Johnson v. Holloway

Filing 32

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 12/20/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MARQUES JOHNSON,
Petitioner,
v.
JAMES HOLLOWAY, Warden,
Respondent.

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Case No. 3:14-cv-1071
Judge Aleta A. Trauger

MEMORANDUM OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254.
The petitioner is serving a term of 18 years imprisonment imposed by the Davidson County
Criminal Court on December 15, 2011, after the petitioner pleaded guilty to four counts of
burglary of an automobile, one count of theft over $500, and one count of theft over $1.000. The
respondent has filed an answer to the petition (ECF No. 29) stating that the petition should be
denied because the grounds on which it is based are procedurally barred and meritless.
The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). The
respondent does not dispute that the petitioner’s federal habeas petition is timely. (ECF No. 29
at Page ID# 507.) The respondent states that the federal habeas petition at issue here appears to
be the petitioner’s first application for federal habeas relief. (Id.)
Because a federal court must presume the correctness of a state court’s factual findings
unless the petitioner rebuts this presumption with ‘clear and convincing evidence,” 28 U.S.C. §
2254€(1), and because the issues presented can be resolved with reference to the state-court
record, the court finds that an evidentiary hearing is not necessary. See Schriro v. Landrigan,

550 U.S. 464, 474 (2007) (holding that if the record refutes a petitioner’s factual allegations or
otherwise precludes habeas relief, the district court is not required to hold an evidentiary hearing
(citing Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998))). Upon review and applying the
AEDPA standards, the court finds that the petitioner is not entitled to relief on the grounds
asserted. Accordingly, the petition will be denied and this matter dismissed.
I.

PROCEDURAL BACKGROUND
The state prosecution arose from a series of motor vehicle burglaries that took place July

4 and 8, 2010. The petitioner was indicted in case number 2010-D-3338 by the Davidson
County grand jury and charged with two counts of burglary of an automobile (Tenn. Code Ann.
§ 39-14-402) and four counts of theft of property of varying amounts (Tenn. Code Ann. §39-14103). (ECF No. 28-1 at Page ID## 151-56.) Additionally, the Davidson County grand jury
indicted the petitioner in case number 2010-C-2568 and charged him with two counts of burglary
of an automobile (Tenn. Code Ann. § 39-14-402) and three counts of theft of property of varying
amounts (Tenn. Code Ann. § 39-14-103). (ECF No. 28-1 at Page ID## 160-66.)
On October 17, 2011, the petitioner submitted petitions under Tenn. R. Crim. P. 11 to
enter a plea of guilty in each case, which the court accepted. (ECF No. 28-1 at Page ID## 17483.) In case number 2010-C-2568, the petitioner pleaded guilty to two counts of burglary of an
automobile and one count of theft of property over $500, the remaining counts to be dismissed,
with an agreed-upon sentence of 6 years at 60% as to each count, with all counts running
concurrently with each other. (Id. at Page ID# 178; see also ECF No. 28-2, Transcript of Plea
(“Plea Tr.”) at Page ID## 204-05) In case number 2010-D-3338, the petitioner agreed to plead
guilty to two counts of burglary of an automobile and one count of theft of property over $1,000,
the remaining counts to be dismissed, with an agreed-upon sentence of 6 years at 60% as to the
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burglary counts and 12 years at 60% as to the theft count, with all counts running concurrently
with each other. (ECF No. 28-1 at Page ID# 183; see also ECF No. 28-2, Plea Tr. at Page
ID## 204-05.)
Pursuant to the plea agreement, the court conducted a sentencing hearing to determine
whether the sentence in case number 2010-C-3338 would run consecutively or concurrently with
the sentence in case number 2010-C-2568. (ECF No. 28-1 at Page ID# 184.) After hearing
testimony from the petitioner’s aunt and mother, reviewing the pre-sentence report, and
considering “all matters required by [state law],” the court ordered the 6-year sentence in case
number 2010-C-2568 to run consecutively to the 12-year sentence in case number 2010-D-3338
for an effective 18-year sentence, to be served at 60%. (Id. at Page ID# 185-87; see also ECF
No. 28-3.)
The petitioner appealed the trial court’s determination that his sentences should run
consecutively to the Tennessee Court of Criminal Appeals (“TCCA”), which rejected his
appellate arguments and affirmed the trial court’s determination that petitioner’s sentences
should run consecutively in an unpublished opinion issued on October 18, 2012. (ECF No. 28-7;
see also State v. Marques Sanchez Johnson, No. M2012-00169-CCA-R3-CD; 2012 WL
5188136, at *1 (Tenn. Crim. App. Oct. 18, 2012) [“Johnson I”].) The petitioner filed an
application for permission to appeal to the Tennessee Supreme Court, which was denied on
January 22, 2013. (ECF No. 28-9.)
On December 10, 2013, the petitioner filed a pro se petition for post-conviction relief in
the Davidson County Criminal Court. (ECF No. 28-10 at Page ID## 353-67.) On January 15,
2014, counsel was appointed to assist the petitioner, (Id. at Page ID# 379), and, on May 13,
2014, counsel filed an amended petition for post-conviction relief in the state court (Id. at Page
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ID# 384-90). The state court held an evidentiary hearing on June 6, 2014, (ECF No. 28-11, PostConviction Transcript (“P.C. Tr.”) at Page ID# 405-38), and on June 30, 2014, the state court
issued an order denying relief (ECF No. 28-10 at Page ID# 392-98).
The petitioner appealed to the TCCA, which denied relief on February 26, 2015. (See
Marques Sanchez Johnson v. State, No. M2014-01419-CCA-R3-PC, 2015 WL 832328, at *1
(Tenn. Crim. App. Feb. 26, 2015) [“Johnson II”].) The Tennessee Supreme Court denied
discretionary review on June 15, 2015. (Id.)
On August 21, 2014, while his post-conviction proceeding was pending in state court, the
petitioner filed a petition for the writ of habeas corpus in this court (ECF No.1) and a motion to
hold the petition in abeyance pending exhaustion of state remedies (ECF No. 2). On June 9,
2014, the petitioner filed a supplement to the petition (ECF No. 10). On August 21, 2014, the
court ordered that this action be stayed pending the resolution of the petitioner’s state court
proceedings. (ECF No. 17.) This case was reopened on April 5, 2016 (ECF No. 26) and the
respondent timely filed his opposition on July 20, 2016 (ECF No. 29).
II.

STATEMENT OF FACTS

Because the petitioner does not dispute, nor raise any claims pertaining to, the facts
underlying his convictions, it is unnecessary to recite them here. His claims do, however,
implicate the evidence presented at the sentencing hearing, which the TCCA summarized as
follows:
At the sentencing hearing, the trial court heard testimony from Appellant’s
aunt, Gwendolyn Lashell Stewart. She spoke fondly of Appellant but
acknowledged that she recalled him first getting into trouble at around the
age of ten. She noted that he had a very lengthy criminal history as both a
juvenile and an adult. Ms. Stewart agreed that Appellant primarily
supported himself through crimes of theft.
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Angela Jones, Appellant’s mother, testified at the hearing. She stated that
Appellant lived with her for quite a while and was eager to help out his
brothers and sisters. Appellant even helped her get medication when
insurance would not pay for it. Ms. Jones acknowledged on crossexamination that Appellant had trouble as a juvenile, being placed by the
State in Richland Village, Woodland Hills, Wilder Youth Center, and Taft
Youth Development Center. She recalled that Appellant had been
incarcerated several times as an adult but explained that Appellant
supported himself and his family in part by crimes of theft.
The trial court ultimately ordered the sentences in the two cases to run
consecutively to each other, finding:
Based upon the record and the proof presented at the sentencing
hearing, the Court finds that [Appellant] does have an extensive
record of criminal activity and is a professional criminal who has
continually committed criminal acts as a major source of
livelihood. See [T.C.A.] § 40–35–115. Furthermore, consecutive
sentencing is necessary given the severity of the offenses
committed and in order to protect the public from further criminal
acts committed by [Appellant]. See State v. Wilkerson, 905
S.W.2d 933 (Tenn.1995). For the foregoing reasons, the Court
orders the six (6) year sentence in 2010–C–2569 to run
consecutively to the twelve (12) year sentence in 2010–D–3338 for
an effective eighteen (18) year sentence at sixty percent (60%) to
serve
Johnson I, 2012 WL 5188136, at *3.
The petitioner also raises claims that implicate the state court’s determination of
his state post-conviction petition. The TCCA summarized the evidence presented at the
post-conviction evidentiary hearing, in pertinent part, as follows:
Petitioner testified that trial counsel never told him that he had a right to
testify at the sentencing hearing. The trial court also did not inform him of
this right. If he had testified, Petitioner stated that he would have admitted
that he “made some mistakes in the past,” but would have pointed out that
most of his crimes were either misdemeanors or juvenile offenses. He
would have also tried to “probably apologize to the victims that I did
something to them.”
Petitioner also testified that trial counsel did not adequately investigate the
value of the stolen property. He believed that some of the felony thefts
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could have been reduced to misdemeanor thefts. Petitioner also claimed
that trial counsel did not inform him of other plea offers from the State.
Petitioner testified that trial counsel told him that the most time he could get
would be twelve years. However, Petitioner admitted that he understood
the terms of the plea agreement, including the provision that the trial court
would determine whether the sentences from the two cases would be served
concurrently or consecutively. Petitioner acknowledged that he accepted
the plea agreement because of the risk of a longer sentence if he was
convicted at trial.
Trial counsel1 testified that he had been practicing law since 2008, and that
over 95 percent of his cases were criminal defense. Trial counsel was
appointed to Petitioner’s case after Petitioner was indicted. Trial counsel
received discovery from Petitioner’s former attorney, which he reviewed
with Petitioner. Trial counsel hired an investigator once Petitioner’s case
was set for trial. Trial counsel testified that he had multiple discussions
with Petitioner throughout the case, including discussions about the charges
he faced and the plea offers from the State. Trial counsel testified that he
corresponded with Petitioner frequently and that Petitioner had a “real good
grasp” on the case.
Trial counsel testified that Petitioner initially rejected a plea offer for a total
effective sentence of twelve years because it was “too much time.” Trial
counsel testified that once this offer was taken off the table by the State, he
continued to negotiate with [the] State for a better deal, but the best the
State offered was the arrangement to which Petitioner ultimately agreed: a
six-year sentence in one case and a twelve-year sentence in the other case,
with the trial court to determine whether the sentences would run
concurrently or consecutively. Trial counsel denied that he ever told
Petitioner that the most time he could get would be twelve years. Trial
counsel testified that Petitioner understood the plea agreement and that it
was his choice to accept the offer.
Trial counsel testified that he discussed with Petitioner his right to testify at
the sentencing hearing and the possibility of making a statement of
allocution. Trial counsel advised Petitioner that his testimony would not be
necessary in light of the other witnesses he presented at the sentencing
hearing. However, trial counsel stated that it was Petitioner’s decision not
to testify.
On June 30, 2014, the post-conviction court filed an order denying postconviction relief. The post-conviction court accredited the testimony of
trial counsel “that he thoroughly consulted with the [P]etitioner regarding
1

Trial counsel was Jonathan Williams of the Davidson County bar.
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his case and possible sentencing scenarios.” The post-conviction court
found that Petitioner had not proven by clear and convincing evidence that
trial counsel failed to inform him of his right to allocution and that
Petitioner had not established prejudice from the supposed failure. The
post-conviction court found that Petitioner “was informed and had sufficient
knowledge of the nature and consequences of the plea and that he
voluntarily and intelligently chose to enter the guilty plea.”1
Fn. 1 The post-conviction court’s order also addressed several
claims made in Petitioner’s original pro se petition and dismissed
those claims for lack of evidence. These claims were not raised on
appeal and are, therefore, deemed abandoned. See Ronnie
Jackson, Jr. v. State, No. W2008–02280–CCA–R3–PC, 2009 WL
3430151, at *6 n.2 (Tenn.Crim.App. Oct. 26, 2009) (“While the
Petitioner raised additional issues in his petition for postconviction relief, he has abandoned those issues on appeal.”).
Johnson II, 2015 WL 832328, at *2–3, *5 n.1.
III.

ISSUES PRESENTED FOR REVIEW
In his pro se petition, the petitioner raises the following grounds for relief:
A. Trial counsel was ineffective for: (1) not forming an adequate working
relationship with the petitioner; (2) failing to move to dismiss the indictments
which were defective because they were based on Gene Donegan’s testimony;
(3) advising the petitioner to plead guilty despite knowing that the indictments
were defective because they were based on Donegan’s grand jury testimony;
and (4) failing to allow the petitioner to give a statement in allocution at the
sentencing hearing;
B. The trial court erred by: (1) failing to allow the petitioner to give a statement
in allocution at the sentencing hearing; and (2) determining that petitioner’s
sentences should run consecutively;
C. The prosecutor committed: (1) prosecutorial misconduct by securing grand
jury testimony from Donegan; and (2) a Brady/Giglio violation by failing to
disclose the use of Donegan’s false grand jury testimony.

(ECF No. 1 at Page ID# 2 and ECF No. 10 at Page ID## 33-34.)

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IV.

STANDARD OF REVIEW
This matter is governed by the provisions of the Antiterrorism and Effective Death

Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). See Penry v. Johnson, 532 U.S.
782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given the benefit of the doubt.” Bell v.
Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 132 S. Ct. 490, 491
(2011); Felkner v. Jackson, 562 U.S. 594, 597 (2011). “AEDPA requires heightened respect for
state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir.
2006). “State-court factual findings . . . are presumed correct; the petitioner has the burden of
rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S. Ct. 2187,
2199-2200 (2015) (citations and internal quotations omitted).
If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28
U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555
U.S. 179, 190 (2009). AEDPA prevents federal habeas “retrials” and “ensure[s] that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693
(2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This court may consider only the “clearly established” holdings,
and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.
Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly
established, this court may not rely on the decisions of lower federal courts. Lopez v, Smith, 135
S. Ct.1, 4 (2014); Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir. 2000). Moreover, “clearly
8

established Federal law” does not include decisions of the Supreme Court announced after the
last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38, 44 (2011). Thus,
the inquiry is limited to an examination of the legal landscape as it would have appeared to the
Tennessee state courts in light of Supreme Court precedent at the time of the state-court
adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644-45 (6th Cir. 2014) (citing
Greene, 132 S. Ct. at 44).
The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v.
Richter, 562 U.S. 86, 102 (2011); see Burt v. Titlow, 134 S. Ct. 10, 16 (2013); Metrish v.
Lancaster, 133 S. Ct. 1781, 1786 (2013); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Indeed. “habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error corrections through appeal.” Harrington, 562 U.S. at
102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376
(2015).
Under AEDPA, 28 U.S.C. § 2254(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
(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.”
Davis v. Ayala, 135 S. Ct. at 2198; see also White v. Wheeler, 136 S. Ct. 456, 460 (2015)
(explaining that the Supreme Court, “time and again, has instructed that AEDPA, by setting forth
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necessary predicates before state-court judgments may be set aside, ‘erects a formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court.’)
(internal citation omitted).
A federal habeas court may issue the writ under the “contrary to” clause if the state court
applies a rule different from the governing law set forth in United States Supreme Court cases, or
if it decides a case differently than the United States Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06).
The court may grant relief under the “unreasonable application” clause “if the state court
correctly identifies the governing legal principle from United States Supreme Court decisions but
unreasonably applies it to the facts of the particular case. Id. A federal habeas court may not
find a state adjudication to be “unreasonable” “simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.” Williams, 529 U.S. at 411; accord Bell, 535 U.S. at 699. Rather,
the issue is whether the state court’s application of clearly established federal law is “objectively
unreasonable.” Williams, 529 U.S. at 409.

“[R]elief is available under § 2254(d)(1)’s

unreasonable-application clause if, and only if, it is so obvious that a clearly established rule
applies to a given set of facts that there could be no ‘fairminded disagreement’ on the question.”
White v. Woodall, 134 S. Ct. 1697, 1706-07 (2014) (quoting Harrington v. Richter, 562 U.S. 86,
103 (2011)).
V.

DISCUSSION
A. Ineffective Assistance of Trial Counsel.
The petitioner argues that his trial counsel was ineffective for: (1) not forming an

adequate working relationship with him; (2) failing to move to dismiss the indictments based on
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Donegan’s testimony; (3) advising the petitioner to plead guilty, despite knowing that the
indictments were defective; and (4) failing to allow the petitioner to give a statement in
allocution at the sentencing hearing.
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established
a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a
claim of ineffective assistance of counsel, the petitioner must prove:

(1) that counsel’s

performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient
performance prejudiced the defendant resulting in an unreliable or fundamentally unfair
outcome.

A court considering a claim of ineffective assistance must “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. The defendant bears the burden of overcoming the presumption that the
challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350
U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding
that counsel’s strategic decisions were hard to attack). The court must determine whether, in
light of the circumstances as they existed at the time of counsel’s actions, “the identified acts or
omissions were outside the wide range of professionally competent assistance.” Strickland, 466
U.S. at 690. Even if a court determines that counsel’s performance was outside that range, the
defendant is not entitled to relief if counsel’s error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews
a state court’s application of Strickland under § 2254(d), the deferential standard of Strickland is
“doubly” deferential. Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citing Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S. Ct. 10, 13 (2013); Cullen
v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Premo v. Moore, 131 S. Ct. 733, 740 (2011). In
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those circumstances, the question before the habeas court is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.; Jackson v. Houk, 687
F.3d 723, 740-41 (6th Cir. 2012) (stating that the “Supreme Court has recently again underlined
the difficult of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .”)
(citing Richter, 131 S. Ct. at 786).
1. Inadequate Working Relationship
The petitioner contends that his trial counsel was ineffective for not forming an adequate
relationship with him. The petitioner fails to allege any facts to support this contention, so it is
not clear what the petitioner believes was lacking in his relationship with his counsel, separate
from the petitioner’s claims that counsel was ineffective in specific ways as discussed below.
However, the petitioner raised a similar claim before the trial court in his amended petition for
post-conviction relief, claiming that counsel had “failed to adequately communicate with him,”
“rarely discussed his case with him,” and “failed to discuss various legal alternatives available to
him.” (ECF No. 28-10 at Page ID# 386.) The trial court considered and rejected this claim,
crediting trial counsel’s testimony at the post-conviction evidentiary hearing “that he thoroughly
consulted with the petitioner regarding his case and possible sentencing scenarios.” (ECF No.
28-10 at Page ID# 396.) The petitioner did not raise this claim before the TCCA. Thus, the
respondent argues that the petitioner procedurally defaulted this claim.
The U.S. Supreme Court has held that federal courts are not required to address a
procedural-default issue before deciding against the petitioner on the merits. See Hudson v.
Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(“Judicial economy might counsel giving the [other] question priority, for example, if it were
easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved
12

complicated issues of state law.”); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”). Where, as here, the procedural
default issue raises more questions than the case on the merits, the court may assume without
deciding that there was no procedural default or that the petitioner could show cause and
prejudice for that default. See Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003); Binder v.
Stegall, 198 F.3d 177, 178 (6th Cir. 1999). The court will overlook the procedural default and
consider this claim on the merits.
At the post-conviction hearing, the petitioner testified that he did “not really” have a
chance to communicate with his counsel about his case, “like for . . . [a] better understanding
about my rights, and what I could do as far as the allegations on all of this stuff.” (ECF No. 2811, P.C. Tr. at Page ID# 408.) But, when pressed, he admitted that his counsel explained the
charges against him and explained that he could receive a 57-year sentence if he lost at trial.
(Id.) Additionally, the petitioner testified that he communicated with his trial counsel by letter,
in person when they were at court, and one time trial counsel visited him at the prison in which
he was housed. (Id. at Page ID# 410.)
The petitioner’s counsel testified that, after he obtained discovery documents, he
reviewed them with the petitioner, and he obtained an investigator who also reviewed the
discovery documents with the petitioner. (Id. at Page ID# 423.) Trial counsel participated in one
or two video conferences with the petitioner to discuss the discovery, and they reviewed the
discovery together when the petitioner was placed in the holding cell at the courthouse. (Id.)
Trial counsel talked with the petitioner about the various charges he was facing, trial counsel
explained what the state would have to prove to convict him and the evidence that the state
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actually possessed. (Id. at Page ID# 424). Together with the petitioner, trial counsel looked at
the value of the items that the petitioner was alleged to have stolen and discussed the events
leading up to the petitioner’s arrest. (Id.) Trial counsel recalled that petitioner had a lot of
questions, “he was very into his case, very conscience [sic] about it. Was always asking
questions. Wrote a lot of letters and we had a lot of correspondence back and forth.” (Id.) Trial
counsel believed the petitioner understood him. (Id. at Page ID# 425.) Trial counsel tried to
respond to any questions the petitioner had and “would try to follow everything up in writing.”
(Id.) Trial counsel communicated the state’s settlement offers to the petitioner and discussed
with the petitioner what would happen at the sentencing hearing “[a]nd in fact, we called [ ] two
witnesses, two of the family members to testify at th[e] sentencing hearing, but we sat down and
talked about it . . . and in the weeks between the plea and the sentencing hearing we discussed it
ad nauseam.”. (Id. at Page ID# 427-28.) On the morning of the sentencing hearing, trial counsel
talked with the petitioner at the courthouse:
we discussed everything . . . and [I] made sure it was clear that he understood
what we were doing. . . . I advised him that I thought . . . [the plea] was his best
option under the circumstances that I didn’t see an allocution, a trial or any other
thing being better for him. In my legal experience and my professional
experience, it was the best deal and option he was going to get at this point.
(Id. at 428-29.) Trial counsel spoke to the petitioner’s mother or his aunt, or both, about what
would happen at the sentencing hearing, and he had no doubt that the petitioner understood what
would happen at the sentencing hearing. (Id. at Page ID#429-31.)
The evidence does not support the petitioner’s claim that his trial counsel was deficient
for failing to communicate and maintain an adequate working relationship with him. Moreover,
even if trial counsel had been deficient, petitioner has failed to establish that any deficiency by
counsel had a prejudicial effect on the outcome of the proceeding. In the context of a guilty plea,
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the prejudice prong of the Strickland test focuses on whether counsel’s constitutionally deficient
performance affected the outcome of the plea process. “[I]n order to satisfy the ‘prejudice’
requirement, the defendant 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.” Id.
at 59. While the petitioner equivocated about whether he would have gone to trial if he had
understood that the trial court could order him to serve his 12- and 6-year sentences
consecutively, he falls far short of establishing that it was reasonably probable that, had counsel
communicated more effectively, he would have chosen to go to trial. The petitioner is not
entitled to relief on this claim.
2. Failing to Move for Dismissal of Indictments
The petitioner argues that his trial counsel was ineffective for failing to move to dismiss
the indictments which, the petitioner argues, were defective because they were based on the
testimony of Gene Donegan, “who was not involved with [the petitioner’s] case [and] had no
knowledge” of the facts when he testified before the grand jury. (ECF No. 10 at Page ID# 33.)
The petitioner did not raise this claim before any state court. Therefore, the respondent argues
that this claim is procedurally defaulted. Because the procedural default issue raises more
questions than the case on the merits, the court will consider the merits of this claim. See
Hudson, 351 F.3d at 215-16.
It is the petitioner’s burden to establish the elements of his ineffective assistance of
counsel claim. See United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995) (the petitioner bears
the burden of establishing counsel's ineffectiveness); Lewis v. Alexander, 11 F.3d 1349, 1352
(6th Cir. 1993) (same). The petitioner has presented no facts, and the record contains no
evidence, supporting his allegations that the indictment was defective because it was based on
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Donegan’s testimony. Nothing in the petition suggests why Donegan’s testimony before the
grand jury was defective, what testimony he gave, or how it was or was not consistent with other
evidence.

The petitioner has not set forth any information that would allow the court to

determine the veracity or propriety, or lack thereof, of Donegan’s grand jury testimony. In the
absence of any facts or evidence in the record to establish that the indictments were defective,
the petitioner cannot meet his burden of establishing that his trial counsel was ineffective for
failing to move to dismiss them. See Hutchison v. Bell, 303 F.3d 720, 749–50 (6th Cir. 2002)
(recognizing that “[t]his court has held that a petitioner cannot show deficient performance or
prejudice resulting from a failure to investigate if the petitioner does not make some showing of
what evidence counsel should have pursued and how such evidence would have been material”
citing Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997)); see also Smith v. Bradshaw, 591 F.3d
517, 523 (6th Cir. 2010) (recognizing that counsel’s failure to make a frivolous or meritless
motion does not constitute ineffective assistance of counsel.) Where counsel’s performance did
not fall below an objective standard of reasonableness, the court need not reach the question of
prejudice. See Davis v. Lafler, 658 F.3d 525, 538 (6th Cir. 2011); see also Strickland, 466 U.S.
at 700 (Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim.) The petitioner is not entitled to habeas relief on this
claim.
3. Advising Petitioner to Plead Guilty
The petitioner contends that his trial counsel was ineffective for advising him to plead
guilty where, as here, the petitioner argues, the indictments were defective because they were
based on Donegan’s testimony. The respondent argues that this claim is procedurally defaulted.
Nevertheless, the court considers the merits of this claim. See Hudson, 351 F.3d at 215-16.
16

As set forth above, there is no evidence from which the court can discern any defects to
the grand jury process that resulted in the indictments against the petitioner.

Thus, the

petitioner’s counsel could not have been deficient for advising the petitioner to accept a plea
based on the charges set forth in the indictments. In the absence of deficient performance by
counsel, the petitioner fails to state a claim for ineffective assistance of counsel. Strickland, 466
U.S. at 700.
4. Failing to Allow the Petitioner to Give a Statement in Allocution
The petitioner argues that his trial counsel was deficient for failing to advise him of his
right to give a statement in allocution at the sentencing hearing. While the petitioner does not
expressly raise as a ground for habeas relief his trial counsel’s failure to advise him that he had a
right to testify at the sentencing hearing, the state court’s discussion implicates the petitioner’s
right to testify as well. The TCCA considered the petitioner’s claim that his counsel was
deficient and, guided by the standard set forth in Strickland, rejected it as follows:
Allocution is “[a]n unsworn statement from a convicted defendant to the
sentencing judge or jury in which the defendant can ask for mercy, explain
his or her conduct, apologize for the crime, or say anything else in an
effort to lessen the impending sentence. This statement is not subject to
cross-examination.” State v. Keathly, 145 S.W.3d 123, 125 (Tenn. Crim.
App. 2003) (quoting Black’s Law Dictionary, 75 (7th ed. 1999)).
There is no constitutional right to allocution. See State v. Stephenson, 878
S.W.2d 530, 551-52 (Tenn.1994), abrogated on other grounds by State v.
Saylor, 117 S.W.3d 239 (Tenn. 2003) (citing Hill v. United States, 368
U.S. 424 (1962)); State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976)).
A defendant is not required to provide a statement in allocution, and the
sentencing judge is only required to consider “[a]ny statement the
defendant wishes to make in the defendant’s own behalf about
sentencing.” T.C.A. §40-35-210(b)(7) (emphasis added). “Clearly, any
defendant’s right to allocution is depend[e]nt on that defendant’s desire to
make a statement.” Joseph B. Thompson v. State, No. E2004-00920-CCAR3-PC, 2005 WL 2546913, at *27 (Tenn.Crim.App. Oct. 12, 2005), perm.
app. denied (Tenn. Jan. 30, 2006). Although a trial court’s refusal to
17

allow allocution is reversible error, trial courts are not required to inquire
whether the defendant wishes to make any such statement. State v. Robert
Eugene Crawford, Jr., No. E2012–00001–CCA–R3–CD, 2013 WL
4459009, at *27 (Tenn.Crim.App. Aug. 19, 2013); see also Keathly, 145
S.W.3d at 126 (quoting United States v. De Alba Pagan, 33 F.3d 125, 129,
30 (1st Cir.1994)).
Trial counsel testified that he did discuss with Petitioner both the
opportunity to give a statement in allocution and the right to testify at the
sentencing hearing. Trial counsel testified that he advised Petitioner
against testifying or making a statement and that Petitioner agreed with his
advice. Trial counsel stated that it was Petitioner’s decision not to testify.
The post-conviction court accredited trial counsel’s testimony. Petitioner
did not prove by clear and convincing evidence that trial counsel’s
performance was deficient in this regard.
Even if trial counsel failed to inform Petitioner of his statutory right to
allocution, Petitioner has failed to demonstrate how he was prejudiced.
See Mark C. Noles v. State, No. M2009–02073–CCA–R3–CD, 2010 WL
2867180, at *11 (Tenn.Crim.App. Jul. 22, 2010), perm. app. denied (Tenn.
Nov. 10, 2010); Joseph B. Thompson, 2005 WL 2546913, at *27. The
only issue before the sentencing court was whether the sentences in the
two cases would be served concurrently or consecutively. As previously
determined by this Court on direct appeal, there was ample evidence in the
record to support the sentencing court’s finding that Petitioner was a
“professional criminal” and that his criminal record was “extensive” under
Tennessee Code Annotated sections 4035–115(b)(1) and (2). See
Marques Sanchez Johnson, 2012 WL 518836, at *4. Petitioner’s apology
“that I did something to” the victims most likely would have had no
bearing on the sentencing court’s conclusions.
Johnson, 2015 WL 832328, at *4–5 (emphasis in original and footnotes omitted).
The TCCA’s conclusion that the petitioner failed to establish “by clear and convincing
evidence” that trial counsel’s performance was deficient was not unreasonable. The habeas court
must “indulge a strong presumption” that counsel “rendered adequate assistance” in carrying out
the general duty “to advocate the defendant’s cause and the more particular duties to consult with
the defendant on important decisions and to keep the defendant informed of important
developments in the course of the prosecution.”
18

Strickland, 466 U.S. at 688–90.

The

petitioner’s trial counsel testified at length at the post-conviction hearing that he advised the
petitioner of his right to testify at the sentencing hearing and the right to give a statement in
allocution and that, together, the petitioner and counsel concluded that the petitioner would be
best served by not testifying and by allowing the two witnesses — the petitioner’s mother and his
aunt — “to paint the picture that we needed to paint.” (ECF No. 28-11, P.C. Tr. at Page ID#
431.) The petitioner has failed to overcome the presumption that counsel competently performed
his duties.
B.

Trial Court Errors
1.

Failing to Allow the Petitioner to Testify or Make a Statement
in Allocution

With respect to the petitioner’s claim that the trial court erred in not advising him of his
right to give a statement in allocution at the sentencing hearing, generally, “[t]rial court errors in
state procedure and/or evidentiary law do not rise to the level of federal constitutional claims
warranting relief in a habeas action unless the error renders the proceeding so fundamentally
unfair as to deprive the petitioner of due process under the Fourteenth Amendment.” McAdoo v.
Elo, 365 F.3d 487, 494 (6th Cir. 2004).

Even if the petitioner’s claim were cognizable on

habeas however, as the TCCA observed, under state law, the trial court had no obligation to ask
the petitioner if he wished to speak and neither the petitioner nor his counsel indicated to the trial
court that the petitioner desired to do so.
Moreover, with respect to the claim that the court failed to advise the petitioner of his
right to testify, which is not expressly raised by the petitioner, but rather, was implicated in the
states court’s discussion of the petitioner’s claim, the trial court committed no error. In United
States v. Stover, 474 F.3d 904 (6th Cir. 2007), the Sixth Circuit stated:
19

Although the ultimate decision whether to testify rests with the defendant, when a
tactical decision is made not to have the defendant testify, the defendant’s assent
is presumed. . . . Barring any statements or action from the defendant indicating
disagreement with counsel or the desire to testify, the trial court is neither
required to sua sponte address a silent defendant and inquire whether the
defendant knowingly and intentionally waived the right to testify, nor insure that
the defendant has waived the right on the record. . . . .
A defendant who wants to testify can reject defense counsel’s advice to the
contrary by insisting on testifying, communicating with the trial court, or
discharging counsel. At base, a defendant must ‘alert the trial court’ that he
desires to testify or if there is a disagreement with defense counsel regarding
whether he should take the stand. When a defendant does not alert the trial court
of a disagreement, waiver of the right to testify may be inferred from the
defendant’s conduct. Waiver is presumed from the defendant’s failure to testify
or notify the trial court of the desire to do so.
Id. at 908-09 (internal citations omitted); see also United States v. Ortiz, 82 F.3d 1066, 1069 n. 8
(D.C. Cir. 1996) (noting the agreement of the First, Third, Fifth, Seventh, Ninth, Tenth, and
Eleventh Circuits that the trial court does not have a duty to sua sponte conduct an on-the-record
colloquy regarding waiver.) The trial court did not deny the petitioner an opportunity to testify.
Rather, the petitioner did nothing to alert the court that he had a desire to testify. Barring some
“statement or action” by the petitioner, the trial court had no duty to inquire. Stover, 474 F.3d at
908-09. The petitioner is not entitled to habeas relief on this claim.
2. Consecutive Sentences
The petitioner contends that the trial court erred in concluding that his sentences should
run consecutively, rather than concurrently. In support of this claim, the petitioner argues that
the “trial court failed to adequately find that . . . consecutive sentencing was reasonably related
to the severity of the offense and necessary to protect the public from further criminal conduct . .
. “ or any other grounds warranting consecutive sentences. (ECF No. 1 at Page ID# 2.)

20

Trial courts are accorded wide discretion in sentencing decisions. Claims arising out of
those decisions are not generally cognizable upon federal habeas review unless the petitioner can
show that the sentence imposed exceeded the statutory limits or is wholly unauthorized by law.
See Haynes v. Butler, 825 F.2d 921, 923 (5th Cir. 1987). Because the petitioner alleges only that
the trial court erred in its application of state sentencing law, his claims are not cognizable on
habeas review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (emphasizing that “it is not
the province of a federal habeas court to reexamine state-court determinations on state-law
questions”); Pulley v. Harris, 465 U.S. 37, 41 (1984) (recognizing that “[a] federal court may not
issue the writ on the basis of a perceived error of state law.”); see also Daniels v. Anderson, No.
3:08cv697, 2009 WL 5219036, at *6 (N.D. Ohio Dec. 31, 2009) (finding that a habeas claim that
the state trial court erred by imposing consecutive sentences was not cognizable absent an
attendant constitutional claim). Even if the petitioner’s claim that the state court violated state
sentencing laws were cognizable on federal habeas, it would be rejected because the trial court
expressly found that consecutive sentences were necessary because of “the severity of the
offenses” and “in order to protect the public from further criminal acts committed by [the
petitioner].” (ECF No. 28-1 at Paged ID # 187.)
Moreover, even if the petitioner intended to allege, as respondent suggests, that the trial
court’s decision to order that his sentences run consecutively somehow violated his constitutional
rights under the Fifth, Sixth and Fourteenth Amendments, he would still not be entitled to relief.
Setting aside that such a claim has never been reviewed by the state courts, “[a] violation of state
law is not cognizable in federal habeas corpus unless such error amounts to a fundamental
miscarriage of justice or a violation of the right to due process . . . .” Cristini v. McKee, 526 F.3d
888, 897 (6th Cir. 2008). The petitioner presents no facts, and there is no evidence in the record,
21

to demonstrate that the imposition of consecutive sentences here “amount[ed] to a fundamental
miscarriage of justice or a violation of due process.” Id. Moreover, the imposition of consecutive
sentences as authorized by state law does not, by itself, amount to a constitutional violation. See
Oregon v. Ice, 555 U.S. 160, 169-69 (2009) (holding that the imposition of consecutive
sentences does not implicate constitutional concerns under the Sixth Amendment); Austin v.
Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (internal quotation marks and citation omitted)
(holding that “a sentence within the statutory maximum set by statute generally does not
constitute cruel and unusual punishment”); Sneed v. Donahue, 993 F.2d 1239, 1244 (6th Cir.
1993) (holding that a claim challenging the state prisoner's aggregate prison sentence “involves a
matter of state law,” which “is not cognizable in a federal habeas corpus proceeding”). The
petitioner is not entitled to relief on this claim.
C.

Prosecutorial Misconduct
1.

Securing Grand Jury Testimony from Donegan

The petitioner contends that the prosecutor engaged in misconduct by securing grand jury
testimony from Donegan, despite the fact that Donegan had no involvement with his case.
The knowing use of false or perjured testimony constitutes a denial of due process if
there is any reasonable likelihood that the false testimony could have affected the judgment of
the jury. United States v. Bagley, 473 U.S. 667, 678 (1985). In order to establish prosecutorial
misconduct or a denial of due process, the petitioner must demonstrate that: (1) the statement
was actually false; (2) the statement was material; and (3) the prosecution knew it was false.
United States v. O’Dell, 805 F.2d 637, 641 (6th Cir. 1986).
As thoroughly explained above, the petitioner has failed to demonstrate that relying on
the testimony of Donegan rendered the grand jury process infirm in any way. As a result, the
22

petitioner cannot state a claim for prosecutorial misconduct based on Donegan’s testimony to the
grand jury.
2.

Brady/Giglio Violation for failing to Disclose Use of False
Grand Jury Testimony by Donegan

The petitioner contends that the prosecutor knowingly did not disclose the false evidence
used to indict and convict him in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio
v. United States, 405 U.S. 150, 153 (1972).
A prosecutor may not deliberately deceive “a court and jurors by [presenting] known
false evidence,” Giglio, 405 U.S. at 153, and a prosecutor must disclose evidence favorable to
the accused, Brady, 373 U.S. at 87. By relying on both Brady and Giglio, the petitioner
“implicitly asserts a specific type of Brady violation: one where the prosecutor failed to correct
false testimony that he knew, or should have known, to be false (a ‘knowing-presentation-offalse-testimony claim’).”

Rosencrantz v. Lafler, 568 F.3d 577, 583 (6th Cir. 2009).

The

standard is the same as described above — the petitioner must demonstrate that the grand jury
witness made a materially false statement that the prosecutor knew was false. See O’Dell, 805
F.2d at 641.
Because the petitioner has failed to demonstrate that Donegan gave any false statements
to the grand jury, he is not entitled to habeas relief on this claim.
VI

CONCLUSION
For the foregoing reasons, the habeas corpus petition will be denied and this matter

dismissed with prejudice.
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
23

not take an appeal unless a district court 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). 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).)
In this case, the issues raised in the petition do not merit further review. Thus, the court
will deny a COA. The petitioner may, however, seek a COA directly from the Sixth Circuit
Court of Appeals. Rule 11(a), Rules Gov’g § 2254 Cases.
An appropriate order is filed herewith.

ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

24