has failed to demonstrate that the state court’s adjudication of his claim was contrary
to or an unreasonable application of a clearly established federal law or that it was based upon an
unreasonable determination of the facts in light of the evidence.
Clearly established federal law
requires the state to prove enough facts to satisfy a reasonable jury beyond a reasonable doubt of all
of the facts necessary to prove the elements of the crimes. The state need not prove beyond a
reasonable doubt each particular fact presented in the state’s case in chief. The jury instruction at
issue was clear, coherent, and consistent with the governing law. Thus, Myers is not entitled to
relief on this claim.
26
C.
Ineffective Assistance of Counsel Claims (Claims 3-11)
The Sixth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, guarantees the right of a person accused of a crime to the effective
assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must
show (1) deficient performance of counsel and (2) prejudice to the defendant. See Bell v. Cone, 535
U.S. 685, 694-95 (2002). Trial counsel’s performance is deficient when it falls below an objective
standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 686-87 (1984); Combs v.
Coyle, 205 F.3d 269, 278 (6th Cir. 2000), cert. denied, 531 U.S. 1035 (2000). In assessing
performance, “strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional judgments support
the limitations on investigation.” Strickland, 466 U.S. at 690-91. Reasonable attorneys may
disagree on the appropriate strategy for defending a client. Bigelow v. Williams, 367 F.3d 562, 570
(6th Cir. 2004).
The prejudice element requires a petitioner to show “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
A court hearing an ineffective assistance of counsel claim must consider the totality of the
evidence. Strickland, 466 U.S. at 695. “The determinative issue is not whether petitioner’s counsel
was ineffective but whether he was so thoroughly ineffective that defeat was ‘snatched from the jaws
of victory.’” West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996)(quoting United States v. Morrow, 977
27
F.2d 222, 229 (6th Cir. 1992)(en banc)). “Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Strickland, 466 U.S. at 689.
1.
Ineffective Assistance of Counsel for failing to call Jimmy Bonner, Terry
Coppinger, and Dan McInnis as witnesses at trial (Claims 3, 6, 7)
a.
Exhaustion
The respondent concedes that the petitioner has exhausted these three claims of ineffective
assistance of counsel. (Docket No. 20 at p. 25).
b.
Merits
In claims 3, 6 and 7, the petitioner contends that he was denied effective assistance of counsel
based upon trial counsel’s failure to call Jimmy Bonner, Terry Coppinger, and Dan McInnis to testify
on Myers’s behalf at trial. (Docket No. 1 at pp. 8, 16-17). The post-conviction court denied the
petition for relief on these grounds orally immediately following the post-conviction hearing, finding
as follows:
The failure to call witnesses is important at this stage for the
petitioner to bring before the court those witnesses that would testify
to what evidence was not presented to the court perhaps by the
ineffectiveness of counsel or by some new evidence which may have
been found, it could be possibly brought in post-conviction, but it
must come before the court competently and it must come as sworn
testimony and it must come so that the court can make a finding that
if called at trial, the testimony would be as it is today and that it
would materially affect the outcome of this particular trial.
I’ve heard of Spangler, Humphrey, McCormick, a Diane, I don’t
remember the last name, and even a son named Raymond and I’ve not
28
heard from any of them. I did hear from a couple of witnesses. One
on the day of the event cannot testify that the truck was at the place
that would possibly help the petitioner because he went to the biscuit,
breakfast biscuit that he gets a different way that day, so that
particular witness is of no effect to the defendant.
And then I heard from another witness who had two interviews, I
believe his name was Jimmy Bonner, and I think Mr. Bonner was
being as candid as he could be with the court, but he gave two
statements and the most important thing of those two statements and
what would have helped the petitioner the most is that back two days
after the event he would have said that he could put the defendant’s
truck across the street from where he lived or there in the
neighborhood. And he had the other opportunity then a short while
after that to do the same thing and according to his testimony, if I
recall that testimony correctly, the first thime it’s been brought to the
attention of the state or of the defense may be today in the preparation
of these proceedings. He was called and I appreciate hearing from
him, but his testimony, though it is what I believe is his heartfelt
understanding, is not being accepted by this court as being good
testimony because it wasn’t given that way at the time when it was
most important.
So the failure to call witnesses is what we’re looking at at this time
and as we look at those things, we have an understanding from the
investigators that are here and from Appman, who testified, and from
the petitioner, who testified, that the defense in this case is an alibi.
We know, those that are practicing law here in this state, that an alibi
defense is one you live or die by. It is a great defense if it works and
it is one that generally stands on its own and you put all of your eggs
in one basket.
The petitioner today and through his witnesses indicates to this court
that he should have been given a full defense, that there were other
possibilities for defense. Mr. Appman is able to help this court to
understand the thinking of the petitioner and the trial attorney at the
time by helping the court to understand that he had an alibi defense,
that when you present an alibi defense you present those that are the
best in the alibi defense and you don’t present as many witnesses as
you have investigated. But you present those that are strong alibi
witnesses.
***
29
But it is a good defense if it is properly brought and it’s not well
brought if more witnesses are put on that can be cross-examined and
more witnesses by the petitioner were to be put on, it has a great
possibility of going backwards and causing the petitioner to have real
difficulty.
***
And so the failure to call witnesses because of those reasons is not
compelling to this court today and has not been proven by clear and
convincing evidence.
(Docket No. 21-12 at pp. 59-61). In its written order entered following the post-conviction hearing,
the post-conviction court continued:
The Court finds the neither the testimony of Dan McInnis nor
Coppinger, if presented at trial, would have caused a different verdict.
There is no proof that had the witnesses testified as they did during
the post conviction hearing, the petitioner’s alibi defense would have
been bolstered or effective.
The Court finds that Jimmy Bonner would not have been a credible
witness during the petitioner’s trial, as this post conviction Court,
weighing Bonner’s credibility, does not believe Bonner to be credible.
Further, the petitioner has failed to show how the outcome of his trial
would have been different if Bonner had testified at the petitioner’s
trial as he testified during this post conviction hearing.
(Docket No. 21-14 at p. 23).
Myers raised these claims of ineffective assistance of counsel on appeal from the denial of
his post-conviction petition. (Docket No. 21-13). On appeal of the denial of his petition for postconviction relief as to these claims, the Tennessee Court of Criminal Appeals held:
Next, Petitioner complains that trial counsel failed to call witnesses
to support his alibi defense. Dan McInnis, Terry Coppinger, and
Jimmy Bonner were called to testify at the hearing in support of
Petitioner’s claim. Mr. McInnis testified that he saw Petitioner near
30
a store on the morning of the crimes driving a little car. However, on
cross-examination, Mr. McInnis was unsure of the date that he saw
Petitioner and acknowledged that, at the time he saw Petitioner, there
would have been ample time to commit the crimes. Mr. Coppinger
testified that Petitioner’s truck had been at his mother’s house for
several days around the time of the murders. On further examination,
however, Mr. Coppinger could not definitively say that Petitioner’s
truck was in the neighborhood on the morning of the crimes. Lastly,
Jimmy Bonner testified that he saw Petitioner’s truck at Petitioner’s
mother’s house at the time of the murders. Mr. Bonner admitted that
he did not include this information in his two statements to police but
claimed that he had talked to investigators about this at a later time.
The post-conviction court determined that the testimony of Mr.
McInnis and Mr. Coppinger, “if presented at trial, would [not] have
caused a different verdict.” Further, the post-conviction court
determined that Mr. Bonner was not credible. Petitioner has failed to
show prejudice by trial counsel’s failure to call these witnesses at
trial.
(Docket No. 21-15 at pp. 862-63).
Given the post-conviction court’s findings as to Bonner’s lack of credibility and as to
Coppinger and McInnis’s lack of clarity and certainty, the court finds that the state courts’
determination that there was no deficient performance by trial counsel in failing to call these
witnesses was a reasonable application of Strickland. See United States v. Pierce, 62 F.3d 818, 833
(6th Cir. 1995)(failure to present potential witnesses who are unreliable and subject to impeachment
does not constitute ineffective assistance of counsel). The state courts’ resolution of this claim must
remain undisturbed since it was neither an unreasonable application of Strickland nor based on
unreasonable factual determinations. Thus, Myers is not entitled to relief on this claim.
2.
Trial Counsel’s Competency (Claim 4)
a.
Exhaustion
The respondent concedes that the petitioner has exhausted this claim. (Docket No. 20 at p.
31
27).
b.
Merits
Myers’s fourth claim is that he was denied effective assistance of counsel based upon trial
counsel’s alleged mental incompetence. (Docket No. 1 at p. 10). He asserts that trial counsel was
suffering from “an apparent mentally debilitating disease,” which prevented counsel from preparing
the petitioner’s defense and “participating competently in the trial.” (Id.)
In its oral decision denying the petitioner relief on this ground, the post-conviction judge
found:
I’ve read the trial transcript. I’ve seen the testimony of those that are
here today. I have questioned even myself; I’m concerned for what
was being seen on that day because I wasn’t there. I am not, [i]n any
way, considering my knowledge of Attorney Appman and what he
may have been like at that time. I saw how he testified today; he
made good sense to me. He is an attorney that has practiced much
longer than some of us in the courtroom had been alive [.] And he, I
believe, was effective in this case.
The proof before the jury in this case, which was a circumstantial
case, was strong. It was a very difficult case for the defendant. The
defendant chose to defend on the defenses that this court has outlined
and have been outlined by Defense Attorney Appman. And in the
reading of the transcript and in the presentation that has come today,
I’m not swayed by what a Doctor of Sociology or Social Medicines
or what an investigator or what the investigator’s assistant that may
have ridden in the car that saw the shape of the vehicle. I would
probably not have got in the vehicle if was Ms. Neca [S]hepard. But
I’m not surprised that an attorney’s car might look a little disheveled.
What I’m saying is on the day that this case was tried and at the time
that this case was being prepared, this court is not persuaded by clear
and convincing evidence that Mr. Appman was under any burden of
any incompetency. There is nothing before this court to show that he
was anything other than an effective trial counsel at the time, through
the reading of the transcript as I’ve said. And there is no clear and
convincing evidence before this court, though Ms. Brady indicates
32
that the testimony of these trained professionals should give the court
some pause, I’ve heard it, I’ve weighed it, and in weighing it against
the standard of clear and convincing evidence, it’s lacking. And so
I find that that particular allegation fail[s].
(Docket No. 21-12 at pp. 800-01).
In its written order denying relief, the post-conviction court summarized:
The Court finds that there is insufficient proof to show that trial
attorney Appman was incompetent. There was no testimony from the
petitioner or his witnesses of specific incidents to cause this Court to
question Attorney Appman’s competence in this case. The Court’s
review of the trial transcript and of the evidence presented during this
post conviction hearing do not prove that there was a failure on
Appman’s part to prepare or investigate, a failure to call essential
witnesses, nor a failure to present appropriate defenses.
(Docket No. 21-10 at p. 605). The post-conviction court further found that the petitioner had not
carried the burden of demonstrating prejudice as a result of any alleged ineffectiveness by trial
counsel. (Id. at pp. 605-06).
Myers raised this claim of ineffective assistance of counsel on appeal from the denial of his
post-conviction petition. (Docket No. 21-13). Identifying Strickland as the source of the governing
legal standard, the Tennessee Court of Criminal Appeal determined that the evidence preponderated
against the petitioner’s claim, finding:
When a petitioner seeks post-conviction relief on the basis of
ineffective assistance of counsel, the petitioner bears the burden of
showing that (a) the services rendered by trial counsel were deficient
and (b) that the deficient performance was prejudicial. See Powers v.
State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to
demonstrate deficient performance, the petitioner must show that the
services rendered or the advice given was below “‘the range of
competence demanded of attorneys in criminal cases.’” Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate
prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of
33
the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). “‘Because a petitioner must establish both prongs of the test
to prevail on a claim of ineffective assistance of counsel, failure to
prove either deficient performance or resulting prejudice provides a
sufficient basis to deny relief on the claim.’” Henley v. State, 960
S.W.2d 572, 580 (Tenn. 1997).
As noted above, this Court will afford the post-conviction court’s
factual findings a presumption of correctness, rendering them
conclusive on appeal unless the record preponderates against the
court’s findings. See id. at 578. However, our supreme court has
“‘determined that issues of deficient performance by counsel and
possible prejudice to the defense are mixed questions of law and fact
. . . ; thus, [appellate] review of [these issues] is de novo’” with no
presumption of correctness. Burns, 6 S.W.3d at 461.
Furthermore, on claims of ineffective assistance of counsel, the
petitioner is not entitled to the benefit of hindsight. See Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. 1994). This Court may not
second-guess a reasonably-based trial strategy, and we cannot grant
relief based on a sound, but unsuccessful, tactical decision made
during the course of the proceedings. See id. However, such deference
to the tactical decisions of counsel applies only if counsel makes
those decisions after adequate preparation for the case. See Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
****
Lastly, Petitioner insists that trial counsel was incompetent because
he was “‘forgetful and confused.’” The post-conviction court found
that trial counsel had no health problems at the time of Petitioner’s
trial. Specifically that “‘[t]here was no testimony from [Petitioner] or
his witnesses of specific incidents to cause this Court to question
[trial counsel’s] competence in this case.’” We agree. The evidence
does not preponderate against the findings of the post-conviction
court. Petitioner is not entitled to relief on this issue.
(Docket No. 21-15 at pp. 862-63).
The record supports the post conviction courts’ findings. Trial counsel Appman testified
that during the pendency of the petitioner’s case he did not have any health problems. (Docket No.
34
21-11 at p. 704). At the time of the trial, he had been practicing law for thirty-eight (38) years. (Id.
at p. 696). He invested many hours working on the petitioner’s case. (Id. at p. 703, Exh. 1). He
testified that he did everything in his power in this case in an attempt to secure a not-guilty verdict
for his client and that he was still at a loss as to how the jury could have found the petitioner guilty.
(Id. at p. 707).
Although Neca Shepard, Dr. Charles Frost, Tom Burland, and Tom Isbell testified during the
post-conviction hearing that they had concerns about Appman’s competence during the trial and that
they found him forgetful and confused, none of these witnesses was a licensed attorney. Isbell
acknowledged that Appman was very involved in the case, that he focused on an alibi defense, and
that he stayed with the alibi defense. (Docket No. 21-12 at p. 758). Isbell also acknowledged that
he did not know the rules of evidence and did not know what evidence would be admissible at trial.
(Id.) Although he claimed that he had been concerned about Appman’s performance, Isbell never
contacted the trial judge about his concerns. (Id. at p. 762).
Isbell conceded that the fact that
Appman did not put a witness on the stand did not necessarily mean that he did not use the
information that Isbell gathered for him. (Id. at p. 766-772). The petitioner’s case was Isbell’s first
capital case. (Id. at p. 756).
Likewise, Frost admitted that this was the first capital case of his career. (Docket No. 21-11
at p. 672). He acknowledged that trial counsel was able to put together a solid alibi defense. (Id.
at p. 677). He, like Isbell, admitted that he had never expressed any concern about trial counsel’s
ability to the court. (Id.) Shepard recalled only two instances in which she interacted with trial
counsel, and she could not explain to the court what evidence she believed trial counsel should have
used at trial but did not. (Id. at p. 679). She, too, admitted that the petitioner’s trial was the first
35
capital case of her career. (Id. at p. 683). Private investigator Borlund also had never worked on
another capital case. (Id. at p. 729).
It was not unreasonable for the state courts to conclude, based on the evidence, that trial
counsel had not suffered from competency issues during the petitioner’s trial. Because the petitioner
has failed to demonstrate that the state court’s adjudication of his claims involved an unreasonable
application of clearly established federal law or was based upon an unreasonable determination of
the facts in light of the evidence before the state court, he is not entitled to habeas relief on this
claim.
3.
Trial Counsel’s Failure to Prepare and Investigate (Claim 5)
a.
Exhaustion
The respondent failed to address the petitioner’s fifth claim (ineffective assistance of trial
counsel due to failure to prepare and investigate the petitioner’s case) in its answer to the petition
for writ of habeas corpus. (Docket No. 20).5
Myers raised this claim in his post-conviction petition (Docket No. 21-10 at p. 600) and again
on appeal of the denial of his post-conviction petition to the Tennessee Court of Criminal Appeals.
(Docket No. 21-15 at p. 862). The court finds that the petitioner has exhausted this claim insofar as
it is presented as a general claim of ineffective assistance of trial counsel based on a broad failure
to prepare and investigate the case (Claim 5), as opposed to the petitioner’s more specific claims of
ineffective assistance of trial counsel based on his failure to call certain witnesses to testify on the
petitioner’s behalf (Claims 8-11).
5
The respondent may have intended for his responses to Claims 8-20 to address this claim, and the court
acknowledges that there is some overlap.
36
b.
Merits
In its written order denying relief as to this claim, the post conviction court found that:
The Court’s review of the trial transcript and of the evidence
presented during this post conviction hearing do not prove that there
was a failure on Appman’s part to prepare or investigate, a failure to
call essential witnesses, nor a failure to present appropriate defenses.
To maintain a claim of denial of effective assistance of counsel,
it is incumbent upon the petitioner to show by clear and convincing
evidence that trial counsel was ineffective, or that trial counsel’s
performance was not within the range of competence demanded in
criminal cases, or that a reasonable probability exists that but for any
error by counsel, the jury would have a reasonable doubt as to the
petitioner’s guilt. The petitioner must demonstrate that the deficient
performance of counsel caused prejudice. In order to demonstrate
prejudice, the petitioner must show that there was a reasonable
probability that, but for counsel’s errors, the result of the proceeding
would have been different. The petitioner has not carried this burden.
(Docket No. 21-10 at pp. 605-06).
On appeal of the denial of his petition for post conviction relief, the petitioner again raised
the issue of whether counsel was ineffective by failing to adequately prepare and investigate.
(Docket No. 21-13 at p. 815). In affirming the post-conviction court’s denial of the petition for
post-conviction relief, the appellate court found:
Petitioner complains that trial counsel failed to adequately
prepare and investigate Petitioner’s case by failing to utilize “the
information that his private investigator uncovered.” The postconviction court noted that this was a “complex” case but determined
that “the investigation was thorough and complete at the time of
trial.” The testimony at the post-conviction hearing indicated that
trial counsel had at least five bankers boxes full of documents related
to the investigation of Petitioner’s case and that the team of
investigators had identified nearly 400 potential witnesses. Petitioner
has failed to show that he was prejudiced by trial counsel’s failure to
prepare for the case. Petitioner is not entitled to relief on this issue.
37
(Docket No. 21-15 at p. 862).
Even assuming arguendo that Myers established that trial counsel’s preparation and
investigation was constitutionally deficient, the state courts’ conclusion that Myers had not
demonstrated prejudice as a result of the failure of counsel was not an unreasonable application of
clearly established federal law, nor was it based upon an unreasonable application of the facts in light
of the evidence before the state court.
As the court noted earlier (see supra at p. 24), the
circumstantial evidence in this case supported the petitioner’s conviction beyond a reasonable doubt.
Trial counsel had at least five banker’s boxes full of documents related to the investigation of the
petitioner’s case and the team of investigators working for the defense had identified nearly 400
potential witnesses. Yet, the defendant’s alibi witnesses were discredited by the jury. The petitioner
has never established how he was prejudiced by trial counsel’s alleged failure to investigate or
prepare for his case. Consequently, the petitioner is not entitled to habeas relief on this claim.
4.
Trial Counsel’s Failure to Call or to Properly Cross Examine
Witnesses Robert Spangler, Shirley Humphrey, Shawn
McCormick, and Raymond Hicks Myers (Claims 8-11)
In Claims 8-11 of his petition, Myers claims that trial counsel rendered ineffective assistance
of counsel by failing to call as a witness and/or by failing to properly cross examine Robert Spangler
(Claim 8), Shirley Humphrey (Claim 9), Shawn McCormick (Claim 10), and petitioner’s son
Raymond Hicks Myers (Claim 11). (Docket No. 1 at pp. 17-18).
In initially responding to Myers’s petition, the respondent argued that Myers had procedurally
defaulted these claims. (Docket No. 20). After the petitioner filed a supplemental brief (Docket No.
45) addressing the procedural default of these claims under Martinez v. Ryan, 132 S. Ct. 1309
(2012), and Maples v. Thomas, 132 S. Ct. 912 (2012), the court ordered the respondent to file a
38
response to the petitioner’s brief. (Docket No. 55).
In his response, the respondent maintains that the petitioner’s procedurally defaulted
ineffective assistance claims are excluded from the purview of Martinez because the petitioner
raised those claims during initial-review collateral proceedings and Martinez does not extend to
ineffective-trial-counsel claims that were included in the post-conviction pleadings, raised during
the post-conviction hearing, and denied by the post-conviction court. (Docket No. 60 at pp. 5, 7).
Arguably, the petitioner raised his claims that trial counsel rendered ineffective assistance
of counsel by failing to call as a witness and/or by failing to properly cross examine Robert Spangler
(Claim 8)6, Shirley Humphrey (Claim 9), petitioner’s son Raymond Hicks Myers (Claim 11)7, and
Shane McCormick (Claim 10)8 either in his pro se original or amended post-conviction petition
6
The petitioner asserted in his original pro se post-conviction petition that trial counsel failed to reveal any and
all agreements between Spangler and the state in exchange for his testimony against the petitioner. (Docket No. 21-8
at p. 293). The petitioner further asserted that trial counsel failed to elicit any information on cross examination
regarding the fact that Spangler has been investigated, arrested, convicted, and sentencing for drug manufacturing. (Id.)
During the post-conviction hearing, the petitioner’s counsel specifically challenged trial counsel’s alleged failures with
regard to Spangler. (Docket No. 21-12 at pp. 745-46, 772). The post-conviction court found no evidence of a failure
on trial counsel’s part “to prepare or investigate,” “to call essential witnesses,” or “to present appropriate defenses.”
(Docket No. 21-14). This issue was not raised by the petitioner on appeal but was raised in his application for
permission to appeal to the Tennessee Supreme Court.
7
The pro se post-conviction petition broadly challenged trial counsel’s failure to call or to properly cross
examine these witnesses. (Docket No. 21-8). In its order denying the petition, the post-conviction court specifically
referenced the petitioner’s allegations that trial counsel had failed to prepare and properly investigate, failed to call
essential witnesses, and failed to present all defenses and found that the petitioner had not carried his burden of
demonstrating constitutionally deficient performance by counsel and prejudice to the defendant. (Docket No. 21-10 at
p. 61). These issues were not raised by the petitioner on appeal but were raised in his application for permission to
appeal to the Tennessee Supreme Court.
8
The petitioner raised this claim in his original pro se petition for post-conviction relief. Specifically, Myers
argued that trial counsel failed to reveal any and all agreements between McCormick and the state in exchange for his
testimony. (Docket No. 21-8 at p. 292). The petitioner further argued that trial counsel failed to elicit any information
on cross examination regarding the fact that McCormick had a grand theft charge that either had not been pursued or had
been dropped. (Id.) Post-conviction counsel raised the claim during the petitioner’s post-conviction hearing. (Docket
No. 21-12 at pp. 747, 752-54, 774). After considering these challenges to counsel’s preparation, the post-conviction
court denied relief. (Docket No. 21-10). This issue was not raised by the petitioner on appeal, but was raised in his
application for permission to appeal to the Tennessee Supreme Court.
39
specifically or generally, or through counsel during the post-conviction hearing. The post-conviction
court rejected the claims. However, on appeal of the denial of the post-conviction petition, none of
these claims were raised. Thus, the claims are considered to be exhausted (because no further state
review is available) but procedurally defaulted (because they were never presented to the state
appellate court), and may not be considered by the federal court on habeas review unless Myers
demonstrates both cause for the procedural default and actual prejudice resulting from the alleged
constitutional errors. See Keeney v. Tamayo–Reyes, 504 U.S. 1, 8, 112 S. Ct. 1715, 118 L.Ed.2d
318 (1992) (failure to develop facts in state court constitutes procedural default, subject to Coleman'
s cause-and-prejudice standard), superceded in other part by statute, 28 U.S.C. 2254(e)(2) (1996).
The respondent asserts that these claims are procedurally defaulted because, although they
may have been raised in the trial level post-conviction court, they were not raised in the subsequent
appeal. Again, the petitioner does not dispute that the claims were procedurally defaulted on postconviction appeal, but he asserts, inter alia, that ineffective assistance of post-conviction appellate
counsel is cause to excuse his defaults.
It is well settled, however, that the ineffective assistance of counsel during post-conviction
appeal does not constitute cause to overcome procedural default. Coleman, 501 U.S. 722, 742-53
(1991); Martinez, 132 S. Ct. at 1320. Specifically, the Martinez exception does not apply to claims
that were raised at the post-conviction initial-review proceeding but not preserved on post-conviction
appeal. West v. Carpenter, 790 F.3d 693, 698-99 (6th Cir. 2015)(holding that “attorney error at state
post-conviction appellate proceedings cannot excuse procedural default under the Martinez-Trevino
framework.”).
This is because a petitioner whose claims were heard on the merits on
post-conviction initial review has received the opportunity Martinez was fashioned to guarantee: to
40
ensure that “the claim will have been addressed by one court, whether it be the trial court, the
appellate court on direct review, or the trial court in an initial review collateral proceeding.”
Martinez, 132 S. Ct. at 1316.9 Accordingly, ineffective assistance of post-conviction appellate
counsel does not qualify as cause to excuse claims defaulted at that stage of proceedings. See also
Young v. Colson, No. 3:12-CV-00304, 2015 WL 9581768, at *11 (M.D. Tenn. Dec. 30,
2015)(Trauger, J.).
The Supreme Court has observed, however, that there is an “essential difference between a
claim of attorney error, however egregious, and a claim that an attorney had essentially abandoned
his client.” Maples v. Thomas, 132 S. Ct. 912, 923 (2012). In Maples, the Supreme Court held that
where a petitioner’s post-conviction attorney ceased representing him in the midst of post-conviction
proceedings without filing a notice to that effect or informing the defendant in any way, counsel’s
abandonment of the petitioner may provide cause to excuse the procedural default of his claims for
relief in his habeas petition. Id. at 916-17. The Court explained that a prisoner typically bears the
consequences of his attorney’s conduct, even negligent conduct, under principles of agency law but
that cause to excuse a procedural default “exists where something external to the petitioner,
9
The court acknowledges the petitioner’s argument that, although he was technically represented by two
different attorneys in his initial review collateral proceeding, he did not enjoy the effective assistance of post-conviction
counsel at that time (prior to the appeal of the denial of his post-conviction petition) because the petitioner filed his postconviction petition pro se; filed an amended post-conviction petition pro se after appointed attorney Craig Fickling failed
to file an amended petition over a three and a half year period, despite petitioner’s diligent efforts to persuade him
otherwise, and after the petitioner asked the court to remove Fickling as his attorney; and, over the petitioner’s objections,
attorney Rebecca Brady filed a notice that she would not submit an amended petition on Myers’s behalf, allowing his
case to be presented to the post-conviction court solely on legal documents prepared by the petitioner himself. (See
Docket No. 63). In other words, the petitioner posits that he did not receive the benefit that Martinez sought to protect:
effective representation by post-conviction counsel to secure review of substantial claims of ineffective assistance of
counsel raised in his initial review collateral proceeding.
The court further acknowledges the petitioner’s argument that, under the facts of this case, Martinez should be
extended to excuse the procedural default resulting from attorney Brady’s failure to raise Claims 8-11 on appeal of the
denial of post-conviction relief.
41
something that cannot fairly be attributed to him, . . . impeded [his] efforts to comply with the State’s
procedural rule.” Id. at 922 (emphasis and alterations in original) (internal quotation marks omitted)
(citing Coleman, 501 U.S. at 753). Accordingly, an attorney’s abandonment of his or her client
without notice that then causes procedural default can establish cause to excuse the procedural
default. Id. at 922-23.
Here, the petitioner asserts that the ineffective assistance of post-conviction attorneys
Fickling and Brady amounted to effective abandonment and constitutes cause to overcome the
procedural default of his claims under Maples. (Docket No. 45 at p. 13). Specifically, the petitioner
alleges that (1) his first appointed post-conviction attorney, Fickling, failed to amend Myers’s pro
se post-conviction petition after three and a half years of representation, despite a state rule that
appointed counsel must file an amended petition within thirty days; (2) Myers asked the state court
to remove Fickling, a request that the court promptly granted, appointing attorney Brady; (3) once
appointed, Brady not only failed to amend Myers’s post-conviction petition but also failed to obtain
the proper confirmation from Myers that he agreed no additional pleadings need to be filed, thereby
resting on the claims presented by the petitioner himself in his pro se pleadings; and (4) on appeal
of the denial of Myers’s post-conviction petition, Brady raised only one issue, thereby procedurally
defaulting many of the petitioner’s claims.
Negligence of counsel does not equate to abandonment under Maples. 132 S.Ct. at 922; see
also Bell v. Howes, No. 2:06-cv-15086, 2014 WL 255886, at *6 (E.D. Mich. Jan. 23,
2014)(“Counsel’s failure to raise a particular claim, even a meritorious one, does not present the
‘veritable perfect storm of misfortune’ visited upon the petitioner in Maples . . . .” )(quoting
Martinez, 132 S. Ct. at 929). The question before this court, then, is whether the performance of
42
Fickling and/or Brady as described by the petitioner and supported by the record constitutes mere
negligence under Maples or “abandonment” mirroring the “veritable perfect storm of misfortune”
visited upon Maples.
The petitioner here never alleges that either Fickling or Brady ceased representing him
without notification. Unlike the attorneys in Maples, Fickling never changed law firms or cut off
all communication with Myers. Fickling corresponded with Myers, but not to Myers’s satisfaction.
(Docket No. 21-10 at pp. 551-54). Myers participated directly in the preparation of his case, as
demonstrated by his approximately 144-page petition for post-conviction relief and accompanying
memorandum (Docket No. 21-8 at pp. 282-425), his motion to dismiss his first post-conviction
counsel, (Docket No. 21-10 at pp. 548-85), and his pro se application to appeal to the Tennessee
Supreme Court (Docket No. 21-16). Brady represented Myers at his post-conviction hearing.
The petitioner argues, however, that “[t]he fact that Respondent communicated with his
attorneys in an attempt to convince them to represent him as they were required to, and that he filed
voluminous pro se pleadings after these communications were unsuccessful, are strong evidence of
the fact that his attorneys failed to represent him.” (Docket No. 53 at pp. 3 and 4). But, unlike
Maples who believed that his lawyers were vigilantly representing him but were not, Myers here
knew that his attorneys of record were not performing as we wished. Maples “lacked a clue of any
need to protect himself pro se,” while Myers had a clue and in fact protected himself by filing two
amended petitions for post-conviction relief pro se and successfully discharging Fickling. Myers
was not “blocked from complying” with any procedural rule by any factors external to him, but
instead had the opportunity to “fend for himself” and did.
Another district court in this circuit has found that the failure to file a brief after receiving
43
several extensions of time does not establish cause under Maples, because it is “more akin to neglect,
however egregious, than to abandonment.” Stojetz v. Ishee, No. 2:04-cv-263, 2014 WL 4775209, at
*114 (S.D. Ohio Sept. 24, 2014). District courts in other circuits have reached the same conclusion
on similar facts. E.g., Hurley v. Cassady, No. 14-3094-CV-S-MDH-P, 2014 WL 4185510, at *7
(W.D. Mo. Aug. 21, 2014) (failure to include four colorable claims on post-conviction appeal was
not abandonment, but ineffective assistance that could not constitute cause); United States v.
Soto-Valdez, No. CV-99-1591-PHX-RCB (LOA), 2013 WL 5297142, at *23–24 (D. Ariz. Sept. 19,
2013) (filing a deficient brief after receiving multiple extensions of time was negligence, not
abandonment). Failure to raise colorable claims, even when combined with lack of communication
with the petitioner, has been characterized as “a claim of serious negligence, but it is not
‘abandonment.’ ” Ngabirano v. Wengler, No. 1:11-cv-00450-BLW, 2014 WL 517494, at *5 (D.
Idaho Feb. 7, 2014) (quoting Moorman v. Schriro, 672 F.3d 644, 648 (9th Cir. 2012)).
Even if Fickling and/or Brady’s conduct was negligent, or even seriously negligent, the
petitioner has not shown that he was abandoned by Fickling or Brady in the same way Maples was
abandoned by his counsel. Because the petitioner was not abandoned by post-conviction counsel
as was the “extraordinary” case of Maples, Maples may not serve as cause to excuse the procedural
default of the petitioner’s claims. Further, because Martinez does not reach claims defaulted on
post-conviction appeal, Claims 8-11 must be dismissed on the basis of procedural default.
D.
State’s Alleged Suppression of Exculpatory Evidence (Claims 12-20)
In Claims 12-20 of his petition, Myers claims that the state allegedly suppressed various
pieces of exculpatory evidence in violation of his constitutional rights. (Docket No. 1 at pp. 18-22;
Docket No. 3 at pp. 95-100). The respondent argues that claims 12-20 are procedurally defaulted
44
and that Martinez does not provide a basis to excuse the default because Martinez applies only to
defaulted claims of ineffective assistance of trial counsel. (Docket No. 60 at pp. 7-8).
Myers raised Claims 12-17 and 20 in his initial state post-conviction petition. (Docket No.
21-8 at p. 293; Docket No. 21-9 at pp. 461-62, 478-79, 541-41; Docket No. 21-10 at pp. 598-606).
However, he did not present any of those same claims to any state appellate court thereafter and is
now barred by the post-conviction statute of limitations and restrictions on successive state petitions
from raising them at this time. Tenn. Code Ann. § 40-30-102(a)(c) and -117; see also Tenn. R. App.
P. 36(a).
As to Claims 18 and 19, Myers did not raise these claims in his petition for post-conviction
relief and has never presented the claims to any state court. He is now barred by the post-conviction
statute of limitations and restrictions on successive state petitions from raising them at this time.
Because the petitioner has never fully and fairly presented Claims 12-20 to the state courts,
and a state procedural rule prohibits the state court from extending further consideration to them, the
claims are deemed exhausted (since there is no “available” state remedy) but procedurally defaulted
from federal habeas review. See Coleman, 501 U.S. at 752-53.
Martinez, however, does not provide a basis to excuse the procedural default of claims 12-20
because Martinez applies only to defaulted claims of ineffective assistance of trial counsel.
Martinez, 132 S. Ct. at 1319 (stating that the rule of Coleman continues to govern “except as to
initial-review collateral proceedings for claims of ineffective assistance of counsel at trial.”). The
Martinez exception does not apply to defaulted Brady 10 claims. Abdur’Rahman v. Carpenter, 2015
WL 6719715, at *4 (6th Cir. Nov. 4, 2015)(“Even if we were to . . . analyze Abdur’Rahman’s
10
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963).
45
underlying claims of Brady violations and prosecutorial misconduct, Martinez would not apply to
those claims . . . .”); Hamm v. Comm’r, Ala. Dep’t Corr., No. 13-14376, 2015 WL 4605112, at *28
(11th
Cir.
Aug.
3,
2015)
(stating
that
“Martinez
applies
to
defaulted
ineffective-assistance-of-trial-counsel claims only and not, for example, to Brady claims”); Hunton
v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 1013) (holding that Martinez does not apply to a
procedurally defaulted Brady claim).
The petitioner goes further, asking this court to find that the equitable rule established in
Martinez applies in a case where a petitioner, acting pro se during his initial review collateral
proceedings in state court, failed to raise and thereby procedurally defaulted his Brady claims. The
petitioner is not alone in advancing this argument. See Hunton v. Sinclar, 732 F.3d 1124, 1128 (9th
Circuit 2013)(Fletcher, J., dissenting)(finding that the reasoning behind Martinez “applies with equal
force to a defaulted Brady claim” and that “[n]othing in what the Court wrote differentiates a trialcounsel IAC claim from the Brady claim at issue . . . .”).
But, this court is constrained by
precedent,“leaving to [the Court] the prerogative of overruling its down decisions.”11 Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
Because Martinez does not excuse the petitioner’s procedural default of Claims 12-20, these
claims must be dismissed on the basis of procedural default.
E.
Claim 21: Actual Innocence
Myers’s final claim for relief is that he is actually innocent of the murders of Dianne Watts,
11
Justice Scalia, dissenting in Martinez, anticipated cases in which petitioners, like Myers here, argue for an
extension of Martinez to Brady claims. Justice Scalia wrote that “[t]here is not a dime’s worth of difference in principle”
between trial-counsel ineffective of counsel claims and Brady claims that have been procedurally defaulted by initial
collateral review counsel. Martinez, 132 S. Ct. at 1321 (Scalia, J., dissenting).
46
Jessica Watts, and Chelsea Smith. (Docket No. 1 at pp. 22-24). He alleges that newly discovered
evidence proves his innocence, including: (1) testimony of an unidentified witness who “has come
forth and informed members of the Myers family that several individuals who participated with John
Lewis and/or perpetrated the crimes herein came by the home of said witness to change clothing and
take showers . . . . The individuals who are alleged to have come by are said to be Toby Young,
Steven Alley, and Tim Meirs”; (2) testimony of witness Brandy Hodge’s brother that his sister was
lying about hearing the petitioner’s truck on the night of the murders; (3) testimony of Donnie Jones
that Toby Young confessed to having been present in the house when the crimes were committed
and never stated that the petitioner was involved; (4) testimony of Mark Petty that Toby Young had
witnessed the murders and had not identified the petitioner as one of the individuals involved; and
(5) letters and information from Shirley Humphreys reflecting that Toby Young, Tim Meirs, Mike
Brady, and others had committed the murders. (Docket No. 1 at pp. 23-24).
To the extent that Myers attempts to make a claim of actual innocence based on this alleged
“newly discovered evidence,” a claim of actual innocence is not itself a constitutional claim but
instead a gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits. Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853,
122 L.Ed.2d 203 (1993). The actual innocence exception is very narrow in scope and requires proof
of factual innocence, not just legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118
S. Ct. 1604, 140 L. Ed. 828 (1998). In this case, the petitioner is asserting a freestanding actual
innocence claim, that is, a claim of actual innocence that is not used to excuse the procedural default
of another claim. Although the Supreme Court has suggested that it may recognize freestanding
actual innocence claims in capital cases, see Herrera, 506 U.S. at 417, it has not done so in
47
noncapital cases such as this one. Thus, on its face, Myers’s contention fails to state a claim upon
which habeas relief can be granted as the Supreme Court has never ruled that a freestanding actual
innocence claim is cognizable in a non-capital case.
Moreover, the actual innocence exception is only applied in the most extraordinary of cases,
as the Sixth Circuit has explained:
[I]f a habeas petitioner “presents 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 nonharmless
constitutional error, the petitioner should be allowed to pass through
the gateway and argue the merits of his underlying claims.” Schlup v.
Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).”
Thus, the threshold inquiry is whether “new facts raise[ ] sufficient
doubt about [the petitioner's] guilt to undermine confidence in the
result of the trial.” Id. at 317. To establish actual innocence, “a
petitioner must show that it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt.”
Id. at 327. The Court has noted that “actual innocence means factual
innocence, not mere legal insufficiency.” Bousley v. United States,
523 U.S. 614, 623, 118 S .Ct. 1604, 140 L.Ed.2d 828 (1998). “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.” Schlup, 513
U.S. at 324. The Court counseled however, that the actual innocence
exception should “remain rare” and “only be applied in the
‘extraordinary case.’ ” Id. at 321.
Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). The petitioner has presented no new credible
evidence to suggest that he is actually innocent of the murders of Dianne Watts, Jessica Watts, and
Chelsea Smith.
Thus, Myers is not entitled to relief on this claim.
The respondent contends that, even if a freestanding claim of actual innocence were a
cognizable ground for relief, the claim would be barred by procedural default because Myers has
never properly raised it in the state courts, and state procedural rules prevent him from raising it now.
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(Docket No. 20 at p. 33).
In Tennessee, claims of actual innocence not based on scientific evidence may be brought
in a petition for writ of error coram nobis, within one year after the judgment of conviction in the
trial court becomes final, State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999), or later if the petitioner
shows that due process precludes application of the statute of limitations, Workman v. State, 41
S.W.3d 100, 103 (Tenn. 2001). In this case, Myers has never raised his actual innocence claim in a
petition for writ of error coram nobis in state court under Tenn. Code Ann. § 40-26-105, and the
claim is now barred from presentation to the state courts by the one-year statute of limitations. See
Tenn. Code Ann. § 27-7-103. As such, the claim would be barred by procedural default.
In summary, for the reasons explained above, all of the petitioner’s claims are either
procedurally defaulted or fail on the merits.
IV.
CERTIFICATE OF APPEALABILITY
The court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a § 2254 petitioner. Rule 11, Rules Gov'g § 2254 Cases. The petitioner may not take
an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R.App. P.
22(b)(1). A COA may issue only if the petitioner “has made a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), and the COA must “indicate which specific issue or
issues satisfy the [required] showing....” 28 U.S.C. § 2253(c)(3). A “substantial showing” is made
when the petitioner demonstrates that “ ‘reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the issues presented
were “adequate to deserve encouragement to proceed further.’” Miller–El v. Cockrell, 537 U.S. 322,
336, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120
49
S. Ct. 1595, 146 L.Ed.2d 542 (2000)). “[A] COA does not require a showing that the appeal will
succeed.” Miller–El, 537 U.S. at 337. Courts should not issue a COA as a matter of course. Id.
In this case, only seven (7) of the petitioner's twenty-one (21) claims were fully exhausted
and therefore reviewable on the merits. The petitioner failed to show any error of constitutional
dimension in the state court's resolution of those claims, however. The other fourteen (14) claims
are procedurally defaulted, and the petitioner is unable to establish the cause and prejudice necessary
to overcome the procedural default.
However, the court finds that reasonable jurists could debate as to the petitioner’s claim that
he was effectively abandoned by his post-conviction attorneys in order to establish cause under
Maples for his procedurally defaulted claims. The court therefore grants a certificate of appealability
on that question. The court also finds that reasonable jurists could debate as to whether Martinez
should be interpreted to apply to the facts of the petitioner’s case as it pertains to Claims 8-20.12 The
court therefore grants a certificate of appealability on those questions. The court denies a COA on
the rest of the petitioner’s claims, but he may, however, seek a COA directly from the Sixth Circuit
Court of Appeals. Rule 11(a), Rules Gov'g § 2254 Cases.
V.
RECOMMENDATION
For the reasons explained above, the undersigned RECOMMENDS that the petition be
DENIED, Rule 4, Rules - - - § 2254 Cases, and that the petitioner’s claims be DISMISSED with
prejudice. The undersigned further RECOMMENDS that a certificate of appealability issue only
as to the questions of whether Myers was effectively abandoned by his post-conviction attorneys in
12
Of course, even if Martinez and/or Maples apply, the petitioner would have only excused the procedural
default of his claims. He would still need to demonstrate prejudice before the court could consider the merits of those
claims.
50
order to establish cause under Maples for his procedurally defaulted claims and as to whether
Martinez should be interpreted to apply to the facts of the petitioner’s case as it pertains to Claims
8-20.
The parties have ten (10) days of being served with a copy of this Report and
Recommendation, 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 Report and Recommendation
within ten (10) days after being served with a copy thereof. Failure to file specific objections within
ten (10) days of receipt of this Report and Recommendation may constitute a waiver of further
appeal. Thomas v. Arn, 474 U.S. 140, reh’g denied, 474 U.S. 111 (1986); Cowherd v. Million, 380
F.3d 909, 912 (6th Cir. 2004).
____________________________________
E. Clifton Knowles
United States Magistrate Judge
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