Leberry v. John Howerton

Filing 95

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court hereby rules as follows: (1) The R & R, (Docket No. 91 ), is ACCEPTED and APPROVED; and (2) Petitioner's claim for ineffective assistance of counsel in failing to properly impeach the victim is hereby DENIED for an unexcused procedural default; and (3) Petitioner's Petition for Writ of Habeas Corpus, (Docket No. 1 ), is DISMISSED. The Clerk of the Court shall enter a final judgment in accordance with Rule 72 of the Federal Rules of Civil Procedure. It is so ORDERED. Signed by Chief Judge Kevin H. Sharp on 1/27/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RONNELL JASON LEBERRY,
Petitioner,
v.
JOHN HOWERTON, WARDEN,
Respondent

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Case No. 3:10-CV-00624
Judge Sharp

ORDER
Pending before the Court is a Report and Recommendation (“R & R”) of the Magistrate
Judge, (Docket No. 91), recommending that Plaintiff’s action be dismissed due to an unexcused
procedural default. Petitioner has filed objections to the R & R. (Docket No. 92). Having
undertaken de novo review of the matter in accordance with Rule 72 of the Federal Rules of
Civil Procedure, the Court finds that the R & R is correct and properly applies the governing law.
In deciding to approve the R & R, the Court has considered the two objections raised by
Petitioner.

First, Petitioner argues that the Court should address Petitioner’s remaining

ineffective assistance of counsel claims, as they were all timely raised in Petitioner’s pro se
petition for habeas corpus. Second, Petitioner argues that he has established the prejudice
required in the cause-and-prejudice analysis in order to overcome his procedurally defaulted
claim that trial counsel was ineffective by failing to impeach the victim.
Regarding the first objection, the Sixth Circuit mandate on remand was clear: “On
remand, the district court should consider whether the impeachment claim defaulted by Leberry
is sufficiently substantial to overcome the default.” (Docket No. 75 at 10). Consequently, the
Court will consider only this issue on remand and finds no error in the Magistrate Judge’s refusal

to consider the additional ineffective assistance of counsel claims.
Regarding the second objection, the Petitioner claims that he has established prejudice
because, had his trial counsel properly impeached the victim, “there is a reasonable probability
that the jury would have found insufficient corroboration of [the prosecution witness’s]
testimony, and would have thus reached a different verdict, on at least one count of conviction.”
(Docket No. 92 at 14). The Court agrees with the Magistrate Judge; Petitioner’s argument
ignores the Sixth Circuit’s holding that “[Petitioner] was not an innocent bystander; ample
corroboration supports his convictions.” (Docket No. 75 at 11). This holding was based on
evidence introduced at trial, where the victim, the prosecution witness, and a second witness all
incriminated Petitioner. (Docket No. 75 at 2-3). Consequently, it is unlikely that the verdict
would have been any different had trial counsel impeached the victim. Therefore, the Petitioner
has not shown that he would be prejudiced by the Court’s failure to hear the claim on the merits.
Accordingly, the Court hereby rules as follows:
(1) The R & R, (Docket No. 91), is ACCEPTED and APPROVED; and
(2) Petitioner’s claim for ineffective assistance of counsel in failing to properly impeach
the victim is hereby DENIED for an unexcused procedural default; and
(3) Petitioner’s Petition for Writ of Habeas Corpus, (Docket No. 1), is DISMISSED.
The Clerk of the Court shall enter a final judgment in accordance with Rule 72 of the Federal
Rules of Civil Procedure.
It is so ORDERED.
_______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE