Buford v. Lindamood
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/25/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
KEVIN L. BUFORD, SR. #229649,
CHIEF JUDGE CRENSHAW
Kevin L. Buford, Sr. is incarcerated in the South Central Correctional Center in Clifton,
Tennessee, serving an effective 60-year sentence for facilitation of first degree felony murder and
attempted especially aggravated robbery. (Doc. No. 1; Doc. No. 12-1 at 127.) He seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) His petition will be denied for the
reasons set forth below.
BACKGROUND AND PROCEDURAL HISTORY
A Davidson County jury convicted Petitioner on February 12, 2010, of facilitation of first
degree felony murder and attempted especially aggravated robbery. (Doc. No. 12-1 at 127.) The
trial court found that Petitioner had an extensive criminal history, including two previous
aggravated robberies, and sentenced him to consecutive terms of 40 and 20 years in prison. (Doc.
No. 12-1 at 143–44; Doc. No. 12-3 at 60–63.) The Tennessee Court of Criminal Appeals (TCCA)
affirmed the convictions and sentences on direct appeal (Doc. No. 12-18), and the Tennessee
Supreme Court denied the Petitioner’s application for review on October 17, 2012. (Doc. No. 1221 at 49.)
On April 29, 2013, Petitioner filed a pro se petition for post-conviction relief. (Doc. No.
12-21 at 50–57.) The post-conviction court appointed counsel, 1 who filed an amended petition.
(Doc. No. 12-21 at 74–78). The court held a hearing on May 28, 2014, and denied relief by order
entered July 11, 2014. (Doc. No. 12-21 at 95–102; Doc. No. 12-22.) The TCCA affirmed on
August 11, 2015. Buford v. State, No. M2014-01534-CCA-R3-PC, 2015 WL 4735661, at *14
(Tenn. Crim. App. Aug. 11, 2015), appeal denied (Tenn. Dec. 11, 2015). The Tennessee Supreme
Court denied discretionary review on December 11, 2015. Id. at *1.
Petitioner now seeks the federal writ of habeas corpus pursuant to 28 U.S.C. § 2254, and
Respondent acknowledges that the petition is timely. (Doc. No. 13 at 2.)
STATEMENT OF FACTS
The state presented evidence at Petitioner’s trial that a robbery attempt by Petitioner, along
with his brother, his two sons, and a friend of his sons, resulted in the victim’s death. The TCCA
summarized that evidence at length on direct appeal, but only the following summary of the
codefendant Raymond Pirtle’s testimony is relevant to the claims before this Court:
The State’s next witness was Mr. Raymond Pirtle, one of the defendant’s
codefendants. Mr. Pirtle testified that he had been a friend of the defendant’s sons,
D’Angelo Buford and Kevin Buford Junior, for many years but that he met the
defendant for the first time on the day of the shooting. Mr. Pirtle testified that some
weeks before the incident, he had bought a gun “off the streets” for his own
protection. This gun was a 9mm Smith & Wesson. Mr. Pirtle testified that about
three weeks before the incident, he gave this gun to D’Angelo Buford and Kevin
Buford Junior, after they had asked him to borrow it. He testified that on the day of
the incident, Kevin Buford Junior came to his house and asked him if he wanted to
commit a robbery. Mr. Pirtle replied that he did. When he went outside, the
defendant and D’Angelo Buford were also present, waiting for him in a gold SUV.
Mr. Pirtle testified that the defendant was driving the vehicle. Mr. Pirtle testified
that after he got inside the SUV, all four of them drove to a Burger King. He
testified that at some point during this drive he heard D’Angelo Buford cock a gun.
When they arrived at the Burger King, the defendant told Mr. Pirtle that a friend of
his had told him about a car lot that they could rob. Mr. Pirtle testified that the
defendant told the other three to act as if they wanted to buy a car, and then, when
The Court is unable to locate the order appointing counsel in the record, but the substance of that order is not material
to the issues before the Court.
the owner let them in, to rob him.
Mr. Pirtle testified that he, Kevin Buford Junior, and D’Angelo Buford all got out
of the SUV to rob the car lot, and he saw D’Angelo Buford carrying a gun at that
time. He testified that as they approached the car lot, he told Kevin Buford Junior
and D’Angelo Buford that he had a bad feeling. They appeared to agree, and after
about three minutes all the three of them went back to the SUV. Mr. Pirtle testified
that after they got back into the SUV, the defendant continued to urge them to rob
the car lot, describing various methods the three might use to get in. He testified
that the three of them did not respond, and the defendant got angry and sped away.
Next, Mr. Pirtle testified that the defendant drove them to an Auto Zone, and told
them to wait in the SUV while he went inside to see if there were any surveillance
cameras. Mr. Pirtle testified that the defendant returned about five minutes later and
drove away from the Auto Zone. During this drive, the defendant made a phone
call to someone and asked the person on the other end of the call about robbing
some white guy. Then the defendant pulled into a gas station. The defendant told
the rest of the group that they did not have enough money to buy gas to return home,
and he appeared unhappy about the situation. Mr. Pirtle testified that the group then
left to go pick up some marijuana from one of Mr. Pirtle’s friends, known by the
street moniker “Little E,” who lived in some nearby apartments. He testified that
he got out of the SUV alone, went to his friend’s house, and bought twenty dollars
worth of marijuana.
Following this, the group drove to pick up Robert Buford, the defendant’s brother,
from his workplace. After picking him up, the defendant drove all five individuals
to a liquor store ... for the purpose of robbing one of the many people frequenting a
nearby business. Mr. Pirtle testified that the defendant told the group that he knew
“a place where a lot of Mexicans cash their checks,” and that he suggested that they
all stay in front of the liquor store, pretending to drink liquor. Mr. Pirtle testified
that the defendant told the group that he was going to tell them which individual to
rob after he watched them cash their checks. Mr. Pirtle testified that the defendant
went into the liquor store and purchased some vodka, which was sampled by the
entire group. Mr. Pirtle testified that the group had been waiting for about thirty
minutes when the defendant stated that a woman who was cashing her check was
about to come out and instructed him, D’Angelo Buford, and Kevin Buford Junior
to rob her. Mr. Pirtle testified that when this woman came out of the store, the three
of them told the defendant that they were not going to rob her, and the defendant
After the group left, various members put forward different suggestions concerning
the next place they should go to commit a robbery. Mr. Pirtle testified that
eventually the defendant told his son D’Angelo to call back “Little E” and request
to buy some additional marijuana so that the group could rob him. D’Angelo did
so. Mr. Pirtle testified that the defendant drove to a prearranged meeting location
near a convenience store, and that Robert Buford got out of the SUV carrying a
gun. According to Mr. Pirtle’s testimony, the plan was to allow “Little E” to
approach the SUV, and then Robert Buford (whom the dealer had not met) would
come from behind and rob him—thereby fooling the dealer into believing that he
had been robbed by a random person. Mr. Pirtle testified that the group executed
this robbery as planned. Afterward, the defendant drove the SUV a short distance
away and picked up Robert Buford, who now had marijuana and some money.
Following this robbery, Mr. Pirtle testified that ... the defendant then calmly told
the group “now I got 15 minutes to do a robbery before I go and pick up my wife
from work.” Mr. Pirtle testified that at that point Kevin Buford Junior started acting
“hyped up”—talking louder than normal and “swaggering.”
Mr. Pirtle testified that D’Angelo Buford tried to calm Kevin Buford Junior down,
but the defendant discouraged his efforts. Mr. Pirtle testified that the defendant
pulled into a car wash on Clarksville highway and parked the SUV. Mr. Pirtle
testified that they saw the victim walking by, and the defendant stated that the
victim looked like he had some money. Mr. Pirtle testified that the defendant told
the others to go rob him. After the victim walked past the SUV, Kevin Buford
Junior and Robert Buford got out of the car and followed him. Mr. Pirtle testified
that Robert Buford had the gun with him at this time. Mr. Pirtle testified that he
also got out of the SUV and followed the other two to assist them.
Mr. Pirtle testified that the victim walked into a grocery store, and they waited for
him to come out. Mr. Pirtle testified that when the victim walked out of the store,
Kevin Buford Junior ran over and hit the victim in the head with a gun.
Mr. Pirtle testified that the victim turned around and swung at Kevin Buford Junior,
and then Kevin Buford Junior shot the victim. The victim ran toward the nearby car
wash. Mr. Pirtle testified that he, Kevin Buford Junior, and Robert Buford all got
back into the SUV, and then the defendant drove them away.
Mr. Pirtle testified that during this car ride, the group was yelling at Kevin Buford
Junior for shooting the victim. Mr. Pirtle testified that Kevin Buford Junior
responded “he hit me, I did not know what to do.” The defendant drove D’Angelo
Buford and Kevin Buford Junior home. After dropping them off, the defendant
drove Mr. Pirtle to a small market. Mr. Pirtle testified that he gave the defendant
five dollars, and the defendant went into the store and bought him a cigarillo so that
he could smoke the rest of his marijuana. The defendant then drove Mr. Pirtle home.
Mr. Pirtle testified that when he left, the defendant and Robert Buford were still in
the front seat of the SUV.
Mr. Pirtle testified that ... he did not have the gun [when the police arrested him],
and the last time he saw it, it was in D’Angelo Buford’s possession as he was being
dropped off after the shooting.
Mr. Pirtle testified that ... he had not been offered anything from the State in return
for his testimony, but he was hoping for some sort of leniency. He testified that he
had been in trouble at school, and sometimes suspended, for cutting classes,
fighting, and possessing a weapon. In conclusion, Mr. Pirtle testified that the
defendant was the person who had directed all of the various participants to do the
various robberies on the day in question, including the attempted robbery of the
Mr. Pirtle also admitted that in January of 2008, he was a member of the Gangster
Disciples and was living a “gangbanger’s life.” He admitted that he willingly joined
Kevin Buford Junior, D’Angelo Buford, and the defendant on the day in question
for the purpose of committing robberies, and he was a willing participant in the
robbery and attempted robberies that were committed that day. He admitted that he
had been previously arrested, that he had been disciplined at school on numerous
occasions, and that he had been disciplined while in police custody for committing
various criminal and antisocial acts.... He claimed to have left the Gangster
Discipl[es] the year before, and he testified that he would not lie to protect his
former gang members.
Mr. Pirtle testified that the defendant never held the gun on the day of the robberies.
He testified that he never saw Kevin Buford Junior tell the victim to give him any
money and never saw the victim give anything to him. He testified that Kevin
Buford Junior did not get anything from the victim. He testified that the defendant
did not know that anyone had been shot until the group returned to the SUV after
Mr. Pirtle testified that although he had smoked marihuana and drunk vodka on the
day of the robberies, this combination had not made it difficult for him to remember
events as they happened that day. He admitted that he had probably told a doctor
something to the contrary—that he had “blacked out” on the day in question—
during his mental health evaluation but offered no explanation for why he had done
so. Defense counsel also impeached Mr. Pirtle with numerous prior statements he
had made—both to police during the investigation and under oath at an earlier
hearing—that were inconsistent with his trial testimony. Mr. Pirtle testified that he
did not know why the defendant had stated that the group did not have enough
money for gas to return home, given that the defendant had enough money to
purchase vodka at the liquor store and that the defendant had driven them home
after the shooting without filling up the SUV.
On redirect examination, Mr. Pirtle pointed out that the drug dealer the group had
robbed on the day of the shooting was a fellow Gangster Disciples member.
Mr. Pirtle also testified that D’Angelo Buford and Kevin Buford Junior were
members of the Gangster Disciples. Mr. Pirtle explained that when he was
answering questions posed by his doctor and the police, he was not under oath, as
he was when he gave his direct testimony. Next, the prosecutor went over
statements made by Mr. Pirtle at the earlier hearing in detail and generally
attempted to explain away the apparent inconsistencies—partly on the basis that
Mr. Pirtle’s testimony at the earlier hearing was much more brief and less detailed.
The prosecutor also emphasized the numerous statements made by Mr. Pirtle during
his direct testimony that were consistent with his earlier testimony.
State v. Kevin L. Buford, Sr., No. M2010–01618–CCA–R3–CD, 2012 WL 1895953, at *8–12
(Tenn. Crim. App. May 24, 2012), appeal denied (Tenn. Oct. 17, 2012).
ISSUES PRESENTED FOR REVIEW
The amended petition identifies a single ground for relief – “[t]he state court erred by
dismissing Petitioner’s petition for post-conviction relief” – and goes on to complain of trial
counsel’s failure to preserve an issue related to alleged improper argument by the prosecutor and
of appellate counsel’s failure to assert plain error in connection with that argument. (Doc. No. 1 at
4–7.) The Court construes the amended petition to allege that the state post-conviction court
unreasonably rejected two claims:
1. Trial counsel was ineffective for failing to include in his motion for new trial the claim that
the prosecutor improperly vouched for Mr. Pirtle’s credibility during closing argument
(Doc. No. 1 at 5–6); and
2. Appellate counsel was ineffective for failing to assert on direct appeal that the trial court
committed plain error in allowing the prosecutor to vouch for Mr. Pirtle’s credibility (Doc.
No. 1 at 6–7).
STANDARD OF REVIEW
AEDPA Review on the Merits
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 in determining the jury’s verdict.” 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
Williams v. Taylor, 529 U.S. 362, 410 (2000)).
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 § 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 § 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 F. 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
(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 § 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.
Ineffective Assistance of Counsel
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).
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
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
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
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
Id. (internal quotation marks and citation omitted).
ANALYSIS AND DISCUSSION
The following facts and law, as summarized by the TCCA on post-conviction appeal, are
relevant to both of Petitioner’s claims:
[T]he trial transcript submitted in the appeal of the convictions shows that the
prosecutor referred to Mr. Pirtle’s testimony during her closing argument. She
stated, in relevant part,
Now, let’s talk some about Raymond Pirtle, because there isn’t any
question but that he is at the center of this case. Let’s talk about the
deal. There is no deal. I have told Mr. Pirtle that if he testifies
truthfully, not if he makes me happy as [counsel] wants to make it
sound, but if he testified truthfully I, the State, will consider that in
determining if he will get some sort of reduced offer and I am here
to tell you that that is exactly what I am going to do.
Counsel objected on the ground that the prosecutor could not “personally discuss
like that.” The trial court stated that the prosecutor was only “arguing in rebuttal
for what [counsel] suggested.” The court told the prosecutor that she could not
address “anything personal about what [the prosecutor] could do.” The prosecutor
I am here to tell you that he does not have a deal, but he was
promised consideration and what that means is it will be considered,
if in fact he testifies truthfully it will be considered to his favor and
you know what? Sometimes we have to do that. It doesn’t mean that
the person who comes in here and testifies even if he testifies
truthfully is going to walk, that is not what it means.
Counsel objected, and the court overruled the objection. The prosecutor continued
without further objection. She stated,
[T]here are times when in order to be able to give a jury like
yourselves the full picture of what happened ... we have to do this.
Now, is Mr. Pirtle a troubled youth ... ? Yeah. He is a gangbanger.
He admitted it freely.
He is a Gangster Disciple ... no question about it, ... and you know
[counsel] said, well, would you trust him? Would you trust him? I
don’t know. [The Petitioner] trusted him when he needed somebody
to go out and do an aggravated robbery that is who he went to along
with his two sons who were members of the Gangster Disciples[.]
Now just think about it for a minute, if you wanted to do an
aggravated robbery with someone would you go to your Sunday
School teacher or your grandmother? No. You are going to go to
these types of people. The State did not [choose] the type of people
that [the Petitioner] was going to get into this kind of environment
with, he chose it, and that is where we are and ... his demeanor, boy,
this is a tough one to talk about because [counsel] seemed pretty
convinced when he was up here that it was clear to everybody in
here that he was not telling you the truth. You are the judges of that.
You are the judges of that, but don’t get confused about one thing
just because we believe that Mr. Pirtle is a gangbanger ... that does
not mean he was not being honest on the stand and you make your
own decision, but I thought his demeanor here was pretty darn good,
The cross-examination he went under I thought he kept his
composure but that is for you to decide but it certainly could be
concluded that he kept his composure with the kind of crossexamination he had[.] [T]here are some people, not even
gangbangers, just your average person who has not been able to keep
the composure that Mr. Pirtle kept in this court.
Inconsistencies, in closing argument [counsel] just said that there
were all of these major inconsistencies but he did not really talk
about very many of them and there was a lot of cross-examination
about inconsistencies by [counsel] of Mr. Pirtle, ... like sometimes I
felt like it wasn’t ever going to end, but most of those were about
absolutely nothing. Do you remember the lengthy crossexamination about whether ... [the Petitioner’s son] came into the
house or just to the house?
[Counsel is] making it sound like this was some giant lie, because at
one point into the house and another time he said to the house and
Mr. Pirtle said, look, you know I was going to open the door for him
and let him in he just didn’t come in. I mean, we spent how much
time on that? That is nothing. That has nothing to do with any
essential element of the crime, even if you think Mr. Pirtle was lying
and I don’t think that that is the reasonable conclusion for that.
I mean, the reasonable conclusion is to, in, I mean, we probably all
say things like that all of the time. Same thing with one Vodka bottle,
two Vodka bottles and then the cell phone, I mean my goodness the
cell phone. Mr. Pirtle, did you ... have a cell phone? Well, no. But
you said before that you did, well, I mean, I have one, but I didn't
know if I left it in the car. I didn’t know where it was. But, you said
you did and you told the officer the next day that you had a cell
phone. Well, yeah, I did.
...It was an attempt by [counsel], he was doing his job to create
inconsistencies. Those kind of things, first of all, again, I think any
reasonable person understands what Mr. Pirtle was saying there.
There wasn’t truly an inconsistency; and second, even if it wasn’t
about anything essential, it was minor stuff and then you heard of
course [the co-prosecutor’s] very long list of consistencies. He told
a consistent story on the major points.
Closing argument is “a valuable privilege that should not be unduly restricted.”
Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d 411,
425 (Tenn. 2001); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). However,
closing argument “must be temperate, based upon the evidence introduced at trial,
relevant to the issues being tried, and not otherwise improper under the facts or
law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003); see State v. Jordan,
325 S.W.3d 1, 64 (Tenn. 2010). A trial court has significant discretion in controlling
closing argument, and its decisions relative to the contents of argument may only
be reversed upon an abuse of discretion. Terry, 46 S.W.3d at 156; Cauthern, 967
S.W.2d at 737; Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
Although an exhaustive list of the bounds of prosecutorial impropriety cannot be
defined, five general areas of prosecutorial misconduct have been recognized:
1. It is unprofessional conduct for the prosecutor intentionally to
misstate the evidence or mislead the jury as to the inferences it may
2. It is unprofessional conduct for the prosecutor to express his
personal belief or opinion as to the truth or falsity of any testimony
or evidence or the guilt of the defendant. See State v. Thornton, 10
S.W.3d 229, 235 (Tenn. Crim. App. 1999); Lackey v. State, 578
S.W.2d 101, 107 (Tenn. Crim. App. 1978); Tenn. Code of Prof’l
Responsibility DR 7–106(c)(4).
3. The prosecutor should not use arguments calculated to inflame
the passions or prejudices of the jury. See Cauthern, 967 S.W.2d at
737; State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).
4. The prosecutor should refrain from argument which would divert
the jury from its duty to decide the case on the evidence, by injecting
issues broader than the guilt or innocence of the accused under the
controlling law, or by making predictions of the consequences of the
jury’s verdict. See Cauthern, 967 S.W.2d at 737; State v. Keen, 926
S.W.2d 727, 736 (Tenn. 1994).
5. It is unprofessional conduct for a prosecutor to intentionally refer
to or argue facts outside the record unless the facts are matters of
common public knowledge.
Standards Relating To The Prosecution Function And The Defense
Function §§ 5.8–5.9 Commentary (ABA Project on Standards for
Criminal Justice, Approved Draft 1971).
Goltz, 111 S.W.3d at 6.
If improper argument occurs, a new trial is required only if the argument affected
the outcome of the trial to a defendant’s prejudice. Bane, 57 S.W.3d at 425. In
determining whether prosecutorial misconduct affected the jury verdict to prejudice
a defendant, this court has stated a court should consider the conduct in light and in
context of the facts and circumstances of the case, any curative measures taken by
the trial court and the prosecutor, the prosecutor’s intent in making the comment,
the cumulative effect of the improper comment and any additional errors, the
strength or weakness of the case, whether the prosecutor’s comments were lengthy
and repeated or isolated, and whether the comments were in response to defense
counsel’s closing argument. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App.
1976); see Goltz, 111 S.W.3d at 5–6.
Buford v. State, No. M201401534CCAR3PC, 2015 WL 4735661, at *11–13 (Tenn. Crim. App.
Aug. 11, 2015), appeal denied (Dec. 11, 2015).
Petitioner alleges that his trial counsel was ineffective for failing to move for a new trial
based on the prosecutor’s vouching for Mr. Pirtle’s credibility in the portions of her closing
argument quoted above, and that he was prejudiced by that failure because it prevented review of
the alleged prosecutorial misconduct on direct appeal. (Doc. No. 1 at 5.) The TCCA affirmed the
post-conviction court’s rejection of that claim:
The post-conviction court denied relief. Relative to trial counsel’s failure to allege
in the motion for a new trial that the prosecutor improperly vouched for Mr. Pirtle’s
credibility, the court concluded that counsel did not provide ineffective assistance.
The court found that counsel objected during the prosecutor’s closing argument
twice and that the trial court ruled accordingly. The post-conviction court noted that
counsel raised multiple issues in the motion for a new trial and was not expected to
raise every conceivable issue. The court also found that even if counsel were
deficient in this regard, the Petitioner failed to show any prejudice because no
evidence suggested that the issue would have had merit on appeal.
On appeal, the Petitioner contends that the post-conviction court erred by
concluding that trial counsel provided the effective assistance of counsel. He argues
counsel was ineffective by failing to allege in the motion for a new trial that the
prosecutor improperly vouched for Mr. Pirtle’s credibility during her closing
argument. He asserts he has established prejudice in connection with his ineffective
assistance claim because this court waived consideration of the issue in the appeal
of his convictions. He asserts the only “remaining question” is whether counsel’s
failure to include the issue in the motion for a new trial constitutes deficient
performance, and he argues in the affirmative.
To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v.
Fretwell, 506 U.S. 364, 368–72 (1993). The Tennessee Supreme Court has applied
the Strickland standard to an accused’s right to counsel under article I, section 9 of
the Tennessee Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To
establish the performance prong, a petitioner must show that “the advice given, or
the services rendered ..., are [not] within the range of competence demanded of
attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975);
see Strickland, 466 U.S. at 690. The post-conviction court must determine if these
acts or omissions, viewed in light of all of the circumstances, fell “outside the wide
range of professionally competent assistance.” Strickland, 466 U.S. at 690. A
petitioner “is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy by his counsel, and cannot criticize a sound, but
unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.
App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference,
however, only applies “if the choices are informed ... based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To
establish the prejudice prong, a petitioner must show 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.
As a preliminary matter, the Petitioner erroneously argues that he has suffered
prejudice pursuant to Strickland because this court waived consideration of the
issue related to the prosecutor’s improper vouching of Mr. Pirtle’s credibility. In
order to establish prejudice based on the Petitioner’s contention, the Petitioner must
establish that but for trial counsel’s alleged deficient performance of failing to
include the issue in his motion for a new trial, the outcome of the appeal of the
Petitioner’s convictions would have been different had this court considered the
issue on its merit. With this in mind, we consider whether counsel provided
The record reflects that trial counsel did not include in the motion for a new trial
the issue surrounding the prosecutor’s improperly vouching for Mr. Pirtle’s
credibility during the State’s closing argument. The issue was first raised on appeal,
and this court waived consideration of the issue pursuant to Tennessee Appellate
Procedure Rule 3(e) and did not consider the issue as a matter of plain error. See
Kevin L. Buford, Sr., 2012 WL 1895953, at *27.
We note that no evidence was presented at the post-conviction hearing relative to
the prosecutor’s alleged improper vouching or trial counsel’s objections and that
the Petitioner does not identify the comments he considers improper. Counsel
testified that he had not reviewed the transcript of the trial proceedings and could
not recall if he objected to the State’s closing argument. In any event, the trial
transcript submitted in the appeal of the convictions shows that the prosecutor
referred to Mr. Pirtle’s testimony during her closing argument.
. . . [See text quoted in Section V.A. above.]
The record reflects and trial counsel testified at the post-conviction hearing that Mr.
Pirtle’s credibility was a significant factor at the trial, that he cross-examined Mr.
Pirtle extensively, and that he discussed during his closing argument Mr. Pirtle’s
lack of credibility. The prosecutor, as a result, addressed Mr. Pirtle’s credibility in
response to counsel’s closing argument. The prosecutor told the jurors that they
were “the judges” of Mr. Pirtle’s credibility and discussed various factors that
supported a reasonable inference that Mr. Pirtle provided truthful testimony in spite
of minor inconsistences in his statements and his gang affiliation. However, the
prosecutor’s comment that she thought Mr. Pirtle’s “demeanor ... was pretty darn
good” was an expression of her opinion about Mr. Pirtle’s credibility. See, e.g.,
State v. Sexton, 368 S.W.3d 371, 419–20 (Tenn. 2012) (Vouching occurs when a
prosecutor expresses personal opinion that a witness is telling the truth). Likewise,
relative to the minor inconsistencies in Mr. Pirtle’s testimony and prior statements,
the prosecutor told the jurors, “[E]ven if you think Mr. Pirtle was lying ... [,] and I
don’t think ... that is a reasonable conclusion [.]” The prosecutor’s comment
constituted improper vouching because it was an expression of her personal opinion
about Mr. Pirtle’s credibility. See id. at 420.
Although we conclude that the prosecutor made improper comments during the
State’s closing argument regarding Mr. Pirtle’s credibility, we conclude that the
comments were insignificant in view of the overall tenor of the prosecutor’s closing
argument. The record reflects that trial counsel’s cross-examination of Mr. Pirtle
and counsel’s closing argument focused on Mr. Pirtle’s credibility. The
prosecutor’s improper comments were in rebuttal to counsel’s suggestions that Mr.
Pirtle was not credible and focused on the inconsistencies addressed by counsel.
The remainder of the prosecutor’s argument focused on other evidence and the
reasonable inferences to be drawn from that evidence. We conclude that the
comments did not affect the outcome of the trial and that the Petitioner is not
entitled to relief on this basis.
Buford v. State, No. M201401534CCAR3PC, 2015 WL 4735661, at *9–14 (Tenn. Crim. App.
Aug. 11, 2015), appeal denied (Dec. 11, 2015).
The state court properly identified and explained the applicable standard from Strickland
in its analysis above. It then carefully examined the objectionable portions of the prosecutor’s
closing argument and the law applicable to claims of prosecutorial misconduct during closing, and
concluded that Petitioner was not entitled to relief because “the comments were insignificant in
view of the overall tenor of the prosecutor’s closing argument” and “did not affect the outcome of
the trial.” Id. at *14.
The TCCA found no merit in Petitioner’s underlying prosecutorial
misconduct issue, 2 and implicitly concluded – without expressly articulating – that Petitioner was
not prejudiced under Strickland by counsel’s failure to preserve that issue.
The TCCA thus rejected Petitioner’s ineffective-assistance claim on Strickland’s prejudice
prong, without addressing the performance prong or the post-conviction trial court’s analysis of
counsel’s performance, as Strickland explicitly permits. See Strickland, 466 U.S. at 697 (“[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.”). The state court’s failure to spell out every step
of its Strickland analysis does not affect the validity of its ruling under AEDPA. Harrington v.
Richter, 562 U.S. 86, 98 (2011) (“[D]etermining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”); Harris v. Stovall, 212 F.3d 940, 945 (6th Cir. 2000)
(“Where a state court decides a constitutional issue . . . without extended discussion, a habeas court
To the extent that Petitioner may be challenging this piece of the state court’s analysis, he has not established that it
was erroneous, much less unreasonable. In federal claims of prosecutorial misconduct, “[t]he relevant question is
whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a denial
of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations and internal quotation marks omitted)
(denying relief on the basis of inflammatory prosecutorial argument). To require reversal, a prosecutor’s misconduct
must be “so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to
prejudice the defendant.” Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005) (quoting Pritchett v. Pitcher, 117 F.3d 959,
964 (6th Cir. 1997)). The Sixth Circuit has instructed that in order to obtain relief on a claim of prosecutorial
misconduct, a petitioner “must demonstrate that the prosecution’s conduct was both improper and so flagrant as to
warrant reversal.” Id. Accordingly, if a court finds improper conduct, it must consider four factors to determine
whether the challenged conduct is flagrant: “(1) the likelihood that the remarks of the prosecutor tended to mislead
the jury or prejudice the petitioner; (2) whether the remarks were isolated or extensive; (3) whether the remarks were
deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.” Id. In this case the
prosecutor described a witness’s demeanor as “pretty darn good” and said that it would be unreasonable to conclude
that he was lying, but she also correctly reminded the jurors twice that “you are the judges of that,” and largely focused
on the evidence corroborating the witness’s account and the relative insignificance of his inconsistencies. The state
court’s determination that the prosecutor’s improper comments were not sufficiently flagrant to require reversal in
that context was not unreasonable in light of the exceedingly high standard for prosecutorial misconduct claims.
should then focus on the result of the state court’s decision.”); Wright v. Sec’y for Dep’t of Corr.,
278 F.3d 1245, 1255 (11th Cir. 2002) (“Reading into the statute a requirement that state courts
spell out their rationale would run counter to the main thrust of the amendments to the habeas
corpus provisions that were enacted as part of [AEDPA]. . . . Requiring state courts to put forward
rationales for their decisions so that federal courts can examine their thinking smacks of a ‘grading
papers’ approach that is outmoded in the post-AEDPA era.”).
This Court’s role in habeas review is to determine whether the state court acted
unreasonably when it found Petitioner’s counsel was not constitutionally ineffective. 28 U.S.C.
This Court’s own opinion of whether counsel was actually effective is not
determinative. A federal court must not find a state court’s ruling unreasonable unless it is “so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. at 103. The
TCCA’s ruling was not unreasonable under that standard. The court provided a reasonable basis
for its conclusion that the failure to preserve the underlying misconduct claim did not affect the
outcome of Petitioner’s case, and it reasonably applied Strickland to the facts in the record.
Petitioner is not entitled to relief on this claim.
Petitioner also claims that appellate counsel was ineffective for failing to seek plain error
review of the prosecutorial misconduct issue, which he argues “amounts to a second level of
prejudice suffered in this matter by the Petitioner.” (Doc. No. 1 at 6–7.) The TCCA rejected that
The Petitioner also argues that appellate counsel was deficient for failing to request
[that] this court consider the issue of prosecutorial misconduct as a matter of plain
error. Our analysis precludes the possibility that had appellate counsel raised the
issue, plain error relief would have been granted. We note that the Petitioner failed
to present any evidence at the post-conviction hearing relative to appellate counsel.
The Petitioner is not entitled to relief on this basis.
Buford v. State, No. M201401534CCAR3PC, 2015 WL 4735661, at *14 (Tenn. Crim. App. Aug.
11, 2015), appeal denied (Dec. 11, 2015).
Again, the TCCA did not communicate the details of its application of Strickland to those
circumstances, but it obviously concluded that Petitioner was not prejudiced by appellate counsel’s
failure to raise an issue on which he had no chance of prevailing. Its rejection of this claim was
therefore a reasonable disposition under Strickland’s prejudice prong. Petitioner is not entitled to
relief on this claim.
Petitioner’s claims fail on their merits under AEDPA for the reasons set forth above.
Accordingly, the Court will deny the requested relief and dismiss the petition.
An appropriate Order shall enter.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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