Gardner v. Qualls

Filing 22

REPORT AND RECOMMENDATION: The undersigned Magistrate Judge respectfully RECOMMENDS that the Petition for Habeas Corpus Relief be DENIED and this action be DISMISSED. Signed by Magistrate Judge Barbara D. Holmes on 4/14/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHARLES GARDNER
v.
ERIC QUALLS, WARDEN

TO:

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NO. 3:14-1440

Honorable Bernard A. Friedman, District Judge
REPORT AND RECOMMENDATION
By Order entered August 11, 2014 (Docket Entry No. 4), the above captioned Petition for a

writ of habeas corpus filed under 28 U.S.C. § 2254 was referred to the Magistrate Judge for further
proceedings under Rule 8(b) of the Habeas Corpus rules, 28 U.S.C. § 636(b)(1)(B), and Rule 72.03
of the Local Rules of Court.
After review of the Petition, Respondent’s Answer, and a Reply filed by Petitioner, the
undersigned Magistrate Judge respectfully recommends that the Petition be denied and this action
be dismissed.

I. BACKGROUND
Charles Gardner (“Petitioner”) is an inmate of the Tennessee Department of Correction
(“TDOC”) confined at the Bledsoe County Correctional Complex in Pikeville, Tennessee. On
May 20, 1999, a jury in Davidson County, Tennessee, found him guilty of one count of first degree
murder and two counts of reckless aggravated assault. For these crimes, he was sentenced to an
effective sentence of imprisonment for life without the possibility of parole.
Petitioner’s convictions arise out of events that occurred on October 18, 1997, when an
unarmed security guard named Demetrius Laquan Wright (“Wright”) was shot and killed at a now
closed entertainment club in Davidson County called Club Yesterday. See State v. Gardner, 2001
WL 306227 (Tenn.Crim.App. March 30, 2001). The evidence presented at Petitioner’s trial showed

that Petitioner had been forcibly ejected from the club in September 1997 by Wright and other
security guards after an incident and a fight in the club, prompting Petitioner, once outside the club,
to loudly threaten that he was “going to kill him [Wright]” and that he was going to “go get a gun.”
The evidence showed that Petitioner returned to the club during the early morning hours of
October 18, 1997, entered the crowded club, located Wright inside the club, and shot him twice in
the back. Wright died from his wounds shortly after being taken to a local emergency room. Two
bystanders in the club that night were also shot in the legs. A witness testified at trial that she saw
Petitioner shoot the victim directly in front of her and identified Petitioner as the shooter. Another
witness testified that she saw Petitioner standing over the victim after she heard shots fired.
Employees at the club also testified that they saw Petitioner enter the club and then saw him running
out of the club after the gunshots were fired. Ballistics evidence produced at trial showed that a
bullet recovered from the crime scene and two bullets recovered from the body of Wright were
identified as being .38/357 caliber bullets that were similar to the other bullets that were recovered
from the scene. Petitioner’s first trial resulted in a hung jury and mistrial. After a second trial, he
was found guilty of the crimes for which he is imprisoned.
Petitioner thereafter unsuccessfully sought relief from his convictions through various state
court remedies. His direct appeal was denied. State v. Gardner, 2001 WL 306227 (Tenn.Crim.App.
March 30, 2001). He then filed an unsuccessful petition for post-conviction relief, the denial of
which was affirmed on appeal. Gardner v. State, 2004 WL 840086 (Tenn.Crim.App. April 16,
2004). Petitioner also pursued an unsuccessful pro se petition for a state writ of habeas corpus on
May 18, 2005, the denial of which was upheld on appeal. Gardner v. Parker, 2006 WL 119635
(Tenn.Crim.App. January 17, 2006).
On February 7, 2011, Petitioner then filed a pro se petition in the state court for a writ of
error coram nobis. See Docket Entry No. 16-21 at 3-10.1 Petitioner contended that he had been
1

Although Petitioner states in his Reply that his coram nobis petition was filed on
January 31, 2011, see Docket Entry No. 21 at 2 and 5, he states in his Petition that it was filed on
February 7, 2011. See Petition at 4 and 7. The file stamped date on the coram nobis petition
2

seeking a copy of his criminal case file from the Office of the District Attorney General since
sometime in 2005 but had only received the case file in August 2010. He argued that newly
discovered exculpatory evidence from the case file justified the equitable tolling of the statute of
limitations for filing his petition and warranted relief because the evidence may have resulted in a
different verdict if it had been presented at his trial. Specifically, Petitioner argued that his case file
contained an Official Firearms Identification Report from the Tennessee Bureau of Investigation that
provided the results of the ballistics examination and a conclusion regarding the bullets recovered
by the police. Petitioner also argued that his case file contained, 1) a Nashville Metro Police
Department Supplemental Report written by Detective Juan Borges, and 2) a handwritten note from
Assistant District Attorney Katy Miller that was attached to a Case Evaluation Report and that
referenced the Supplemental Report by stating “see supplement where someone else admitted to
shooting their gun off in the club.” The Supplemental Report states:
On 10/18/97 a woman called the homicide office and stated that her friend went to
visit her at her house. While her friend was at her house she page[d] a man by the
name of Roosevelt, Colbert[.] Mr. Colbert went to the house with another man by the
name of Keith, Odum[.] Both are M/B. The woman that called told me that while
she was in her bedroom she overheard a conversation between the two subjects. She
stated that Roosevelt was telling Mr. Odum that when he heard people shooting he
also started shooting his 45. caliber pistol and he wasn’t for sure if he also shot the
security guard. Mr. Roosevelt also mention[ed] that he was still in possession of the
45. pistol. Roosevelt owns a station wagon and Odum owns a gray Monte Carlo.
After they made those comments they change[d] the conversation and left the house
soon after.
Gardner v. State, 2013 WL 794026, *2 (Tenn.Crim.App. March 5, 2013); Docket Entry No. 16-21
at 35.
The Davidson County Criminal Court dismissed the petition by written order on July 27,
2011, determining that it was untimely and that Petitioner failed to establish a cognizable claim. See
Docket Entry No. 16-21 at 38-48. Upon appeal, during which Petitioner was represented by counsel,
contained in the technical record provided to the Court is not visible. See Docket Entry No. 16-21
at 3. However, in its opinion affirming denial of relief, the Tennessee Court of Criminal Appeals
stated that February 7, 2011, was the date the coram nobis petition was filed. Gardner v. State, 2013
WL 794026, *1 (Tenn.Crim.App. March 5, 2013). Accordingly, the Court accepts February 7, 2011,
as the filing date for the coram nobis petition.
3

the Tennessee Court of Criminal Appeals affirmed the denial of relief. Gardner v. State, 2013 WL
794026 (Tenn.Crim.App. March 5, 2013). The state court found that the ballistics report claim was
not based upon newly discovered evidence and, thus, was not a “later-arising” ground for relief.
Specifically, the information contained in the ballistics report was a part of the written report
introduced at trial and testified to by a ballistics expert and was evidence that was available to
Petitioner during trial. Id. at *5. The state court then reviewed Petitioner’s claim based upon the
Supplemental Report and the handwritten attorney’s note and found they were insufficient to support
the requested relief. Id. at **6-7. The state court found that the handwritten note was attorney work
product that did not constitute grounds for relief. Id. at *6. The state court then found that Petitioner
failed to show that coram nobis relief was supported by his claim based upon the Supplemental
Report. Id. at **7-8. In analyzing the claim, the state court found as follows:
Here, the coram nobis court concluded, and we agree, that the Petitioner has failed
to present a cognizable claim for relief.
“The decision to grant or deny a petition for the writ of error coram nobis on the
ground of subsequently or newly discovered evidence rests within the sound
discretion of the trial court.” State v. Hart, 911 S.W.2d 371, 375 (Tenn.Crim.App.
1995). “A court abuses its discretion when it applies an incorrect legal standard or
its decision is illogical or unreasonable, is based on a clearly erroneous assessment
of the evidence, or utilizes reasoning that results in an injustice to the complaining
party.” Wilson, 367 S.W.3d at 235.
As an initial matter, the record reflects that the coram nobis court, applied the
appropriate standard of review and explicitly cited State v. Vasques, 221 S.W3d 514
(Tenn. 2007) and Hart, 911 S.W.2d 371, in its order denying coram nobis relief.
Although the coram nobis court later concluded “the evidence provided by Petitioner
as exhibits to his petition would not have resulted in a different judgment in light of
the evidence against him,” this comment, in our view, does not evince an application
of the wrong standard of review. Billy Ray Irick v. State, No. E2010-02385-CCAR3-PD, 2011 WL 1991671, at *15 n. 5 (Tenn.Crim.App. May 23, 2011).
Next, the Petitioner argues that the coram nobis court erroneously stated that “Katy”
did not prepare the “Case Preparation Evaluation.” Even if true, the Petitioner fails
to explain the significance of who generated the “Case Preparation Evaluation.” It
is clear from the court’s order that it understood the difference between the boilerplate “Case Preparation Evaluation” form which was unsigned, and the attached
handwritten note which was signed by assistant district attorney Katy Miller. In our
view, the import of the handwritten note was its reference to the report by Detective
Borges, not who prepared the forms. We interpret the Petitioner’s second claim, that
the court’s conclusion that the Petitioner “mischaracterized” the supplement report,
as a challenge to the court’s conclusion and not a factual error. Here, we further
4

observe that the Borges report did not identify the female caller and was therefore
inadmissible hearsay. Wilson, 367 S.W.3d at 235 (quoting T.C.A. § 40-26-105(b));
Tenn. R. Evid., Rules 801, 802; Tenn. R. Civ. P. 26.02(3). (footnote omitted) More
importantly, the third party who allegedly confessed to shooting in the club on the
night of the offense admitted to firing a “.45 caliber pistol”, and the bullets recovered
from the body of the victim were from a .38/.357 caliber weapon. (footnote omitted)
Finally, the Petitioner contends that the coram nobis court erred by noting that there
was an eyewitness who identified the Petitioner as the person who shot the victim.
The Petitioner insists that there was no eyewitness to the shooting in our opinion in
his direct appeal. This is simply incorrect. In the sufficiency of the evidence section
of our opinion, we clearly set forth the testimony of Ms. Tanisha Stewart, the sole
eyewitness to the shooting. Gardner, 2001 WL 306227, at *9. As shots were fired,
Ms. Stewart was “looking directly at [the Petitioner].” Id. She said the Petitioner
was standing approximately ten feet away from her when the shots were fired. Ms.
Stewart positively identified the Petitioner from a photographic lineup and at trial as
the man she looked in the face and saw holding a gun pointed directly at the victim’s
back. Id. The coram nobis court considered whether the alleged newly discovered
evidence attached to the petition may have resulted in a different judgment at trial.
The court denied relief in light of the evidence against the Petitioner at trial including
the positive identification of the Petitioner as shooter by Ms. Stewart, firearm
analysis, testimony about a previous altercation between the Petitioner and the
deceased, and testimony regarding the Petitioner’s threats to kill the deceased. The
record supports the determination of the coram nobis court. Accordingly, the
Petitioner has failed to show that the coram nobis court abused its discretion and is
therefore not entitled to relief.
Gardner v. State, 2013 WL 794026, *7-8. Petitioner’s application to appeal to the Tennessee
Supreme Court was denied on August 14, 2013.

II. HABEAS CORPUS PETITION, ANSWER, AND REPLY
Failing to obtain relief in the state courts, Petitioner filed a petition in this Court on
November 4, 2015, seeking federal habeas corpus relief under 28 U.S.C. § 2254 to set aside his
conviction and sentence. See Petition (Docket Entry No. 1-1). Petitioner raises four grounds for
relief:
1. Petitioner was denied his right to a fair trial guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution by the prosecution
withholding exculpatory evidence. The state prosecutor had a police report of a
witness’s interview containing information that another person admitted shooting the
victim. This information was not provided to the Petitioner’s trial counsel;
2. Petitioner was denied his right to Due Process under the Fifth and Fourteenth
Amendments by the coram nobis court’s failure to grant a hearing on the Petition for
Writ of Error Coram Nobis;
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3. Petitioner was denied his right to Due Process under the Fourteenth Amendment
by the Tennessee Court of Criminal Appeals denying him relief under the Petition for
Writ of Error Coram Nobis; and
4. Petitioner was denied his right to Due Process, the right to participate in his trial,
and effective assistance of counsel under the Fifth, Sixth, and Fourteen(th)
Amendments to the United States Constitution by the denial of an interpreter to assist
during all stages of the criminal proceedings to insure the Petitioner’s understanding
of the trial and criminal proceedings.
See Petition at 5-8.
Acknowledging that his Petition was filed several years after his direct appeal became final,
Petitioner asserts that the statute of limitations should be tolled because he did not learn of the newly
discovered exculpatory evidence until obtaining his criminal case file in 2010 and that he thereafter
timely pursued his petition for a writ of error coram nobis in the state court. Id. at 11.
Respondent answers the Petition by first contending that the Petition should be dismissed as
untimely. Respondent asserts that, even when the time periods during which the post-conviction
relief and state habeas corpus proceedings were pending in the state courts are excluded pursuant to
the provisions of 28 U.S.C. § 2244(d)(2), the applicable one year time period for Petitioner to have
filed his Petition expired on August 28, 2006, approximately 8 years prior to it being filed. See
Answer (Docket Entry No. 15) at 7. Respondent then argues that Petitioner has not met his burden
of showing that equitable tolling should excuse the untimely filing of the Petition. Id. at 8-9.
As an alternative basis for dismissal, Respondent asserts that none of the grounds for relief
have merit. Respondent contends that the first ground for relief is barred by procedural default
because the petition for a writ of error coram nobis was rejected by the state court as untimely under
state law, a determination which Respondent asserts is an adequate and independent basis for
rejection of the ground for relief. Id. at 9-10. Respondent contends that the second and third grounds
for relief fail to present cognizable claims for relief under Section 2254 because they raise only a
challenge to the correctness of the state coram nobis proceeding. Id. at 10-11. Finally, Respondent
argues that the fourth ground for relief is procedurally defaulted because it was never presented to
the state courts in any form prior to being raised in the Petition. Id. at 12-14. In support of its
6

Answer, Respondent has filed pertinent documents from the record of Petitioner’s state court
proceedings. See Notice of Filing Documents (Docket Entry No. 16).
Petitioner has filed a Reply in which he contends that his Petition should be viewed as timely
in light of 28 U.S.C. § 2244(d)(1)(D), which provides that the triggering date for the one year period
of limitations can be deemed to be “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” See Docket Entry
No. 21. Respondent further argues that his claim that exculpatory evidence was withheld from his
defense prior to trial was addressed on the merits by the state court in the coram nobis proceeding
and the state court decision did not rest upon a procedural bar. Id. at 7. Respondent also contends
that, assuming a procedural default applies to his claims, any default should be excused because the
cause and prejudice showing necessary for review of his claims is satisfied by the fact that the State
withheld exculpatory evidence. Id. at 7-10. Finally, Respondent argues that failing to address the
merits of his claims would result in a miscarriage of justice in light of his assertion of actual
innocence. Id. at 10-11.

III. CONCLUSIONS
Upon consideration of the entire record, it appears that an evidentiary hearing is not required.
Therefore, the Court should dispose of the Petition as the law and justice require. See Rule 8, Rules
Governing Section 2254 Cases; 28 U.S.C. § 2254(e)(2); Loveday v. Davis, 697 F.2d 135, 137-40 (6th
Cir. 1983).

A. Timeliness of the Petition
28 U.S.C. § 2244(d)(1) provides for a one year limitations period during which a state
prisoner can bring a federal habeas corpus petition. This period begins to run from the latest of the
following events:
(A) the date on which the judgment became final by conclusion of direct review or
the expiration of the time for seeking such review;
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(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
See 28 U.S.C. § 2244(d)(1)(A-D). Once the limitations period begins, it can be tolled during “[t]he
time [that] a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Petitioner contends that he should be permitted to take advantage of the delayed triggering
date provided for in 28 U.S.C. § 2244(d)(1)(D). He argues that the several year delay by the State
in providing him with the criminal case file prevented him from discovering the grounds for relief
he now raises and that February 7, 2011, the date on which he was able to file the coram nobis
petition in state court about those claims, should be viewed as the triggering date for the statute of
limitations. He contends that, pursuant to 28 U.S.C. § 2244(d)(2), the statute of limitations was
tolled until the coram nobis proceeding concluded on August 14, 2013, and that his federal habeas
Petition, filed on July 10, 2014, was, thus, filed within one year of the triggering date for the statute
of limitations. See Reply (Docket Entry No. 21) at 4-5.
After review of this matter, the Court disagrees and finds that the instant Petition is untimely.
Even if the Court accepts that the State’s failure to provide Petitioner with his criminal case file
rendered the factual predicate for his current habeas claims undiscoverable and, thus, is an event that
supports a delayed triggering date for the statue of limitations pursuant to Section 2244(d)(1)(D),
Petitioner admittedly obtained the case file sometime in August 2010. See Reply at 2. Once in
possession of the criminal case file, the factual predicate for his claims was no longer being withheld
and could have been discovered by him through the exercise of due diligence. Accordingly, the
triggering date for the statute of limitations arose at this time, and Petitioner had one year from
August 2010 to file his federal habeas corpus petition. Approximately five months passed before
8

Petitioner filed his coram nobis petition on February 7, 2011. Once the coram nobis proceeding was
concluded on August 14, 2013, approximately 11 more months passed until the instant Petition was
filed on July 10, 2014. In the end, the Petition was simply filed at least four months beyond the
expiration of the one year statute of limitations.
Petitioner’s contention that the triggering date for the statute of limitations did not begin until
he acted upon the newly discovered evidence by pursuing a state court remedy is inconsistent with
the clear text of Section 2244(d)(1)(D). Petitioner has further offered no case law supporting this
position. The delayed triggering of the statute of limitations provided for by Section 2244(d)(1)(D)
simply does not occur in the manner argued by Petitioner. See Redmond v. Jackson, 295 F.Supp.2d
767, 771 (E.D.Mich. 2003) (“under § 2244(d)(1)(D), the time under the limitations period begins
to run is when a petitioner knows, or through due diligence, could have discovered, the important
facts for his claims, not when the petitioner recognizes the legal significance of the facts.”).
Although not explicitly argued by Petitioner, his contention that “due process” justifies
tolling could be viewed as an assertion of equitable tolling. The United States Supreme Court has
held that the statute of limitations for habeas petitions is “subject to equitable tolling in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). However,
a habeas petitioner is entitled to equitable tolling only if he can make a two-part showing: 1) he has
pursued his rights diligently; and 2) some extraordinary circumstance prevented the timely filing of
his petition. Holland, 560 U.S. at 649; Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th
Cir. 2011). The doctrine of equitable tolling is used sparingly by federal courts, Robertson v.
Simpson, 624 F.3d 781, 783-84 (6th Cir. 2010), and Petitioner bears the burden of showing that he
is entitled to use equitable tolling. McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003).
Petitioner fails to meet this burden. The hurdle that exists for Petitioner’s equitable tolling
argument is that, even if the Court has provided him with the benefit of a delayed triggering of the
statute of limitations under Section 2244(d)(1)(D) because of the length of time it took for him to
obtain his criminal case file, he cannot identify any extraordinary circumstance that prevented him
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from timely filing his Petition after he obtained the case file in August 2010. The fact that Petitioner
was proceeding pro se at the time he obtained the case file and waited several months to pursue a
state court remedy simply does not warrant equitable tolling. Generally, a petitioner must show more
than just his status as pro se litigant or a limited access to a law library to satisfy the “extraordinary
circumstance” standard. Hall, 662 F.3d at 751. As the Sixth Circuit has repeatedly held, ignorance
of the law alone is not sufficient to warrant equitable tolling. Griffin v. Rogers, 399 F.3d 626, 637
(6th Cir. 2005); Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004); Smith v. Beightler, 49 Fed.App’x.
579, 580-81 (6th Cir. 2002); Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991). Further, he has not
identified any extraordinary circumstance that caused him to wait nearly a year after the coram nobis
proceeding was concluded to pursue his federal remedy.
The final avenue by which Petitioner can have his otherwise untimely Petition reviewed is
through the narrow gateway of showing that a fundamental miscarriage of justice will occur if his
claims are not reviewed because of his “actual innocence.” McQuiggin v. Perkins,

U.S. , 133

S.Ct. 1924, 1928, 185 L. Ed. 2d 1019 (2013). This requires Petitioner to make a credible showing
that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130
L.Ed.2d 808 (1995)). It must be “more likely than not that no reasonable juror would have convicted
him in the light of the new evidence.” Id. at 1935 (quoting Schlup, 513 U.S. at 327).
As the Supreme Court noted in McQuiggin, tenable claims of actual innocence “are rare.”
133 S.Ct. at 128. Accord Reeves v. Fortner, 490 Fed.App'x. 766, 769 (6th Cir. 2012) (actual
innocence is a demanding standard and permits review only in the extraordinary case). Although
Petitioner raises this issue, see Reply at 10-11, he fails to meet the demanding standard required to
sustain the actual innocence exception. The only support he provides for his assertion of actual
innocence are the ballistics report and the Supplemental Report that underlie his habeas claims.
While this evidence is certainly relevant to the crimes of which he was convicted and while it may
have provided a basis upon which to argue at trial that another individual in the club also fired a
10

weapon on the night in question, consideration of the newly discovered evidence buttresses only a
weak argument of actual innocence. First, the evidence itself is not directly probative of a showing
that Petitioner is actually innocent. Further, use of evidence of a possible second shooter in the club
as a basis to cast doubt as to Petitioner’s guilt of shooting his victim to death is severely undercut
by the fact that Petitioner’s victim was killed by a different caliber bullet than the one the second
shooter is purported to have shot. Finally, the newly discovered evidence is significantly outweighed
by the substantial evidence against Petitioner, including eyewitness testimony.

B. Review of the Grounds for Relief
The untimeliness of the Petition is sufficient to warrant its complete dismissal. However,
because Petitioner’s ability to pursue a second or successive federal habeas corpus petition is strictly
limited by the provisions of 28 U.S.C. § 2244(b), the Court nonetheless briefly addresses the specific
grounds for relief raised by Petitioner for the sake of complete review. Even if the Petition was
timely filed, the grounds raised would not provide a basis for relief.
Petitioner’s first ground for relief is based on the State’s failure to disclose to him
exculpatory evidence. A claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), that is based upon the suppression by the prosecution of evidence favorable to the
accused requires that “the evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Petitioner must show that the nondisclosure
was so serious that there is a reasonable probability that the suppressed evidence would have
produced a different verdict. Montgomery v. Bobby, 654 F.3d 668, 678 (6th Cir. 2011). The Brady
standard is not met if Petitioner shows merely a reasonable possibility that the suppressed evidence
might have produced a different outcome; rather, a reasonable probability is required. Strickler, 527
U.S. at 291 (emphasis added). “A reasonable probability is a ‘probability sufficient to undermine
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confidence in the outcome.’” Wilson v. Parker, 515 F.3d 682, 701-02 (6th Cir. 2008) (quoting
United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
Petitioner fails to meet the prejudice showing required for a successful Brady claim. The
state court hearing this claim as it pertains to the ballistics report found that the report was “clearly
available to the Petitioner during trial” and that the results of the report were encompassed within
testimony and an exhibit offered at trial. See Gardner v. State, 2013 WL 794026 at *5. This factual
finding is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1) that has not been
rebutted by Petitioner. Because evidence that is merely cumulative to evidence presented at trial
is not material and does not support a Brady finding, Brooks v. Tennessee, 626 F.3d 878, 893 (6th
Cir. 2010), Petitioner’s claim based on the suppression of the ballistics report lacks merit. His Brady
claim based upon the suppression of the Supplemental Report likewise lacks merit. Even under a
generous reading, there is not a reasonable probability that, had the report been disclosed, the results
of Petitioner’s criminal trial would have been different. Given the eyewitness evidence presented
against Petitioner at trial and the fact that the Supplemental Report is of only limited exculpatory
value, it cannot be concluded that the verdict against Petitioner is unworthy of confidence because
the Supplemental Report was not made available to him for trial.2
Petitioner’s second and third grounds for relief fail to support federal habeas corpus relief.
In order to sustain a claim for federal habeas corpus relief, Petitioner must show that his convictions
are in some way constitutionally defective. 28 U.S.C. § 2254(a); Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984). Although Petitioner’s second and third grounds for relief are framed as denials
of his right to Due Process in violation of the Fifth and Fourteenth Amendments, the grounds do not
actually challenge the constitutionality of his convictions or sentence or even raise an issue that
directly pertains to the fact or duration of his confinement. Instead, the two grounds merely
challenge the correctness of the state coram nobis proceedings.
2

However, a state is not

Although Respondent raises the independent and adequate state grounds doctrine as a
defense to Petitioner’s Brady claims, see Answer at 9-10, it is unnecessary to address this defense
in light of the other bases for dismissal of these claims.
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constitutionally required to provide those convicted with a means by which they can collaterally
attack their convictions, Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539
(1987), and alleged errors in state collateral relief proceedings do not present a basis for habeas
corpus relief under Section 2254. Kirby v. Dutton, 794 F.2d 245, 246-48 (6th Cir. 1986); Noles v.
Osborne, 2011 WL 2471547, *16 (M.D.Tenn. June 21, 2011) (Sharp, J.) (collecting cases).
Finally, Petitioner’s fourth ground for relief raises a number of legal claims based upon his
assertion that he did not have an interpreter at trial despite a state court order entered on December 8,
1998, that directed that he be provided with an interpreter during his criminal case. See Petition at
8-9. This ground for relief was never presented to the state courts in any fashion and has, thus, been
procedurally defaulted. See Jones v. Bagley, 696 F.3d 475, 483-84 (6th Cir. 2012). To excuse the
procedural default, Petitioner must show “cause for the default and prejudice from the asserted
error.” House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Atkins v. Holloway,
792 F.3d 654, 657 (6th Cir. 2015). Petitioner contends that the ground was not presented to the state
courts because “the order was only recently discovered by the Petitioner.” See Petition at 9.
However, the state court order is a public order, was part of the technical record on appeal that was
available after the criminal trial, see Docket Entry No. 16-1 at 53, and pertains to an issue of which
Petitioner clearly would have been contemporaneously aware at the time of his criminal trial.
Petitioner has provided no explanation for why he could not have discovered this order through the
exercise of reasonable diligence, why he was prevented from discovering the order because of an
impediment created by the state, or why it has been raised for the first time in the instant federal
habeas petition. The burden of showing reasons to excuse a procedurally defaulted claim is on
Petitioner, Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999), and he has not satisfied this burden.
Although the State’s suppression of Brady evidence can constitute cause under the procedural default
doctrine, Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004), the state
court order at issue was not suppressed by the State.

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RECOMMENDATION
Based on the foregoing, the undersigned Magistrate Judge respectfully RECOMMENDS that
the Petition for Habeas Corpus Relief be DENIED and this action be DISMISSED.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of the Report and Recommendation upon the party and
must state with particularity the specific portions of this Report and Recommendation to which
objection is made. Failure to file written objections within the specified time can be deemed a
waiver of the right to appeal the District Court's Order regarding the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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