Cline v. Wilson

Filing 44

MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 3/1/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSHUA M. CLINE,
Petitioner,
v.
J. RAY ORMOND and
HERBERT H. SLATERY, III,

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NO. 3:15-cv-00950
JUDGE CAMPBELL

Respondents.
MEMORANDUM
Petitioner is an inmate of the Petersburg Federal Correctional Institution in Petersburg,
Virginia, where he is serving a federal sentence imposed by this Court and concurrently serving
an effective Tennessee sentence of 50 years for two counts of rape of a child. He has filed a pro
se Amended Petition under 28 U.S.C. § 2254 for the writ of habeas corpus to challenge his state
convictions and sentences and has paid the filing fee. The Court will deny his petition for the
reasons set forth below.
I.

BACKGROUND AND PROCEDURAL HISTORY

On January 21, 2009, a Magistrate Judge of this Court issued a warrant for Petitioner’s
arrest on the basis of an affidavit from a Special Agent of United States Immigration and Customs
Enforcement. The Special Agent testified that an investigation of an internet company selling
access to child pornography had uncovered the apparent purchase of such access by Petitioner, and
led, in turn, to the discovery on Petitioner’s computer of a pornographic video he had produced in
Clarksville, Tennessee. Sealed Complaint and Warrant, United States v. Cline, No. 3:09-cr-37

(M.D. Tenn. Jan. 21, 2009). 1 Petitioner ultimately pleaded guilty and was convicted in this Court
of one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and was
sentenced to 327 months (27 years and 3 months) in the United States Bureau of Prisons. Amended
Judgment in a Criminal Case, id. (M.D. Tenn. Oct. 14, 2011) (Haynes, J.).
On April 18, 2013, Petitioner entered an open guilty plea in the Circuit Court of
Montgomery County, Tennessee, to two counts of rape of a child. (Doc. No. 27-2.) The state court
sentenced him to 25 years in prison on each count, to be served consecutive to each other but
concurrent with his federal sentence. (Doc. No. 27-1 at 19, 20; Doc. No. 27-3 at 28.) Petitioner
appealed the consecutive nature of the state sentences, but the Tennessee Court of Criminal
Appeals affirmed on March 26, 2014, and the Tennessee Supreme Court denied discretionary
review on August 27, 2014. (Doc. Nos. 27-7, 27-10.)
On August 31, 2015, Petitioner filed a pro se petition for state post-conviction relief. (Doc.
No. 27-11 at 5.) The post-conviction court appointed counsel (id. at 36), who filed an amended
petition on July 21, 2014. (Id. at 90). The court held a hearing on December 16, 2016 (Doc. No.
27-12) and denied relief on January 10, 2017. (Doc. No. 27-11 at 94.) The Tennessee Court of
Criminal Appeals affirmed, and the Tennessee Supreme Court denied discretionary review on
February 14, 2018. (Doc. Nos. 27-16, 27-19.)
In the meantime, Petitioner filed his petition for a federal writ of habeas corpus pursuant

1

Specifically, the Special Agent testified that investigation revealed approximately 50 transactions
between the company and the email address whose user consistently used the name “Joshua,”
“JC,” or “Joshua Cline,” and that a search of Petitioner’s living quarters at Camp Liberty in Iraq,
executed by U.S. Army Criminal Investigative Division personnel pursuant to a sworn search and
seizure authorization, “resulted in the seizure of numerous DVDs and CDs as well as an external
hard drive that CLINE admitted to using for the storage of approximately 10 to 15 gigabytes of
child pornography.” Sealed Complaint at 2–4, id. Further forensic examination of Petitioner’s
computer discovered a video of the sexual exploitation of a young child who was established by
other files on Petitioner’s computer to be his step-daughter. Id.
2

to 28 U.S.C. § 2254 in this Court on August 31, 2015, along with a motion to hold the case in
abeyance pending the outcome of his state post-conviction case. (Doc. Nos. 1, 2.) The Honorable
William J. Haynes, who has since retired from the Court, granted the motion and stayed the case
on September 25, 2015. (Doc. No. 5.) Petitioner moved to reopen this case on June 4, 2018, less
than four months after the Tennessee Supreme Court denied review. (Doc. No. 12.) The Court
granted that motion, ordered Petitioner to file an amended petition, and ordered Respondent to
respond to the amended petition. (Doc. Nos. 16, 18.) Both parties complied. (Doc. Nos. 17, 27–
28.) Petitioner was allowed ample opportunity to file a reply, which he has failed to do. 2
Accordingly, the Court finds this case adequately briefed for ruling.
II.

STATEMENT OF FACTS

At Petitioner’s plea hearing, the prosecutor summarized the investigation that led to the
criminal charges, and Petitioner admitted his criminal actions as follows:
THE COURT: What are the facts?
GENERAL NASH: For the record, the date of birth of the victim in counts one and
two is April 18th, 2001. The relationship with the victim and the defendant is
adopted daughter. This is -- the date of offense is March 4th, 2008. I will get to
how that was discovered. This is an investigation that began to investigate
solicitation of child pornography by the Homeland Security, that division in charge
of that. That led to certain e-mail addresses that were traced to Mr. Cline. It was
discovered that Mr. Cline was a member of the military and in the middle of 2008,
he was in Iraq serving our Country.
A search warrant was authorized of his living quarters in Iraq and a Gateway
Laptop, other DVDs and CDs, external hard drives were recovered by Special
Agent Miquel Lopez (phonetic) of the U.S. Army CID in Iraq. Those items were
examined by Special Agent Bruce Mitchell (phonetic). He performed a forensic
exam on the Gateway Laptop that was in Mr. Cline’s posession [sic]. Special Agent
Mitchell discovered a file named P3040023.AVI (phonetic). This particular file was
a movie that depicted an adult caucasian male with a caucasian female estimated
age range at that time was seven to ten. Depicted in this video, are the counts that
Mr. Cline is pleading to, which one is the penetration of victim-­ in the victim’s
2

The Court is contemporaneously entering an Order addressing that issue.
3

mouth with the male’s penis and also anal penetration of the female child.
Further exam of the defendant’s laptop, at that time discovered another file of the
same female in more of a family setting. Those two based on Special Agent
Mitchell reviewing the two females, researching Mr. Cline’s history at the time,
that he had a daughter and that these two individuals were the same -- the one in
the movie and the one in the photos. Of course, a warrant was issued in Federal
Court for the production of child pornography, which Ms. Myers has said Mr. Cline
has been convicted of the production of this particular movie and is serving twentyseven and a half years in the Federal penitentiary.
The expected testimony by both the victim and the mother of the victim, who have
viewed portions of the movie, have both identified who the child is and who the
male is in the movie. They have also identified the place that this took place, which
is the bedroom of the family house here in Clarksville, Tennessee, at that time. By
furnishings and other things contained in the video.
The movie lasted four minutes and six seconds and it is high resolution and the
victim has identified herself in it and her adoptive father as being the one
performing those acts on her. So those are the facts and circumstances underlying
these pleas.
One other thing – I’m sorry, March 4th, 2008, in the movie, in its properties, it was
created on March 4th, 2008. The testimony by the wife of the defendant at that time
and confirmed by military sources is that was Mr. Cline’s mid-term leave and he
was in Clarksville at the time of March 4th, 2008, and that is the creation date of
that video.
THE COURT: This is a 2007/2008, so you are talking March 2008, is that correct?
GENERAL NASH: That’s correct.
THE COURT: At that time, what was the range of punishment for child rape?
MS. MYERS: Twenty-five years, Your Honor.
GENERAL NASH: No less than twenty-five years.
MS. MYERS: No real range reflected in the statute during those years.
...
MS. MYERS: I have copies of the Statute, Your Honor, I can bring to the Court at
the next -- I have already printed them. I just left them on my desk.
THE COURT: I assume you have gone over those with Mr. Cline?
MS. MYERS: Oh, yes, Your Honor.
THE COURT: He knows what it is-- Mr. Cline, raise your right hand.
(WHEREUPON, the Defendant was sworn by the Court)
THE COURT: Mr. Cline, you are charged in this indictment, 41300063, of
intentionally or knowing sexually penetrating this person whose initials are EC,
who was more than three years of age, but less than thirteen, by inserting your penis
4

into her anus. That’s count one. Count two is an allegation of intentionally sexually
penetrating this same person who was more than three years of age but less than
thirteen by inserting your penis into EC’s mouth. These are Class A Felonies, rape
of a child, and I understand Ms. Myers has gone over the punishment with you, but
it is the minimum of twenty-five years at a hundred percent? So I assume, this being
an open plea, it would be my determination as to the sentence but also whether you
serve that concurrently or consecutively to the Federal sentence that you already
have; do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: Now, Mr. Eisner has gone over all these things with you, I
understand the T.B.I. sex offender registry, which you would be on basically for
life and community supervision for life; do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: If you violate those, those are crimes that you can be punished for.
Do you understand the agreement as it is at this point?
DEFENDANT:

Yes, Your Honor.

THE COURT: You do have a jury trial set I believe on Monday of next week; at
that jury trial, Ms. Myers would have entered a plea of not guilty on your behalf
and the burden would have been upon the State to prove beyond a reasonable doubt
that you did, in fact, intentionally sexually penetrate DC [sic], who was more than
three years of age and less than thirteen years of age, in count one, by inserting your
penis into her anus, actual penetration and in count two, that you actually inserted
your penis into EC’s mouth. Do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: Do you understand by pleading guilty, you are giving up your right
to have that jury trial?
DEFENDANT:

Yes, Your Honor.

THE COURT: Do you likewise understand you are giving up the right to require
the State to prove guilt beyond a reasonable doubt?
DEFENDANT: Yes, Your Honor.
THE COURT: You would have a right to confront witnesses. These witnesses for
the State would have been required to come to Court to testify in your presence, the
jury’s presence and be subject to cross examination or questioned by Ms. Myers on
your behalf? That is your right to confront witnesses; do you understand that right?
DEFENDANT:

Yes, Your Honor.

THE COURT : Do you understand by pleading guilty, you are giving up that right?
DEFENDANT:

Yes, Your Honor.

THE COURT: You would have also had a right if you wanted to, to supboena
witnesses; that is, to require them to come to Court and testify on your behalf. You
certainly do not have to do that as no defendant, of course, is required to prove his
5

innocence. Do you understand by pleading guilty, you are giving up that right?
DEFENDANT:

Yes, Your Honor.

THE COURT: That means, Mr. Cline, as far as guilt or innocence is concerned,
there will never be a trial, never be a jury, never be any witnesses; is that your
understanding?
DEFENDANT:

Yes, Your Honor.

THE COURT: Based on all of the facts and circumstances, then do you believe it
is in your best interest to enter this plea?
DEFENDANT:

Yes, Your Honor.

THE COURT: This has been negotiated at least to this point by Ms. Myers through
prior discussions with the State. If you were not entering these pleas, then of course,
we would have had a trial on Monday and she certainly would have been here ready
to go; do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: I have placed you under oath, should you answer untruthfully any of
the questions that I have asked or will ask, you could be charged with the crime of
perjury or aggravated perjury; do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: It is very important, Mr. Cline, because I will point blank ask you in
just a moment, if you committed these two crimes. If you tell me that you did, I will
find you guilty without any other evidence, do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT:
As you stand there, you have an absolute right to remain silent
and no one can force you to plead guilty, no one can force you to answer my
questions or say anything that would be incriminating, do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: If we had that trial on Monday, you would have that same right to
remain silent. If you did, in fact, remain silent, your silence could not be used
against you. You would also have a right to testify at that trial if you wanted to. Ms.
Myers would have advised you what she thought you should do, but you’re the
person on trial; therefore, you make that decision. Do you understand those rights?
DEFENDANT:

Yes, Your Honor.

THE COURT: Do you understand by pleading guilty, you are giving up the right to
remain silent?
DEFENDANT:
THE COURT:
testify?
DEFENDANT:

Yes, Your Honor.
Do you likewise understand that you are giving up that right to
Yes, Your Honor.
6

THE COURT: As far as guilty -- needless to say, these are very, very serious felony
convictions. If you are convicted of anything in the future, these convictions as well
as all convictions will be used to greatly increase punishment, do you understand
that?
DEFENDANT:

Yes, Your Honor.

THE COURT: As far as guilt or innocence is concerned, that will be final today.
You are giving up all rights to appeal to any higher Court. If you had had a jury
trial and a jury found you guilty and then were sentenced you would have a right to
appeal what the jury did in finding you guilty as well as what the Court did in
sentencing. Today, you are giving up all rights to appeal guilt or innocence, do you
understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: You are not giving up your right to appeal what the Court might do
in sentencing, do you understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: Part of the public defender’s job is to do that appeal for you, do you
understand that?
DEFENDANT:

Yes, Your Honor.

THE COURT: Any questions about any of this, Mr. Cline?
DEFENDANT:

No, sir.

THE COURT: Do you want me to accept your pleas in this agreement?
DEFENDANT:

Yes, Your Honor.

THE COURT : Mr. Cline then, I believe back in March of 2008, did you in fact,
intentionally sexually penetrate EC who was more than three years of age and less
than thirteen years of age by inserting your penis into her anus?
DEFENDANT:

Yes, Your Honor.

THE COURT: Is this the same day or different dates?
GENERAL NASH:

Same day.

THE COURT: Same day -MS. MYERS: Same incident, also, Your Honor.
THE COURT: And at that same date then, Mr. Cline, did you in fact, sexually
penetrate EC, who was more than thirteen years of age and less than -- more than
three years of age but less than thirteen by inserting your penis into her mouth?
DEFENDANT:

Yes, Your Honor.

THE COURT: Find Mr. Cline then, guilty in rape of a child in counts one and two,
order a presentence report and remaining counts then are dismissed in settlement.
(Doc. No. 27-2 at 3–15.)
7

At his subsequent sentencing hearing, Petitioner testified about his military service and
commendations and about childhood abuse he had suffered in the care of his mentally ill mother.
(Doc. No. 27-3 at 10–12.) He testified that he was participating in sex offender therapy in prison,
and working on his education. (Id. at 13.) He also testified to the following regarding his
motivations for pleading guilty:
The biggest thing is, you know, I am sorry. I know it doesn’t mean much right
now. But you know, I pray and ask, you know, forgiveness, and that one day my
family, you know, my ex-wife, my two children will be able to forgive me and
move on from this. I know I messed up, and I’m paying for it with my life.
...
Because I really don’t want my family to go through this. They’ve been through –
quite frankly, they’ve been through hell, excuse me, and I really, I want it done. I
want them to be able to move on; I want to move on. And I mean, it’s – it’s a rough
case. My heart breaks for them. You know, I – I hate what I’ve done. I hate what
they’ve gone through. I just really want – I want to make things better as much as
I can. I know I can’t fix it, I can’t take back anything, but I want to do what I can
to help them recover and be able to move on in life.
(Id. at 14–15.)
The trial court considered Petitioner’s testimony, but found that several statutory
aggravating circumstances, including the nature of the crimes and the relationship between
Petitioner and his victim, warranted running the two 25-year sentences consecutively to each other
but concurrent with his federal sentence. (Doc. No. 27-3 at 26–28.)
III.

ISSUES PRESENTED FOR REVIEW

The amended petition asserts six claims for relief:
1. Petitioner received the ineffective assistance of counsel. (Doc. No. 17 at 8, 19.)
2. Petitioner’s guilty plea was not knowing and voluntary. (Id. at 10, 20.)
3. The evidence against Petitioner was obtained through illegal search and seizure in violation
of the Fourth Amendment. (Id. at 11, 21.)
4. Petitioner’s prosecution in both state and federal court violated the Double Jeopardy Clause
of the Constitution. (Id. at 13, 22.)

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5. Petitioner’s indictment was defective. (Id. at 23.)
6. Petitioner’s sentences are excessive in violation of the Eighth Amend prohibition on cruel
and unusual punishments. (Id. at 25.)

IV.

STANDARD OF REVIEW

The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a
federal court may only grant relief if it finds that the error “had substantial and injurious effect or
influence” on the outcome of the case. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson
v. Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met
before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht
v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,
AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes “a
substantially higher threshold” for obtaining relief than a de novo review of whether the state
court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
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Williams, 529 U.S. at 410).
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits
in state court unless the state decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or
“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)(1) and (d)(2). A state court’s legal decision is
“contrary to” clearly established federal law under Section 2254(d)(1) “if the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. at 412–13. An “unreasonable application”
occurs when “the state court identifies the correct legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A
state court decision is not unreasonable under this standard simply because the federal court finds
it erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court’s
decision applies federal law in an objectively unreasonable manner. Id. at 410–12.
Similarly, a district court on habeas review may not find a state court factual determination
to be unreasonable under Section 2254(d)(2) simply because it disagrees with the determination;
rather, the determination must be “‘objectively unreasonable’ in light of the evidence presented in
the state court proceedings.’” Young v. Hofbauer, 52 Fed. App’x 234, 236 (6th Cir. 2002). “A
state court decision involves ‘an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding’ only if it is shown that the state court’s presumptively
correct factual findings are rebutted by ‘clear and convincing evidence’ and do not have support
in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting § 2254(d)(2) and

10

(e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 and n.3 (6th Cir. 2014) (observing that the
Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did not
read Matthews to take a clear position on a circuit split about whether clear and convincing
rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under Section
2254(d)(2), “it is not enough for the petitioner to show some unreasonable determination of fact;
rather, the petitioner must show that the resulting state court decision was ‘based on’ that
unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected
on the merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Petitioner carries the burden of proof.
Pinholster, 563 U.S. at 181.
Even that demanding review, however, is ordinarily only available to state inmates who
have fully exhausted their remedies in the state court system. 28 U.S.C. §§ 2254(b) and (c) provide
that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with
certain exceptions, the prisoner has presented the same claim sought to be redressed in a federal
habeas court to the state courts. Pinholster, 563 U.S. at 182. This rule has been interpreted by the
Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and
every claim set forth in the federal habeas corpus petition must have been presented to the state
appellate court. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824 F.2d 494,
496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and factual substance
of every claim to all levels of state court review”). Moreover, the substance of the claim must

11

have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162–63
(1996).
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v.
Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the
procedural default doctrine). If the state court decides a claim on an independent and adequate
state ground, such as a procedural rule prohibiting the state court from reaching the merits of the
constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review.
Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also Walker v. Martin, 562 U.S. 307, 315
(2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of
the state court rests on a state law ground that is independent of the federal question and adequate
to support the judgment”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). If a claim has
never been presented to the state courts, but a state court remedy is no longer available (e.g., when
an applicable statute of limitations bars a claim), then the claim is technically exhausted, but
procedurally barred. Coleman, 501 U.S. at 731–32.
If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The burden of showing cause and
prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412,
418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754). “‘[C]ause’ under the cause and prejudice
test must be something external to the petitioner, something that cannot fairly be attributed to him
[;] ... some objective factor external to the defense [that] impeded ... efforts to comply with the
State’s procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of cause

12

include the unavailability of the factual or legal basis for a claim or interference by officials that
makes compliance “impracticable.” Id. To establish prejudice, a petitioner must demonstrate that
the constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux,
58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see
also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that “having shown cause,
petitioners must show actual prejudice to excuse their default”). “When a petitioner fails to
establish cause to excuse a procedural default, a court does not need to address the issue of
prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot
establish prejudice, the question of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has “probably resulted” in the conviction of
one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392
(2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord Lundgren v. Mitchell, 440
F.3d 754, 764 (6th Cir. 2006).
V.
A.

ANALYSIS AND DISCUSSION

EXHAUSTED CLAIMS
CLAIM 1 — Ineffective Assistance
Petitioner alleges that his counsel was ineffective for several reasons: failing to investigate

problems with the state’s case including double jeopardy, chain-of-custody problems, and illegal
search and seizure; failing to adequately investigate and present mitigating evidence from his
background and childhood; failing to object to the misapplication of state law regarding
aggravating factors; failing to cross-examine the victim’s mother; and failing to maintain sufficient

13

communication with Petitioner about case strategy. (Doc. No. 17 at 19.) Petitioner asserts that he
exhausted this claim in post-conviction proceedings. (Id. at 8–9.)

He exhausted a broad

ineffective-assistance claim on post-conviction, in which he argued that counsel performed
deficiently with regard to “suppression issues,” failure to share and discuss evidence with him,
general failure to “argue, submit documents, investigate or communicate,” failure to challenge the
propriety of his prosecution in Tennessee court and the proof that the victim was adversely affected
by the crimes, failure to investigate and present mitigation evidence, failure to file “motions, such
as Double Jeopardy,” abandoning “motions and trial strategy,” and generally “ignor[ing] Mr.
Cline’s defense.” 3 (Doc. No. 27-14 at 11–14, 18.) In its review of the claim, the Tennessee Court
of Criminal Appeals summarized testimony from the post-conviction hearing:
Because Petitioner was incarcerated in a federal facility in Petersburg, Virginia, he
testified via electronic deposition. He could recall meeting with trial counsel only
two times over four to five months but conceded that they might have met a
“couple” times more. Further, he claimed that he did not meet with anyone else
from trial counsel’s law office. Petitioner remembered the trial court telling him
about his rights and how he would be waiving those rights by pleading guilty. He
recounted that when the trial court asked if he knowingly and voluntarily pled
3

Petitioner’s ineffective-assistance claim in state court was broad, rambling, and imprecise, as it
is in this case. Respondent attempts to parse the current claim into eight sub-claims identified on
several pages scattered throughout his Answer (Doc. No. 28 at 4–5, 12–16) and asserts that several
of them are procedurally defaulted. This good idea falls short, however, as Respondent’s approach
is difficult to follow and appears objectively incomplete and inaccurate. For example, Respondent
completely ignores Petitioner’s claim that counsel failed to investigate double jeopardy issues,
which appears in both his state court appellate brief and his current claim. (Doc. No. 27-14 at 14;
Doc. No. 17 at 19.) Because it is more straightforward to turn directly to the merits of Petitioner’s
claim than to conduct a painstaking comparison of his state court brief and his current claim to
determine whether it is exhausted, the Court treats this claim as exhausted as a whole regardless
of its alleged partial default. See 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.”); see also Hudson v. Jones, 351 F.3d 212, 216 (6th
Cir. 2003) (proceeding directly to merits analysis because “the question of procedural default
presents a complicated question . . . and is unnecessary to our disposition of the case”); Ferensic
v. Birkett, 451 F. Supp. 2d 874, 887 (E.D. Mich. 2006) (performing de novo review of unexhausted
habeas claim because “it is easier to address the merits of Petitioner’s claim than to perform a
procedural default analysis”).
14

guilty, he responded, “I understand and I do.”
Petitioner maintained that he had never seen the video and that “there was really no
reference to [the video] as well.” But, Petitioner admitted that he was aware of the
existence of a video and that trial counsel discussed the existence of the video with
him. Petitioner claimed that trial counsel did not properly investigate whether the
video was obtained improperly and subject to suppression. Petitioner asserted that
he would not have pleaded guilty if he had seen the video and other documents that
were allegedly kept from him. One of those documents was the report of the
Department of Children’s Services (“DCS”), which Petitioner had “heard”
contained no admission by the victim that she was the child in the video. Petitioner
maintained that if he had been provided all of the information, he would have gone
to trial because he “got basically, what [he] would have gotten had [he] gone to
trial, which is a life sentence.”
With regard to his representation by trial counsel Petitioner went on to say:
I don’t really see how she really represented me. She didn’t question
the witnesses on the stand during sentencing; didn’t provide, really
any support other than sitting there . . . [n]o mitigating factors were
presented; I wasn’t given information as far as what evidence was
supposed to be used or planned to be used. She wouldn’t answer
correspondence.
Petitioner admitted that trial counsel objected to some testimony during the
sentencing hearing and the testimony was excluded. He further admitted that trial
counsel put on mitigation evidence regarding his childhood, his mother’s mental
health issues, and Petitioner’s history as a victim during his childhood. Despite the
introduction of this evidence, Petitioner indicated that he wanted to talk about his
experiences in the military dealing with post-traumatic stress disorder, anxiety, and
depression. Petitioner claimed that he was aware that the trial court could run his
sentence consecutively to his federal sentence but that he was not aware that the
trial court could run his state sentences consecutively to one another. He says that
he understood the total sentence on both counts to be “25-years period[.]”
Trial counsel testified at the post-conviction hearing that she had been a licensed
attorney since 2005 and that she had handled two to three child sex cases a month
at the public defender’s office. Trial counsel said that she met with petitioner “at
least six times” via video monitor and that it was her practice to meet with clients
in person on serious cases like this one. According to trial counsel, during her
meetings with Petitioner, she discussed the contents of the child forensic report and
the DCS records. Further, she said that those documents were provided to Petitioner
as a part of his discovery package. Trial counsel indicated that she viewed the video
and discussed its contents with Petitioner. Trial counsel conducted research and
determined that the video was seized legally.
Trial counsel testified that she recognized that Petitioner was serving a federal
sentence and investigated whether there was a bar to prosecution by the State. Trial
counsel conducted multiple plea negotiations with the State which culminated in
the State agreeing to the plea ultimately entered by Petitioner. She stated that
15

Petitioner pled guilty to production of the video in federal court, and the contents
of the video revealed that the person doing the filming was also the person engaging
in the criminal act. Trial counsel went on to say that the victim was identifiable
from the contents of the video. Trial counsel said that she discussed the case with
Petitioner and told him that it was likely that he would be convicted on all of his
charges if the case went to trial. She further explained that the maximum sentence
for a conviction on all counts could be over 100 years. In trial counsel’s opinion,
the best shot at getting concurrent sentencing was to do an open plea. Trial counsel
recounted that Petitioner told her that “he wanted to take a guilty plea, because he
didn’t want to put the child through anymore and his wife— ex-wife through
anymore[.]”
(Doc. No. 27-16 at 3–4.)
All federal claims of ineffective assistance of counsel are subject to the highly deferential
two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether
counsel was deficient in representing the defendant; and (2) whether counsel’s alleged deficiency
prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To meet the first
prong, a petitioner must establish that his attorney’s representation “fell below an objective
standard of reasonableness,” and must overcome the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that . . . the challenged action ‘might be considered sound trial
strategy.’” Id. at 688, 689. The “prejudice” component of the claim “focuses on the question of
whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

Prejudice, under

Strickland, requires showing that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. To establish prejudice in the context of a guilty plea, a petitioner who pleaded guilty
“must show that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
16

The Supreme Court has further explained the Strickland prejudice requirement as follows:
In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible
a reasonable doubt might have been established if counsel acted differently. Instead,
Strickland asks whether it is “reasonably likely” the result would have been
different. This does not require a showing that counsel’s actions “more likely than
not altered the outcome,” but the difference between Strickland’s prejudice
standard and a more-probable-than-not standard is slight and matters “only in the
rarest case.” The likelihood of a different result must be substantial, not just
conceivable.
Harrington v. Richter, 562 U.S. 86, 111–12 (2011) (internal citations omitted). “[A] court need
not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” Strickland, 466 U.S. at 697.
As discussed above, however, a federal court may not grant habeas relief on a claim that
has been rejected on the merits by a state court, unless the petitioner shows that the state court’s
decision “was contrary to” law clearly established by the United States Supreme Court, or that it
“involved an unreasonable application of” such law, or that it “was based on an unreasonable
determination of the facts” in light of the record before the state court. 28 U.S.C. § 2254(d)(1) and
(2); Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus, when an exhausted claim of ineffective
assistance of counsel is raised in a federal habeas petition, the question to be resolved is not
whether the petitioner’s counsel was ineffective. Rather, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter, 562
U.S. at 101. As the Supreme Court clarified in Harrington,
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be no different than
if, for example, this Court were adjudicating a Strickland claim on direct review of
a criminal conviction in a United States district court. Under AEDPA, though, it is
17

a necessary premise that the two questions are different. For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from an
incorrect application of federal law. A state court must be granted a deference and
latitude that are not in operation when the case involves review under the Strickland
standard itself.
Id. (internal quotation marks and citation omitted).
The Tennessee Court of Criminal Appeals accurately identified and explained the
Strickland standard for federal ineffective-assistance claims, and its application in the guilty plea
context under Hill v. Lockhart. (Doc. No. 27-16 at 5–6.) It then went on to reject Petitioner’s claim
on the merits of both Strickland prongs:
In this case, trial counsel met with Petitioner multiple times. During those
meetings, trial counsel and Petitioner discussed the DCS report, the contents of the
video, implications of going to trial, and Petitioner’s sentencing exposure. Trial
counsel negotiated a plea agreement with the State and provided advice to
Petitioner on whether to take the deal. Petitioner took the deal because “he didn’t
want to put the child through anymore and his wife—ex-wife through anymore[.]”
At the sentencing hearing, trial counsel objected to inadmissible testimony,
conducted a direct examination of Petitioner, entered letters on behalf of Petitioner
into evidence, and argued on Petitioner’s behalf. Trial counsel’s actions met an
objective standard of reasonableness. Trial counsel was not deficient.
Moreover, Petitioner has failed to show that he was prejudiced by trial counsel’s
actions. Petitioner admitted to raping the victim, and at the sentencing hearing, he
stated that he was pleading guilty to relieve the burden on his family. Now, in
hindsight, Petitioner claims that he would have not have pled guilty. None of the
deficiencies in representation alleged by Petitioner create a reasonable probability
that he would not have pled guilty.
(Doc. No. 27-16 at 6.)
Petitioner has not established that this disposition of his claim was objectively
unreasonable. The state courts obviously credited counsel’s testimony that she had conducted the
appropriate research and found there was no basis to suppress the videotape or to bar the state
prosecution, and “federal habeas courts do not have license, under § 2254(d), to redetermine
witness credibility, whose demeanor is observed exclusively by the state court.” Givens v. Yukins,
238 F.3d 420 (6th Cir. 2000) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). The record
18

is crystal clear that Petitioner pleaded guilty because (in apparently a more altruistic frame of mind)
he did not want to subject his victim and her mother to a trial, the outcome of which his attorney
correctly advised him was almost certain to be a conviction in light of the videotape he had already
admitted to making. He hoped for concurrent sentences and believed pleading guilty gave him the
best chance of that outcome. The state court reasonably determined that there was not a substantial
likelihood that Petitioner would have elected to go to trial in those circumstances if his counsel
had approached the case any differently.
With respect to the portion of Petitioner’s claim about ineffective assistance at sentencing,
a 25-year sentence was mandatory for each count of child rape, and the only issue to be determined
at the sentencing hearing was whether those sentences would run consecutively or concurrently
with each other and/or the previously-imposed federal sentence.

As discussed further in

Section V.B.5 below, the Tennessee Court of Criminal Appeals determined on direct appeal that
the imposition of consecutive state sentences was appropriate in this case under state law. There
is no reasonable probability that a more aggressive cross-examination of the victim’s mother, who
was the only witness at the sentencing hearing other than Petitioner, would likely have led to
concurrent sentences. Moreover, that approach would have been contrary to Petitioner’s express
desire to prevent his ex-wife from having to “go through this” and his strategy of throwing himself
on the court’s “grace and mercy.” (See Doc. No. 27-3 at 15.) Petitioner suggests that counsel
should have researched and presented more mitigating evidence about his life, but the state court
on post-conviction appeal correctly observed that, when counsel asked him at his sentencing
hearing whether there was anything else he wanted to say, Petitioner responded “Nothing coming
to mind.” (Doc. No. 27-16 at 2; Doc. No. 27-3 at 15.) Accordingly, Petitioner has not demonstrated
that counsel’s performance at sentencing was objectively unreasonable or that there is any

19

substantial likelihood that he would have received a lighter sentence if counsel had performed
differently.
Claim 1 thus fails on its merits.
B.

DEFAULTED CLAIMS
1.

CLAIM 2 — Guilty Plea Not Knowing and Voluntary

Petitioner asserts that his plea was not knowing and voluntary because he pleaded guilty
believing that the only issue to be determined at sentencing was whether his state sentences would
be concurrent or consecutive to his previously imposed federal sentence. (Doc. No. 17 at 20.) The
fact that the trial court ordered his state sentences to run consecutive to each other, Petitioner says,
rendered his plea unknowing and involuntary. (Id.) He asserts that he raised this claim in state
court post-conviction proceedings and exhausted it in post-conviction appeal. (Id. at 10–11.)
Respondent asserts that this claim is nevertheless procedurally defaulted because the Tennessee
Court of Criminal Appeals found that it was waived. (Doc. No. 28 at 8.)
Petitioner raised this claim in his Amended Petition for Post Conviction Relief. (Doc. No.
27-11 at 90.) The post-conviction court denied relief on the merits of the claim. (Doc. No. 27-11
at 98–99) (concluding that “the contention that convictions were based on an unlawfully induced
guilty plea, or guilty plea involuntarily entered without understanding of the nature and
consequences of the plea, is found to be without merit”). On appeal from the denial of postconviction relief, the Tennessee Court of Criminal appeals acknowledged that the issue statement
in Petitioner’s appellate brief included an assertion that his plea was not knowing and voluntary,
but then explained:
Yet, the issue statement is the only time that the phrase “knowing and voluntary”
appears in Petitioner’s brief. No argument is made regarding the voluntariness of
Petitioner’s plea nor is any case law cited on that issue. Thus, any claim that
20

Petitioner’s guilty pleas were not knowing and voluntary that exists independently
of his ineffective assistance of counsel claim is waived. See Tenn. Ct. Crim. App.
R. 10(b) (stating “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
court.”).
(Doc. No. 27-16 at 7.) As explained above, if this ruling constitutes an adequate and independent
state ground for rejection of Petitioner’s claim, the claim is procedurally defaulted and not subject
to federal habeas review. Walker v. Martin, 562 U.S. 307, 315 (2011).
The United States Court of Appeals for the Sixth Circuit has repeatedly held that
Tennessee’s Rule 10 waiver rule is a “‘firmly established and regularly followed’ rule” that is
“independent of the federal question and adequate to support the judgment.” Mathis v. Colson, 528
F. App’x 470, 478 (6th Cir. 2013) (quoting Beard v. Kindler, 558 U.S. 53, 53 (2009) and
Middlebrooks v. Bell, 619 F.3d 526, 535–36 (6th Cir. 2010)). Accordingly, the state court’s
rejection of Petitioner’s claim on that basis renders his claim procedurally defaulted. Id.
Petitioner does not argue that he has any cause or prejudice to excuse the default of this
claim. (Doc. No. 17 at 10–11, 20.) Nor has Petitioner established that the rejection of this claim
constitutes any miscarriage of justice. His understanding of his possible sentence structure at the
time of his plea has no bearing on his guilt or innocence of the crimes to which he confessed.
Moreover, the Court notes that Petitioner acknowledges that he understood the trial court could
order concurrent 25-year state sentences to run consecutive to his 27+-year federal sentence. He
was apparently prepared, therefore, for the possibility that his total effective sentence might exceed
52 years. The trial court’s imposition of consecutive 25-year sentences to run concurrent with
Petitioner’s 27-year federal sentence resulted in a total effective sentence of 50 years—more than
two years shorter than a potential sentence Petitioner admittedly knew he risked when he pleaded
guilty. Accordingly, even if he were confused about all the different permutations his sentence
could take, he was not actually prejudiced by an outcome that was more beneficial than one he
21

willingly risked.
This claim is procedurally defaulted without cause or prejudice and is not subject to habeas
review.
2.

CLAIM 3 — Illegal Search and Seizure

Petitioner asserts that U.S. Army C.I.D. personnel conducted an illegal search and seizure
of his property in his shared living quarters in Iraq. (Doc. No. 17 at 11–12, 21.) He says that he
raised this claim in post-conviction proceedings and exhausted it on post-conviction appeal. (Id.
at 12.) The post-conviction court found the claim to be without merit, finding that “[t]here is
nothing in the record of this case to support the contention there was use of evidence gained
pursuant to an unconstitutional search and seizure.” (Doc. No. 27-11 at 99.) On post-conviction
appeal, this claim was relegated to once sentence of the summary of Petitioner’s post-conviction
hearing testimony in the context of an ineffective-assistance claim (Doc. No. 27-14 at 6, 11), and
the Tennessee Court of Appeals appears only to have ruled on the merits of the ineffectiveassistance claim. (Doc. No. 27-16 at 4–6) (observing that “[t]rial counsel conducted research and
determined that the video was seized legally”). The Court finds this independent challenge to the
legality of the search and seizure to be procedurally defaulted.
Moreover, Petitioner’s guilty plea itself waived any Fourth Amendment challenge to the
collection of evidence against him. The Supreme Court has ruled that:
[A] guilty plea represents a break in the chain of events which has preceded it in
the criminal process. When a criminal defendant has solemnly admitted in open
court that he is in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea by showing that the advice he
received from counsel was not within the standards [applicable to ineffectiveassistance claims].
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Another district court in this circuit more recently
22

explained the applicable law when it rejected the Fourth Amendment of a habeas petitioner who
had pleaded guilty:
Moreover . . . Petitioner has waived the issue by pleading guilty. It has long been
the case that a valid guilty plea bars habeas review of most non-jurisdictional claims
alleging antecedent violations of constitutional rights. See Tollett v. Henderson, 411
U.S. 258, 267 (1973). Among claims not barred are those that challenge “the very
power of the State to bring the defendant into court to answer the charge against
him,” Blackledge v. Perry, 417 U.S. 21, 30 (1974), and those that challenge the
validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58 (1985);
Haring v. Prosise, 462 U.S. 306, 320 (1983); Tollett, 411 U.S. at 267.
Petitioner does not challenge either the validity of the plea or the jurisdiction of the
trial court. Instead, Petitioner’s claim that the search warrant violated the Fourth
Amendment is an antecedent constitutional violation that is not cognizable on
habeas review. Tollett, 411 U.S. at 266; see also United States v. Anderson, 293
Fed. Appx. 960 (3d Cir. 2008) (applying Tollett and holding that entry of a guilty
plea forecloses subsequent attack on adequacy of arrest warrant); United States v.
Rivera-Juarez, No. 93-4288, 1994 WL 657087, at *1 (6th Cir. Nov. 21, 1994)
(holding that a guilty plea waives a petitioner’s claims of illegal arrest and
searches). As a result, by entering his guilty plea, Petitioner waived his claim based
on the search warrant.
Clausell v. Olson, No. 2:16-CV-250, 2016 WL 7155383, at *5 (W.D. Mich. Dec. 8, 2016).
In this case Petitioner has not challenged the jurisdiction of the state court to try him on the
state charges, and the Court has already separately addressed his claims that his plea was not
knowing and voluntary and that ineffective assistance of trial counsel invalidated his plea.
Petitioner’s conviction was ultimately based not on the evidence gathered in Iraq but on his
admission in open court during his plea that he had intentionally sexually penetrated the victim
twice on the date in question. That “break in the chain of events” waived any constitutional
challenge to the collection of evidence he might otherwise have asserted, including this claim.
3.

CLAIM 4 — Double Jeopardy

Petitioner alleges that his state prosecution for the same sex crimes portrayed in the child
pornography for which he was convicted in federal court amounted to his being punished twice
for the same acts in violation of the constitutional prohibition against double jeopardy. (Doc. No.
23

17 at 22.) He asserts that he exhausted this claim in post-conviction proceedings (id. at 13–14),
but both his post-conviction appellate brief and the Tennessee Court of Criminal Appeals’ opinion
are limited to his ineffective-assistance claim. 4 (Doc. No. 27-14 at 6; Doc. No. 27-16 at 4.)
Accordingly, this independent claim is defaulted.
Again, moreover, this claim is waived as a matter of federal law for the same reason his
Fourth Amendment claim is waived: he waived it by pleading guilty to the allegedly
unconstitutional charge. United States v. Broce, 488 U.S. 563, 565 (1989) (“We hold that the
double jeopardy challenge is foreclosed by the guilty pleas and the judgments of conviction.”).
And finally, this claim clearly lacks merit as a matter of law. The Supreme Court has
explained that, in order to determine whether the double jeopardy prohibition has been violated,
“the test to be applied to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Blockburger v. United States, 284
U.S. 299, 304 (1932). The production of child pornography under 18 U.S.C. § 2251(a) and rape
of a child under Tenn. Code Ann. § 39-13-522 each require elements not required by the other. 5
And even if that were not the case, separate prosecutions by “separate sovereigns,” such as a state

4

The only reference to Double Jeopardy in Petitioner’s state court brief is this single sentence in
the summary of trial counsel’s testimony: “No motions, such as Double Jeopardy, were filed by
Ms. Myers in Mr. Cline’s case.” (Doc. No. 27-14 at 14.)
5

Rape of a child in Tennessee law is defined as “the unlawful sexual penetration of a victim by
the defendant or the defendant by a victim” if the victim is between the ages of three and thirteen.
Tenn. Code Ann. § 39-13-522(a). 18 U.S.C. § 2251(a) covers, inter alia, the use of “any minor”
in “any sexually explicit conduct for the purpose of producing any visual depiction of such
conduct” if the defendant knows or has reason to know the depiction will be transported or
transmitting in interstate or foreign commerce or was produced or transmitted using materials that
were transported in interstate or foreign commerce, including by computer. Each offense thus
requires multiple elements not required by the other, including sexual penetration and a specific
age range on the state offense, and intent to produce a visual depiction and touching interstate or
foreign commerce on the federal offense.
24

and the federal government, typically do not constitute a double jeopardy violation. See Heath v.
Alabama, 474 U.S. 82, 88 (1985) (“[W]hen the same act transgresses the laws of two sovereigns,
it cannot be truly averred that the offender has been twice punished for the same offence; but only
that by one act he has committed two offences, for each of which he is justly punishable.”) (Internal
punctuation and citation omitted).
This claim is defaulted and would fail on its merits even if the Court considered it.
4.

CLAIM 5 — Defective Indictment

Petitioner claims that his state indictment was defective in several non-jurisdictional
respects and says that he exhausted the claim in post-conviction proceedings. (Doc. No. 17 at 23–
24.) However, there is no mention of any defect in his state court indictment in Petitioner’s postconviction appellate brief. (Doc. No. 27-14.) This claim is clearly defaulted.
Moreover, this claim, too, was waived by Petitioner’s guilty plea: “A valid guilty plea
waives all non-jurisdictional defects in the defendant’s indictment.” United States v. Ball, No. 933743, 12 F.3d 214 (Table), 1993 WL 524240, at *1 (6th Cir. Dec. 15, 1993) (citing Tollett v.
Henderson, 411 U.S. 258, 267 (1973)).
5.

CLAIM 6 — Excessive Sentence

Finally, Petitioner claims that his effective fifty-year sentence constitutes cruel and unusual
punishment for offenses that were “not threatening nor aggressive” because the six-year-old rape
victim “compl[ied] with the suggestions in the footage and did not appear under duress in any
way.” (Doc. No. 17 at 25.) He asserts that he exhausted this claim in post-conviction proceedings.
(Id. at 26.)
Petitioner did assert this claim in his pro se post-conviction petition (Doc. No. 27-11 at 33),
but he did not raise it on appeal from the denial of post-conviction relief. (Doc. No. 27-14.) And

25

his claim on direct appeal that the trial court had abused its discretion by ordering his state
sentences to run consecutively relied exclusively on state law concerning the proper application of
Tennessee’s statutory sentencing factors. (See Doc. No. 27-5.) Accordingly, the Court agrees with
Respondent (see Doc. No. 28 at 6) that Petitioner’s federal constitutional challenge to his sentence
is procedurally defaulted.
Alternatively, even if the Court construed Petitioner’s direct state appeal to exhaust a
federal claim, Petitioner fails to establish that the state court’s ruling was unreasonable. The
Tennessee Court of Criminal Appeals found that Petitioner’s role as the victim’s step-father, the
victim’s age of six years, and the emotional damage evidenced by her counseling and difficulty
with relationships in the years after the rape were appropriately weighed as aggravating factors in
Petitioner’s sentencing and “carried sufficient weight for the imposition of consecutive sentences.”
(Doc. No. 27-7 at 5–6.) Petitioner’s argument that his sentence is more severe than those of other
defendants convicted of similar or worse crimes (Doc. No. 17 at 25) does not establish that his
sentence is unconstitutional, and he does not cite any Supreme Court authority that supports his
position.
Indeed, there is no such authority that would make the state court’s ruling objectively
unreasonable. Little more than ten years ago, the Supreme Court held that the death penalty is an
unconstitutionally excessive sentence for child rape, but even then it acknowledged that rape “is
highly reprehensible, both in a moral sense and in its almost total contempt for the personal
integrity and autonomy of the female victim,” Kennedy v. Louisiana, 554 U.S. 407, 437, as
modified (Oct. 1, 2008), opinion modified on denial of reh’g, 554 U.S. 945 (2008) (quoting Coker
v. Georgia, 433 U.S. 584, 597–98 (1977)), and that it “has a permanent psychological, emotional,
and sometimes physical impact on the child” leading to “long years of anguish” that should not be

26

dismissed. Id. at 435.
In rejecting an Eighth Amendment habeas claim by a petitioner sentenced to consecutive
sentences totaling fifty years to life for kidnapping to commit rape, forcible oral copulation, and
forcible rape, the United States District Court for the Central District of California explained:
Although the Supreme Court has ruled that a sentence of death is grossly
disproportionate to the crime of rape (see id.), it has never suggested that a sentence
of years, even one involving the possibility of life imprison, is equally grossly
disproportionate. And, considering that the Supreme Court has condoned a life
sentence for the relatively minor crime of drug possession, there is no reason to
believe that the Supreme Court would ever hold that a life sentence is grossly
disproportionate to the crime of rape – let alone a fifty-year sentence for rape and
forcible oral copulation where the defendant kidnapped the victim in order to
accomplish his crimes.
Moreover, courts addressing the issue have routinely held that comparable
sentences for rape do not violate the Eighth Amendment’s ban on cruel and unusual
punishment. See, e.g., Cervantes v. Small, 2009 WL 6639280, *40–41 (C.D. Cal.
Nov. 19, 2009) (holding that Eighth Amendment not violated by twenty-five yearto-life sentence for forcible rape, rape by the use of an intoxicant, rape of an
unconscious person, rape in concert, kidnapping, and special allegation that the
victim was kidnapped for purposes of rape); Singh v. Martel, 2011 WL 1740588,
*25–26 (E.D. Cal. May 4, 2011) (holding that thirty-nine year-to-life sentence for
five forcible sex offenses in concert, and aggravated kidnapping circumstance, was
not grossly disproportionate to seriousness of crimes); Pierre v. Radar, 2012 WL
3027934, *1 (E.D. La. July 24, 2012) (adopting recommendation rejecting Eighth
Amendment challenge to thirty-five-year sentence for attempted forcible rape and
second degree kidnaping); Ross v. Addison, 2012 WL 1080840, *8 (N.D. Okla.
March 30, 2012) (sentence of life without parole for three first degree rape
convictions did not constitute cruel and unusual punishment); Hyatt v. Weber, 468
F.Supp.2d 1104, 1126–27 (D. S.D. 2006) (consecutive sentences of fifty-five years
for first degree rape and fifteen years for sexual contact with child under age of
sixteen were not grossly disproportionate to gravity of crimes); see also Bunch v.
Smith, 685 F.3d 546, 547–50 (6th Cir. 2012) (state court reasonably determined that
16–year–old offender’s cumulative 89–year sentence for robbery, kidnapping, and
rape did not violate Eighth Amendment).
Andrade v. McDowell, No. CV 14-8780 MWF (FFM), 2015 WL 7444265, at *9 (C.D. Cal. Aug.
3, 2015), report and recommendation adopted, No. CV 14-8780 MWF (FFM), 2015 WL 7454506
(C.D. Cal. Nov. 23, 2015). Petitioner’s 50-year sentence for two counts of rape of a child,
therefore, does not appear to be proscribed by Supreme Court precedent. More importantly for
27

the purpose of this review, it is certainly not so clearly proscribed that the state court’s contrary
ruling was unreasonable beyond any fair-minded debate.
This claim is both procedurally defaulted and without merit.
VI.

CONCLUSION

Petitioner’s claims are all either defaulted or fail on their merits for the reasons set forth
above. Accordingly, the Court will deny the requested relief and dismiss the petition.
An appropriate Order will enter.

____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

28