Fishback v. Lester

Filing 81

REPORT AND RECOMMENDATION: Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the Superseding Petition be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Michael R. Merz on 11/27/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALONZO FISHBACK
a/k/a Loranzo Wilhoite,
Petitioner,

:

- vs -

Case No. 3:12-cv-130
Chief Judge Wesley D. Crenshaw, Jr.
Magistrate Judge Michael R. Merz
(by assignment)

MIKE PARRIS, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case under 28 U.S.C. § 2254 in which Petitioner, represented by
counsel, seeks relief from his convictions in the Circuit Court of Rutherford County, Tennessee,
on charges of especially aggravated kidnapping, aggravated assault, and possession of a weapon
during the commission of a felony offense. Although the case was filed in 2012, it did not
become ripe for decision until the filing of Petitioner’s Response to Surreply on October 3, 2017
(ECF No. 80). It was referred to the undersigned, sitting by assignment, on June 22, 2017.

1

Procedural History

The offenses of which Petitioner was convicted occurred at the Hot Spot Tanning Salon
in Smyrna, Tennessee, on April 28, 2005.1 After a jury convicted Fishback of the above
offenses, the trial judge determined that he was a career offender and sentenced him to sixty
years on the kidnapping charge, fifteen years consecutive on the assault charge, and two years
concurrent on the weapons charge.

Fishback moved for a new trial on grounds that the

kidnapping and assault charges should have been merged. After losing that motion, Fishback
appealed to the Tennessee Court of Criminal Appeals which affirmed the convictions and
sentence. State v. Fishback, 2008 WL 2521555 (Tenn. Crim. App. June 24, 2008).

The

Tennessee Supreme Court denied review.
Fishback then filed a petition for post-conviction relief which included a request for
delayed appeal. A hearing on the petition commenced April 24, 2009, but was interrupted to
allow an application for delayed appeal to the Tennessee Supreme Court which that court denied.
The hearing then resumed March 16, 2010, and concluded with a trial court finding that Fishback
had not proven ineffective assistance of counsel. Fishback again appealed and the Tennessee
Court of Criminal Appeals again affirmed. State v. Fishback, 2011 WL 2565580 (Tenn. Crim.
App. Jun. 29, 2011). The Tennessee Supreme Court again denied review and Fishback filed his
Petition pro se in this Court January 13, 2012 (ECF No. 1). Appointed counsel then filed an
Amended Petition (ECF No. 20) and later, on Judge Crenshaw’s Order (ECF No. 56), a

1

On direct appeal, the Tennessee Court of Criminal Appeals has the date as April 25, 2005. State v. Fishback, 2008
WL 2521555 (Tenn. Crim. App. June 24, 2008).

2

Superseding Petition (ECF No. 60). The operative pleadings are now the Superseding Petition,
the Answer to Superseding Petition (ECF No. 70), and Petitioner’s Response to State’s Answer
(ECF No. 76).
The Superseding Petition pleads the following Claims for Relief:
Claim 1: Ineffective Assistance of Trial Counsel in failing
(1) “to investigate whether, and to what extent, Mr. Fishback was
under the influence of drugs at the time of the incident” (ECF No.
60, ¶ 33);
(2) “to request a mental evaluation of Mr. Fishback in advance of
trial to assess his competency” Id., ¶ 34;
(3) “to object to the process by which Mr. Fishback, an African
American defendant, was tried by an all-white jury for offenses
against a white victim” Id., ¶ 35;
(4) “to object to the jury instruction for the offense of especially
aggravated kidnapping and, as a result, the instruction failed to
require a determination of whether the confinement was significant
enough, standing alone, to support the conviction and not merely
incidental to the accompanying felony” Id., ¶ 36;
(5) “to object to the lack of proper notice of Mr. Fishback’s career
criminal status as a basis for enhancing his sentence” Id. , ¶ 37;
(6) “to provide adequate advice and counsel to Mr. Fishback in the
plea bargaining process.” Id. , ¶ 38.

Claim 2: Ineffective Assistance of Appellate Counsel in failing to
raise the following claims:
(a) a claim that the evidence was insufficient to support Mr.
Fishback’s conviction for especially aggravated kidnapping;
(b) a claim that the trial court erred in failing to dismiss the
especially aggravated kidnapping charge on defense counsel’s
motion for judgment of acquittal;
(c) a claim that the trial court erred in failing to instruct the jury
that they could only convict Mr. Fishback of especially aggravated
3

kidnapping if they determined that the confinement of the victim
was significant enough, standing alone, to support a conviction and
not merely incidental to the accompanying felony; and
(d) a claim that the trial court erred by not merging the aggravated
assault conviction into the especially aggravated kidnapping
conviction at sentencing. Id. , ¶ 42.
Claim 3: Violation of Due Process and Double Jeopardy in
convictions for both kidnapping and assault. Id. , ¶¶ 48-49.
(Superseding Petition, ECF No. 60, PageID 1846-50.) For consistency, these claims are referred
to hereinafter as Claims 1(1)-(6), Claims 2(a)-(d), and Claim 3.

Analysis

Claims of Ineffective Assistance of Trial Counsel Not Raised in Post-Conviction (Claims
1(1)-(5))

Petitioner’s first five sub-claims of ineffective assistance of trial counsel are that trial
counsel failed:
(1) “to investigate whether, and to what extent, Mr. Fishback was
under the influence of drugs at the time of the incident” (ECF No.
60, ¶ 33);
(2) “to request a mental evaluation of Mr. Fishback in advance of
trial to assess his competency” Id., ¶ 34;
(3) “to object to the process by which Mr. Fishback, an African
American defendant, was tried by an all-white jury for offenses
against a white victim” Id., ¶ 35;

4

(4) “to object to the jury instruction for the offense of especially
aggravated kidnapping and, as a result, the instruction failed to
require a determination of whether the confinement was significant
enough, standing alone, to support the conviction and not merely
incidental to the accompanying felony” Id., ¶ 36;
(5) “to object to the lack of proper notice of Mr. Fishback’s career
criminal status as a basis for enhancing his sentence” Id. , ¶ 37;
(Superseding Petition, ECF No. 60, PageID 1846-50.)
These claims have not been considered on the merits by any Tennessee court because
they have never been presented to any of those courts. Thus under ordinary rules of procedural
default, they would be barred from consideration in habeas corpus.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). The Supreme Court carved out an exception to Coleman in Martinez v. Ryan,
566 U.S. 1 (2012), where it held:
[W]hen a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
5

ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).
132 S.Ct. at 1318-19. In Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 185 L. Ed. 2d 1044
(2013), the Court extended Martinez to the Texas system. The Sixth Circuit has held that the
Martinez/Trevino exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 789 (6th
Cir. 2014).2
The template for considering Martinez/Trevino exceptions in Tennessee cases was set out
by the Sixth Circuit in Atkins v. Holloway, 792 F.3d 654 (6th Cir. 2015):
[T]he district court should determine on remand: (1) whether state
post-conviction counsel was ineffective, see id. at 1921 (noting the
Court was not determining whether “Trevino's initial state habeas
attorney was ineffective”); Newbury v. Stephens, 756 F.3d 850,
871 (5th Cir.2014); and (2) whether Atkins's claims of ineffective
assistance of counsel were “substantial” within the meaning of
Martinez, Sutton, and Trevino. See Newbury, 756 F.3d at 871.
Questions (1) and (2) determine whether there is cause. The next
question is (3) whether Atkins can demonstrate prejudice. Finally,
the last step is: (4) if the district court concludes that Atkins
establishes cause and prejudice as to any of his claims, the district
court should evaluate such claims on the merits.

Id. at 660. Martinez and Trevino do not recognize a new constitutional right to effective
assistance of counsel in post-conviction proceedings, but an equitable basis for excusing
procedural default of an ineffective assistance of trial counsel claim. The Strickland test for
ineffectiveness is to be applied to the actions of post-conviction. Turner v. Hudson, 2012 U.S.
Dist. LEXIS 150319, *9 (S.D. Ohio Oct. 18, 2012).
Respondent defends on these sub-claims by asserting that the underlying ineffective
2

The Sutton case was remanded for application of Martinez/Trevino without discussion of Teague v. Lane.

6

assistance of trial counsel claims are not substantial. Respecting the omitted investigation into
Fishback’s state of intoxication at the time of the offense, Respondent points out that intoxication
is not a defense in Tennessee, but is relevant to negate a culpable mental state (ECF No. 70,
PageID 1927). The video evidence the jury saw of Fishbank getting the scissors would have
shown he was capable of forming the required mental state. Id. at PageID 1928.
As to the failure to obtain a competency evaluation, Respondent points out that there is
nothing in the record to indicate Fishback was incompetent and Fishback’s cooperation in the
presentence investigation process provides evidence to the contrary. Id. at PageID 1929.
As to the fair cross-section claim, while it is not disputed that Fishback is AfricanAmerican and African-Americans are a distinctive group in the community, there is insufficient
evidence to support a finding under the second or third prong of the relevant Supreme Court
precedent, Duren v. Missouri, 439 U.S. 357 (1979)(ECF No. 70, PageID 1929-32).
Regarding the claim of ineffective assistance of trial counsel for failure to request a jury
instruction under State v. White, 362 S.W. 3d 559 (Tenn. S. Ct. 2012), Respondent notes that the
trial here substantially preceded the White decision and the Tennessee Supreme Court expressly
determined that case was not retroactively applicable. Id. at PageID 1933.
Finally as to the claim of ineffective assistance of trial counsel for failure to object to
notice of intent to seek career offender punishment, Respondent asserts that claim is insubstantial
because notice was given on the first indictment and the Tennessee Supreme Court has held such
notice adequate when applied on a superseding indictment (ECF No. 70, PageID 1934-35).
Petitioner makes no contrary argument to any of these defense positions in his Response
to State’s Answer (ECF No. 76). The Court thus reaches none of Petitioner’s procedurally
7

defaulted ineffective assistance of trial counsel claims on the merits because none of them are
substantial and post-conviction counsel was therefore not ineffective in failing to present them.

Claims of Ineffective Assistance of Trial Counsel in Plea Bargaining (Claim 1(6))

In Claim 1(6), Mr. Fishback asserts he received ineffective assistance of appellate
counsel in several respects in the plea bargaining process.
In his application for post-conviction relief, Fishback argued he received both ineffective
assistance of trial counsel and ineffective assistance of appellate counsel. He had the assistance
of appointed counsel in litigating in post-conviction and the trial court held an evidentiary
hearing. On appeal, the Tennessee Court of Criminal Appeals summarized the issues raised as
follows:
The petitioner raises numerous allegations of ineffective assistance
of counsel. He asserts that trial counsel was ineffective for failing
to inform him of each offer made by the State, failing to
communicate regarding the progress of the case, not informing the
petitioner of the elements of the crime, misinforming the petitioner
regarding the State's burden of proof, informing him that the State
could not prove the offense of especially aggravated kidnapping,
failing to object to the indictment, and not explaining the
ramifications of the State's dismissal of the attempted aggravated
rape charge or object thereto.
State v. Fishback, 2011 WL 2565580 * 9 (Jun. 29, 2011). That court decided each of these
claims on the merits against Petitioner, applying the correct federal standard adopted in
Strickland v. Washington, 466 U.S. 668 (1984), which requires that a defendant show both
deficient performance by his counsel and resulting prejudice.
Respondent asserts that the appellate decision on these claims is neither contrary to nor
an objectively unreasonable application of Supreme Court precedent and is therefore entitled to

8

deference under 28 U.S.C. § 2254 (Answer to Superseding Petition, ECF No. 70, PageID 193538).
In his Response to the State’s Answer, Fishback argues only the ineffectiveness of his
trial attorney, Mr. Price, in the plea bargaining process (Response, ECF No. 76, PageID 200218). He begins by conceding that the situation facing him was bleak. Id. at PageID 2006.
Fishback at 6’5” was nine inches taller than his victim, Patricia Forkum, and outweighed her by
130 to 155 pounds, so he easily had the physical power to confine her. There was video proof of
his picking up a pair of scissors as he followed her to the rear of the tanning salon, so there was
no doubt of his possessing a weapon. He told her twice to remove her clothes, so the intent to
confine was readily provable. Even though the confinement lasted only five to eight seconds
before Fishback was scared off by someone else’s coming into the salon, Tennessee precedent
would count that amount of confinement as enough under the kidnapping statute (See cases cited
at ECF No. 76, PageID 2004). Fishback had a lengthy felony record, so his taking the witness
stand would have been problematic. Because of his career offender status, he faced a mandatory
sixty-year sentence at 100%3 if convicted on the kidnapping charge. Id. at PageID 2005, citing
Tenn. Code Ann. § 40-35-108(c) and 112(c). Mr. Price admitted at the post-conviction hearing
that Fishback clearly qualified as a career offender and habeas counsel does not fault that
concession. He was forty years old at the time of the offense, so even twenty-years would be
close to a life sentence. Trial counsel had cross-examined the victim at two preliminary hearings
and concluded she would be credible to a jury. Fishback’s present counsel summarizes trial
counsel’s situation: “Price [the trial attorney] had no plan or basis for discrediting Forkum’s [the
victim’s] story. . . .he had developed no legally-sound defense. All he ever was prepared to do
was to assert that five seconds of interference isn’t substantial. . . .” Id. at PageID 2008. Present
3

Meaning he could only earn 15% good time credit.

9

counsel summarizes Fishback’s choices after the State offered a sentence of twenty-five years at
100%:
He could either: (1) plead guilty and accept a sentence that would
confine him to age 61; or, (2) go to trial with a Hail Mary defense
that, if successful, would result in his imprisonment until age 52,
but, if a failure, would result in him being imprisoned for
effectively the rest of his life.
Id. at PageID 2009. Clearly this was a case where plea negotiation was critical.
As noted by Petitioner (ECF No. 76, PageID 2009), the Supreme Court has expressly
extended the constitutional right to effective counsel to the plea bargaining process. Missouri v.
Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012). However, neither Frye nor
Cooper created a “new rule of constitutional law” made retroactive to cases on collateral review
by the Supreme Court. In re Liddell, 722 F.3d 737 (6th Cir. 2013), citing parallel holdings from
all other circuits to consider the issue. In re Graham, 714 F.3d, 1181, 1183 (10th Cir. 2013) (per
curiam); Gallagher v. United States, 711 F.3d 315, 315–16 (2nd Cir. 2013) (per curiam);
Williams v. United States,705 F.3d 293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United
States, 697 F .3d 1137, 1140 (9th Cir. 2012); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per
curiam); Hare v. United States, 688 F.3d 878, 879, 881 (7th Cir. 2012); In re Perez,682 F.3d 930,
933–34 (11th Cir. 2012) (per curiam).
Fishback cites to Sixth Circuit case law prior to Frye and Cooper as supporting elements
of the duties of counsel in plea negotiations. (Response, ECF No. 76, PageID 2009-10, citing
Griffin v. United States, 330 F.3d 733 (6th Cir. 2003); and Smith v. United States, 348 F.3d 545
(6th Cir. 2003).) Griffin supports the proposition that it is ineffective assistance of trial counsel to
fail to convey a plea offer to a client, but cites only prior circuit law, not any Supreme Court
precedent. In Smith the District Court declined to hold an evidentiary hearing in a § 2255 case

10

because it found incredible the defendant’s affidavit that he would have accepted a plea, deciding
the case on the prejudice prong of Strickland. 348 F.3d at 551.
Because this is a case under 28 U.S.C. § 2254, Fishback must show that the Tennessee
Court of Criminal Appeals rejection of his ineffective assistance of trial counsel claims was an
unreasonable application of clearly established Supreme Court precedent at the time that court
decided the claims, before Frye and Lafler were decided. Teague v. Lane, 489 U.S. 288 (1989).
Fishback concedes that his account of what Price told him about his options differed from
Price’s account, that the Tennessee Court of Criminal Appeals accepted Price’s account, and that
this Court must assume, therefore, that Price testified accurately (Response, ECF No. 76, PageID
2010).
Fishback concedes Price told him of the twenty-five year plea offer, but accuses Price of
two instances of deficient performance in advising him about that offer. First, “he failed to
accurately convey the comparative benefits of pleading” because he misunderstood Fishback’s
age and its relation to when he could be released from prison under the plea bargain (Response,
ECF No. 76, PageID 2011). Second, he “failed to adequately convey the odds of losing at trial
on the kidnapping charge.” Id.
In considering Fishback’s claims of ineffective assistance of trial counsel on appeal, the
Tennessee Court of Criminal Appeals noted that under Tennessee’s post-conviction statute, a
petitioner has the burden of proving factual allegations by clear and convincing evidence and that
findings of fact made by a trial court after an evidentiary hearing are conclusive on appeal
“unless the evidence preponderates against them.” State v. Fishback, 2011 WL 2565580 *8
(Tenn. Crim. App., Jun. 29, 2011.)
Fishback argues that the Court of Criminal Appeals decision is not entitled to deference

11

under 28 U.S.C. § 2254(d) because its factual conclusions are based on “an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” He
notes that post-conviction counsel had failed to explain the “true potential for conviction and the
true potential for sentencing” so that Fishback could make a “reasonable decision about the 25year offer.” (ECF No. 76, PageID 2016.)
Regarding the true potential for conviction, Fishback now dismisses as fanciful Attorney
Price’s notion of arguing to the jury that confinement for five to eight seconds did not constitute
kidnapping. He points to Tennessee authority holding that that length of time is long enough.
This Court disagrees that making such an argument to the jury would have been a “Hail Mary
pass.4” The common conception of kidnapping is certainly of something far more substantial
than blocking another person’s exit from a room for five to eight seconds. Admittedly, that
amount of time was legally sufficient under Tennessee law. But it is not hard to imagine that at
least one juror could have been persuaded that that amount of time did not equate factually to
“especially aggravated kidnapping.” With a credible victim and video of the scissors, defense
counsel did not have many options and indeed habeas counsel has not suggested what other
viable defenses on the facts Fishback might have had. What indeed was the “true potential” for
conviction? The Court of Appeals credited Price’s testimony:
Counsel denied ever telling the petitioner that the facts would not
support the especially aggravated kidnapping charge and testified
that both he and the petitioner understood that there was the
potential for the petitioner to be convicted of the kidnapping
charge as long as the charge went before the jury.

2011 WL 2565580 at *10. The law does not require an attorney to estimate with any precision
the likelihood of a conviction in order to provide constitutionally effective assistance because
4

Counsels’ phrase, not the Magistrate Judge’s.

12

any such prediction would be based on a large number of unknowable factors, e.g., attitudes of
jurors about particular kinds of crimes, guesses about how well particular witnesses will perform
on the stand, etc. At the time of trial, Attorney Price had been in practice for more than thirty
years and was chosen by Fishback as his counsel, presumably with some idea about his
reputation.5 Nothing in the record cited to this Court suggests Price led Fishback to believe the
potential for conviction was low. Under the circumstances, the Court of Appeals conclusion that
Price did not provide ineffective assistance of trial counsel in the way he advised Fishback about
the possibility of conviction is not a decision based on an unreasonable determination of the facts
or an objectively unreasonable application of Strickland.
Regarding the true potential for sentencing, Fishback now argues Price got his age wrong
and therefore gave incorrect advice about whether a twenty-five year sentence would amount to a
life sentence. As proof that he was forty at the time of the offenses, Fishback cites the Warrant
for his arrest on these charges (ECF No. 76, PageID 2002, citing ECF No. 27-1, PageID 483).
This is a document of the Smyrna, Tennessee, Municipal Court which shows a date of birth of
March 3, 1965. The Warrant contains a return date of April 29, 2005, which means that,
according to these documents, Fishback was indeed forty years old at the time of his arrest. That
is the only source cited for Fishback’s age at the time of the offenses and it constitutes hearsay
from an unknown source. Certainly it is not positive proof of Mr. Fishback’s age at the time of
the offenses.
As proof of that Price got his age wrong, Fishback cites Price’s testimony at the postconviction hearing. The colloquy from which that is taken reads:
Q.
But at the time of the commission of the offense Mr.
Fishback was out on parole?
5

Of course, the obligation to provide effective assistance applies regardless of whether counsel is retained or
appointed.

13

A.
Yes. He had been released a matter of two or three months
when all this took place. And there was some – he had a
preliminary parole revocation hearing if I’m not mistaken. And it
was based on his failure to get a job, et cetera. He talked to me a
little bit about his job efforts and so forth. But nonetheless – so at
30 years plus the parole and considering his age being 45 this put
him somewhere up in his to year age range. He didn’t consider
that offer either. But it was communicated to him. And that may
have been communicated to him in court. At some point later I
believe it was you [the prosecutor] or Mr. Santell who was
assisting you on this case I was approached with an offer of 25
years. Mr. Fishback and I had discussed between ourselves on
several occasions that if they get down into the 10 to 15 year range
that we’ve got to consider that. But at 25 years it was his position
that that still – you know, he comes out at age 70 and its basically a
life sentence. And it was not anything he was going to consider. I
asked him if there was anything he wanted me to come back with
them at. Very often when an offer is made the State or whoever
makes the offer is waiting for you to come back with some
alternative. I felt like that if we had come back at 20 years that the
State would have considered that. Might have accepted it. Might
have accepted it because the lady was not injured and because the
kidnapping was very brief. But nonetheless he did not authorize
me to make a 20 year offer. He felt that put him very close to age
70 upon release if he were to have survived to that age. Generally
speaking persons who are confined have a less than normal life
expectancy.
(Transcript, ECF No. 27-3, PageID 1033-35.)
This colloquy does not suggest that the purported age discrepancy was material to the
negotiations. What was the likelihood that a man on parole only two or three months from a
third robbery conviction would not have significant time imposed on revocation? We are not
told. What is the likelihood of earning the good-time credit of 15% which is what would have
been necessary to get the release date down to age 61? We are not told. But in any event it is
not clear that “Price let Fishback brush it [the twenty-year offer] off as unthinkable. . . .” (ECF
No. 76, PageID 2011). Instead, Price encouraged Fishback to take the twenty-five year offer
seriously and to make a counter offer at twenty years, which Fishback refused to do. In any
14

event the conclusion of the Tennessee Court of Criminal Appeals that Fishback had not proven
deficient performance by clear and convincing evidence is not a conclusion based on an
unreasonable determination of the facts.
Fishback fares no better on the prejudice prong of Strickland. Habeas counsel asserts that
to show prejudice from deficient performance, he must show that there is a reasonable
probability that the defendant would have accepted the plea. (ECF No. 76, PageID 2013, relying
on Lafler, 566 U.S. at 164.) But as noted above, Lafler was not the law when Fishback’s postconviction application was decided and is not to be applied retroactively to cases on collateral
review.
Even if Lafler were the law, it was not an unreasonable determination of the facts for the
Court of Criminal Appeals to find Fishback would probably not have accepted the twenty-five
year plea agreement. He rejected the twenty-five year offer. Asked by his own counsel in
leading fashion at the post-conviction hearing if he would have accepted it had he been
“informed about the true elements of the crime and the true potential for conviction and the true
potential for sentencing,” he testified that it would probably have “changed his behavior.” (ECF
No. 76, quoting Transcript at PageID 1154-55.) He testified further that he “would have asked
my attorney to see [sic] the lowest offer that the State would probably have made and I would
have tried to take the lowest offer.” Id. at PageID 1164-65. When asked on cross-examination
whether he would have taken the twenty-five year offer if that was the lowest the State would
have made, he said he “would have thought about it.” None of this testimony is unequivocal,
which is not to say the trial court and the appellate court would have been bound to accept it if it
were unequivocal. But weighted against this testimony is Price’s uncontradicted testimony that
in the same conversation, Fishback refused to authorize him to offer twenty years.

15

Therefore the conclusion of the Tennessee Court of Criminal Appeals that Fishback was
not prejudiced by whatever omissions occurred in Price’s advice about the twenty-five year offer
is not an objectively unreasonable application of Strickland or based on an unreasonable
determination of the facts. Claim 1(6) should be dismissed on the merits.

Claims of Ineffective Assistance of Appellate Counsel (Claims 2(a)-(d)

The Strickland test also applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285
(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of
appellate counsel, then, the court must assess the strength of the claim that counsel failed to
raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682,
707 (6th Cir. 2008).

Counsel's failure to raise an issue on appeal amounts to ineffective

assistance only if a reasonable probability exists that inclusion of the issue would have changed
the result of the appeal. Id., citing Wilson.
Mr. Fishback also raised claims of ineffective assistance of appellate counsel in postconviction, summarized by the Tennessee Court of Criminal Appeals as follows:
The petitioner asserts that appellate counsel was ineffective for not
challenging the sufficiency of the evidence regarding the especially
aggravated kidnapping conviction or raising as an issue that the
aggravated assault conviction should have merged into the
especially aggravated kidnapping conviction.
State v. Fishback, 2011 WL 2565580 * 9 (Tenn. Crim. App. Jun. 29, 2011). The Court of
Appeals decided these claims as follows:
The petitioner asserts that appellate counsel was ineffective for not
challenging the sufficiency of the evidence regarding the especially
aggravated kidnapping conviction. He asserts that the kidnapping
was not accomplished with a deadly weapon but instead “by the
16

subterfuge of [the petitioner] seeking to see a stand-up tanning
bed.” He urges that his actions were more properly aggravated
kidnapping, and that counsel should have challenged the
sufficiency of the especially aggravated kidnapping conviction on
appeal. The petitioner, however, has failed to prove his allegations
by clear and convincing evidence. Appellate counsel, although
called to testify at the hearing regarding the delayed appeal, was
never called to testify about his reasoning concerning his failure to
challenge the sufficiency of the evidence. Given the minimal
evidence regarding appellate counsel's performance, we cannot
conclude that the petitioner met his burden of proving that counsel
performed deficiently.
In addition, our review of the trial transcript indicates that the
petitioner has likewise failed to prove that he was prejudiced by
the failure to raise the sufficiency issue on appeal. The victim
testified at trial that she was unable to leave the room because the
petitioner was blocking her and that the petitioner's display of the
scissors played a role in her ability to leave the room. Even if the
petitioner's initially getting the victim into the tanning room was
by subterfuge, the victim's testimony suggests that his actually
detaining her in the room involved the “weapon.” Thus, there was
evidence presented to the jury by which a rational trier of fact
could have concluded that the “false imprisonment [of the victim
was] [a]ccomplished ... by display of any article used or fashioned
to lead the victim to reasonably believe it to be a deadly
weapon[.]” See Tenn.Code Ann. § 39–13–305(a)(1). Therefore, the
petitioner has failed to prove that any deficiency in appellate
counsel's performance caused him prejudice.
The petitioner also argues that appellate counsel was ineffective
for failing to raise as an issue on appeal that the aggravated assault
conviction should have merged into the especially aggravated
kidnapping conviction. However, the petitioner did not raise this
issue in his petition or amended petitions.[] In any event, as with
the petitioner's allegations concerning the failure to challenge the
sufficiency of the evidence, the record is very sparse concerning
appellate counsel's performance and does not rise to the level of
clear and convincing proof.

State v. Fishback, 2011 WL 2565580 *11 (Jun. 29, 2011)(footnote omitted).
Fishback presents no argument in his Response that the Court of Appeals’ decision on his
ineffective assistance of appellate counsel claims is an objectively unreasonable application of
17

Supreme Court precedent and this Court finds no independent basis for doing so. It cannot be
ineffective assistance of appellate counsel to fail to raise claims that would not have been
successful. Claims 2(a)-(d) should be dismissed.

Due Process and Double Jeopardy (Claim 3)

In Claim 3 of the Superseding Petition, Fishback asserts his convictions for both
especially aggravated kidnapping and aggravated assault violate the Due Process Clauses of the
Fifth and Fourteenth Amendments and the Double Jeopardy Clause of the Fifth Amendment.
(ECF No. 60, PageID 1849-50). This amounts to one constitutional claim since the Double
Jeopardy Clause of the Fifth Amendment has been incorporated into the Due Process Clause of
the Fourteenth. Benton v. Maryland, 395 U.S. 784, 794 (1969), but is not otherwise applicable to
the States.
The State initially conceded that this claim was preserved for merits consideration in
habeas because it was fairly presented to the Tennessee Court of Criminal Appeals as a federal
constitutional question (Answer, ECF No. 20, PageID 468). However, in its Answer to the
Superseding Petition, the State argues that the decision on this question by the appellate court
was only a decision of a state law merger-of-offenses claim which is not reviewable in habeas
corpus (ECF No. 70, PageID 1926). To the extent Claim 3 presents a federal claim, Respondent
asserts it is procedurally defaulted because it was not fairly presented as a federal claim on
appeal. Id. at PageID 1926-27.). Fishback makes no response to this argument in his Response

18

to State’s Answer6 (ECF No. 76).
A petitioner fairly presents a federal habeas claim to the state courts only if he “asserted
both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6th Cir. 2004),
citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); and Picard v. Connor, 404 U.S.
270, 276, 277-78 (1971).
In determining whether a petitioner "fairly presented" a federal
constitutional claim to the state courts, we consider whether: 1) the
petitioner phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a
denial of the specific constitutional right in question; 2) the
petitioner relied upon federal cases employing the constitutional
analysis in question; 3) the petitioner relied upon state cases
employing the federal constitutional analysis in question; or 4) the
petitioner alleged "facts well within the mainstream of [the
pertinent] constitutional law."
Hicks at 552-53, citing McMeans, 228 F.3d at 681.
The State’s procedural default defense is well-taken. The Tennessee Court of Criminal
Appeals evidently understood it was deciding only a state law question and distinguished among
the Tennessee Supreme Court precedents that were argued to be applicable. It never referred to
the Double Jeopardy Clause or any federal or state precedent discussing that Clause. Because
the claim was not fairly presented as a federal constitutional claim and there is not any
mechanism for presenting it now, the claim is procedurally defaulted.
In the alternative, were the Court to reach the merits of the Double Jeopardy claim, it
would be appropriately decided against the Petitioner. The Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution affords a defendant three basic protections:
6

The Rules Governing § 2254 Proceedings refer to this pleading as a “reply,” replacing the traditional label of
“traverse.” The Magistrate Judge treats this Response as the reply called for by the Rules.

19

It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the
Fourteenth Amendment in Benton, supra.
The test for whether two offenses constitute the same offense for Double Jeopardy
purposes is “whether each offense contains an element not contained in the other.” United States
v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). In
deciding this claim on direct appeal, the Tennessee Court of Criminal Appeals, although
discussing only Tennessee precedent, reached the conclusion that especially aggravated
kidnapping and aggravated assault under Tennessee law have different elements:
One commits aggravated assault relevant to the instant cases who
intentionally or knowingly causes another person to reasonably
fear imminent bodily injury by the use or display of a deadly
weapon. See T.C.A. § 39-13-101(a)(2); T.C.A. § 39-13102(a)(1)(B).
Especially aggravated kidnapping is defined as “knowingly
remov[ing] or confin[ing] another unlawfully so as to interfere
substantially with the other's liberty,” T.C.A. § 39-13-302(a),
“accomplished with a deadly weapon or by display of any article
used or fashioned to lead the victim to reasonably believe it to be a
deadly weapon.” T.C.A. § 39-13-305(a)(1).
Applying those principles to the case herein, we agree with the
State that, unlike the crime of kidnapping, an assault does not
inherently require the restraint, detention, or confinement of
anyone. Thus, because no restraint is necessary to accomplish an
assault, any restraint used in the commission of an assault “may
support a separate conviction for kidnapping.” Dixon, 957 S.W.2d
at 535

State v. Fishback, 2008 WL 2521555 *4 (Tenn. Crim. App. Jun. 24, 2008). This decision fits
20

squarely within the Blockburger/Dixon7 analysis: kidnapping requires a confinement, assault
does not. Of course, it is entirely a matter of state law on which a habeas court cannot second
guess the state courts as to what the elements are of any particular state crimes.
Because the state court decision here is neither contrary to nor an objectively
unreasonable application of Supreme Court precedent, the Double Jeopardy claim should be
dismissed if the Court reaches its merits.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Superseding Petition be DISMISSED WITH PREJUDICE. In accordance with Rule 11 of the
Rules Governing § 2254 Cases, the Magistrate Judge concludes that reasonable jurists could
disagree with the proposed disposition on Fishback’s claim of ineffective assistance of trial
counsel in the plea negotiation process and recommends that he be GRANTED a certificate of
appealability on that claim. Because reasonable jurists would not disagree as to the other
conclusions reached above, Petitioner should otherwise be denied a certificate of appealability.

November 27, 2017.
s/ Michael R. Merz
United States Magistrate Judge

7

United States v. Dixon, supra, is a different case from the State v. Dixon precedent which is short-cited in the
quoted decision.

21

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

22