Majors v. Sexton
Filing
28
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 11/22/13. (xc:Pro se party by regular and certified mail.)(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
CRAIG O. MAJORS,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
DAVID SEXTON,
Respondent.
No. 3:13-cv-0543
Judge Campbell
MEMORANDUM OPINION
Petitioner Craig Majors, a prisoner in state custody at the Northeast Correctional Complex in
Mountain City, Tennessee, has filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus
(ECF No. 1). The respondent has filed an answer in opposition to the petition, along with a complete copy
of the relevant portions of the underlying state-court record. The petition is ripe for review, and this Court has
jurisdiction. 28 U.S.C. § 2241(d). For the reasons set forth herein, the petition will be denied.
I.
PROCEDURAL BACKGROUND
On January 29, 2008, the petitioner was found guilty by a Montgomery County Jury of especially
aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. The trial court denied
Majors’ motion for a new trial (ECF No. 25-1, at 16) and, on March 25, 2009, sentenced him to 20 years’
incarceration at 100 percent on the especially aggravated kidnapping charge, to 6 years for attempted
aggravated robbery, and 6 years on the aggravated burglary charge, all to run concurrently for a total
effective sentence of 20 years. (ECF No. 25-6, at 16 (Sentencing Hearing Tr. at 15).) His conviction and
sentence were affirmed on direct appeal. State v. Majors, No. M2009-000483-CCA-R3-CD, 2010 WL
2483512 (Tenn. Ct. Crim. App. June 21, 2010), perm app. denied (Tenn. Dec. 8, 2010.). On March 28, 2011,
the petitioner filed a lengthy pro se post-conviction petition and supporting memorandum in the state court.
(ECF Nos. 25-11, 25-12, 25-13, 25-14.) Post-conviction counsel was appointed and a brief amended petition
filed. (ECF No. 25-14, at 76.) After conducting a hearing, the trial court entered an order denying the petition.
(ECF No. 25-15, at 8–14.) That decision was affirmed too. State v. Majors, No. M2011-02353-CCA-R3-PC,
2012 WL 3291801 (Tenn. Ct. Crim. App. Aug. 13, 2012), perm. app. denied (Tenn. Jan. 14, 2013).
Majors filed his § 2254 petition in this Court on April 25, 2013 (ECF No. 1, at 83 (petitioner’s oath as
to the date the petition was placed in the prison mailing system)). The respondent concedes that the petition
is timely. (ECF No. 23, at 2.)
II.
STATEMENT OF FACTS
The Tennessee Court of Criminal Appeals summarized the testimony presented during trial as
follows:1
The Defendant’s convictions arise from the home invasion of Gene and Wendy
Douglas in the early morning hours of June 27, 2007. Wendy Douglas testified that she was
asleep when she heard her husband calling her for help and asking her to call 9-1-1. She
found her husband in the garage struggling with an individual. The individual was on top of
her husband and had his hands around her husband’s throat. Mrs. Douglas testified that she
ran to her husband’s aid and struck the assailant in the head. She then ran back to her
bathroom where she called 9-1-1 from her cellular telephone. Soon after she made the
telephone call, the assailant fled the couple’s garage. The couple discovered that the
keyless entry to Mrs. Douglas’ car was missing, along with her driver’s license and a credit
union debit card. Within minutes, the police brought a suspect to the couple’s home where
Mrs. Douglas and her husband separately identified the Defendant as the intruder. Mrs.
Douglas described the events of that night as “terrifying” and “horrible.”
Gene Douglas testified that he typically awakes at 1:00 a.m. to work in his home
office before leaving for work at 4:30 a.m. each day. On June 27, he went to the kitchen for
coffee before going down the hallway to his home office. As soon as he entered his office,
he realized that “things were disheveled.” Upon further inspection, he said that he found
“someone standing there . . . pointing a gun at me” when he went down the hallway to a
bathroom doorway. He described that he was “gripped with fear.”
Mr. Douglas recalled that the Defendant told him not to do anything or he would kill
him. The Defendant ordered Mr. Douglas to the kitchen where Mr. Douglas was able to
discreetly put some kitchen shears in the pocket of his bathrobe. Mr. Douglas told the
Defendant that his wife was asleep and that if the Defendant wanted money, they would
need to go to an automated teller machine (ATM).
Mr. Douglas said that the Defendant then ordered him to the garage where the Defendant attempted
to tie his hands behind his back. During this effort, Mr. Douglas realized that the Defendant’s gun was no
longer pointed at him so he jumped on the Defendant to disarm him. The gun dropped and fell into pieces
on the garage floor. Next, a struggle ensued during which the Defendant began to strangle Mr. Douglas. At
about this time, while Mr. Douglas was yelling for his wife’s help, Mrs. Douglas ran into the garage and hit
the Defendant on the head. At some point, Mr. Douglas reached for the kitchen shears that were hidden in
his bathrobe.
1
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e)(1)
(“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to
be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.”).
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Eventually, the Defendant fled the scene through the garage door. By then, Mrs.
Douglas had contacted the police, and the couple directed the police to their home and,
ultimately, the discovery of the Defendant. Mr. Douglas testified that he was still on the
telephone with the 9-1-1 operator when the police arrived. Soon after, another officer arrived
with the Defendant and the couple separately identified the Defendant as their assailant.
Mr. Douglas recalled that the Defendant threatened to torture him and his wife and
leave them dead in their home. The Defendant also told Mr. Douglas that someone was
waiting for him. Mr. Douglas said that he initially believed the Defendant was pointing a rifle
at him and did not realize the weapon was an air gun until it fell apart in the garage. Mr.
Douglas also stated that his wallet was found empty in the office, although the credit cards
taken from the wallet were never recovered.
Montgomery County 9-1-1 operator Suzan Gafford testified that she received a call
on June 27, 2007 at approximately 2:00 a.m. from someone reporting an intruder in her
home. Ms. Gafford later learned that the caller was Mrs. Douglas. Ms. Gafford recalled that
the caller was so upset that she was unable to obtain much information from her at first but
eventually the caller’s husband came to the phone. The twenty minute 9-1-1 conversation,
which recited the events of the night leading up to several officers’ arrival at the Douglas
home, was played for the jury.
Detective Julie Webb of the Montgomery County Sheriff’s Office testified that she
was called to the Douglas home to investigate the home invasion. On her way, she saw a
“beat up old white pickup truck” stopped within one mile of the Douglas home. She recalled
that Deputy Dexter Mines was with the truck. He was talking to two people and had another
person in his cruiser. About twenty minutes after Detective Webb’s arrival at the Douglas
home, Deputy Mines arrived with the individual and the Douglases separately identified the
individual, the Defendant, as their assailant. Detective Webb recalled that both Mr. and Mrs.
Douglas “appeared to be certain” in their identification of the Defendant.
Montgomery County Sheriff’s Office Corporal Stephen Heise testified that he,
Deputy Mines and Deputy William Wall responded to the call of the home invasion. While
blocking escape routes from the residence, Corporal Heise observed a white pick-up truck
approaching his vehicle. Suddenly, a black male jumped out of the vehicle. Corporal Heise
was able to apprehend the man while Deputy Mines questioned two others in the truck.
Deputy Wall also located a wrecked and abandoned vehicle less than one quarter of a mile
from the Douglas home.
Savannah Carroll testified that she and Billy Joe Biggs were at the Lock B
Recreational Area early in the morning on June 27, 2007. She recalled that they had only
been there about five minutes when they “heard a big boom, like a crash.” They drove away
from the recreational area and soon discovered a wrecked car. When she and Mr. Biggs
stopped to see if anyone needed help, a young black man, the Defendant, walked out of the
woods and told them that he had been driving while drinking and had an accident. Ms.
Carroll recalled that the Defendant wore distinctive braids in his hair. Ms. Carroll stated that
another black man with a shaved head ran back into the woods. She said that he “didn’t
want to go with us.” However, the Defendant accepted their offer of a ride to a nearby store.
Before they reached the store, the police surrounded their pickup truck. When the Defendant
attempted to run from the vehicle, the police apprehended him.
No weapons or stolen property were recovered from the Defendant. Shoe prints
taken from outside an open window at the scene matched those worn by the Defendant,
although they were a common style of athletic shoe. There were no identifiable fingerprints
found at the scene. Despite a diligent search, the second suspect was never found. Deputy
Mines recalled that a dark-colored new model pickup truck sped by them while they
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questioned the witnesses at the white truck.
State v. Majors, No. M2009-00483-CCA-R3-CD, 2010 WL 2483512, at *1–3 (Tenn. Ct. Crim. App. June 21,
2010), perm. to appeal denied (Tenn. Dec. 8, 2010).
The state appellate court summarized the evidence presented at the post-conviction hearing as
follows:
Petitioner filed a lengthy pro se petition for post-conviction relief, alleging, among
other things, that he received ineffective assistance of counsel at trial. At the hearing on the
petition for post-conviction relief, Petitioner testified as to various allegations of ineffective
assistance of counsel. Specifically, Petitioner claimed that trial counsel was ineffective
because she failed to recognize that the State withheld favorable evidence with regard to the
shoeprint found at the scene. Petitioner’s main complaint with regard to trial counsel
stemmed from the way she handled the issues relating to identification. Petitioner insisted
that his identity was the main issue at trial.
Petitioner also complained about the identification process. He thought that it was
inherently suggestive but admitted that the issue had been addressed on direct appeal by
this Court and he was not granted relief. Further, Petitioner complained that one of the
witnesses described the suspect as “light-skinned” and failed to describe the suspect’s
clothing. Petitioner insisted that had trial counsel more effectively cross-examined the
witness there would have been a different result at trial. Petitioner also thought that trial
counsel should have tried to impeach one of the detectives by using the testimony of the
victims.
Petitioner next complained that trial counsel was ineffective for failing to request a
special jury instruction on identity. Petitioner conceded that the jury was in fact given an
instruction on identity at trial but complained that it was “basic.”
Petitioner testified that trial counsel should have objected to several statements
made by the prosecutor in closing argument. On cross-examination, Petitioner emphasized
that the primary issue in his petition was about ineffective assistance of counsel with respect
to failure to raise issues with regard to identity at trial. Petitioner also complained that
appellate counsel failed to raise several issues on appeal.
Trial counsel testified that she was retired from a twenty-five year career in the
Public Defender’s office. Trial counsel recalled Petitioner’s case and determined that based
on the evidence and research she did prior to trial there was no basis for a challenge to the
identification procedure used. Trial counsel specifically recalled cross-examining the victims
but acknowledged that she was concerned because of their emotional state and ability to
become sympathetic figures to the jury. Trial counsel felt at the time that any questioning
deemed too rigorous would have a negative effect on the jury.
Majors v. State, No. M2011–02353–CCA–R3–PC2012 WL 3291801, at *1–2 (Tenn. Ct. Crim. App. Aug. 13,
2012), perm. to appeal denied (Tenn. Jan. 14, 2013).
III.
ISSUES PRESENTED FOR REVIEW
In his present petition, Majors asserts the following claims for relief:
1. That the cumulative errors and omissions of trial counsel denied the petitioner the right of effective
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assistance of counsel, as guaranteed by the Sixth Amendment. More specifically, the petitioner asserts that
trial counsel was ineffective for:
(a) failing to suppress the victims’ out-of-court identifications of the petitioner at trial;
(b) failing to further cross examine the victims about their identification of the petitioner and other
issues;
(c) failing to adequately investigate and present a third-party culpability defense;
(d) failing to request a special jury instruction on the identifications;
(e) failing to object to the state’s questioning of Gene Douglas as to whether the robber was alone;
(f) failing to impeach Gene Douglas based on a prior statement in which he did not mention that the
robber stated someone was waiting for him;
(g) failing to impeach Gene Douglas based on a prior statement in which he did not mention that he
had turned on the garage lights;
(h) failing to object to the state’s references to the petitioner’s prior criminal record;
(i)–(n) failing to object to various improper references by the prosecutor during his opening
statement, including when the prosecutor improperly vouched for the credibility of the state’s
witnesses, referred to the petitioner as being the “captain of a two man predator team” (ECF No. 1,
at 7), compared his hairstyle to that of the petitioner, expressed his opinion as to the petitioner’s guilt,
improperly appealed to the jury’s fears, and made an allegedly “racial” statement about the design
of the robber’s hat; and
(o)–(r) failing to object to allegedly improper statements by the prosecutor during his closing
argument, including when the prosecutor vouched for his own integrity, “appealed to the jury
pressure by introducing a[n] unknown individual into petitioner’s case” (ECF No. 1, at 8) (that is, the
bald black man Savannah Carroll testified she saw run into the woods when she and Billy Joe Biggs
picked up the petitioner near the wrecked pick-up truck), told the jury the petitioner threw away some
credit cards, and told the jury they should be the “final link in the chain of law enforcement” (id.).
(ECF No. 1, at 7–8.)
In addition, the petitioner asserts, in a footnote, that his counsel was ineffective because she was
unprepared for trial. (ECF No. 1, at 8, n.2.)
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2.
That the convictions for especially aggravated kidnapping and attempted aggravated robbery
violate the Due Process Clause of the Fourteenth Amendment because the kidnapping was “essentially
incidental” to the attempted robbery. (ECF No. 1, at 77.)
IV.
STANDARD OF REVIEW
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 which 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, 322 (6th Cir. 1998). Once a petitioner’s federal claims have been raised in the highest state court
available,2 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).
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
2
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 398, 402 (6th Cir. 2003)
(quoting Tenn. S. Ct. R. 39).
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continued relevance of Rose under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)).
If, however, 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). Specifically, 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 “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).
Even when a petitioner’s application for a writ of habeas corpus raises only federal constitutional
claims that have been properly exhausted in the state courts, this Court’s review of the state court’s resolution
of those issues remains quite limited. The standard for reviewing applications for the writ of habeas corpus
is set forth in 28 U.S.C. § 2254(d). This section states:
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
(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.
Id.; Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998).
This Court must presume the correctness of state court factual determinations, and the petitioner has the
burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also
Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) (“We give complete deference to state court findings
unless they are clearly erroneous.”), abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99, 111
(1995).
The United States Supreme Court has explained the proper application of the “contrary to” clause
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as follows:
A state-court decision will certainly be contrary to [the Supreme Court’s] clearly established
precedent if the state court applies a rule that contradicts the governing law set forth in our
cases. . . . A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially indistinguishable from
a decision of this Court and nevertheless arrives at a result different from [this Court’s]
precedent.
Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (citation omitted).
With respect to the “unreasonable application” clause of § 2254(d)(1), the Supreme Court has held
that a federal court should analyze a claim for habeas corpus relief under the “unreasonable application”
clause when “a state-court decision unreasonably applies the law of this Court to the facts of a prisoner’s
case.” Id. at 409. The Court defined “unreasonable application” as follows:
[A] federal habeas court making the “unreasonable application” inquiry should ask whether
the state court’s application of clearly established federal law was objectively unreasonable.
...
. . . . [A]n unreasonable application of federal law is different from an incorrect
application of federal law. . . . Under § 2254(d)(1)’s “unreasonable application” clause, then,
a federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Id. at 409–11 (emphasis original).
With these principles in mind, the court will turn to the examination of the claims raised in Majors’
petition for habeas relief.
V.
ANALYSIS AND DISCUSSION
A.
Ground One: That the Petitioner Was Denied the Effective Assistance of Counsel
There is no dispute that the petitioner fully exhausted his ineffective-assistance claims in the state
courts. The trial court entered an order exhaustively addressing each of the petitioner’s claims individually
and concluding, with respect to each, either that counsel was not ineffective or that the petitioner failed to
show prejudice. The court therefore denied relief. (ECF No. 25-15, at 8–14.) The Tennessee Court of
Criminal Appeals did not address each of the petitioner’s numerous claims individually, but instead lumped
them into four general categories: (1) that trial counsel erred in not sufficiently challenging the “show-up”
identification as unduly prejudicial; (2) that counsel erred in failing to impeach or further cross-examine the
victims at trial, particularly regarding identification; (3) that counsel was ineffective for failing to request an
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additional instruction on identification; and (4) that counsel was ineffective for failing to object to statements
made by the State during trial. In ruling on these claims, the court stated as follows:
When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel's deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).
As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court's findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.
Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant
relief based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
On appeal, Petitioner complains that the post-conviction court improperly denied his
petition for post-conviction relief. Specifically, Petitioner argues that he received ineffective
assistance of counsel because trial counsel failed in several different ways to properly raise
the issue of identification. . . .
The overriding theme of Petitioner’s argument on appeal is that trial counsel erred
by not sufficiently challenging witness identification of him as the perpetrator of the offense.
Specifically, Petitioner first insists that trial counsel was ineffective for not challenging the
“show up” identification as unduly suggestive. Trial counsel testified at the post-conviction
hearing that she reviewed the evidence and researched the issue and concluded that she
was unlikely to be successful if she challenged the identification process at trial. Petitioner
did not show any evidence to the contrary at the hearing on the post-conviction petition.
Moreover, this Court addressed the identification made by the victims on direct appeal and
found them to be unequivocal. Craig O. Majors, 2010 WL 2483512, at *7. The evidence does
not preponderate against the post-conviction court’s decision in this regard. Petitioner is not
entitled to relief on this issue.
Next, Petitioner claims that trial counsel was ineffective in cross-examining and/or
failing to impeach the victims at trial. Trial counsel testified that she cross-examined both
victims at trial but found them to be very sympathetic witnesses because they were
extremely emotional. In her experience, if she cross-examined the victims too harshly it
would be counterproductive. Petitioner did not show how further cross-examination would
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have resulted in a different jury verdict at trial. As pointed out by the post-conviction court,
these were trial strategy decisions made and employed by trial counsel. It is not the function
of this Court to second-guess trial strategy. Henley, 960 S.W.2d at 579. The evidence does
not preponderate against the determination of the post-conviction court. Petitioner is not
entitled to relief on this issue.
Petitioner alleges that trial counsel was ineffective for failing to request an additional
instruction on identification. Petitioner acknowledged that the trial court instructed the jury
on this issue at trial but complained that the trial court should have told the jury that
identifications made by victims were somehow less reliable. If a jury instruction fails to
“submit the legal issues” or “misleads the jury as to the applicable law” it is erroneous. State
v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Petitioner has shown neither instance with
regard to the jury instructions provided to the jury herein. Further, any comment by the trial
court as to the reliability of an identification could have been perceived as a comment on the
evidence. The trial court is prohibited from commenting on the evidence. See Tenn. Const.
art. VI, § 9. The evidence does not preponderate against the determination of the
postconviction court. Petitioner is not entitled to relief on this issue.
Finally, Petitioner complains about trial counsel’s failure to object to certain
statements made by the State during trial. Specifically, Petitioner alluded to “racial” remarks
and statements by the prosecutor that essentially vouched for the credibility of the victims.
The post-conviction court determined that there was no basis for the objections. Petitioner
has not shown how he was prejudiced by any objectionable statements that may have been
made by the prosecutor or how the result of his trial would have been different had trial
counsel objected. Petitioner is not entitled to relief on this issue.
Majors v. State, 2012 WL 3291801, at *3–5 (footnote omitted).
This Court does not review the petitioner’s ineffective-assistance claims de novo. Rather, the Court
must consider whether the state court’s application of federal law or its determination of the facts was
objectively unreasonable. 28 U.S.C. § 2254(d). It was not. The Tennessee court properly identified Strickland
v. Washington, 466 U.S. 668 (1984), as the controlling law, and the court was not unreasonable in its
application of Strickland, or in concluding both that the petitioner failed to establish that his counsel was
deficient or that he had suffered prejudice.
Moreover, the fact that the state court did not explicitly address each individual ineffective-assistance
claim raised by the petitioner does not change this Court’s standard of review under the circumstances. As
the Supreme Court recently confirmed, “determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 784 (2011). Thus,
where the state court has not expressly explained its reason for a decision, “the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the state court to deny relief. This is so
whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for §
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2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.” Id.
Majors here has not shown that the state court’s resolution of his ineffective-assistance claims
violated federal standards. He is not entitled to relief on the basis of these claims.
B.
Ineffective Assistance: That counsel was not prepared for trial
In footnote 2 of his petition, Majors raises an unenumerated claim that his trial counsel was not
prepared for trial, a claim not previously presented to the Tennessee Court of Criminal Appeals. Where a
claim was not presented to the highest available state court, but the opportunity to do so is foreclosed by a
state procedural bar that the state regularly enforces, the claim is technically exhausted (because there is
no other available state-court remedy) 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).
Here, the petitioner is precluded from raising his claim by the one-year statute of limitations and
one-petition rule found in Tenn. Code Ann. § 40-30-102(a) & (c). Tennessee regularly enforces these rules.
Hutchison v. Bell, 303 F.3d 720, 738-39 (6th Cir. 2002). The petitioner has not demonstrated extraordinary
circumstances to over come the default. The petitioner is not entitled to relief on the basis of this claim.
C.
Ground Two: That the Petitioner’s Aggravated Kidnapping Conviction Violated Due
Process
The respondent failed to address this argument at all in his answer. The Court nonetheless finds that
the record is sufficiently well developed to permit resolution of the claim in the absence of input from the
respondent.
In his direct appeal, Majors argued that his conviction for especially aggravated kidnapping and
attempted aggravated robbery violated due process under both the federal and state constitutions, because
the especially aggravated kidnapping was incidental to the attempted aggravated robbery. Although he
referenced the United States Constitution in making this argument, the petitioner did not cite to any federal
case law construing the protections of due process to extend to such a situation. Instead, he relied solely on
Tennessee case law. The Tennessee Court of Criminal Appeals likewise considered only state law in
concluding that the petitioner’s right to due process had not been violated by the dual conviction. The state
court reasoned as follows:
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In [State v. Anthony, 817 S.W.2d 299 (Tenn. 1991)], our supreme court held that
dual convictions for armed robbery and aggravated kidnapping violated the due process
guarantees of article I, section 8 of the Tennessee Constitution when the confinement,
movement, or detention of the kidnapping is “essentially incidental” to the robbery. Anthony,
817 S.W.2d at 306. Therefore, in order for dual convictions to stand, the trial court must
determine whether the confinement, movement, or detention was significant enough, in and
of itself, to warrant independent prosecution. Id. As guidance, our supreme court noted that
“one method of resolving this question is to ask whether the defendant’s conduct
‘substantially increased [the] risk of harm over and above that necessarily present in the
crime . . . itself.’” Id. (quoting State v. Rollins, 605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)).
The court also admonished courts “to apply the [kidnapping] statute narrowly, so as to make
its reach fundamentally fair and to protect the due process rights of every citizen.” Id.
Six years later, in State v. Dixon, 957 S.W.2d 532 (Tenn. 1997), the court refined
Anthony’s applicability to those cases to “prevent the injustice which would occur if a
defendant could be convicted of kidnapping where the only restraint utilized was that
necessary to complete the act of rape or robbery.” Dixon, 957 S.W.2d at 534. Likewise, a
separate conviction for kidnapping may stand for “any restraint in addition to that which is
necessary to consummate rape or robbery.” Id. at 535. The court went further to establish
a two-prong test for analyzing when a separate conviction for kidnapping violates due
process. First, the trial court must determine “whether the movement or confinement was
beyond that necessary” to commit the accompanying felony. Id. If so, the trial court must
then ascertain “whether the additional movement or confinement: (1) prevented the victim
from summoning help; (2) lessened the defendant’s risk of detection; or (3) created a
significant danger or increased the victim’s risk of harm.” Id.
Applying these standards to the facts of this case, the record reflects that when the
victim discovered the Defendant in his home, the Defendant immediately pointed his weapon
at the victim and demanded money. Contemporaneous to this request was the threat to
torture and leave for dead both Mr. Douglas and his wife. The Defendant then ordered the
victim down the hallway, through the kitchen and into the garage where he attempted to
restrain the victim with cords and rope. We agree with the State that this additional
movement and confinement exceeded what was necessary to accomplish the attempted
aggravated robbery.
Turning to the second prong of the Dixon analysis, the evidence shows that the
victim was able to summon help from his wife although he had been moved to the garage
by the Defendant. However, the evidence also shows that the Defendant ordered the victim
to the garage in order to bind the victim. Furthermore, the movement to the garage
presented the opportunity for the struggle between the Defendant and the victim. Therefore,
we conclude that the additional movement and confinement both “lessened the [D]efendant’s
risk of detection” and “increased the victim’s risk of harm.” Accordingly, dual convictions for
especially aggravated kidnapping and attempted aggravated robbery do not violate due
process under these facts and circumstances.
State v. Majors, 2010 WL 2483512, at *5–6.3
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The Tennessee Supreme Court recently overruled both Anthony and Dixon, and held that, under
Tennessee law, kidnapping was to be punished as a separate offense “only [in] those instances in which the
removal or confinement has criminal significance above and beyond that necessary to consummate some
underlying offense, such as robbery or rape.” State v. White, 362 S.W.3d 559, 577 (Tenn. 2012). The court
further concluded that the due-process concerns earlier expressed in Anthony more properly were addressed
in the first instance to the jury rather than to an appellate court: “[W]e have concluded that whether the
evidence, beyond a reasonable doubt, establishes each and every element of kidnapping, as defined by
statute, is a question for the jury properly instructed under the law. The jury, whose primary obligation is to
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In Anthony, the case upon which the petitioner relies, the Tennessee Supreme Court expressly
considered whether the kidnapping conviction at issue“violate[d] the due process guarantees found in both
[the federal and state] constitutions.” Anthony, 817 S.W.2d at 301. The Sixth Circuit has recognized that a
petitioner may fairly present both the legal and factual basis of his federal claim to the state court for
exhaustion purposes by “phras[ing] 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.” Blackmon v. Booker,
394 F.3d 399, 400 (6th Cir. 2004) (emphasis added). This Court finds that Majors’ invocation of due-process
in his direct appeal was sufficiently particular to allege a denial of his Fourteenth Amendment right to due
process, and that the claim is therefore fully exhausted for purposes of this Court’s review.
The Court nonetheless finds that the Tennessee court’s rejection of the claim was not contrary to and
did not involve an unreasonable application of clearly established federal law, nor did it result in a decision
that was “based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). The Due Process Clause of the Fourteenth Amendment simply
requires that a criminal conviction be supported by proof beyond a reasonable doubt with respect to every
fact necessary to constitute the offense charged. In re Winship, 397 U.S. 358, 363–64 (1970). The standard
for determining if a conviction is supported by sufficient evidence is “whether after reviewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979). The jury in Majors’
case found that each element of the especially aggravated kidnapping charges had been proven beyond a
reasonable doubt, and the Tennessee Court of Criminal Appeals expressly considered whether the
ensure that a criminal defendant has been afforded due process, must evaluate the proof offered at trial and
determine whether the State has met its burden.” Id. at 577 (citations omitted). The court expressly noted,
however, that its holding did not “articulate a new rule of constitutional law or require retroactive application.”
Id. at 578.
The procedure embraced in White clearly offers better due-process protections than the procedure
still in use at the time of Majors’ appeal, insofar as White now requires the jury to resolve the question of
whether the kidnapping in a given case was merely incidental to an accompanying felony charge. However,
the petitioner here did not appeal the jury instructions given in his case or raise an express sufficiency-of-the
evidence challenge based on the elements of the kidnapping conviction, nor did he assert that his counsel
was ineffective for failing to raise these arguments. These arguments therefore are now foreclosed to him.
Regardless, the standard for this Court is whether the conviction violated federal due-process standards, not
whether it comported with state law.
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kidnapping was merely “incidental” to the robbery such that dual convictions would offend due process.
Finally, this Court has reviewed the evidence presented in the case, and concludes that the state court was
not unreasonable in concluding that the evidence supported the kidnapping conviction. The petitioner has
not established that no rational trier of fact could have found him guilty of aggravated kidnapping. The
Tennessee court’s decision upholding Majors’ convictions was neither contrary to law nor unreasonable. The
petitioner is therefore not entitled to relief on the basis of this claim.
VI.
CONCLUSION
For the reasons set forth herein, Craig Major’s petition under § 2254 will be denied and this matter
dismissed with prejudice. An appropriate order is filed herewith.
Todd Campbell
United States District Judge
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