Webster v. Lindamood

Filing 47

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/5/12. (afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSEPH WEBSTER,
Petitioner,
v.
CHERRY LINDAMOOD, Warden,
Respondent.

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No. 3:11-cv-00162
Judge Trauger

MEMORANDUM
The petitioner, Joseph Dejuan Webster,1 has filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254. (Docket No. 1). The petitioner is an inmate at the South Central Correctional
Facility in Clifton, Tennessee.
I.

INTRODUCTION
The petitioner challenges the legality of his confinement under a 2006 judgment of the

Criminal Court for Davidson County convicting him of the first degree premeditated murder of
Leroy Owens. (R. 26-1, p. 55 ).2 The trial court sentenced the defendant to life imprisonment to be
served consecutively to a prior sentence. (Id.)
Webster timely appealed his conviction and sentence to the Tennessee Court of Criminal
Appeals. State of Tennessee v. Joseph Dejuan Webster, No. M2007-00050-CCA-R3-CD, 2008 WL
2229208, at *5 (Tenn. Crim. App. May 29, 2008)(perm. app. denied. Dec. 8, 2008). The appellate

1

Throughout this memorandum, Joseph Webster is referred to as “petitioner,” “defendant,” and “appellant”
interchangeably.
2
The citations herein are to the technical record filed by the respondent. (Docket Nos. 25, 26, 29, 30 &
Attachs.). For ease of reference, the court adopts the method of record citation used by the respondent.

1

court affirmed, and the Tennessee Supreme Court denied Webster’s application for permission to
appeal. Id. at ** 1, 6.
On January 23, 2009, Webster filed a petition for post-conviction relief. (R. 25-1, p. 17).
Webster subsequently filed an amended petition, and a hearing was held on the petition for relief.
Webster v. State, No. M2009-01540-CCA-R3-PC, 2010 WL 2594028, at *1 (Tenn. Crim. App.
June 28, 2010). The post-conviction court denied relief, and Webster appealed. Id. On June 28,
2010, the Tennessee Court of Criminal Appeals affirmed the post-conviction court’s denial of relief.
Id. On November 10, 2010, the Tennessee Supreme Court issued an order denying Webster’s
application for permission to appeal. Id. Webster did not file a petition for writ of certiorari in the
United States Supreme Court.
On February 22, 2011, Webster filed a timely pro se petition for writ of habeas corpus in
this court. (Docket No. 1). On July 25, 2011, attorney Michael A. Colavecchio filed an amended
petition on the petitioner’s behalf. (Docket No. 23). In his amended petition, the petitioner asserts
multiple grounds for relief. The petitioner names Cherry Lindamood, the warden of the South
Central Correctional Facility, as the respondent.
On June 13, 2011, the court conducted a preliminary examination of the petition and
determined that the petitioner had stated a colorable claim for relief. (Docket No. 15 at pp. 1-2).
Accordingly, the court entered an order directing the respondent to answer or otherwise respond to
the petition. (Docket No. 15). The respondent filed a motion dismiss the action on November 17,
2011. (Docket No. 35). The court ordered the petitioner’s counsel to respond to the motion to
dismiss (Docket No. 38), and a response was filed (Docket No. 42).

2

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 for Davidson County in Nashville, Tennessee.
II.

SUMMARY OF THE EVIDENCE
A.

Trial Court

The following summary of the facts of the case is taken from the opinion of the Tennessee
Court of Criminal Appeals in State v. Webster, 2008 WL 2229208:
In April of 2005, Appellant was indicted for the first degree murder
of Leroy Owens that occurred on November 22, 1998. At trial,
Tammy Nelson testified that she was living in an apartment complex
at 159 Hermitage Avenue in November of 1998. She and Leroy
Owens, the victim, were friends. She knew the victim as “Little
Nick,” and he would sometimes stay at her apartment. Ms. Nelson
and the victim had used drugs together in the past.
According to Ms. Nelson, around the beginning of November, a man
named Robert Nichols, who was known as “Big Nick,” wanted “some
dope.” The victim offered to call his “cousin” who had some “good
stuff.” Two men, one of whom was Appellant, arrived at Ms.
Nelson's apartment. The men claimed that the victim already owed
them some money. The victim and “Big Nick” pooled their money
together and “got the drugs” from the two men. The men left the
apartment. Ms. Nelson was under the impression that the victim and
“Big Nick” were going to divide the drugs up for resale to make some
money, but “Big Nick scammed Little Nick out of his money.”
About three days later, Appellant and the other man that brought the
drugs, returned to Ms. Nelson's apartment, looking for the victim.
Ms. Nelson specifically identified Appellant as one of the men that
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came to her door. The men came to her apartment five or six times
looking for the victim. At some point, the two men gave Ms. Nelson
a pager number and told her to call them when she saw the victim. On
November 21, 1998, the victim came to her house. The victim and
Ms. Nelson got high together, and the victim stayed the night at her
apartment. Ms. Nelson called the pager number to let the men know
that the victim was at her apartment. The two men arrived at Ms.
Nelson's apartment in a white station wagon on the morning of
November 22, 1998. When they arrived, the victim was asleep. Ms.
Nelson woke the victim up to tell him that Appellant and the other
man were there to see him. Appellant went to the car where Ms.
Nelson saw him put on gloves and get a stick. The other man
“snatched” the victim out of the front door of Ms. Nelson's apartment.
Ms. Nelson saw Appellant start hitting the victim with his hands. The
victim took off running, escaping over a fence. As he was running
away, one of his black tennis shoes came off his foot. Appellant and
the other man got into their car to chase the victim. About thirty
minutes later, Ms. Nelson learned that the victim was dead.
The victim ran to Delunn Todd Hyde's house. According to Mr.
Hyde, the victim entered his house without being invited inside. The
victim looked like he had been beaten up, was missing a shoe and had
bruises under his eye. The victim's pants were “halfway down.” The
victim acted “scared” and asked to use Mr. Hyde's telephone. Mr.
Hyde did not want to get involved, so he escorted the victim out of
his house. The victim asked Mr. Hyde to look outside to see if there
was a white car. Mr. Hyde reported that he did not see a white car. At
that point, the victim “took out across the street running.” Mr. Hyde
then saw a white “souped up” station wagon coming over the hill
toward the victim. The car “flew right behind” the victim. Mr. Hyde
could tell that there were two black men in the car and remembered
that he had seen the same car the night before on Lewis Street. About
thirty minutes after the victim left his house, Mr. Hyde walked to the
scene of the incident and learned that the victim was dead.
Fred McClain testified that on November 22, 1998, he was “doing
some concrete” work for a small restaurant on the corner of Green
Street and Wharf Avenue. FN1 Around 11:30 a.m., Mr. McClain
heard a car pull up and brakes “screeching.” The next thing he saw
was a “man running.” The man running turned out to be the victim,
Leroy Owens. He also saw a “white car that pulled up, that the two
fellows jumped out of.” The two men were black and one of the men
was about five feet nine inches tall and weighed about two hundred
and twenty-five or two hundred and thirty pounds. The other man
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was smaller, “about five eight and weighed about one seventy-five.”
The car was an older white station wagon with “chrome wheels.”
FN1. According to Mr. McClain, at the time of trial the name of
Wharf Avenue had been changed to Charles E. Davis.
The two black men from the car “bum rushed” or “tackled” the
victim while he was running. This caused the victim to actually bump
into Mr. McClain, who hit his head on the food service window of the
restaurant. Mr. McClain got up and ran around a corner to the side of
the building. When he peered around the corner, he saw the larger of
the two men standing over the victim, who was lying on the ground.
The larger man was hitting the victim with a cinder block. Mr.
McClain heard the man ask, “Where's my goddamn money?” Mr.
McClain saw the man hit the victim twice with the cinder block
before the two men left in the station wagon. Once the two men left,
Mr. McClain could see blood running out of the victim's head where
he had been hit with the block. The victim was silent and still. Mr.
McClain was unable to identify the attackers.
Officer James Jordan of the Metropolitan Nashville Police
Department responded to a call at 11:33 a.m. on November 22, 1998,
reporting the beating of the victim. When he arrived on the scene,
Officer Scott Baswell was already present. The victim was lying on
the ground in a large pool of blood. The victim's skull was exposed,
and there was a large cinder block lying next to the body within a
foot of the victim's head.
Detective Brad Corcoran and Detective Pat Postiglione investigated
the murder of the victim. Around 7:00 p.m. on the day of the murder,
Detective Corcoran and Detective Postiglione went to 1245 Lewis
Street and spoke with a woman named Katrina Norman. At the time,
Ms. Norman was Appellant's girlfriend. At the time of trial, she was
married to Appellant and went by the name Katrina Webster.FN2
Detective Corcoran informed Ms. Norman that he was trying to
locate Appellant and the white station wagon that had been described
by several witnesses. Ms. Norman told Detective Postiglione that she
knew the owner and driver of the car but refused to identify them.
Ms. Norman, who had Appellant's first name, “Joseph,” tattooed on
her neck, was uncooperative and actually became “very defensive”
during questioning. At trial, Ms. Norman testified that she did not
know anything about the victim's murder. She also denied that she
told the police she knew the owner and driver of the white station
wagon.
5

FN2. For consistency, we will refer to her as Ms. Norman throughout
the opinion.
Detective Postiglione was the first person to interview Ms. Nelson.
She initially denied knowing the victim but later explained what
occurred on the day of his murder. Ms. Nelson identified Appellant
from a photographic lineup. She also identified Appellant at trial.
According to Detective Postiglione, Ms. Nelson was “fearful,” “upset
and crying.”
At trial, Dr. Feag Lindthp, an assistant medical examiner, testified
that the victim sustained multiple blunt force injuries to the head that
resulted in several abrasions and lacerations. The victim also had
multiple skull fractures and hematoma. There was hemorrhaging of
the brain stem, and the victim's brain itself was bruised in several
places. In Dr. Lindthp's opinion, the victim's death was caused by
multiple blunt force injuries to the head.
Appellant took the stand in his own behalf. He claimed that he did
not remember what he did on November 22, 1998. Appellant denied
ever owning a white station wagon. Further, Appellant claimed that
he did not know Tammy Nelson. Appellant stated that he was dating
Ms. Norman at the time of the incident and that she lived on Lewis
Street.
At the conclusion of the trial, the jury found Appellant guilty of first
degree premeditated murder. The trial court sentenced Appellant to
life in prison, to be served consecutively to the sentences Appellant
was already serving for felony drug charges. Appellant filed a motion
for new trial in which he argued that he had “obtained newly
discovered evidence that was not available to counsel at the time of
trial.” Attached to the motion were affidavits from Marie Burns,
Appellant's mother; Katrina Norman, Appellant's wife; and Arthur
Gordon, Appellant's brother. The affidavits alleged that Appellant's
brother, Kenneth Neal, was the owner of the white station wagon and
was the perpetrator who killed the victim. Appellant later filed an
amended motion for new trial in which he raised additional grounds
for relief.
The trial court held a hearing on the motion for new trial. At that
hearing, several witnesses took the stand, including: Marie Burns,
Appellant's mother; Arthur Gordon, Appellant's brother; Katrina
Norman, Appellant's wife; Kenneth Neal, Appellant's brother; Phillip
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Cotton, a friend of Mr. Neal; and Appellant.
Marie Burns testified that her son Kenneth Neal was the owner of the
white station wagon. Ms. Burns admitted that she was questioned in
1998 by Detective Postiglione about the white station wagon. She
claimed that Detective Postiglione never asked if Appellant owned
the white station wagon. She did not tell the detective that Mr. Neal
was the owner of the car. Ms. Burns claimed that Appellant told her
prior to being arrested for the victim's murder that Mr. Neal “went
out south and killed that man,” but that she never told anyone about
it because Appellant told her he “didn't want to see [her and
Appellant's wife] hurt.” According to Ms. Burns, she approached
counsel for Appellant immediately after trial and told her that Mr.
Neal killed the victim. In fact, Ms. Burns claimed that Mr. Neal
admitted to the murder.FN3 Ms. Burns stated that she had a
conversation with Mr. Neal prior to Appellant's trial in which Mr.
Neal told her that the jury would not convict Appellant of the crime
because he and Appellant “don't look alike” and that he was the one
that “did it.” Ms. Burns was afraid to tell anyone, but thought that
after Appellant was convicted, it was time to come forward with the
information.
FN3. There was an audiotape admitted into evidence at the hearing
that allegedly contained a conversation between Mr. Neal and Ms.
Burns in which Ms. Burns accused Mr. Neal of committing the crime.
After listening to the audiotape, it appears to be of a conversation
between Ms. Norman, referred to in the tape as “Trina,” and Mr.
Neal. During the discussion, from what we could understand, Ms.
Norman expresses her frustration with Mr. Neal's lack of monetary
assistance to support Appellant's defense. We could not locate a
portion of the tape in which there was a conversation between Ms.
Burns and Mr. Neal. The conversation between Ms. Norman and Mr.
Neal appears to be followed by a tape recording of a lecture on
Tennessee history and the Chickasaw Treaty.
Arthur Gordon testified that his brother, Mr. Neal, told him that he
committed the murder that Appellant was convicted of committing,
but he could not remember when that conversation occurred. On
cross-examination, Mr. Gordon stated that the conversation may have
occurred about “three weeks” after the murder. Mr. Gordon also
informed the court that Mr. Neal owned a white station wagon in
1998. Mr. Gordon testified that Mr. Neal told him that the car was
taken to Kentucky and “destroyed.”

7

Katrina Norman Webster testified at the hearing on the motion for
new trial. She claimed that she knew that Mr. Neal committed the
murder in 1998, but did not tell anyone about it because she was
scared of Mr. Neal. She decided to come forward with the
information after trial because her husband was convicted for a crime
that he did not commit.
Kenneth Neal denied that he owned a white station wagon in 1998.
He admitted that Ms. Burns questioned him about the murder but
claimed that he walked out the door instead of talking to her about
the murder. When asked why he did not specifically deny committing
the murder, Mr. Neal responded, “I didn't have a reason to say
anything about it.”
At the conclusion of the hearing, the trial court took the matter under
advisement. In a written order, the trial court denied the motion for
new trial, determining:
“The proof ... showed that the defendant, his mother, his wife and his
other brother all knew about the alleged confession before the trial.
However, they all chose to not inform the defendant's lawyer about
this potential piece of evidence. The timing of the entire family
revelation causes the Court great concern about the legitimacy of the
information. There has been no proof to indicate that the defendant
attempted to procure Kenneth Neal's presence at trial and the Court
finds the allegations raised at this late date unbelievable. Therefore,
the defendant did not exercise reasonable diligence in searching for
the evidence prior to trial as he knew about the evidence prior to trial
and made no efforts to have Kenneth Neal available to testify at trial.
This quite simply is not newly discovered evidence. Therefore, this
issue is without merit.”
Id. at **1-5.
B.

Post-Conviction Court
The Tennessee Court of Criminal Appeals set forth the evidence presented at the post-

conviction hearing in its opinion affirming the denial of relief by summarizing the testimony of each
witness as follows:
The post-conviction court held a hearing on the petition for relief. At
the hearing, Robert Lyons, a private investigator for Petitioner's trial
8

counsel, testified that he interviewed State witness Tammy Nelson
twice in October of 2005. These interviews took place about seven
years after the victim's death and after the police had taken a formal
statement from Ms. Nelson. According to Mr. Lyons, Ms. Nelson
could not identify the two “short black males” who murdered the
victim. Additionally, she was unable to provide any distinguishing
characteristics of the perpetrators.
Petitioner presented the testimony of Dr. Ulysses Walls, a Nashville
dentist. Dr. Walls testified that in 1995 or 1996, he placed six
permanent gold teeth in Petitioner's upper jaw. The teeth were
distinct in that they had the initials “JW” on them. Dr. Walls saw
Petitioner as a patient a second time. At this visit, Dr. Walls noticed
that Petitioner had more gold teeth on the lower jaw. Dr. Walls did
not place the gold teeth on Petitioner's lower jaw. Dr. Walls was
unable to provide medical records of Petitioner's visits due to a
burglary at his office.
Petitioner testified at the hearing that by the end of 1996 he had a
total of twelve gold teeth, six on the upper jaw and six on the lower
jaw. At this time, Petitioner would have been sixteen or seventeen
years old. According to Petitioner, the top teeth bore the initials “JW”
as well as “a dollar sign.” Petitioner did not recall whether he
testified at trial that he was eighteen years old when he got his gold
teeth.
Trial counsel took the stand at the post-conviction hearing. He and
another attorney represented Petitioner at trial and on appeal. Trial
counsel confirmed that he hired Investigator Lyons to help with the
investigation of the case. Trial counsel was present during one of the
interviews of Ms. Nelson and used transcripts of that interview to
cross-examine Ms. Nelson at trial. Trial counsel was surprised that
Ms. Nelson made such a solid witness at trial and commented that he
was frustrated when she stuck “to her guns.”
Trial counsel first met Petitioner in 1998, when Petitioner hired trial
counsel to represent him in a murder case. Petitioner was acquitted
in the 1998 case. Trial counsel could not recall whether Petitioner had
gold teeth at that time. Trial counsel did recall that Petitioner had
gold teeth at the trial and remembered arguing the issue of the gold
teeth to the jury. Trial counsel did not recall specific details about his
cross-examination of Ms. Nelson but admitted that the transcript
reflected that he did not question her about the gold teeth. Further,
trial counsel admitted that he did not call a dentist to testify about
9

when the teeth had been mounted. Trial counsel explained that he did
not question Ms. Nelson about prior inconsistent statements because
“[s]he was a steadfast either well-coached witness or just a good
witness” and he felt that “strategy-wise” it was better to “back off.”
Trial counsel recalled filing a motion to dismiss the case prior to trial
because of the delay between incident and indictment. However, trial
counsel did not recall the specifics of the argument because it was
handled by co-counsel. Trial counsel felt that they could not show
any prejudice due to the delay.
Trial counsel recalled that he did not present any evidence in
mitigation at the sentencing hearing. Trial counsel determined that
there was no mitigating evidence to present and that Petitioner's
extensive criminal history supported the consecutive sentencing
ordered by the trial court.
Trial counsel recalled the hearing on the motion for new trial. Trial
counsel explained that his argument was based on newly-discovered
evidence that warranted a new trial. Specifically, Petitioner's mother
claimed immediately after the verdict that her other son committed
the murder. Trial counsel only raised issues in the motion for new
trial and on appeal that he thought had “the most merit.”
At the conclusion of the hearing, the post-conviction court took the
matter under advisement. In an order issued at a later time, the
post-conviction court denied relief, determining that trial counsel
effectively cross-examined Ms. Nelson and found “no proof to
support [Petitioner's] allegation that the cross-examination was
ineffective. Further, the post-conviction court determined that trial
counsel's decisions were tactical. With regard to issues of identity, the
post-conviction court accredited the testimony of trial counsel in that
he “chose to proceed on the issues which he felt had the most merit.”
The post-conviction court determined that Petitioner's prior criminal
history was extensive and trial counsel was not ineffective for failing
to present proof at sentencing. Moreover, Petitioner did not present
proof that he was prejudiced by not receiving a speedy trial.
Specifically, the post-conviction court determined that, as a whole:
“[T]he testimony of trial counsel [is accredited] that he made
strategic trial decisions. Despite the petitioner's assertions and
assumptions that specific questions would have changed the outcome
of the verdict, the Court finds that counsel was effective in his
representation of the petitioner. The petitioner has failed to prove the
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factual allegations by clear and convincing evidence. As to the
petitioner's claims of ineffective assistance of appellate counsel, the
Court finds that counsel strategically chose to pursue the issues he
felt had the most merit and that petitioner has failed to prove the
allegations by clear and convincing evidence.”
Webster v. State, 2010 WL 2594028, at **1-6.
III.

DISCUSSION
Of the nine claims identified by the court, most of them concern federal constitutional issues

that were fairly presented to the Tennessee state courts for consideration as required by 28 U.S.C.
§ 2254(b)(1)(A) and, as such, are properly before this court for review under § 2254(d). A few of
them, as identified below, either were never presented at all in state court, or were presented under
a different theory than that presented to the state court. As set forth herein, the court finds that none
of the petitioner’s claims provide a valid basis for habeas relief.
A.

Standard of Review for Fully Exhausted Claims

Even when a petitioner’s application for a writ of habeas corpus raises a federal
constitutional claim that has been exhausted properly in the state courts, this court’s review of the
state court’s resolution of the issue is quite limited. The standard for reviewing applications for the
writ of habeas corpus is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). The
section states:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
11

(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.

Where state courts have made factual determinations regarding issues presented for federal
habeas corpus review, such determinations are presumed to be correct, and the petitioner has the
burden of rebutting that presumption of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). The purpose of federal habeas corpus review is to “ensure that state court convictions
are given effect to the extent possible under the law,” not to conduct a federal re-trial. Bell v. Cone,
535 U.S. 685, 693 (2002).
B.

Standard of Review for Defaulted Claims

Generally, a federal district court will not entertain a petition for writ of habeas corpus
unless the petitioner has first exhausted all available state court remedies for each claim in his
petition. 28 U.S.C. § 2254(b)(1). While exhaustion is not a jurisdictional requirement, it is a strictly
enforced doctrine that promotes comity between the states and the federal government by giving the
state an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Consequently, as a condition precedent to
seeking federal habeas corpus relief, the petitioner is required to fairly present his claims to every
available level of the state court system. Rose v. Lundy, 455 U.S. 509, 518–20 (1982); see also
Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (“[A] federal habeas petitioner . . . [must] provide
the state courts with a ‘fair opportunity’ to apply controlling legal principles to the facts bearing
upon his constitutional claim.”).
Moreover, “the doctrine of exhaustion requires that a claim be presented to the state courts
under the same theory in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313,
12

322 (6th Cir. 1998). Once a petitioner’s federal claims have been raised in the highest state court
available, the exhaustion requirement is satisfied, even if that court refused to consider the claims.
Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990).3
A habeas petitioner bears the burden of demonstrating that he has properly and fully
exhausted his available state court remedies with respect to the claims he presents for federal habeas
review. Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987) (citation omitted). If a habeas
petitioner retains the right under state law to raise a claim by any available procedure, he has not
exhausted that claim. 28 U.S.C. § 2254(c). Ordinarily, habeas petitions containing unexhausted
claims are dismissed without prejudice in order to permit the petitioner the opportunity to pursue
them in state court. Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (citing Rose, 455 U.S. at 518,
520–22); see also Rhines v. Weber, 544 U.S. 269 (2005) (reconfirming the continued relevance of
Rose under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)).
However, if an unexhausted claim would be procedurally barred under state law, for
instance, by statutes of limitations or state rules barring successive petitions, then the claim is
deemed exhausted (because no further state review is available) but procedurally defaulted, and may
not be considered by the federal court on habeas review except under extraordinary circumstances.
Alley v. Bell, 307 F.3d 380, 385–86 (6th Cir. 2002) (citations omitted); In re Cook, 215 F.3d 606,
607–08 (6th Cir. 2000). In order to obtain consideration of a claim that is procedurally defaulted, a
petitioner must demonstrate both cause for the procedural default and actual prejudice resulting from
the alleged constitutional errors, or alternatively that failure to consider the claims will result in a

3

In Tennessee, review by the state Supreme Court is not required for exhaustion. Instead, “once the Court of
Criminal Appeals has denied a claim of error, ‘the litigant shall be deemed to have exhausted all available state remedies
available for that claim.’” Adams v. Holland, 330 F.3d 393, 402 (6th Cir. 2003)(quoting Tenn. S. Ct. R. 39).

13

“fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); cf. Murray
v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v.
Sykes, 433 U.S. 72, 87 (1977).
With these principles in mind, the court will proceed to consider Webster’s claims.
C.

Analysis of Claims
1.

Denial of Motion for a New Trial Based on Newly Discovered
Evidence/Actual Innocence

In the first ground of the amended petition (Docket No. 23 at p. 4), the petitioner challenges
the decisions of the state courts on his claim of newly discovered evidence. After his conviction,
the petitioner sought a new trial on the basis that he had new evidence that his brother actually
committed the crime of which the petitioner was convicted. (R. 26-1, pp. 56-62). The trial court
denied the motion for new trial, finding that Webster knew about the information prior to trial and
that the testimony concerning this allegedly newly discovered evidence was not credible. (R. 26-1,
pp. 78-79). The Tennessee Court of Criminal Appeals affirmed, finding that “[t]he record in this
case amply supports the finding that Appellant’s witnesses at the new trial hearing were not credible.
Moreover, if they are to be believed at all, they and Appellant knew about this alleged evidence yet
did not come forward. This clearly shows a lack of reasonable diligence.” (R. 29-3, pp. 7-8).
A petition for federal habeas corpus relief may only be granted when it is found that a citizen
is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a);
Pulley v. Harris, 465 U.S. 37, 41 (1984). Because federal habeas corpus relief is only available to
remedy errors of a federal nature, a claim that a conviction is the result a state court’s misapplication
of state law is not cognizable unless the petitioner can establish such error amounts to a fundamental
miscarriage of justice or a violation of the right to due process in violation of the United States
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Constitution. Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir. 1998); see Abshear v. Moore, 354
Fed. Appx. 964, 968 (6th Cir. 2009)(federal habeas corpus relief does not lie for errors of state law).
In its motion to dismiss the instant petition for writ of habeas corpus relief, the respondent
maintains that any federal claim in relation to the petitioner’s claim of newly discovered evidence
or actual innocence is unexhausted and procedurally defaulted. (Docket No. 35 at p. 6).
The petitioner’s motion for new trial does not contain any references to federal law. (R. at
26-1 at p. 56). The trial court did not rely on federal law in denying the motion for new trial. State
v. Webster, 2008 WL 2229208, at *4. In the “Statement of Issues” section of the petitioner’s brief
on direct appeal, Webster contends that the trial court erred in denying his motion for new trial in
violation of “the provisions of the Federal and State Constitution, namely: Due Process Clause (5th
and 14th Amendments; Article 1, section 8 and 17); Equal Protection Clause (14th Amendment;
Article XI section 8); Effective Assistance of Counsel (6th Amendment; Article I section 9); Right
to Trial by an Impartial Jury (6th Amendment; Article I, section 9) on the grounds that are more fully
set forth” in the petitioner’s brief. (Docket No. 29-1, p. 6).

However, in the brief itself, the

petitioner argues that the trial court erred by citing to Tennessee state law only. (Id. at pp. 10-11).
There is no discussion of any federal law violations in the brief and no mention of federal claims
other than the string citation to federal law in the “Statement of Issues” section.

In affirming the trial court’s denial of the petitioner’s motion for new trial based on newly
discovered evidence, the state appellate court cited only to Tennessee state cases; no federal rights
or claims were mentioned. State v. Webster, 2008 WL 2229208, at *5. The court therefore finds
that the petitioner has procedurally defaulted on any federal claims regarding the newly-discovered-

15

evidence. A petitioner cannot raise procedurally defaulted claims in a federal habeas proceeding
unless he or she can demonstrate “cause” for the procedural default and “actual prejudice” resulting
from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485-86 (1986); Wainwright
v. Sykes, 433 U.S. 72, 87 (1977). The petitioner here fails to allege cause or prejudice for his
procedural default.
Alternatively, procedural default may be excused if a petitioner can show that “failure to
consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501
U .S. 722, 750 (1991). To come within this narrow second exception, a petitioner must make a
showing of actual innocence, meaning factual innocence. McCleskey v. Sant, 499 U.S. 467, 494-95
(1991); Dretke v. Haley, 541 U.S. 386, 393–94 (2004). The standard for showing a “fundamental
miscarriage of justice” is higher than the standard for showing cause and prejudice. Murray, 477
U.S. at 496.
In the petitioner’s memorandum filed in support of his habeas petition, the petitioner’s newly
discovered evidence claim is expanded to include a claim of actual innocence. (Docket No. 23 at
pp. 9-13). Stated simply, the petitioner maintains that he is innocent of the crime of which he was
convicted and that, if the jury had heard testimony from various witnesses that the petitioner’s
brother was the one who committed the crime, the jury could not have reasonably convicted the
petitioner. (Id.)
The United States Supreme Court has held that if 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,

16

513 U.S. 298, 316 (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. “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 counsels,
however, that the actual innocence exception should “remain rare” and “only be applied in the
‘extraordinary case.’” Id. at 321.
Here, although the newly discovered evidence touted by the petitioner “was not presented
at trial” and therefore technically is “new,” Schlup, 513 U.S. at 324, the evidence was known to the
petitioner and his family prior to the conclusion of the petitioner’s trial.

Specifically, at the

petitioner’s motion for a new trial hearing, the petitioner’s mother (Marie Burns),4 the petitioner’s
wife ( Katrina Norman Webster)5, and the petitioner’s brother (Arthur Gordon)6 all testified that they

4

Marie Burns testified that her son Kenneth Neal was the owner of the white station wagon. She admitted that
Detective Postiglione asked her about the white station wagon in 1998 but claimed that he never asked if the petitioner
owned the white station wagon. She did not tell the detective that Neal was the owner of the car. Burns claimed that
the petitioner told her prior to being arrested for the victim’s murder that Neal “went out south and killed that man,” but
she never told anyone about it because the petitioner told her he “didn’t want to see [her and Appellant’s wife] hurt.”
Burns stated that she had a conversation with Neal prior to the petitioner’s trial in which Neal told her that the jury
would not convict the petitioner of the crime because he and the petitioner “don’t look alike” and that he was the one
that “did it.” According to Burns, she approached counsel for the petitioner immediately after the trial and told her that
Neal killed the victim. (Docket No. 29-3 at pp. 4-5).
5

Katrina Norman Webster testified that she had known that Neal had committed the murder, but had not told
anyone because she was scared of Neal. She testified that she decided to come forward with the information after trial
because her husband was convicted of a crime that he did not commit. (Docket No. 29-3 at p. 5).
6

Arthur Gordon testified at the petitioner’s motion for new trial that his brother Kenneth Neal told Gordon that
he had committed the murder, but Gordon could not remember when that conversation had occurred. He informed the
court that Neal owned a white station wagon and that Neal had told him the car had been “destroyed.” (Docket No. 29-3
at p. 5).

17

knew Mr. Neal allegedly had committed the murder of the victim prior to the petitioner’s trial, but
had not informed the petitioner’s counsel or the police about this information for various reasons.
According to the hearing testimony of Ms. Burns, the petitioner himself knew that Mr. Neal
committed the murder; however, during his trial when the petitioner testified on his own behalf, he
failed to say that it was his brother who had committed the murder for which the petitioner was on
trial.7
As explained by the state appellate court, when the alleged newly discovered evidence was
presented by way of the testimony of the petitioner’s mother, wife, and brother at the petitioner’s
motion for a new trial hearing, the trial court found that the witnesses’ testimony was not credible.
(Docket No. 29-3 at p. 5). In particular, the court held: “The timing of the entire family revelation
causes the Court great concern about the legitimacy of the information.” (Docket No. 29-3 at p. 5).
Due to its timing and lack of credibility, the new evidence does not raise “sufficient doubt about [the
petitioner's] guilt to undermine confidence in the result of the trial.” Schlup, 513 U.S. at 317.
The miscarriage of justice exception requires a showing that a constitutional violation
probably resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477 U.S.
478, 479-80 (1986). The petitioner has made no such showing. His claims are thus barred by
procedural default and do not warrant habeas relief.
2.

Ineffective Assistance of Counsel

As the second ground of his petition for habeas corpus relief, the petitioner contends that he
received ineffective assistance of counsel by his attorney, Michie Gibson. (Docket No. 23, p. 4 ¶

7

During the petitioner’s motion for a new trial, Kenneth Neal denied that he owned a white station in 1998.
He admitted that Ms. Burns questioned him about the murder but claimed that he did not talk with her about it. When
asked why he did specifically deny committing the murder, Mr. Neal responded, “I didn’t have a reason to say anything
about it.” (Docket No. 29-3 at p. 5).

18

5.2). The petitioner alleges eight (8) specific ways in which he believes his counsel was ineffective.
This claim includes allegations concerning counsel’s (1) cross-examination of Tammy Nelson; (2)
failure to object to Detective Postiglione’s testimony; (3) failure to present evidence at the motion
to dismiss hearing; (4) failure to present evidence at sentencing; (5) failure to preserve issues for
appeal; (6) conduct of jury selection; (7) presentation of trial strategy during opening statement; and
(8) failure to call alibi witnesses. (Docket No. 23, pp. 13-32).
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.”

19

Strickland, 466 U.S. at 694; Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 1384 (2012). To
establish prejudice in the context of a guilty plea, the petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Miller v. Straub, 299 F.3d 570, 578
(6th Cir. 2002).
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
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.
As discussed below, this court cannot conclude under the applicable law that counsel’s
conduct was constitutionally deficient, or that the state court’s rejection of the petitioner’s
ineffective assistance claim involved an unreasonable determination of the laws in light of the
evidence presented during the state court proceedings, or that the state court’s decision was contrary
to, or involved an unreasonable application of, the standard established by Strickland. 28 U.S.C.
§ 2254(d).
a.

Whether counsel was ineffective in the cross-examination of Nelson

The petitioner asserts that trial counsel’s cross-examination of Tammy Nelson, in particular

20

with regard to her identification of the petitioner as perpetrator, was constitutionally deficient.
(Docket No. 23 at pp. 13-17). The petitioner raised this claim in state post-conviction proceedings,
and the post-conviction court denied relief, determining that trial counsel effectively cross-examined
Nelson and finding “no proof to support [Petitioner’s] allegation that the cross-examination was
ineffective.” Webster v. State, 2010 WL 2594028, at *6.

The post-conviction court also found

that
trial counsel’s decision to “back off” was tactical, pointing to trial counsel’s post-conviction hearing
testimony that:
. . . when I sense that a witness is making points with the court or the
jury, I kinda lay back. And I thought– I–in my career I have been
successful in cross-examining, you know, witnesses; and I feel like
that’s, in my opinion, one of my better, you know, strengths as an
attorney. But I wasn’t getting anywhere with Ms. Nelson. She was
a steadfast either well-coached witness or just a good witness. She
was a very good witness for the State. And–and, strategy-wise, if I
feel like I’m not getting anywhere, I’m gonna back off.
(Docket No. 25-2 at p. 112). Id. The Tennessee Court of Criminal Appeals affirmed, finding:
At the post-conviction hearing, trial counsel testified that he was
surprised that Ms. Nelson was such a good witness for the State. He
expressed frustration by the fact that she was “[sticking] to her guns”
during her testimony. Trial counsel did not recall specific things
about which he cross-examined Ms. Nelson at trial but explained that
he did not feel like he was “getting anywhere” because she was such
a “good witness” so his strategy was to “back off.” The postconviction court accredited the testimony of trial counsel. The record
supports the post-conviction court’s determination.
(Docket No. 30-3 at p. 11).
Although the petitioner disagrees with trial counsel’s decision to “back off” the crossexamination of Nelson because the petitioner believes trial counsel could have elicited more or
different information from the witness, “cross-examination is a strategic and tactical decision of trial
21

counsel which is not be measured by hindsight.” State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim.
App. 1991). Allegations of ineffective assistance of counsel relating to matters of trial strategy or
tactics do not provide a basis for post-conviction relief “so long as counsel’s choices are informed
ones based upon adequate preparation.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)(quoting
Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)(internal quotations omitted)).
Here, there is no evidence that trial counsel’s preparation for Webster’s trial was inadequate.
The proof adduced at the post-conviction hearing was that trial counsel ended the cross-examination
as a matter of strategy after he observed that the witness would not budge in her testimony. The
post-conviction court accredited trial counsel’s testimony, and this court has no basis

for

discrediting it.
Accordingly, the court finds that the state courts’ determination that the trial counsel’s crossexamination of Nelson was not constitutionally deficient is supported by the record and is neither
contrary to, nor an unreasonable application of, clearly established federal law. This claim will not
support an award of habeas corpus relief.
b.

Whether counsel was ineffective in failing to object to Detective
Postiglione’s testimony concerning statements made by the petitioner’s
girlfriend

The petitioner next asserts that trial counsel was ineffective in failing to object to Detective
Postiglione’s testimony concerning statements purportedly made by the petitioner’s girlfriend.
(Docket No. 23 at pp. 18-21 ). The petitioner contends that, at a minimum, trial counsel should
have requested a limiting instruction so that the testimony could only be used for impeachment
purposes. (Id.)
The petitioner raised this claim in his state post-conviction proceedings, and the post-

22

conviction court denied relief. Webster v. State, 2010 WL 25494028, at *6. Considering the claim
on appeal of the denial of post-conviction relief, the state appellate court reviewed the transcript of
the petitioner’s post-conviction hearing and found that the petitioner had failed to present any proof
as to how this alleged deficiency on the part of counsel might have altered the outcome of his trial.
Id. at *8. In affirming the post-conviction court’s denial of relief on this ineffective assistance of
counsel claim, the state appellate court also found that the petitioner’s allegations of prejudice were
pure speculation. Id.
The instant petition alleges that “[t]he testimony elicited by the state from and through
witness Detective Postiglione were [sic] prejudicial and inflammatory” because the girlfriend’s
account of the events initially had matched the petitioner’s account of the events but she
subsequently changed her testimony. According to the petitioner, the girlfriend’s change in
testimony (as relayed by Detective Postiglione), made the petitioner’s account of the events seem
less credible. (Docket No. 23 at pp. 20-21).
The court has reviewed Detective Postiglione’s direct testimony at trial, as well as his
testimony during cross-examination. (Docket No. 26-2 at pp. 119-66). The record does not support
the allegations made by the petitioner. Instead, the record reflects that trial counsel made numerous
hearsay objections throughout Detective Postiglione’s testimony, most of which were sustained by
the court. (See id. at pp. 123-24, 155, 157).

The state courts’ determinations that trial counsel’s

performance with regard to Detective Postliglione was not constitutionally deficient is supported by
the record and is neither contrary to, nor an unreasonable application of, clearly established federal
law. Consequently, the court finds that this claim will not support an award of habeas corpus relief.
c.

Whether counsel was ineffective for failing to present evidence in support
of the motion to dismiss
23

Next, the petitioner alleges that trial counsel was ineffective by failing to present proof in
support of the petitioner’s motion to dismiss after an alleged prosecutorial delay. At the petitioner’s
post-conviction hearing, trial counsel recalled filing a motion to dismiss the case prior to trial
because of the delay between incident and indictment. Webster v. State, 2010 WL 2594028, at *5.
However, trial counsel did not recall the specifics of the argument because it was handled by cocounsel. Id.

Trial counsel remembered that the petitioner would have been required to show

prejudice in the delay, and trial counsel did not feel that they could show the prejudice required to
secure relief. Id. The post-conviction court accredited the testimony of trial counsel and found that
the petitioner had not presented proof that he was prejudiced by not receiving a speedy trial. Id. at
*6.

The Tennessee Court of Appeals affirmed. Id. at *8.
In an attempt to show prejudice now, the petitioner argues that “if” he had an alibi witness,

the witness would have become unavailable due to the prosecution’s unreasonable delay. (Docket
No. 23 at p. 22). However, the petitioner’s latest argument also rests on speculation.
The court finds that the state courts’ determination that the trial counsel was not
constitutionally ineffective in failing to present proof to support a motion to dismiss is supported by
the record and is neither contrary to, nor an unreasonable application of, clearly established federal
law. Consequently, the court finds that this claim will not support an award of habeas corpus relief.
d.

Whether counsel was ineffective for failing to present certain evidence at
sentencing

Next, the petitioner alleges that counsel was ineffective because he failed to present
mitigating evidence at the petitioner’s sentencing hearing. (Docket No. 23 at pp. 22-24). At the
petitioner’s post-conviction hearing, counsel explained that he did not present mitigating evidence
because there was none to present. Webster v. State, 2010 WL 2594028, at *8. The post-conviction
24

court accredited trial counsel’s testimony. Id.

The appellate court noted that the petitioner’s

extensive criminal history supported consecutive sentencing and concluded the petitioner failed to
establish by clear and convincing evidence that he is entitled to post-conviction relief on the basis
of ineffective assistance of counsel. Id.
A defense attorney’s failure to reasonably investigate a defendant’s background and present
mitigating evidence to the jury at sentencing can constitute ineffective assistance. Wiggins v. Smith,
539 U.S. 510, 522-23 (2003). Defense counsel must either perform a reasonable investigation or
make a reasonable decision that such investigation is unnecessary. Wiggins, 539 U.S. at 521. A
court must examine not only to the individual errors of counsel, but must also view the effect of the
errors cumulatively. See Draper v. Adams, No. 98–1616, 2000 WL 712376, at **3-4 (6th Cir. May
23, 2000).
Strickland directs that “[j]udicial scrutiny of counsel's performance must be highly
deferential” and “[i]n any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference
to counsel's judgments.” 466 U.S. at 689, 691. As the Supreme Court noted, “[c]ounsel's actions are
usually based, quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant. In particular, what investigation decisions are reasonable
depends critically on such information.” Id. at 691.
Here, the petitioner argues that counsel should have presented evidence that would have
shown the petitioner’s “remorse.” (Docket No. 23 at p. 23). However, the petitioner does not
explain what particular mitigation evidence he believes counsel should have presented at sentencing
that would have demonstrated remorse and how that mitigation evidence, if it had been presented,

25

would have reduced the petitioner’s sentence. As such, even if counsel’s performance at sentencing
fell short of what is required by Strickland, the petitioner has not demonstrated prejudice.
The petitioner also argues that counsel should have “presented evidence” or argued at the
petitioner’s sentencing hearing that the petitioner should not have received consecutive sentences.
(Docket No. 23 at p. 23). At the petitioner’s post-conviction hearing, counsel explained that he did
not make this argument because, in his opinion, the petitioner’s extensive criminal history supported
the consecutive sentencing ordered by the trial court. Webster v. State, 2010 WL 2594028, at *6.
In view of the petitioner’s prior record, the petitioner has not carried his burden of proving
that the appellate court would have granted relief had counsel argued against consecutive sentencing.
As the Sixth Circuit has observed, “our role on habeas review is not to nitpick gratuitously counsel’s
performance. After all, the constitutional right at issue here is ultimately the right to a fair trial, not
to perfect representation.” Smith v. Mitchell, 348 F.3d 177, 206 (6th Cir. 2003). Under the
circumstances, the petitioner received “constitutionally adequate representation.” Pillette v.
Berghuis, 408 F. App’x 873, 891 (6th Cir. 2010).
The court finds that, in reaching its decisions on these claims, the Tennessee Court of
Criminal Appeals made reasonable determinations of the facts in light of the evidence in the state
court record and reasonably applied the standards set forth in Strickland, resulting in a decision that
is neither contrary to nor an unreasonable application of clearly established federal law. Like the
petitioner’s other claims, the court finds that this claim will not support an award of habeas corpus
relief.
e.

Whether counsel was ineffective for failing to preserve issues for appeal

The petitioner next contends that counsel was ineffective because he failed to preserve issues

26

necessary for appellate review in the motion for a new trial. In his amended petition, the petitioner
identifies seven (7) issues that he believes counsel should have raised in his motion for new trial and
on appeal. (Docket No. 23 at pp. 31-32).
The petitioner raised this ineffective assistance claim in his petition for post-conviction
relief. During the petitioner’s post-conviction hearing, trial counsel testified that he only raised
issues on appeal that he thought had “the most merit.” Webster v. State, 2010 WL 2594028, at *6.
With regard to the petitioner’s claim that counsel should have challenged the admission of the crime
scene and autopsy photographs in the motion for new trial, trial counsel testified that he did not think
this issue “would have any effect at the Court of Appeals.” Id. at *9. The post-conviction court
found that, “[a]s to the petitioner’s claims of ineffective assistance of appellate counsel, the Court
finds that counsel strategically chose to pursue the issues he felt had the most merit and that
petitioner has failed to prove the allegations by clear and convincing evidence.” Id. at *6.
The Tennessee Court of Criminal Appeals affirmed, finding that:
Petitioner also argues that counsel was ineffective on appeal,
specifically, for failing to preserve issues necessary for appellate
review in the motion for new trial. As stated above, trial counsel
testified that he only pursued issues on appeal that he felt had
“merit.” The post-conviction court accredited the testimony of trial
counsel that this was a tactical decision. Again, this Court may not
second-guess a reasonably-based trial strategy, and we cannot grant
relief on a sound, but unsuccessful, tactical decision made during the
course of the proceedings. See Adkins, 911 S.W.2d at 347.
Id. at *9.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel
on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). Strategic and tactical
choices regarding which issues to pursue on appeal are “properly left to the sound professional

27

judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). “Generally, only
when ignored issues are clearly stronger than those presented will the presumption of effective
assistance of appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d at 579 (internal
quotations omitted). In fact, winnowing out weaker issues on appeal is actually “the hallmark of
effective appellate advocacy.” Id. (quoting Smith v. Murray, 477 U.S. at 536).
In this case, counsel testified that he had practiced law for twenty years and that his method
was to “file motions, throughout the course of any case; and [he’ll] decide which ones [he] think[s]
have the most merit and take them up.” (Docket No. 25-2 at p. 73). Counsel testified that he
believed that the petitioner’s claim of newly-discovered evidence was actually a claim of actual
innocence, and counsel believed this claim was very strong and might have presented “a case of first
impression” (Docket No. 25-2 at p. 83) due to the “extraordinary, certain facts [counsel] had gotten
right after the trial.” (Docket No 25-2 at p. 79). As to the other issues he could have raised on
appeal, counsel stated during a deposition: “I didn’t ignore them. I don’t think they have as much
merit as you do.” (Docket No. 25-2 at p. 84).
The post-conviction court accredited the testimony of trial counsel that he made a tactical
decision not to pursue the other claims in order to focus on what he believed was a very strong and
perhaps novel claim.

Although it does appear that reasonable attorneys could disagree as to

whether counsel should have presented the one claim he pursued on appeal as a claim of newlydiscovered evidence or a claim of manifest injustice/actual innocence, the court is not persuaded that
it would have made a difference either way. The petitioner has not carried his burden of proving
that the appellate court would have granted relief had counsel raised the other issues on appeal.
The court finds that, in reaching its decisions, the Tennessee Court of Criminal Appeals

28

made reasonable determinations of the facts in light of the evidence in the state court record and
reasonably applied the standards set forth in Strickland, resulting in a decision that is neither
contrary to, nor an unreasonable application of, clearly established federal law. Like the petitioner’s
other claims, the court finds that this claim will not support an award of habeas corpus relief.
f.

Whether counsel was ineffective in conducting jury selection, in failing to
present a trial strategy during opening statement, and in failing to call two
alibi witnesses

Three of the petitioner’s claims of ineffective assistance of counsel were not raised in the
state appellate court: whether counsel was ineffective (1) in conducting jury selection; (2) in failing
to present a trial strategy during opening statement; and (3) in failing to call alibi witnesses.8
Having failed to raise these claims in the state appellate court, the petitioner is barred by the postconviction statute of limitations and restrictions on successive state petitions from presenting these
claims to the state court now. Tenn. Code Ann. §§ 40-30-102(a), -102(c), and -117. Because
petitioner has not fully and fairly presented these claims to the state courts, and a state procedural
rule prohibits the state court from extending further consideration to them, the claims are deemed
exhausted but procedurally precluded from federal habeas review unless the petitioner can
demonstrate cause and actual prejudice to overcome the default, or a miscarriage of justice (i.e., a
colorable claim of factual innocence in light of federal constitutional error). Coleman v. Thompson,
501 U.S. at 752–53.
As to the three claims of ineffective assistance of counsel that are procedurally defaulted,
Webster has not established cause or prejudice for his default. Although he maintains his actual
innocence, consideration of the petitioner’s defaulted claims would not serve to avoid a miscarriage
8
The three claims were raised in the state post-conviction petition but not on appeal of the denial of the postconviction petition.

29

of justice or to establish his innocence, as discussed at length above. (See supra pages 14-19).
Thus, review of these claims is barred by procedural default.
For all of the reasons explained above, the petitioner has failed to establish by clear and
convincing evidence that he is entitled to relief on the basis of ineffective assistance of counsel.
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 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (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.
Because the petitioner has not made a substantial showing of a denial of a constitutional
right, a certificate of appealability will not issue with respect to the petitioner’s first ground for relief
(denial of a motion for new trial based on newly discovered evidence).
As to the petitioner’s ineffective assistance of counsel claims, although reasonable jurists
could debate whether Webster’s trial counsel was deficient in some respects, the petitioner has not

30

“made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The court
will therefore deny a COA as to all of the petitioner’s claims.
V.

CONCLUSION
For the reasons set forth herein, the court finds that Webster’s petition is without merit.

Accordingly, on all grounds, the petition will be denied. Rule 4, Rules - - - § 2254 Cases. The
petitioner’s claims will be dismissed with prejudice, and a certificate of appealability will not issue
as to any of those claims.
An appropriate order will enter.

____________________________
Aleta A. Trauger
United States District Judge

31