Barrett v. Genovese
Filing
36
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 1/24/2020. (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
NASHVILLE DIVISION
JEROME SIDNEY BARRETT,
Petitioner,
v.
KEVIN GENOVESE, Warden,
Respondent.
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NO. 3:17-cv-00062
MEMORANDUM OPINION
Jerome Sidney Barrett, a state prisoner, filed a pro se petition for the writ of habeas corpus
under 28 U.S.C. § 2254 (Doc. No. 1) and an amended habeas petition (Doc. No. 3) (collectively,
the “Petition”). Respondent filed an answer (Doc. No. 23) and Petitioner filed a reply (Doc. No.
33). In the reply, Petitioner requests discovery and an evidentiary hearing. (Doc. No. 33 at 45–48.)
For the following reasons, these requests will be denied, Petitioner is not entitled to relief on any
of his claims, and this action will be dismissed.
I.
Procedural Background
In June 2008, a Davidson County grand jury indicted Petitioner for first-degree murder and
felony murder. (Doc. No. 22-1 at 5–7.) In July 2009, a jury found Petitioner guilty of seconddegree murder, a lesser included offense, on both counts. (Doc. No. 22-2 at 63.) “The jury
sentenced him to forty-four years for each conviction. The trial court merged the convictions and
ordered that the sentence be served consecutively to a life sentence for a previous conviction.”
State v. Barrett, No. M2009-02636-CCA-R3-CD, 2012 WL 2870571, at *25 (Tenn. Crim. App.
July 13, 2012). The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the judgment. Id.
at *46. Petitioner filed an application for permission to appeal to the Tennessee Supreme Court
(Doc. No. 22-27), and the Supreme Court denied it on December 12, 2012 (Doc. No. 22-28).
In November 2013, the trial court received Petitioner’s pro se petition for post-conviction
relief. (Doc. No. 22-29 at 66–110.) The court appointed counsel (id. at 111), and Petitioner filed a
pro se amended petition 1 (id. at 112–30). The court held an evidentiary hearing (Doc. No. 22-31)
and denied relief (Doc. No. 22-29 at 134–42). The TCCA affirmed. Barrett v. State, No. M201501161-CCA-R3-PC, 2016 WL 4410649 (Tenn. Crim. App. Aug. 18, 2016). Petitioner then filed
two applications for permission to appeal: one prepared by counsel (Doc. No. 22-36), and another
prepared by Petitioner himself (Doc. No. 22-37). On December 14, 2016, the Tennessee Supreme
Court denied discretionary review and dismissed Petitioner’s pro se application because he was
“represented by counsel who filed a timely application for permission to appeal.” (Doc. No. 2238.)
Petitioner filed a habeas corpus petition (Doc. No. 1) and an amended petition (Doc. No.
3) in this Court, and Respondent concedes that the Petition is timely (Doc. No. 23 at 2).
II.
Factual Background
On direct appeal, the TCCA provided a comprehensive account of the evidence at trial.
Barrett, 2012 WL 2870571, at *1–25. The Court will refer to specific evidence as necessary in the
analysis below. Here, to provide a basic context for Petitioner’s claims, the Court relies on the
TCCA’s summary of the underlying facts on post-conviction appeal:
In 2009, the Petitioner was convicted of second degree murder for the February
1975 murder of nine-year-old Marcia Trimble. . . . [O]n the evening of February
25, 1975, the victim left her Nashville home to deliver Girl Scout cookies to a
neighbor who lived across the street. When the victim’s mother called for her
1
As the TCCA recognized on post-conviction appeal, this amended petition “was not filed by counsel and was
submitted by the Petitioner” even though “counsel had been appointed at the time the amended petition was filed.”
Barrett v. State, No. M2015-01161-CCA-R3-PC, 2016 WL 4410649, at *2 n.1 (Tenn. Crim. App. Aug. 18, 2016).
Thus, Petitioner’s pro se post-conviction petitions were the operative petitions before the trial court.
2
approximately twenty-five minutes later, the victim did not respond and did not
return home.
Following an extensive search, the victim’s body was found on March 30, 1975, in
a neighbor’s garage. The garage where she was found was open-ended without
doors, and her body was well-hidden. An autopsy showed that the victim’s cause
of death was asphyxia caused by manual strangulation. The forensic examiner who
performed the autopsy opined that based upon decomposition, livor mortis, and the
victim’s stomach contents, she died at or near the time of her disappearance and
was likely in the garage almost from the time of death.
The medical examiner took vaginal swabs from the victim’s vagina, and that
evidence was preserved by rolling the swabs onto slides. Subsequent analysis
showed the presence of sperm, but DNA testing was not available in 1975. The
slides prepared were preserved by the medical examiner’s office. The Federal
Bureau of Investigation (“FBI”) conducted serology testing on the victim’s
underwear, pants, and blouse. Those tests revealed no blood or semen on the
underwear but did show the presence of semen on the pants and blood on the blouse.
The case remained unsolved, but the Metro Nashville Police Department continued
to investigate the murder, and in 1990 the victim’s case file was reviewed in an
attempt to locate evidence that could be submitted for DNA testing. Between 1990
and 2004, the victim’s pants, blouse, and the slides created from the vaginal swabs
were tested multiple times by various laboratories. A DNA profile from this
evidence was created in March 1992. That DNA was compared to samples from
over one hundred individuals, including samples from almost everyone in the
victim’s neighborhood, but there were no matches.
The Petitioner was eventually developed as a suspect, and police obtained a search
warrant for his DNA in 2007. The Petitioner’s DNA matched a profile developed
from the victim’s blouse. A DNA expert opined that the probability of a random
match was one in six trillion. The Petitioner was subsequently arrested and indicted.
In 2008, two jailhouse informants informed authorities that while he was in jail, the
Petitioner made statements admitting that he had killed the victim but denying that
he had raped her.
Barrett, 2016 WL 4410649, at *1–2 (internal citations and quotation marks omitted).
III.
Asserted Claims
Petitioner asserts several claims in the original petition and amended petition. Because
many of the bare assertions in the original petition overlap with arguments raised in the more
expansive amended petition, the Court considers the original and amended petitions collectively.
3
In doing so, the Court has liberally construed the Petition to the fullest extent to identify the
following claims. For clarity, the Court has grouped these claims by type, and listed them in
roughly chronological order.
1. The indictment was not issued by a grand jury with a foreman. (Doc. No. 1 at 25; Doc. No.
3 at 33.)
2. The trial court erred in the following eighteen ways:
2.A.
Denying the motion to dismiss for excessive pre-indictment delay (Doc. No. 1 at
12; Doc. No. 3 at 16);
2.B.
Failing to minimize the effect of prejudicial pretrial publicity (Doc. No. 3 at 26–
27);
2.C.
Failing to dismiss the indictment based on prejudicial pretrial publicity (id.);
2.D.
Denying the motion to continue trial to allow independent DNA analysis (id. at
10);
2.E.
Denying the motion for a bill of particulars (id. at 20);
2.F.
Denying the motion to suppress (Doc. No. 1 at 10; Doc. No. 3 at 15);
2.G.
Allowing the person who performed the autopsy of the victim to testify as a DNA
expert for the prosecution (Doc. No. 1 at 18);
2.H.
Being influenced by media coverage to admit evidence (Doc. No. 3 at 27);
2.I.
Allowing the testimony of “two jailhouse liars” (Doc. No. 3 at 13–14, 23–24);
2.J.
Admitting testimony of Petitioner’s statement that he “had killed before” (Doc.
No. 1 at 14);
2.K.
Admitting photographs of the victim (Doc. No. 3 at 32–33);
2.L.
Admitting a video recording of a jail altercation involving Petitioner and fellow
inmate Frank White, and allowing Sheldon Anter to testify about what White said
to Petitioner (Doc. No. 1 at 27; Doc. No. 3 at 14, 28);
2.M.
Failing to tell the jury the court’s opinion of who the aggressor was in the jail
altercation (Doc. No. 3 at 28);
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2.N.
Allowing the prosecution to ask a defense witness if he was arrested, suspended,
and resigned from the police force in 1978 (Doc. No. 1 at 15; Doc. No. 3 at 16);
2.O.
Allowing the prosecution to impeach a defense witness with a prior misdemeanor
conviction (Doc. No. 1 at 20; Doc. No. 3 at 16);
2.P.
Failing to give a jury instruction on criminal and professional informants (Doc.
No. 3 at 17, 23);
2.Q.
Failing to instruct the jury that it must find Petitioner guilty of an underlying
felony to find him guilty of felony murder (Doc. No. 3 at 19–21); and
2.R.
Imposing an improper consecutive sentence above the maximum (Doc. No. 1 at
22; Doc. No. 3 at 34).
3. The state committed prosecutorial misconduct through comments during closing
argument. (Doc. No. 1 at 24; Doc. No. 3 at 6, 14, 30–31.)
4. There is insufficient evidence to support Petitioner’s convictions. (Doc. No. 1 at 8; Doc.
No. 3 at 14, 22.)
5. Trial counsel was ineffective in the following fourteen ways:
5.A.
Failing to file a motion to dismiss the indictment due to prejudicial pretrial
publicity (Doc. No. 3 at 26);
5.B.
Failing to adequately question potential jurors regarding media coverage (id. at
27);
5.C.
Failing to ask constitutionally required questions during voir dire (id. at 33);
5.D.
Retaining DNA expert Ronald Acklen (Doc. No. 3 at 3–4, 6–8);
5.E.
Failing to assess the constitutionality of the collection, testing, and custody of
DNA evidence (id. at 3–4, 7);
5.F.
Failing to have a DNA expert conduct an independent DNA test (id. at 4, 9);
5.G.
Failing to request a Dunaway hearing of a second DNA search (id. at 9, 16);
5.H.
Failing to object and move to suppress evidence obtained as a result of a second
warrantless DNA search (id. at 15–16);
5.I.
Failing to investigate the backgrounds of state witnesses Sheldon Anter and
Andrew Napper (id. at 13);
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5.J.
Failing to object to the admission of photographs of the victim from around the
time of her death (id. at 33);
5.K.
Failing to object to the prosecutor’s playing and narrating a video recording of the
jail altercation (id. at 28);
5.L.
Advising Petitioner not to call any alibi witnesses, including an individual named
Cicero (id. at 17);
5.M.
Failing to request a jury instruction on criminal and professional informants
regarding Anter and Napper (id. at 13–14, 17, 23); and
5.N.
Failing to request a jury instruction on the absentee witness rule regarding Frank
White (id. at 25–26).
6. The Tennessee Supreme Court erred on direct appeal by reversing its decision to allow
him a discretionary appeal after a one-week feature on his case aired on local news. (Id.
at 27.)
7. The post-conviction trial court erred in the following eleven ways:
7.A.
Failing to appoint substitute counsel in a timely manner (id. at 28–29);
7.B.
Failing to hear the motion to appoint counsel from outside Nashville (id. at 2, 10);
7.C.
Failing to hear the motion to recuse (id. at 2);
7.D
Failing to hear the motion for independent DNA testing (id. at 2);
7.E.
Failing to hear the motion to move the evidentiary hearing due to media bias (id.
at 2);
7.F.
Failing to issue a subpoena to help Petitioner secure witnesses and documentation
for the evidentiary hearing (id. at 8, 10, 12);
7.G.
Holding two evidentiary hearings on the same day, five minutes apart (id. at 12);
7.H.
Failing to address the claim that trial counsel should have requested a jury
instruction regarding the testimony of Anter and Napper (id. at 24);
7.I.
Failing to address the claim that Petitioner’s larceny conviction was void (id.
at 18, 20);
7.J.
Ignoring the defense of “selective prosecution” based on differences between
DNA samples (id. at 3); and
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7.K.
Refusing to provide a copy of the evidentiary hearing transcript (id.).
8. Appointed post-conviction counsel was ineffective at the initial review stage in failing to:
8.A.
Secure an independent expert’s DNA analysis (id. at 5, 9–10);
8.B.
Support Petitioner’s pro se motion for independent expert assistance (id. at 9,
11); and
8.C.
Arrange for alibi witness Cicero to testify at the evidentiary hearing (id.).
9. Appointed post-conviction counsel was ineffective on appeal in:
9.A.
Denying Petitioner’s right to appeal by refusing to include all the requested
grounds for relief in the appellate brief (id. at 10, 13, 30);
9.B.
Failing to provide Petitioner a copy of the evidentiary hearing transcript (id. at
12, 30); and
9.C.
Failing to provide Petitioner a copy of the appellate brief (id. at 12–13, 30).
10. The TCCA erred on post-conviction appeal by failing to address Petitioner’s claim that
the trial court erroneously allowed Anter’s testimony. (Id. at 24–25.)
IV.
Standard of Review
The authority for federal courts to grant habeas corpus relief to state prisoners is provided
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Harrington v. Richter,
562 U.S. 86, 97 (2011). Under AEDPA, a habeas claim “adjudicated on the merits” in state court
cannot be the basis for federal relief unless the state court’s decision was: (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “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). Thus, “[t]he
question under AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher threshold.”
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Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410
(2000)).
Under Section 2254(d)(1), a state court’s decision is “contrary to” clearly established
federal law “‘if the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases’ or ‘if the state court confronts a set of facts that are materially
indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a [different
result].’” Hill v. Curtin, 792 F.3d 670, 676 (6th Cir. 2015) (en banc) (quoting Lockyer v. Andrade,
538 U.S. 63, 73 (2003)). “Under the ‘unreasonable application’ clause of [Section] 2254(d)(1),
habeas relief is available if ‘the state court identifies the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.’” Id. (quoting Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008)). A state
court’s application is not unreasonable under this standard simply because a federal court finds it
“incorrect or erroneous”—instead, the federal court must find that the state court’s application was
“objectively unreasonable.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520–21 (2003)).
To grant relief under Section 2254(d)(2), a federal court must find that “the state court’s
factual determination was ‘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). State-court factual
determinations are only unreasonable “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.” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting Matthews v. Ishee, 486
F.3d 883, 889 (6th Cir. 2007)). “[I]t 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
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‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011)
(citing Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)).
The demanding review of claims rejected on the merits in state court, however, is ordinarily
only available to petitioners who “exhausted the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A); Harrington, 562 U.S. at 103. In Tennessee, a petitioner is “deemed to have
exhausted all available state remedies for [a] claim” when it is presented to the Tennessee Court
of Criminal Appeals. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup.
Ct. R. 39). “To be properly exhausted, each claim must have been ‘fairly presented’ to the state
courts,” meaning that the petitioner presented “the same claim under the same theory . . . to the
state courts.” Wagner v. Smith, 581 F.3d 410, 414, 417 (6th Cir. 2009) (citations omitted).
The procedural default doctrine is “an important ‘corollary’ to the exhaustion
requirement,” under which “a federal court may not review federal claims that . . . the state court
denied based on an adequate and independent state procedural rule.” Davila v. Davis, 137 S. Ct.
2058, 2064 (2017) (citations omitted). A claim also may be “technically exhausted, yet
procedurally defaulted,” where “a petitioner fails to present a claim in state court, but that remedy
is no longer available to him.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones
v. Bagley, 696 F.3d 475, 483–84 (6th Cir. 2012)).
To obtain review of a procedurally defaulted claim, a petitioner must “establish ‘cause’
and ‘prejudice,’ or a ‘manifest miscarriage of justice.’” Middlebrooks v. Carpenter, 843 F.3d 1127,
1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790–91 (6th Cir. 2014)). A
petitioner may establish cause by “show[ing] that some objective factor external to the defense”—
a factor that “cannot be fairly attributed to” the petitioner—“impeded counsel’s efforts to comply
with the State’s procedural rule.” Davila, 137 S. Ct. at 2065 (citations omitted). There is also “a
9
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) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). To establish
prejudice, “a petitioner must show not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.” Garcia-Dorantes v. Warren, 801 F.3d 584, 598 (6th Cir.
2015) (quoting Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991)) (internal quotation marks
omitted).
V.
Analysis
Respondent contends that all of the claims in the original petition—and some of the claims
in the amended petition—should be dismissed because they do not comply with the pleading
requirements of Habeas Rule 2(c). (Doc. No. 23 at 40–42.) Rule 2(c) requires a petitioner to
“‘specify all the grounds for relief available to the petitioner’ and ‘state the facts supporting each
ground.’” Mayle v. Fenix, 545 U.S. 644, 655 (2005) (citations omitted). This rule is “more
demanding” than Rule 8(a) of the Federal Rules of Civil Procedure, under which “a complaint
need only provide ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’”
Mayle, 545 U.S. at 655 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Here, as stated above, the Court considers the original and amended petitions collectively.
Accordingly, although the claims in the original petition are unsupported by facts, and much of
the amended petition is difficult to decipher, the Court will not rely on the pleading standard of
Habeas Rule 2(c) to summarily deny Petitioner’s claims. Instead, the Court will consider whether
Petitioner has complied with Rule 2(c), as necessary, in its consideration of each individual claim.
See Mayle, 545 U.S. at 656 (explaining that a primary purpose of “Rule 2(c)’s demand that habeas
10
petitioners plead with particularity is to assist the district court in determining whether” to order
the State to respond). Nonetheless, Respondent also contends that Petitioner is not entitled to relief
because the claims are either not cognizable, do not survive the demanding review of claims
exhausted in state court, or are procedurally defaulted. (Doc. No. 23 at 40.) The Court agrees and
addresses each category of claims in turn.
A.
Non-Cognizable Claims
“Section 2254(a) states that a federal court ‘shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.’” Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986). Thus, federal district courts
traditionally grant habeas corpus relief only “when the petitioner is in custody or threatened with
custody and the detention is related to a claimed constitutional violation.” Id. As explained below,
some of Petitioner’s challenges to his trial proceedings, direct appeal proceedings, and postconviction proceedings are outside the scope of federal habeas corpus review for this reason. Id.
at 246–47 (discussing Preiser v. Rodriguez, 411 U.S. 475 (1973)) (analyzing the scope of the
federal writ of habeas corpus).
1.
Claims 2.F, 2.G, 2.I, 2.J, 2.N, 2.O—Trial Proceedings
Petitioner asserts eighteen claims of trial court error. Six are not cognizable. First,
Petitioner asserts in Claim 2.F that the trial court erred in denying his motion to suppress. (Doc.
No. 1 at 10; Doc. No. 3 at 15.) To provide some context for this claim, Bill Pridemore, a detective
assigned to the cold case unit of the Metro Nashville Police Department (“MNPD”), obtained a
search warrant for Petitioner’s DNA in October 2007. Barrett, 2012 WL 2870571, at *28. Before
trial, Petitioner filed a motion to suppress the resulting DNA sample and any test results based on
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the sample. (Doc. No. 22-1 at 38–46.) He argued that Pridemore’s affidavit accompanying the
warrant did not establish probable cause, contained a false statement, and omitted material
information. (Id.)
This Court cannot grant “habeas relief based on a state court’s failure to apply the
exclusionary rule of the Fourth Amendment, unless the claimant shows that the State did not
provide him ‘an opportunity for full and fair litigation of [his] Fourth Amendment claim.’” Rashad
v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012) (quoting Stone v. Powell, 428 U.S. 465, 494 (1976)).
An “‘opportunity for full and fair consideration’ means an available avenue for the prisoner to
present his claim to the state courts, not an inquiry into the adequacy of the procedure actually
used to resolve that particular claim.’” Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013)
(quoting Powell, 528 U.S. at 949).
Here, Petitioner had a full and fair opportunity to present this claim in state court, and,
indeed, thoroughly availed himself of that opportunity. He filed a pretrial motion to suppress (Doc.
No. 22-1 at 38–52), the court held an evidentiary hearing (Doc. No. 22-3), and the court denied
the motion on the merits (Doc. No. 22-1 at 119–26). After trial, Petitioner raised this claim again
in a motion for new trial (Doc. No. 22-2 at 70), and the court rejected it (id. at 84). Finally,
Petitioner presented this claim on direct appeal (Doc. No. 22-24 at 55–68), and the TCCA
thoroughly analyzed it before rejecting it on the merits, Barrett, 2012 WL 2870571, at *27–30. In
these circumstances, the denial of Petitioner’s motion to suppress is not reviewable in a federal
habeas corpus proceeding. See Good, 729 F.3d at 640 (holding that presenting a suppression
motion to both the state trial court and the state appellate court “suffices to preclude review of the
claim through a habeas corpus petition under Stone v. Powell”).
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Petitioner’s five other non-cognizable claims related to his trial proceedings—Claims 2.G,
2.I, 2.J, 2.N, and 2.O—challenge the state court’s application of Tennessee evidentiary rules. A
federal habeas court “‘must defer to a state court’s interpretation of its own rules of evidence and
procedure’ when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)
(quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). “A state court evidentiary ruling will
be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the
petitioner’s due process rights.” Wilson v. Sheldon, 874 F.3d 470, 475 (6th Cir. 2017) (quoting
Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001)). “[A]s a general matter, ‘state-court
evidentiary rulings cannot rise to the level of due process violations unless they offend some
principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental.’” Id. at 475–76 (quoting Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000))
(internal citation and quotation marks omitted). This “standard for habeas relief is not easily met,”
id. at 475, and Petitioner does not meet it here.
In Claim 2.G, Petitioner asserts that “the trial court erred in allowing the forensic
pathologist who performed the victim’s autopsy”—Dr. Jerry Francisco—“to testify as an expert in
DNA analysis.” (Doc. No. 1 at 18.) When Petitioner raised this claim on direct appeal, the TCCA
noted that “the admissibility of opinion testimony of expert witnesses” is governed by Tennessee
Rules of Evidence 702 and 703, and that “[q]uestions regarding the admissibility, qualifications,
relevancy, and competency of expert testimony are left to the discretion of the trial court.” Barrett,
2012 WL 2870571, at *41 (citing McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263–64 (Tenn.
1997)). The TCCA then carefully analyzed the claim under state law and concluded that the trial
court did not abuse its discretion. Id. at *41–43. The asserted failure of the state court to comply
13
with state law is not subject to federal habeas review. 2 See Peek v. Carlton, No. 3:04-cv-496, 2008
WL 4186939, at *13 (E.D. Tenn. Sept. 5, 2008) (finding that a petitioner’s claim regarding
“testimony as an expert witness involves the alleged failure of the trial judge to comply with state
law and thus is not cognizable in federal habeas proceedings”).
Next, Petitioner asserts in Claim 2.I that the trial court erred by admitting the testimony of
“two jailhouse liars.” (Doc. No. 3 at 13–14, 23.) Here, Petitioner is referring to Sheldon Anter and
Andrew Napper, two inmates who were incarcerated with Petitioner and testified as state’s
witnesses at trial. See Barrett, 2012 WL 2870571, at *12–15. The part of Claim 2.I referring to
Napper will be addressed below as a procedurally defaulted claim of trial court error. Infra Section
V.C.2. And the part of Claim 2.I referring to Anter is subsumed by the more specific challenge to
Anter’s testimony in Claim 2.J.
As to Claim 2.J, Petitioner asserts that “the trial court erred in admitting evidence that [he]
stated he ‘had killed before.’” (Doc. No. 1 at 14.) As background, Sheldon Anter testified regarding
conversations he had with Petitioner, as well as an argument between Petitioner and another inmate
named Frank White. Barrett, 2012 WL 2870571, at *12–14. Among other things, Anter testified
that Petitioner told White he had killed before. Id. at *13. On direct appeal, Petitioner argued that
the trial court should have found this testimony to be inadmissible under Tennessee Rule of
Evidence 404(b). Id. at *32. The TCCA considered this claim solely under the relevant Tennessee
Rules of Evidence and state law and concluded that the trial court did not abuse its discretion in
admitting this testimony. Id. at *32–35. Accordingly, the Court will not review Claim 2.J here. See
Allen v. Parris, No. 2:15-CV-23-JRG-MCLC, 2018 WL 1595784, at *6–7 (E.D. Tenn. Mar. 30,
2
Moreover, as the TCCA found, this claim is based on a faulty premise. Namely, “Dr. Francisco did not testify as an
expert in DNA analysis.” Barrett, 2012 WL 2870571, at *42. Instead, “[h]e testified as an expert in forensic pathology,
and as part of his expertise as a physician, he described basic scientific knowledge as it related to his laboratory’s lack
of procedures for preventing contamination of DNA evidence in 1975.” Id.
14
2018) (finding that habeas claim regarding trial court’s asserted failure to exclude evidence under
Tennessee Rule of Evidence 404(b) did not “state a cognizable basis for § 2254 relief”).
In Claim 2.N, Petitioner asserts that “the trial court erred in allowing the State to ask
defense witness whether he was arrested, suspended, and had resigned from the police force in
1978.” (Doc. No. 1 at 15; Doc. No. 3 at 16.) During trial, the defense called a former MNPD
employee named Ewen Robert “Bobby” Downs to testify. Barrett, 2012 WL 2870571, at *22–23.
Before cross-examining Downs, the prosecution requested permission at a bench conference to
“ask the witness ‘if he was suspended from the police department on August 22nd, ’78 for lying
during a police investigation.’” Id. at *36. Defense counsel objected, and the court ruled this
question would be allowed. Id. Petitioner challenged this ruling on direct appeal under Tennessee
Rule of Evidence 608, and the TCCA considered this claim under state rules of evidence and state
law. Id. at *35–38. The TCCA, in fact, found that “the trial court erred in allowing the State to
cross-examine Mr. Downs about the circumstances of his departure from the police force.” Id. at
*38. But the TCCA did not find that this error “more probably than not affected the judgment”
under Tennessee Rule of Appellate Procedure 36(b), and therefore held that Petitioner was not
entitled to relief. Id. Petitioner’s challenge to the state court’s resolution of this claim does not state
a claim for federal habeas corpus relief. See Guartos v. Colson, No. 3:12-cv-0048, 2013 WL
247415, at *33 & n.7 (M.D. Tenn. Jan. 23, 2013) (finding that a petitioner’s challenge to the state
court’s application of state evidentiary rules and Tenn. R. App. P. 36(b) did not “state a claim upon
which habeas corpus relief can be granted”).
Finally, Petitioner asserts in Claim 2.O that “the trial court erred in permitting impeachment
of a defense witness with evidence of a misdemeanor conviction.” (Doc. No. 1 at 20; Doc. No. 3
at 16.) Another former MNPD employee named Larry Felts testified during Petitioner’s
15
presentation of proof at trial. See Barrett, 2012 WL 2870571, at *23–24. Before Felts testified, the
prosecution requested a ruling at a bench conference regarding whether it would be allowed to
question him about the circumstances of his departure from the MNPD and about a misdemeanor
conviction. Id. at *39. Defense counsel objected, and the court allowed the questions. Id. Petitioner,
on direct appeal, argued that this evidence “should have been excluded because it did not qualify
for admission under Tennessee Rules of Evidence 608, 609, or 616 and that it was barred by Rule
403.” Id. The TCCA concluded that “the trial court did not err in allowing the State to crossexamine Mr. Felts about his conviction and employment termination.” Id. at *41. Like the four
preceding claims, this claim is not cognizable in a federal habeas corpus proceeding. See Knighton
v. Mills, No. 3:07-cv-2, 2011 WL 3843696, at *11–12 (E.D. Tenn. Aug. 29, 2011) (finding that a
petitioner’s habeas claim challenging the state court’s application of Tenn. R. Evid. 609 and state
law was “not cognizable”).
2.
Claim 6—Denial of Permission to Appeal
Petitioner’s claim that the Tennessee Supreme Court erred during his direct appeal
proceedings is also not reviewable in this case. In Claim 6, Petitioner asserts that the Supreme
Court was “intimidated against giving justice to the petitioner’s appeal” due to media coverage.
(Doc. No. 3 at 27.) That is, Petitioner asserts that the Supreme Court initially granted his
application for permission to appeal but changed course after a local news channel aired a oneweek feature on his case. (Id.) This claim is without merit for at least two reasons.
First, the Tennessee Supreme Court’s decision to deny permission to appeal is not
reviewable in a habeas corpus proceeding because Petitioner has not identified an applicable
federal right to this discretionary review. See Kirby, 794 F.2d at 246 (holding that district courts
typically grant habeas relief only based on “a claimed constitutional violation”). Indeed, the Sixth
16
Circuit has held that Tennessee’s scheme of discretionary Supreme Court review does not conflict
with federal law. See Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003) (discussing O’Sullivan
v. Boerckel, 526 U.S. 838, 847–49 (1999)) (“[T]here is no ‘actual conflict’ between [Tennessee]
Rule [of Appellate Procedure] 39 and federal law.”).
Second, this claim has no basis in the record, and appears to arise from Petitioner’s
improperly conflating this case with his other criminal case from around the same time. In this
case—Davidson County Criminal Court Case No. 2008-B-1791—Petitioner was convicted of
second-degree murder, and the TCCA affirmed the trial court’s judgment on July 13, 2012. Barrett,
2012 WL 2870571, at *1. In another case—Davidson County Criminal Court Case No. 2007-D3201—Petitioner was convicted of first-degree murder, and the TCCA affirmed the trial court’s
judgment on July 18, 2012. State v. Barrett, No. M2010-00444-CCA-R3CD, 2012 WL 2914119,
at *1 (Tenn. Crim. App. July 18, 2012). As support for Claim 6, Petitioner cites to an unrelated
TCCA opinion including a notation that the Tennessee Supreme Court granted discretionary
review in his other direct appeal. See State v. Keeton, No. M2012-02536-CCA-RM-CD, 2013 WL
1619379 (Tenn. Crim. App. Apr. 16, 2013) (citing Barrett, 2012 WL 2914119). Petitioner does
not point to any proof that the Supreme Court ever did so in this direct appeal. Accordingly,
Petitioner’s claim that the Tennessee Supreme Court erred in denying discretionary review of his
direct appeal will be denied.
3.
Claims 7, 10—Post-Conviction Proceedings
Petitioner’s assertions of error by the post-conviction court at the initial review stage and
on appeal—Claim 7, its eleven sub-claims, and Claim 10—are “outside the scope of federal habeas
corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Kirby, 794 F.2d at 246–
49 and Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002)). A challenge to a state’s post-conviction
17
proceedings “cannot be brought under the federal habeas corpus provision, 28 U.S.C. § 2254,”
because “the essence of habeas corpus is an attack by a person in custody upon the legality of that
custody, and [] the traditional function of the writ is to secure release from illegal custody.” Kirby,
794 F.2d at 247 (quoting Preiser, 411 U.S. at 484). Indeed, the Sixth Circuit has reaffirmed that
“attacks on post-conviction proceedings ‘address collateral matters and not the underlying state
conviction giving rise to the prisoner’s incarceration.’” Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 855 (6th Cir. 2017) (quoting Kirby, 794 F.2d at 247). These claims,
accordingly, will be denied.
4,
Claims 8, 9—Ineffective Assistance of Post-Conviction Counsel
In Claims 8 and 9, respectively, Petitioner asserts three sub-claims of ineffective assistance
against his post-conviction counsel on initial review, and three sub-claims of ineffective assistance
against his post-conviction counsel on appeal. These assertions of error are not cognizable as
independent habeas claims because they are specifically barred by statute and long-standing
precedent. 3 Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (citing Martinez v. Ryan, 566
U.S. 1, 17 (2012)) (“28 U.S.C. § 2254(i) bars a claim of ineffective assistance of post-conviction
counsel as a separate ground for relief . . . .”); Coleman v. Thompson, 501 U.S. 722, 752 (1991)
(“There is no constitutional right to an attorney in state post-conviction proceedings.”) (citations
omitted). Thus, Petitioner’s standalone claims challenging the effectiveness of his post-conviction
attorneys will be denied.
In some circumstances, however, the ineffective assistance of post-conviction counsel may
be used to establish the “cause” necessary to obtain review of a procedurally defaulted claim.
3
The Court also notes that Petitioner’s broad assertion, in Claim 9.A, that appellate post-conviction counsel denied
his right to appeal is plainly belied by the record. See Barrett, 2016 WL 4410649 (raising three claims on postconviction appeal).
18
Martinez, 566 U.S. at 17. This is a narrow rule, subject to several limitations, including that it can
only serve as “cause to overcome the default of a single claim—ineffective assistance of trial
counsel.” Davila, 137 S. Ct. at 2062–63 (discussing Martinez, 566 U.S. 1, and Trevino v. Thaler,
569 U.S. 413 (2013)).
In the reply, Petitioner argues that he can “rely on Martinez and Thaler” because his postconviction counsel was ineffective and his procedurally defaulted claims “have some merit.” (Doc.
No. 33 at 4.) Thus, as discussed in more detail below, the Court will consider Petitioner’s assertions
of post-conviction ineffectiveness as allegations of “cause” regarding his procedurally defaulted
claims of ineffective assistance of trial counsel. Infra Section V.C.5.
B.
Adjudicated Claims
Petitioner exhausted two of his twelve remaining claims of trial court error, and three of
his fourteen sub-claims for ineffective assistance of trial counsel.
1.
Claim 2.A—Motion to Dismiss Due to Pre-Indictment Delay
Petitioner filed a pretrial motion to dismiss the indictment due to the thirty-three-year delay
between the offense and the return of the indictment. (Doc. No. 22-2 at 7–8, 11–15.) The state filed
a response. (Id. at 35–37.) The trial court heard oral argument on the motion at a pretrial hearing
(Doc. No. 22-6 at 135–38) and denied the motion at the conclusion of argument (id. at 138–39).
Petitioner contends that this ruling was in error. (Doc. No. 1 at 12; Doc. No. 3 at 16). He raised
this claim on direct appeal, and the TCCA rejected it:
A criminal defendant has the right to due process under the Fifth and Fourteenth
Amendments to the United States Constitution and article I, section 8 of the
Tennessee Constitution. The delay between the commission of an offense and the
initiation of formal proceedings may violate this right to due process. State v. Gray,
917 S.W.2d 668, 671 (Tenn. 1996).
In State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990), relying upon
United States v. Marion, 404 U.S. 307 (1971), this court stated that “[b]efore an
19
accused is entitled to relief based upon the delay between the offense and the
initiation of adversarial proceedings, the accused must prove that (a) there was a
delay, (b) the accused sustained actual prejudice as a direct and proximate result of
the delay, and (c) the State caused the delay in order to gain tactical advantage over
or to harass the accused.” In State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997), the
Supreme Court acknowledged the “Marion-Dykes” analysis for cases of delay in
charging a defendant.
The offense was committed in February 1975, and the victim’s body was
discovered in March 1975. It is undisputed that DNA technology was not available
to the State in 1975. The DNA testing that identified the Defendant took place in
2007. The indictment was returned in June 2008.
We agree with the Defendant that sufficient delay occurred in this case to trigger a
due process inquiry. See, e.g., State v. Carico, 968 S.W.2d 280 (Tenn. 1998)
(conducting due process inquiry in case involving seven-year delay between
offense and arrest); Utley, 956 S.W.2d 489 (five-year delay). Without question, the
thirty-three-year delay was lengthy. We do not dispute that in some cases, the
passage of this many years may be prejudicial to the defense. The Defendant argues,
“[T]he extraordinary delay between the commission of the crime and the return of
the indictment rendered all but impossible the Defendant’s ability to formulate an
alibi defense or produce witnesses or other evidence in his favor.” He argues
generally that the passage of time may impair the quality and quantity of evidence
available and may compromise the reliability of the outcome. We acknowledge that
this is a relevant concern. See, e.g., Carico, 968 S.W.2d at 285 n.5. We note that
the Defendant has not identified any specific unavailable witness or evidence due
to the passage of time, nor is any actual prejudice apparent. We likewise note that
the Defendant does not contend that the State intentionally delayed the prosecution
in order to obtain a tactical advantage. In fact, the record reflects that the police
continued to investigate the crime through the cold case unit and that advances in
DNA technology eventually proved fruitful in identifying the Defendant.
The record supports the trial court’s determination that the Defendant’s due process
rights were not violated by the pre-indictment delay. The trial court did not err in
denying the motion to dismiss the indictment. The Defendant is not entitled to
relief.
Barrett, 2012 WL 2870571, at *31–32.
The TCCA correctly identified the federal standard for this claim, and its application of the
standard was reasonable. “The [United States] Supreme Court recognizes that the Due Process
Clause of the Fifth Amendment protects against oppressive pre-indictment delay.” United States
v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009) (citing Marion, 404 U.S. at 324–25 and United
20
States v. Lovasco, 431 U.S. 783, 789 (1977)). “A due process claim based on [pre-indictment]
prosecutorial delay” requires a two-part inquiry: (1) whether the delay “caused substantial
prejudice to [Petitioner’s] rights to a fair trial,” and (2) whether “the delay was an intentional
device to gain tactical advantage over the accused.” Brenson v. Coleman, 680 F. App’x 405, 407
(6th Cir. 2017) (quoting Marion, 404 U.S. at 324). “[A] defendant must meet both parts of the test
to warrant dismissal of the indictment.” United States v. Baltimore, 482 F. App’x 977, 981 (6th
Cir. 2012) (citing United States v. Greene, 737 F.2d 572, 574–75 (6th Cir. 1984)).
As to the first prong, “[t]he [United States] Supreme Court has repeatedly emphasized that,
in order to establish a due process violation, the defendant must show that the delay ‘caused him
actual prejudice in presenting his defense.’” Schaffer, 586 F.3d at 425 (quoting United States v,
Gouveia, 467 U.S. 180, 192 (1984)). The TCCA found that “actual prejudice” was not “apparent,”
and that Petitioner had “not identified any specific unavailable witness or evidence due to the
passage of time.” Barrett, 2012 WL 2870571, at *31. Here, Petitioner argues only that “all of his
witnesses but one were not able to recall to counsel’s satisfaction or were dead.” (Doc. No. 3 at
16.) Such general assertions of prejudice are not sufficient to establish a due process violation. See
Brenson, 680 F. App’x at 407–08 (denying a petitioner’s habeas claim for excessive pre-indictment
delay where the state court found that speculative assertions of witnesses’ memories fading and
unavailability did not establish actual prejudice).
The TCCA likewise found, regarding the second prong, that Petitioner did not even
“contend that the State intentionally delayed the prosecution in order to obtain a tactical
advantage.” Barrett, 2012 WL 2870571, at *31. Petitioner now seems to imply that the delay must
have been intentional because DNA testing has been used in Tennessee at least since 1990, and he
was not indicted until 2008. (Doc. No. 3 at 16.) This is mere speculation, however, and it is
21
inconsistent with the record. As the TCCA found, Petitioner’s prosecution was the result of
continued investigative efforts by the MNPD cold case unit and advancements in DNA technology,
and did not involve any intentional delay tactic. Barrett, 2012 WL 2870571, at *31. That is, MNPD
personnel took steps to investigate the case after 1990 but did not develop Petitioner as a suspect
and obtain a search warrant for his DNA until October 2007. Id. at *11–12, 15. Petitioner was
arrested and indicted after the MNPD obtained the results from the testing. Id. at *15. This
sequence of events is consistent with due process. See Smith v. Caruso, 53 F. App’x 335, 336–37
(6th Cir. 2002) (citing Lovasco, 431 U.S. at 796) (“Where delay is investigative, rather than
intentional in order to gain a tactical advantage, due process principles are not offended . . . .”)
In conducting its analysis of this claim, the TCCA recognized that the “thirty-three-year
delay” in this case was “lengthy.” Barrett, 2012 WL 2870571, at *31. It also acknowledged
Petitioner’s “relevant concern” that “the passage of time may impair the quality and quantity of
evidence available and may compromise the reliability of the outcome.” Id. But such general
concerns would apply to any prosecution involving a prolonged pre-indictment delay, and the
Court simply cannot presume prejudice based on the unavoidable passage of time. The state court
thoroughly considered this claim, its reasoning was consistent with clearly established federal law,
and the ruling was not based on an unreasonable interpretation of the facts. This claim will be
denied.
2.
Claim 2.R—Improper Sentence
Next, Petitioner asserts that “the trial court erred in imposing a forty-four-year sentence to
be served consecutively to [his] life sentence.” (Doc. No. 1 at 22; Doc. No. 3 at 34.) On direct
22
appeal, he raised the two issues that comprise this claim separately. First, Petitioner argued that
the jury imposed an excessively long sentence. Barrett, 2012 WL 2870571, at *43–44. And second,
he argued that the court erred by “imposing his sentence consecutively to a life sentence for a
previous conviction.” Id. at *44–45. Here, Respondent contends that this entire claim is not
reviewable because it challenges a state court’s application of state sentencing law. (Doc. No. 23
at 64–65.) While “trial courts have historically been given wide discretion in determining ‘the type
and extent of punishment for convicted defendants,’” Austin v. Jackson, 213 F.3d 298, 301 (6th
Cir. 2000) (quoting Williams v. New York, 337 U.S. 241, 245 (1949)), convicted defendants
nonetheless retain a federal “due process right to a fair sentencing procedure.” Id. at 300 (quoting
United States v. Anders, 899 F.2d 570, 575 (6th Cir. 1990)). Thus, in an abundance of caution, the
Court will review the TCCA’s resolution of this claim. In doing so, however, the Court concludes
that Petitioner is not entitled to relief.
The TCCA considered and rejected the excessive-sentence argument as follows:
As noted by the State, second degree murder at the time of the offense carried a
sentence to prison “for life or for a period of not less than ten (10) years.” T.C.A. §
39-2408 (1975) (renumbered at T.C.A. § 39-2-212) (repealed 1989); see id.,
§ 40-35-117(c) (2010) (providing that prior law shall apply to sentencing of a
defendant for a crime committed before July 1, 1982). The law also provided, “The
jury before whom the offender is tried, shall ascertain in their verdict whether it is
murder in the first or second degree; and if the accused confess his guilt, the court
shall proceed to determine the degree of crime by the verdict of a jury, upon the
examination of testimony, and give sentence accordingly.” See id., § 39-2404
(1975) (amended 1977, 1988) (repealed 1989); see, e.g., State v. Bryant, 805
S.W.2d 762, 763 (Tenn. 1991). “Until 1982, appellate review of sentencing was
limited to issues of probation, consecutive sentencing, and capital punishment.
Where the jury fixed sentences within the range authorized by the criminal statute,
no appeal was available.” Bryant, 805 S.W.2d at 763 (citing Ryall v. State, 321
S.W.2d 809 (Tenn. 1959); State v. Webb, 625 S.W.2d 281 (Tenn. Crim. App.
1980); Johnson v. State, 598 S.W.2d 803 (Tenn. Crim. App. 1980)).
The Defendant acknowledges that jury-imposed sentences within the range
prescribed by the former sentencing law normally have not been considered to be
“excessive or indicative of passion, prejudice, or caprice on the part of the jury.”
23
See Dukes v. State, 578 S.W.2d 659, 666 (Tenn. Crim. App. 1978). He notes that
the Tennessee Supreme Court modified sentences involving jury-imposed jail
confinement in McKnight v. State, 106 S.W.2d 556 (Tenn. 1937) and Bacon v.
State, 385 S.W.2d 107 (Tenn. 1964). We note, however, that both cases cited by
the Defendant involved misdemeanors, and distinguish them on that basis. See
Bacon, 385 S.W.2d at 270 (identifying “assault and battery” and describing a
misdemeanor assault); McKnight, 106 S.W.2d at 557 (identifying unlawfully
soliciting insurance as a misdemeanor).
In any event, the Defendant advocates that this court should reduce his sentence to
one commensurate to a Range I sentence for second degree murder under current
law. He notes that his forty-four year sentence is greater than the maximum
sentence for both Range I and Range II sentences for second degree murder under
current law. He argues that pursuant to current Code section 39-11-112, he should
receive the benefit of the lesser sentence provided for second degree murder by
current law. Code section 39-11-112 states:
When a penal statute or penal legislative act of the state is repealed
or amended by a subsequent legislative act, the offense, as defined
by the statute or act being repealed or amended, committed while
the statute or act was in full force and effect shall be prosecuted
under the act or statute in effect at the time of the commission of the
offense. Except as provided under the provisions of § 40-35-117, in
the event the subsequent act provides for a lesser penalty, any
punishment imposed shall be in accordance with the subsequent act.
T.C.A. § 39-11-112 (2010) (emphasis added). Code section 40-35-117 provides
that prior law shall apply for all defendants who committed crimes before July 1,
1982. Id., § 40-35-117(c) (2010). This court has said that section 40-35-117 is
constitutional. See, e.g., State v. Turner, 919 S.W.2d 346, 361–62 (Tenn. Crim.
App. 1995); State v. Melvin, 913 S.W.2d 195, 201–02 (Tenn. 1995).
We conclude that the jury imposed a sentence that was within the applicable range
and that the Defendant is not afforded further review by this court. The Defendant
is not entitled to relief.
Barrett, 2012 WL 2870571, at *43–44.
As this analysis reflects, the excessive-sentence portion of this claim is essentially an
argument that Petitioner should not have been sentenced under the sentencing laws in place at the
time of the underlying offense. Under Tenn. Code Ann. § 40-35-117(c), however, “all persons who
committed crimes prior to July 1, 1982” are sentenced based on prior law. And the TCCA applied
24
its prior holding that “section 40-35-117 is constitutional.” Barrett, 2012 WL 2870571, at *44. In
doing so, the TCCA cited State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App. 1995), where that
court explained as follows:
The Tennessee General Assembly has the exclusive authority to designate what
conduct is prohibited and the punishment for that conduct. As a corollary, the
General Assembly had the authority to provide that crimes committed prior to July
1, 1982, would be exempted from both the 1982 and the 1989 Acts. Moreover, the
General Assembly did not violate any constitutional right guaranteed to the
appellant, or any other citizen, by exempting crimes committed prior to July 1,
1982, from both Acts.
Whether this Court makes an analysis based upon the strict scrutiny test, as the
appellant suggests, or the rational basis test, as the state suggests, the results will be
the same. The appellant’s right to Due Process was not violated by the imposition
of a sentence based upon the law and punishment that existed when he committed
the offense.
919 S.W.2d at 362. Petitioner has not demonstrated that the TCCA’s determination of this
excessive-sentence issue was objectively unreasonable, or contrary to clearly established federal
law. See Frazier v. Fortner, No. 1:09-cv-00016, 2011 WL 4402959, at *4–7 (M.D. Tenn. Sept. 21,
2011) (finding that the TCCA’s application of Tenn. Code Ann. § 40-35-117(c) “did not violate
the Ex Post Facto clause nor any due process rights of the Defendant under any clearly established
Supreme Court precedents at the time of his sentencing”). Petitioner is not entitled to relief on this
ground.
The state court’s determination of the consecutive-sentence portion of Petitioner’s
sentencing claim was also reasonable. The TCCA analyzed this portion as follows:
Before considering the issue raised, we note that at the Defendant’s request, the
trial court considered consecutive sentencing of the Defendant under current Code
section 40-35-115. That statute was not in effect at the time of the Defendant’s
crime. At that time, the Code provided:
When any person has been convicted of two (2) or more offenses,
judgment shall be rendered on each conviction after the first,
providing that the terms of imprisonment to which such person is
25
sentenced shall run concurrently or cumulatively in the discretion of
the trial judge; provided, that the exercise of the discretion of the
trial judge shall be reviewable by the Supreme Court on appeal.
T.C.A. § 40-2711 (1975) (amended 1979) (repealed 1982). As we noted in Section
VIII, the current Criminal Code provides that prior law shall apply for all
defendants who committed crimes before July 1, 1982. See id., § 40-35-117(c). The
proper law for determining whether the Defendant should receive a consecutive
sentence was the law as it existed in 1975.
In that regard, the Defendant’s crime was committed before our Supreme Court’s
decisions in Gray v. State, 538 S.W.2d 391 (Tenn. 1976) and State v. Taylor, 739
S.W.2d 227 (Tenn. 1987). Those cases established the framework that was adopted
by our legislature in defining the current consecutive sentencing scheme. See
generally T.C.A. § 40-25-115, Sent’g Comm. Cmts. Collectively, Gray and Taylor
defined five categories of offenders for whom consecutive sentencing was
appropriate. See id. The legislature added two additional categories in 1990. Id.
Before the Gray and Taylor decisions, there was no guidance for a trial court in
imposing consecutive sentencing. See Gray, 538 S.W.2d at 392–93 (noting the
absence of guidelines for determining when consecutive sentencing was
appropriate and defining guidelines to be followed in the future); see also Bundy v.
State, 140 S.W.2d 154 (Tenn. 1940) (stating that consecutive sentencing was in the
discretion of the trial court); Wooten v. State, 477 S.W.2d 767, 768 (Tenn. Crim.
App. 1971).
All of that said, the development of the law is of little consequence to the outcome
of this case. Use of the subsequently developed guidelines only reinforces that the
trial court did not abuse its discretion. In the present case, the trial court found two
bases for imposing consecutive sentencing. First, the court found that the
Defendant’s history of criminal activity was extensive. See Gray, 538 S.W.2d at
393. The record reflects that the Defendant had prior convictions for first degree
murder, rape, unlawful carnal knowledge of a minor, and assault with intent to rape.
This was an appropriate consideration that was within the discretion of the trial
court, without regard to the timing of the Gray decision. The trial court did not
abuse its discretion in imposing consecutive sentencing on this basis.
Second, the trial court found that the Defendant was a dangerous offender with little
or no regard for human life and who had no hesitation about committing a crime
involving a high risk to human life. See id. With regard to this finding, the court
noted that the sentence “need[ed] to be long enough to keep [the Defendant]
permanently incarcerated” and that an extended sentence would minimize the
deaths of the victim and the murder victim from the previous case. 4 See id.; see also
State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Again, this was an appropriate
4
To be clear on this point, the trial court found that Petitioner must serve this sentence consecutively to a previously
imposed sentence, in part, because “[t]o do otherwise would minim[ize] the death[s] of” the victims in each case.
(Doc. No. 22-21 at 13.)
26
consideration for the trial court to have considered. The trial court did not abuse its
discretion in relying on this basis to impose consecutive sentences.
Barrett, 2012 WL 2870571, at *44–45.
Here, Petitioner contests only the first factor relied on by the trial court—that he had an
extensive history of criminal activity. As the TCCA observed, at the time of sentencing in this
case, Petitioner “had prior convictions for first degree murder, rape, unlawful carnal knowledge of
a minor, and assault with intent to rape.” Barrett, 2012 WL 2870571, at *45. Petitioner does not
dispute the fact of these convictions. Instead, he seems to argue that these convictions should not
have been used to impose a consecutive sentence because the offenses occurred “less than one
month apart” and “were all over thirty (30) years old” at sentencing. (Doc. No. 3 at 34.) Petitioner
has not, however, cited any clearly established federal law to support this argument. The TCCA
explained that “the proper law for determining whether the Defendant should receive a consecutive
sentence was the law as it existed in 1975,” and that the imposition of consecutive sentences, at
that time, was entirely within the trial court’s discretion. Barrett, 2012 WL 2870571, at *45
(citations omitted). The United States Supreme Court has recognized this sentencing scheme as
constitutional. See Oregon v. Ice, 555 U.S. 160, 163–64 (2009) (noting that states “entrust[ing] to
judges’ unfettered discretion the decision whether sentences for discrete offenses shall be served
consecutively or concurrently” do not “transgress[] the Sixth Amendment”). The consecutive
sentence portion of this claim, therefore, is without merit.
Because the state court’s determination of Petitioner’s sentencing claim was neither
contrary to nor an unreasonable application of clearly established federal law, Claim 2.R will be
denied.
3.
Claims 5.D, 5.F, 5.L—Ineffective Assistance of Trial Counsel
27
The Court now turns to Petitioner’s exhausted sub-claims of ineffective assistance of trial
counsel. On post-conviction appeal, Petitioner asserted that trial counsel was ineffective for failing
to: (1) timely request independent DNA testing; (2) call a DNA expert; and (3) call an alibi witness.
Barrett, 2016 WL 4410649, at *1. Here, Petitioner does not raise the first and second sub-claims
verbatim. Nonetheless, as explained in more detail below, the Court liberally construes Claims 5.F
and 5.D, respectively, to be exhausted through the first and second sub-claims raised on postconviction appeal. Meanwhile, Petitioner clearly exhausted Claim 5.L by asserting that trial
counsel was ineffective for failing to call an alibi witness.
The federal law governing the adequacy of a criminal defendant’s representation is defined
in Strickland v. Washington, 466 U.S. 668 (1984). Premo v. Moore, 562 U.S. 115, 121 (2011).
The TCCA correctly identified and set forth the Strickland standard before considering Petitioner’s
ineffective-assistance claims on the merits. Barrett, 2016 WL 4410649, at *4–5.
Under Strickland, a petitioner must show (1) deficient performance of counsel and (2)
prejudice to the defendant. Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citing Strickland,
466 U.S. at 687). Trial counsel’s performance is deficient where it falls “below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687–88. “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (citing Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). To establish prejudice, 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. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. “[A] court deciding an ineffective assistance claim” need
28
not “address both components of the inquiry if the defendant makes an insufficient showing on
one.” Id. at 697.
When a petitioner raises an exhausted ineffective-assistance claim in a federal habeas
petition, “[t]he pivotal question” is not “whether defense counsel’s performance fell below
Strickland’s standard,” but “whether the state court’s application of the Strickland standard was
unreasonable.” Harrington, 562 U.S. at 101. This amounts to a “‘doubly deferential’ standard of
review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v.
Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). That is
because, under Section 2254(d)(1), “an unreasonable application of federal law is different from
an incorrect application of federal law.” Id. (quoting Williams, 529 U.S. at 410). Accordingly, “[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.
Here, in Claim 5.F, Petitioner asserts that trial counsel was ineffective for failing to have
an expert conduct independent DNA testing. (Doc. No. 3 at 9–10.) As background for this subclaim, Petitioner’s counsel filed a motion to continue trial on June 30, 2009, to allow adequate
time to obtain independent DNA testing. (Doc. No. 22-2 at 21–23.) At that time, trial was set to
begin on July 13, 2009. (Id. at 21.) The court denied the motion, stating that counsel had “known
about the DNA for 11 months.” (Doc. No. 22-5 at 111–12.) On post-conviction appeal, Petitioner
argued that “trial counsel was deficient for failing to make a timely request for independent DNA
analysis.” Barrett, 2016 WL 4410649, at *5. While Claim 5.F does not specifically question the
timing of counsel’s request, it raises the same issue as on post-conviction appeal: counsel’s failure
to ensure that an expert conducted independent DNA testing before trial. Thus, the Court liberally
construes Claim 5.F to have been exhausted on post-conviction appeal.
29
The TCCA rejected this sub-claim as follows:
[T]he Petitioner contends that trial counsel was deficient for failing to make a
timely request for independent DNA analysis. The Petitioner asserts that if
“independent testing [had] been requested at an earlier and more reasonable time
the request might have been granted.” However, the Petitioner failed to introduce
any results of independent testing at the hearing in support of his claim and offered
no explanation as to how he was prejudiced by the absence of independent DNA
testing.
At the evidentiary hearing, trial counsel testified that after consulting with Dr.
Acklen, he determined that independent testing was not necessary. Dr. Acklen
opined to counsel that he agreed with the conclusions reached by the State’s
experts. Additionally, Dr. Acklen advised trial counsel about particular areas of
cross-examination. Counsel admitted at the hearing that “[i]n retrospect” he wished
that he had requested independent testing earlier, mostly because it was something
that the Petitioner wanted. However, when reviewing an attorney’s conduct in the
post-conviction context, “a fair assessment . . . requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. Likewise, deference is made
to trial strategy or tactical choices if they are informed ones based upon adequate
preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel made a
decision not to request independent testing based on his consultation with an expert
and subsequent conclusion that additional testing would not be helpful. Although
he expressed regret in hindsight that he did not request independent testing, we
conclude that at the time, he made a reasonable strategic decision not to request
independent testing earlier in the case. Accordingly, the Petitioner has not proven
that counsel rendered deficient performance, and he is not entitled to relief.
Barrett, 2016 WL 4410649, at *5–6.
It was reasonable for the state court to determine that counsel did not perform deficiently
in deciding not to obtain independent DNA testing prior to trial. As the TCCA noted, counsel’s
decision was based on his consultation with Dr. Ronald Acklen, a DNA expert. Counsel testified
at the evidentiary hearing that Dr. Acklen reviewed all of the laboratory reports, notes, and
procedure manuals related to the DNA testing in this case. (Doc. No. 22-31 at 63–64.) “Counsel
and Dr. Acklen discussed the ‘methodology and procedure’ utilized by the various laboratories
involved in the DNA analyses,” and Dr. Acklen informed counsel that he agreed with the
30
assessments reflected in the state’s reports. Barrett, 2016 WL 4410649, at *4. Based on Dr.
Acklen’s opinion, counsel decided that it was unnecessary to obtain independent testing.
Counsel’s expression of regret at the evidentiary hearing regarding this decision was
clearly based on Petitioner’s desire, not his own. (Doc. No. 22-31 at 66 (“In light of the fact that
[Petitioner] wanted it done and we were unable to achieve that, I wish that I had done it sooner.”).)
Even so, “[u]nder Strickland, courts give little weight to counsel’s hindsight assessment of [his]
trial actions.” O’Neal v. Burt, 582 F. App’x 566, 573–74 (6th Cir. 2014) (collecting cases); see
also Tyler v. Ray, 610 F. App’x 445, 449 (6th Cir. 2015) (“The question under Strickland is not
what the reviewing judge would have done in hindsight, or even what the attorney himself would
have done in hindsight.”). Counsel’s decision not to obtain independent DNA testing before trial
was an informed one, “within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689. Applying the “doubly deferential” standard of review for exhausted claims of
ineffective assistance of counsel, the Court concludes that the state court was not unreasonable in
determining that counsel was not deficient.
The TCCA’s finding that Petitioner failed to demonstrate prejudice resulting from the
failure to obtain independent DNA testing was also not unreasonable. The TCCA pointed out that
Petitioner did not “introduce any results of independent testing at the hearing in support of his
claim and offered no explanation as to how he was prejudiced by the absence of independent DNA
testing.” Barrett, 2016 WL 4410649, at *5. Here, Petitioner blames this failure on the postconviction trial court’s refusal to consider pro se motions seeking independent DNA analysis, 5
documents, and witnesses. (Doc. No. 3 at 10–12.) Petitioner also lays this failure at the feet of
5
The Court notes that, while there is not a record of the post-conviction court’s formally ruling on Petitioner’s request
for independent DNA analysis, the court did find that it “heard no evidence” to support Petitioner’s claim that “the
DNA tests were unreliable, prejudicial, and unscientific.” (Doc. No. 22-29 at 140.)
31
post-conviction counsel for inadequately assist him. (Id. at 9–10, 12.) But, as the Court explained
in denying Petitioner’s claims of error by the post-conviction trial court, supra Section V.A.3,
“[e]rrors or deficiencies in post conviction proceedings are not properly considered in habeas
corpus proceedings.” Hayden v. Warden, Marion Corr. Inst., No. 2:15-cv-2927, 2016 WL
2648776, at *3 (S.D. Ohio May 10, 2016) (collecting cases). And there is no constitutional “right
to the effective assistance of postconviction counsel.” Stojetz v. Ishee, 389 F. Supp. 2d 858, 889
(S.D. Ohio 2005); see also Gerth v. Warden, Allen Oakwood Corr. Inst., 938 F.3d 821, 830 (6th
Cir. 2019) (quoting Coleman, 501 U.S. at 752) (“The Supreme Court has explained that a
defendant has ‘no constitutional right to an attorney in state post-conviction proceedings’ and
therefore ‘cannot claim constitutionally ineffective assistance of counsel in such proceedings.’”).
“A federal habeas court’s review of ‘any claim that was adjudicated on the merits in State
court proceedings’ is limited to the evidence presented in the state proceeding.” Smith v.
Carpenter, No. 3:99-cv-0731, 2018 WL 317429, at *4 (M.D. Tenn. Jan. 8, 2018) (citing Pinholster,
563 U.S. at 181–82). Here, regardless of Petitioner’s current complaints, the fact remains that
Petitioner failed to present evidence in his post-conviction proceedings that the absence of
independent DNA testing prejudiced him. Thus, the state court’s determination to this effect was
not unreasonable.
The TCCA’s reasonably determined that Petitioner failed to demonstrate both deficiency
and prejudice as to counsel’s failure to obtain independent DNA testing before trial. Claim 5.F,
therefore, will be denied.
Next, in Claim 5.D, Petitioner seems to assert that trial counsel was ineffective for retaining
an insufficient DNA expert. (Doc. No. 3 at 3–4.) As noted above, trial counsel consulted with
DNA expert Dr. Acklen before trial. On post-conviction appeal, Petitioner contended that “trial
32
counsel was ineffective for not calling a DNA expert to testify for the defense.” Id. at *5. Here,
Petitioner argues that Dr. Acklen did not have the “scientific objectivity” necessary to
“independently assess” the DNA state’s reports and “advise defense counsel as to the reliability
and admissibility of the DNA evidence in the case.” (Doc. No. 3 at 3.) The implication of this
argument is that, if Dr. Acklen was sufficiently competent, he would have identified deficiencies
with the state’s DNA reports, advised counsel to that effect before trial, and testified to that effect
during trial. Accordingly, the Court liberally construes Claim 5.D to have been exhausted through
Petitioner’s second sub-claim on post-conviction appeal.
The TCCA essentially found that Petitioner failed to demonstrate that he was prejudiced
by trial counsel’s retaining an allegedly inadequate DNA expert. Barrett, 2016 WL 4410649, at
*5. That is, because Petitioner “failed to produce the testimony of a DNA expert at the hearing,”
the TCCA held, it could not “assess what impact” a DNA expert’s testimony “would have had at
trial.” Id. (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). As explained
above, counsel did not call a DNA expert to testify at trial because Dr. Acklen concurred with the
conclusions of the state’s DNA reports. Petitioner now disagrees with Dr. Acklen’s assessment,
reasoning that Dr. Acklen must have lacked the “scientific objectivity” necessary to render an
adequate opinion. But without the testimony of either Dr. Acklen or another DNA expert at the
post-conviction evidentiary hearing, the TCCA had no basis to conclude that Dr. Acklen’s opinion
was flawed in some way. Again, while Petitioner blames post-conviction counsel for the failure to
present this evidence, the Court must consider only the evidence actually presented. See Smith,
2018 WL 317429, at *4 (citing Pinholster, 563 U.S. at 181–82). In doing so, the Court concludes
that it was not unreasonable for the TCCA to find that Petitioner failed to demonstrate prejudice
resulting from counsel’s use of Dr. Acklen as a DNA expert.
33
The TCCA did not make a finding on whether counsel was deficient in retaining Dr.
Acklen. “When a state court relied only on one Strickland prong to adjudicate an ineffective
assistance of counsel claim,” the Court reviews the unadjudicated prong de novo. Rayner v. Mills,
685 F.3d 631, 638 (6th Cir. 2012). Here, the Court concludes that Petitioner has not demonstrated
deficiency under this standard.
Counsel testified at the evidentiary hearing that he had worked with Dr. Acklen before and
that he hired Dr. Acklen through Tennessee’s Administrative Office of the Courts. (Doc. No. 2231 at 63.) Under Tennessee Supreme Court Rule 13, Section 5(b)(2)(B), in order to obtain Dr.
Acklen’s expert services in this case, counsel had to file a motion including information about Dr.
Acklen’s qualifications and licensure status. The trial judge signed an ex parte order authorizing
this expenditure. (Doc. No. 22-31 at 63.) Counsel then ensured that Dr. Acklen received all of the
laboratory reports, notes, and procedure manuals provided by the state. (Id.) Although Petitioner
now takes issue with Dr. Acklen’s assessment of this information, he does so only by presenting
scattershot assertions of error in the state’s DNA reports. (See Doc. No. 3 at 3–4, 6–8, 9.) Petitioner
does not assert that counsel had any reason to doubt Dr. Acklen’s qualifications prior to consulting
with him, or that Dr. Acklen has since suffered some professional disrepute. Petitioner’s
conclusory assertion of ineffectiveness does not overcome the strong presumption that counsel
performed adequately in retaining Dr. Acklen. See Burt, 571 U.S. at 23 (citing Strickland, 466
U.S. at 690) (“Counsel should be ‘strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.’”).
In sum, the Court concludes that the TCCA’s application of Strickland to the prejudice
prong of this claim was not unreasonable, and Petitioner has not demonstrated deficiency under a
de novo review. Claim 5.D will be denied.
34
Finally, in Claim 5.L, Petitioner asserts that trial counsel was ineffective for advising him
not to call any alibi witness, including an individual named Cicero who would have testified that
Petitioner was in Chicago, Illinois at the time of the murder. (Doc. No. 3 at 17.) The TCCA rejected
this sub-claim:
According to the Petitioner, Cicero would have testified that he was in Chicago on
the day that the victim disappeared. In order to satisfy the prejudice prong of
Strickland when alleging that trial counsel was ineffective for failing to investigate
or call witnesses, a petitioner must “show that through reasonable investigation,
trial counsel could have located the witness . . . and . . . elicit[ed] both favorable
and material testimony from the witness.” State v. Denton, 945 S.W.2d 793, 802–
03 (Tenn. Crim. App. 1996) (citing Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990)). When a petitioner claims that trial counsel was ineffective for
failing to call witnesses, the only way he can prove prejudice is by producing the
testimony of those witnesses at the evidentiary hearing. See Black, 794 S.W.2d at
757.
Although the Petitioner and trial counsel testified that Cicero recalled the
Petitioner’s being in Chicago on the day of the victim’s disappearance, Cicero was
not called as a witness at the evidentiary hearing. Consequently, it is unclear what
Cicero would have actually testified to and what impact, if any, that testimony
would have had on the outcome of trial. Accordingly, the Petitioner has not shown
prejudice, and he is not entitled to relief.
Because Petitioner did not call Cicero at the evidentiary hearing to clarify what he would
have actually testified to at trial, the state court’s determination that he failed to demonstrate
prejudice on this sub-claim is not objectively unreasonable. See Hutchison v. Bell, 303 F.3d 720,
748–49 (6th Cir. 2002) (citations omitted) (“[A] petitioner cannot show deficient performance or
prejudice resulting from a failure to investigate if the petitioner does not make some showing of
what evidence counsel should have pursued and how such evidence would have been material.”).
Moreover, the evidentiary hearing testimony of Petitioner and trial counsel reflects that counsel
was not deficient. Regarding Cicero, Petitioner testified as follows:
Cicero suffered from serious medical issues and was an ex-convict. According to
the Petitioner, counsel did not want to call Cicero because he did not believe Cicero
would be an effective witness, which counsel discussed with the Petitioner.
35
Ultimately, Cicero was not called as an alibi witness, a decision that the Petitioner
admitted he agreed with at the time, noting that he “trusted [counsel’s] judgment.”
In retrospect, however, the Petitioner said that “even a little bit might have been
better than none” because Cicero was the only person who remembered his being
in Chicago on the day the victim went missing.
Barrett, 2016 WL 4410649, at *2. Trial counsel also testified as follows:
Trial counsel . . . agreed that he and the Petitioner discussed an alibi defense early
in the case. Counsel said that he worked with a defense investigator, Amber Cassitt,
and that he gave her the list of potential alibi witnesses and asked her to meet with
the Petitioner to discuss details of the alibi and then to meet with as many people
on the list as possible. According to trial counsel, Ms. Cassitt spent a “substantial
amount of time” attempting to locate these potential witnesses. Trial counsel said
that Ms. Cassitt was able to locate about half of the individuals named by the
Petitioner, but some of them did not remember the Petitioner. Two people
remembered the Petitioner and “thought that it was likely that he would have gone
[to Chicago] because he was active in [the] [Nation of Islam] community at that
time.” However, Cicero was the only person who “specifically” told Ms. Cassitt
that he recalled the Petitioner’s being in Chicago on the relevant date.
According to trial counsel, Cicero was not actually located until closer to the trial
date. Counsel decided to file a notice of alibi and then he and the Petitioner “had
further discussion about whether . . . [Cicero] would be a good witness in terms of
credibility issues.” Trial counsel said that he stood by his decision not to call Cicero
as a witness, saying that if there had been “stronger means to prove that [the
Petitioner] was in Chicago,” trial counsel would have presented that evidence.
However, trial counsel opined that the alibi evidence they had was not strong, and
he ultimately concluded that “putting out a weak alibi was worse than putting on
no proof at all.”
Id. at *3.
“[D]eciding which witnesses to present at trial is a matter of strategy.” Yancey v. Haas,
742 F. App’x 980, 984 (6th Cir. 2018) (citations omitted). And Petitioner “must overcome the
presumption that” his counsel’s decision not to call Cicero as an alibi witness “might be considered
sound trial strategy.” Strickland, 688 U.S. at 689 (citing Michel, 350 U.S. at 101). Petitioner’s
counsel testified that he considered presenting an alibi defense, investigated potential alibi
witnesses, and concluded that Cicero—the only potential alibi witness—was not a strong enough
witness to carry an alibi defense without additional evidence corroborating his testimony. In
36
counsel’s judgment, “putting out a weak alibi was worse than putting on no proof at all.” Barrett,
2016 WL 4410649, at *3. And as the TCCA noted, Petitioner agreed with this judgment at the
time; only later, during his post-conviction evidentiary hearing, did Petitioner state that “in
retrospect, . . . even a little bit might have been better than none.” (Doc. No. 22-31 at 11.)
Petitioner’s purely speculative, retrospective disagreement with counsel’s judgment goes against
Strickland’s instruction to “eliminate the distorting effect of hindsight” when assessing an
attorney’s performance. 466 U.S. at 689. The Court concludes that, in these circumstances,
counsel’s decision not to call an alibi witness was not deficient performance. Having failed to
demonstrate both deficiency and prejudice on this sub-claim, Petitioner is not entitled to relief.
C.
Procedurally Defaulted Claims
Petitioner’s remaining claims will be denied as procedurally defaulted without cause. This
includes a defective-indictment claim, several claims of trial court error, a claim of prosecutorial
misconduct, an insufficient-evidence claim, and various sub-claims of ineffective assistance of
trial counsel.
1.
Claim 1—Defective Indictment
Petitioner asserts, without elaboration or explanation, that the indictment is
unconstitutional because it was issued by a grand jury that did not appoint a foreman. (Doc. 1 at
25; Doc. No. 3 at 33.) Petitioner did not present this claim to the TCCA on direct appeal. He did
raise this claim in his original pro se post-conviction petition (Doc. No. 22-29 at 80), and the trial
court squarely rejected it (id. at 138). Petitioner did not, however, present this claim to the TCCA
on post-conviction appeal. Thus, Petitioner did not fully exhaust his available remedies in the state
courts, and he is now barred from doing so by Tennessee Rule of Appellate Procedure 4,
Tennessee’s one-year statute of limitations for post-conviction petitions, and Tennessee’s “one-
37
petition” limitation on post-conviction relief. Tenn. Code Ann. §§ 40-30-102(a), (c). This claim is
procedurally defaulted.
Petitioner generally argues that his failure to present claims to the TCCA on postconviction appeal was due to ineffective assistance. (See Doc. No. 3 at 10, 13, 30 (asserting that
post-conviction appellate counsel was ineffective in failing to include requested grounds for relief
in the appellate brief).) But Petitioner cannot rely on this argument to establish the cause required
to overcome this claim’s default because it is not a claim of ineffective assistance of trial counsel.
See Davila, 137 S. Ct. at 2062–63 (citations omitted). Accordingly, Claim 1 is not subject to further
review. 6
2.
Trial Proceedings
Petitioner’s remaining claims of trial court error concern four subjects—media attention,
pretrial motions, the admission of evidence, and jury instructions.
a.
Claims 2.B, 2.C, 2.H—Media Attention
First, in Claim 2.B, Petitioner asserts that the trial court failed in its “affirmative
constitutional duty to minimize the effect of prejudicial pretrial publicity.” (Doc. No. 3 at 26.)
Relatedly, Claim 2.C asserts that the court should have dismissed the indictment before trial due
to this publicity. (Id.) And in Claim 2.H, Petitioner asserts that the court improperly admitted
evidence during trial due to media coverage. (Id.)
Petitioner raised Claim 2.B in his motion for new trial (Doc. No. 22-2 at 75), the trial court
rejected it (Doc. No. 22-29 at 138), and Petitioner did not present it to the TCCA on direct appeal.
Nor did he raise Claim 2.C or 2.H at that stage. Later, through his pro se post-conviction petitions,
Petitioner asserted all three claims. (Doc. No. 22-29 at 91–94, 115–16.) The trial court found that
6
The Court also notes that this claim appears to be baseless on the merits because the indictment bears the signature
of a foreperson and reflects that it is a true bill. (Doc. No. 22-1 at 5.)
38
Petitioner did not present any evidence that “the pre-trial publicity and media coverage of the trial
denied [him] due process of law and a fair trial.” (Id. at 140.) Then, Petitioner did not raise Claim
2.B, 2.C, or 2.H on post-conviction appeal. In short, Petitioner did not exhaust the available
remedies for these three claims by presenting them to the TCCA, and he can no longer do so. He
has not demonstrated cause to overcome this default. These claims will be denied. 7
b.
Claims 2.D, 2.E—Pretrial Motions
Second, Petitioner takes issue with the trial court’s denial of certain pretrial motions.
Specifically, Claim 2.D pertains to Petitioner’s motion to continue trial to allow independent DNA
analysis (Doc. No. 3 at 10), and Claim 2.E addresses his motion for a bill of particulars. (Id. at 20.)
Petitioner raised both claims in a motion for new trial (Doc. No. 22-2 at 70, 73), and the trial court
denied each one (id. at 84, 85). Petitioner did not then present these claims to the TCCA on either
direct or post-conviction appeal. Thus, Petitioner did not fairly present Claims 2.D and 2.E to the
state courts, and he has not shown cause to overcome this default. These two claims are not subject
to further review.
c.
Claims 2.I, 2.K, 2.L, 2.M—Admission of Evidence
Third, Petitioner takes issue with the admission of certain evidence at trial. Claim 2.I
challenges the trial court’s admission of testimony from two different witnesses—Sheldon Anter
and Andrew Napper. (Doc. No. 3 at 13–14, 23–24.) As explained above, supra Section V.A.1, the
Anter portion of this claim is not cognizable in this federal habeas proceeding because Petitioner
7
As part of these claims, Petitioner complains that changing the trial venue to Chattanooga was “a farce” because “the
media there had begun to crank up their publicity before the jury was picked, which allowed for such media
sensationalizing to infect the whole trial.” (Doc. No. 3 at 27.) Here, as in Claim 6, it appears that Petitioner is
incorrectly referring to another case he faced around the same time as this one. Petitioner is currently challenging the
judgment in Case No. 2008-B-1791. (Doc. No. 1 at 1.) This trial was held in Nashville. (See Doc. No. 33 at 39–40
(Petitioner’s reply reflecting that trial was held in Nashville).) The trial for Petitioner’s other case was apparently held
in Chattanooga. (See Doc. No. 22-31 at 18–19, 48–49 (Petitioner’s testimony from the evidentiary hearing on his postconviction petition regarding the venue for these two trials).)
39
raised it on direct appeal solely as a matter of state evidentiary law. As to the Napper portion of
this claim, however, Petitioner did not raise it on direct appeal at all. While Petitioner expressed
displeasure with Napper’s testimony in his pro se post-conviction petition, he did so under the
umbrella of prosecutorial misconduct. (See Doc. No. 22-29 at 83–84.) Regardless, the trial court
denied the claim (Doc. No. 22-29 at 139), and Petitioner did not present it to the TCCA on postconviction appeal.
Although Petitioner did raise this claim in a conclusory fashion in his pro se application
for permission to appeal to the Tennessee Supreme Court in his state post-conviction proceedings
(Doc. No. 22-37 at 7), that is not sufficient to fairly present the claim to the state courts. “[W]here
a habeas petitioner had the opportunity to raise a claim in the state courts on direct appeal but only
raised it for the first time on discretionary review, such a claim is not fairly presented.” Thompson
v. Bell, 580 F.3d 423, 438 (6th Cir. 2009) (discussing Castille v. Peoples, 489 U.S. 346, 351
(1989)). That is the case here, as Petitioner failed to raise this claim prior to his request for
discretionary Supreme Court review. Because Petitioner has not demonstrated cause for this
failure, the Napper portion of claim 2.I will be denied as procedurally defaulted.
As to Claim 2.K, Petitioner asserts that the trial court erred in admitting two photographs
of the victim from around the time of her death because they were unduly prejudicial. (Doc. No. 3
at 32–33.) But Petitioner did not present this claim to the TCCA on either direct or post-conviction
appeal. And raising this claim in his request for discretionary Supreme Court review of his postconviction proceedings (see Doc. No. 22-37 at 31) is not sufficient to exhaust it, because that is
not a “procedural context in which . . . the merits [of a claim] are considered as of right.” Olson v.
Little, 604 F. App’x 387, 402 (6th Cir. 2015) (discussing Castille, 489 U.S. 346); see also Smith
v. Parker, No. 10-1158-JDB-egb, 2013 WL 5409783, at *30 (W.D. Tenn. Sept. 25, 2013) (applying
40
Castille and concluding that a petitioner does not fairly present a claim to the state courts by raising
it in an application for permission to appeal to the Tennessee Supreme Court). This claim is
procedurally defaulted without cause.
In Claim 2.L, Petitioner asserts that the trial court erred in admitting a video recording of
an altercation in the jail between Petitioner and fellow inmate Frank White, and allowing Sheldon
Anter to testify about what White said to Petitioner. (Doc. No. 1 at 27; Doc. No. 3 at 14, 28.) As
context for this claim, Anter testified that White called Petitioner a “baby killer and a rapist”
immediately before this altercation. (Doc. No. 22-13 at 38–41.) On direct appeal, Petitioner did
not raise any claim about the admissibility of this recording, or Anter’s testimony about White’s
remarks. Petitioner did raise this claim in his pro se post-conviction petition (Doc. No. 22-29 at
100–03), and the trial court denied it (id. at 141). Petitioner did not then appeal this claim to the
TCCA. Because Petitioner did not fairly present this claim to the state courts, he can no longer do
so, and he has not demonstrated cause for this default, Claim 2.L will be denied
Petitioner’s other claim related to this video recording will be denied as well. In Claim
2.M, Petitioner asserts that the judge erred by failing to do what he told the jury he would do—
view the video overnight and tell the jury his opinion of who the aggressor was the next day. (Doc.
No. 3 at 28.) This claim will be denied as procedurally defaulted without cause because Petitioner
did not present it to the TCCA at any point. 8
d.
Claims 2.P, 2.Q—Jury Instructions
The final category of procedurally defaulted claims of trial court error relates to jury
instructions. In Claim 2.P, Petitioner asserts that the court erred by failing to instruct the jury on
criminal and/or professional informants in connection with the testimony of Sheldon Anter and
8
Based on the trial transcript, it also does not appear that the judge made any statement to the jury like the one alleged
in this claim in the first place.
41
Andrew Napper. (Doc. No. 3 at 17, 23–24.) And in Claim 2.Q, Petitioner asserts that the court
should have instructed the jury that a finding of guilt for the charge of felony murder required a
finding of guilt on an underlying felony. (Id. at 17–21.)
Petitioner did not present either jury-charge claim to the TCCA on direct or post-conviction
appeal. He did raise these two claims in his pro se application for permission to appeal in his postconviction proceedings (Doc. No. 22-37 at 19, 34), but, as explained above, this did not exhaust
the claims. Petitioner has not demonstrated cause for this default. Claims 2.P and 2.Q will be
denied.
3.
Claim 3—Prosecutorial Misconduct
In Claim 3, Petitioner asserts that the state committed prosecutorial misconduct through
improper closing argument at trial. (Doc. No. 1 at 24; Doc. No. 3 at 6, 14, 30–31.) He did not raise
a prosecutorial misconduct claim on direct appeal. In his pro se post-conviction petitions,
Petitioner presented several arguments regarding prosecutorial misconduct based on the
prosecutor’s actions during trial and closing argument. (Doc. No. 22-29 at 86–88, 123–25.) The
state court denied these claims (id. at 139–40), and Petitioner did not raise a prosecutorial
misconduct claim before the TCCA on post-conviction appeal. Petitioner did assert a sprawling
claim of prosecutorial misconduct throughout his pro se request for permission to appeal to the
Supreme Court (Doc. No. 22-27 at 20, 23, 26–30), but that is not sufficient to exhaust a claim.
Claim 3 is procedurally defaulted without cause.
4.
Claim 4—Sufficiency of the Evidence
Petitioner next asserts, in Claim 4, that there is insufficient evidence to support the
conviction. (Doc. No. 1 at 8; Doc. No. 3 at 14, 22.) Petitioner’s presentation of this claim is based
on a faulty premise, and the claim itself is procedurally defaulted. The premise is flawed because
42
Petitioner maintains that there is not sufficient “evidence of the conviction for felony or
premeditated murder.” 9 (Doc. No. 3 at 14.) But Petitioner was not convicted of these offenses. As
the TCCA clearly explained on direct appeal, although the indictment charged Petitioner with
“premeditated murder” and “felony murder in the perpetration of larceny,” the jury convicted
Petitioner of second-degree murder. Barrett, 2012 WL 2870571, at *25. Because Petitioner was
not convicted of premeditated murder or felony murder, his argument that there is insufficient
evidence to support convictions for those offenses is immaterial.
Regardless, Petitioner’s arguments in support of his insufficient-evidence claim are
procedurally defaulted. Petitioner raised an insufficient-evidence claim on direct appeal, but did
not rely on the same theory as he does in his federal habeas corpus petition. That is, in the claim
presented to the TCCA, Petitioner argued “that there was no eyewitness account of the crime, that
the evidence is circumstantial, and that the conviction rests ‘solely’ upon proof of his DNA on the
victim’s blouse and the testimony of two convicted felons.” Barrett, 2012 WL 2870571, at *25.
Here, by contrast, Petitioner contends that there is insufficient evidence to support his convictions
“due to lack of specificity of the indictment” (Doc. No. 3 at 14, 22), because there is no evidence
of larceny or rape (id. at 14), and because there is an inadequate chain of custody regarding DNA
evidence (id. at 4). Petitioner, therefore, failed to present “the same claim under the same theory
[] to the state courts,” so he did not properly exhaust his insufficient-evidence claim. See Wagner,
581 F.3d at 417. He has not established cause for this default, so Claim 4 will be denied.
Finally, even if the Court were to liberally construe this claim as having been exhausted on
direct appeal, the state court’s rejection of the claim before it was clearly reasonable. The TCCA
analyzed Petitioner’s insufficient-evidence claim as follows:
9
Similarly, Petitioner repeatedly asserts that the indictment and jury charge were not sufficient to convict him of
felony murder or larceny. (Doc. No. 3 at 17–22.)
43
Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). This means that we may not
reweigh the evidence but must presume that the trier of fact has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in
favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the
“credibility of the witnesses, the weight to be given to their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier
of fact.” State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008) (citing State v.
Vasques, 221 S.W.3d 514, 521 (Tenn. 2007)); see State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997).
The Defendant’s contention is premised, in part, upon the former standard for
analysis of convictions based solely upon circumstantial evidence. Previously,
Tennessee law provided that for a conviction to be based upon circumstantial
evidence alone, the evidence “must be not only consistent with the guilt of the
accused but it must also be inconsistent with his [or her] innocence and must
exclude every other reasonable theory or hypothesis except that of guilt.” Pruitt v.
State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970); see also State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971). Shortly after the Defendant filed his brief,
however, our Supreme Court adopted the United States Supreme Court’s
perspective that the standard of proof is the same, without regard to whether
evidence is direct or circumstantial, eliminating the “every other reasonable theory
or hypothesis except that of guilt” analysis. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (citing Jackson, 443 U.S. at 326; Holland v. United States, 348 U.S.
121, 139–40 (1954)). We will, therefore, conduct our review in accord with
Dorantes. See State v. Sisk, 343 S.W.3d 60, 68 (Tenn. 2011) (reinstating
convictions based on Dorantes analysis after Court of Criminal Appeals reversed
convictions for insufficient evidence under Crawford circumstantial evidence
analysis but noting that intermediate court did not err in applying Crawford because
its ruling was pre-Dorantes).
At the time of the Defendant’s crime, the relevant statute provided that the defining
characteristics of second degree murder were an unlawful, willful, and malicious
killing of a victim. T.C.A. §§ 39-2401 (1975, 1985) (renumbered at T.C.A. § 39-2201) (repealed 1989), 39-2402 (1975) (amended 1977, 1979, 1988) (renumbered at
T.C.A. § 39-2-202) (repealed 1982), 39-2403 (1975) (amended 1979) (renumbered
at T.C.A. § 39-2-211) (repealed 1989); see, e.g., State v. Johnson, 541 S.W.2d 417,
418–19 (Tenn. 1976); State v. Shepherd, 862 S.W.2d 557, 565 (Tenn. Crim. App.
1992).
The Defendant challenges both the sufficiency of the proof of the statutory elements
of the crime and that of his identity as the perpetrator or as an aider and abettor to
44
the crime. In the light most favorable to the State, the record reflects that the victim
died from asphyxia due to manual strangulation. Her injuries were so great that her
thyroid cartilage and hyoid bone were broken. Dr. Francisco testified that this
would take considerable pressure because a child’s cartilage and bones were
flexible. The evidence demonstrates that the killing was unlawful, willful, and
malicious and is sufficient to support the conviction for second degree murder.
With respect to the proof that the Defendant perpetrated the crime, the evidence in
the light most favorable to the State established that the Defendant’s DNA was
present on the victim’s blouse. The chance of the same STR DNA profile occurring
in another person was one in five quadrillion for the African–American population
and one in 160 quadrillion for the Caucasian population. The Defendant’s DNA
alpha type was present on the victim’s pants. This type was shared by only eight
percent of the population. Over 100 other individuals, including virtually everyone
from the victim’s neighborhood, were eliminated as the contributors of the DNA
evidence. Two of the Defendant’s fellow inmates testified that the Defendant
admitted that he killed the victim and that his DNA was on her. Their testimony
regarding the altercation between the Defendant and Frank White was consistent
with the video recording of the altercation. There was no indication of any prior
acquaintance or association of the victim and the Defendant that might provide an
alternate explanation of the presence of his DNA on her clothing. Dr. Francisco and
Dr. Bass testified that the victim died at or near the time of her disappearance, which
was before the Defendant was in jail. When the Defendant was arrested, he was
wearing a full length coat, a ski mask, another hat, and two pairs of gloves. His
clothing and physical stature were consistent with the description Ms. Maxwell
gave of the adult she saw in Ms. Howard’s driveway with the child she presumed
was the victim. The Defendant is not entitled to relief.
Barrett, 2012 WL 2870571, at *25–26.
The TCCA thus accurately identified the federal standard governing claims for sufficiency
of the evidence, as set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). “‘Under Jackson,
habeas corpus relief is appropriate based on insufficient evidence only where the court finds, after
viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Tucker v.
Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (quoting Parker v. Renico, 506 F.3d 444, 448 (6th Cir.
2007)). On federal habeas review, this standard “commands deference at two levels”: “First,
deference should be given to the trier-of-fact’s verdict, as contemplated by Jackson; second,
45
deference
should
be
given
to
the
[state
court’s]
consideration
of
the
trier-of
-fact’s verdict, as dictated by AEDPA.” Id. (citing Parker, 506 F.3d at 448).
Here, the state court concluded that there was sufficient evidence for the jury to find
Petitioner guilty of second-degree murder as it was defined at the time of the crime—the unlawful,
willful, and malicious killing of a victim. As to the elements of the crime, the TCCA’s analysis
focused on the testimony of Dr. Jerry Francisco, an expert in forensic pathology. The TCCA noted
Dr. Francisco’s testimony that he performed an autopsy on the victim and determined the cause of
death to be asphyxia resulting from manual strangulation. (See Doc. No. 22-10 at 31–32.) Dr.
Francisco testified that he made this determination based on his conclusions “that the victim’s
thyroid cartilage and hyoid bone were broken [and] that the victim had an adjacent hemorrhage,
blue lips, and small hemorrhages of the scalp, surface of the chest organs, heart, and lungs.”
Barrett, 2012 WL 2870571, at *4. According to Dr. Francisco, it would have required
“considerable pressure” to break the victim’s cartilage and bones. (Doc. No. 22-10 at 32.) Based
on this evidence, it was reasonable for the TCCA to find that the victim’s killing was unlawful,
willful, and malicious.
It was also reasonable for the TCCA to find, based on an assortment of evidence, that
Petitioner committed the crime. The state court essentially based this conclusion on four factors—
DNA evidence connecting Petitioner to the victim’s blouse and pants, with no exculpatory
explanation for how it got there; testimony of Petitioner’s fellow inmates Sheldon Anter and
Andrew Napper that Petitioner admitted killing the victim and that his DNA was on her; expert
testimony that the timing of the victim’s death coincided with a period during which Petitioner
was not in jail; and testimony of the victim’s neighbor that she saw an adult “with the child she
46
presumed was the victim,” and that this adult’s clothing and stature was consistent with Petitioner’s
at the time of his arrest in 1975.
As to DNA evidence on the victim’s blouse, Jennifer Luttman testified as an expert in
forensic DNA analysis. According to Ms. Luttman, there was a “reasonable degree of scientific
certainty” that Petitioner was the source of DNA on the blouse. (Doc. No. 22-15 at 119.) Ms.
Luttman testified that “[t]he chance of the same STR DNA profile occurring in another person was
one in five quadrillion for the African–American population and one in 160 quadrillion for the
Caucasian population.” Barrett, 2012 WL 2870571, at *26. And as to the DNA evidence on the
victim’s pants, DNA expert Gary Harmor testified that Petitioner’s “DNA alpha type” was on the
victim’s pants, and that “[t]his type was shared by only eight percent of the population.” Id. Given
the evidence presented to the jury, it was reasonable for the TCCA to conclude that there was
sufficient evidence to convict Petitioner of second-degree murder.
5.
Ineffective Assistance of Trial Counsel
Finally, there are eleven remaining sub-claims of ineffective assistance of trial counsel:
Claims 5.A, 5.B, 5.C, 5.E, 5.G, 5.H, 5.I, 5.J, 5.K, 5.M, and 5.N. Petitioner did not present these
sub-claims to the TCCA. He did raise some of them—in particular, Claims 5.E, 5.G, 5.H, 5.J, and
5.M—in his pro se application for permission to appeal his post-conviction proceedings to the
Tennessee Supreme Court (Doc. No. 22-37 at 5, 31–35, 37), but that does not constitute proper
exhaustion. Accordingly, all eleven sub-claims are procedurally defaulted.
As noted above, supra Section V.A.4, the “‘ineffective assistance of post-conviction
counsel can establish cause to excuse [the] procedural default of a . . . claim of ineffective
47
assistance at trial.’” Atkins, 792 F.3d at 658 (quoting Sutton, 745 F.3d at 795–96). Here, in addition
to several specific assertions of ineffectiveness during his initial post-conviction proceeding,
Petitioner generally asserts that appointed post-conviction counsel “failed to provide meaningful
assistance . . . in amending his petition for post conviction relief.” (Doc. No. 3 at 10.) The Court
liberally construes this as an allegation of cause to overcome the default of his remaining subclaims of ineffective assistance at trial.
To determine whether Petitioner has effectively demonstrated cause, the Court considers
“(1) whether state post-conviction counsel was ineffective; and (2) whether [Petitioner’s] claims
of ineffective assistance of counsel were ‘substantial.’” Atkins, 792 F.3d at 660 (citations omitted).
If Petitioner demonstrates “cause,” then the Court must consider “whether [he] can demonstrate
prejudice.” Id. And if Petitioner has established both “cause” and “prejudice,” only then would the
Court “evaluate [his] claims on the merits.” Id. (citations omitted). Here, the Court need not reach
the issue of whether post-conviction counsel was ineffective because, as explained in more detail
below, Petitioner has not demonstrated that his remaining sub-claims are “substantial.”
“A substantial claim is one that has some merit and is debatable among jurists of reason.”
Abdur’Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015) (citing Martinez, 566 U.S. at 14).
“In the converse, a claim is insubstantial when ‘it does not have any merit,’ ‘is wholly without
factual support,’ or when ‘the attorney in the initial-review collateral proceeding did not perform
below constitutional standards.’” Porter v. Genovese, 676 F. App’x 428, 432 (6th Cir. 2017)
(quoting Martinez, 566 U.S. at 15–16).
Through his remaining sub-claims, Petitioner asserts that counsel was ineffective both
before and during trial. Because these sub-claims are insubstantial, Petitioner has not established
cause to overcome their default. The Court will address each group of claims in turn.
48
a.
Claims 5.A, 5.B, 5.C, 5.E, 5.G, 5.H, 5.I—Pretrial Assistance
First, in Claim 5.A, Petitioner asserts that counsel was ineffective for failing to file a motion
to dismiss the indictment due to excessive pre-trial publicity. (Doc. No. 3 at 26.) This sub-claim is
insubstantial because trial counsel was not deficient, and Petitioner has not demonstrated that
prejudice ensued, for failing to file a motion on this ground. The Court acknowledges that there
was extensive media coverage of this case. But Petitioner has not alleged, with any degree of
specificity, how this publicity would have justified dismissing the indictment. In general, the
preferred methods for ensuring that publicity does not undermine the constitutional fairness of a
trial include questioning the prospective jurors appropriately and changing the venue. 10 See
Jackson v. Houk, 687 F.3d 723, 733 (6th Cir. 2012) (discussing Mu’Min v. Virginia, 500 U.S. 415,
433 (1991) and Skilling v. United States, 561 U.S. 358, 386 (2010)). Not, as Petitioner proposes
in this sub-claim, dismissing the indictment altogether. See United States v. Silver, 103 F. Supp.
3d. 370, 380 (S.D.N.Y. 2015) (noting the lack of any federal precedent for taking “the extreme
step of dismissing an indictment solely based on pre-indictment publicity”). Thus, it was
objectively reasonable for counsel not to file a motion to dismiss the indictment due to pretrial
publicity, and Petitioner suffered no prejudice for his failure to do so. Claim 5.A will be denied.
Next, Claims 5.B and 5.C challenge counsel’s performance during voir dire. In Claim 5.B,
Petitioner asserts that “[c]ounsel failed to adequately question potential jurors to determine the
extent to which they were subjected [to] and influenced by [the] constant, inflammatory and
exploitative media coverage.” (Doc. No. 3 at 27.) And in Claim 5.C, Petitioner asserts that “counsel
failed to ask constitutionally compelled voir dire quest[i]ons” in light of the “tainted . . . jury pool”
10
The Court notes, again, that Petitioner did not request a change of venue in this case. At the evidentiary hearing on
Petitioner’s post-conviction petition, Petitioner testified that he discussed requesting a venue change with counsel, and
they agreed that it would not have been a helpful strategy. (Doc. No. 22-31 at 18–19.)
49
that resulted from “[t]he explosive, racially-charged publicity from the first trial where he was
convicted of first degree murder.” (Id. at 33.)
These assertions, while sensational, are devoid of factual support. That is, Petitioner does
not explain how counsel’s questioning was inadequate or identify any particular question counsel
should have asked. Petitioner also does not allege that counsel’s questioning resulted in the
empaneling of a juror who was actually biased against him. See Campbell v. Bradshaw, 674 F.3d
578, 594 (6th Cir. 2012) (citation omitted) (denying habeas challenge to counsel’s failure to
request a venue change due to pretrial publicity where the petitioner did “not identif[y] any juror
who was actually seated that indicated an inability to set aside any prior knowledge about the case
or to judge the case fairly and impartially”). The Court cannot presume prejudice based on the
mere existence of substantial publicity surrounding a case. Jackson, 687 F.3d at 733. Although the
Court is unable to independently review the voir dire transcript, because it is not a part of the state
court record, 11 Petitioner’s conclusory assertions of inadequate questioning by counsel do not
overcome the presumption of juror impartiality. See Foley v. Parker, 488 F.3d 377, 387 (6th Cir.
2007) (citing Ritchie v. Rogers, 313 F.3d 948, 962 (6th Cir. 2002)) (“Negative media coverage by
itself is insufficient to establish actual prejudice, and the existence of a juror’s preconceived notion
as to the guilt or innocence of the defendant, without more, is not sufficient to rebut the
presumption of impartiality.”). Claims 5.B and 5.C are insubstantial and will be denied as
procedurally defaulted without cause.
11
According to the minutes for this case, however, the jurors were “duly elected, impaneled, tried and sworn to well
and truly try the issues joined and true deliverance make according to the law and evidence.” (Doc. No. 22-2 at 57.)
And the trial court specifically instructed the jury, after closing argument, as follows: “Members of the Jury, some of
you may have been exposed to pretrial publicity in this case. I again instruct you that you can consider no information
in reaching your verdict, other than the evidence you hear in the courtroom.” (Doc. No. 22-18 at 19 (emphasis added).)
From this instruction, it is reasonable to infer that the trial court had previously instructed the jury regarding pretrial
publicity.
50
Petitioner’s next sub-claim is a broad challenge to counsel’s handling of Petitioner’s
instructions regarding DNA evidence. In Claim 5.E, Petitioner asserts that counsel “failed to
properly assess and review [his] assignment of error as to the serious omissions and constitutional
blunders regarding the collection, testing and custody of the purported DNA evidence.” (Doc. No.
3 at 3–4.) This sub-claim, therefore, has three parts—a collection component, a testing component,
and a chain of custody component. The collection component is subsumed by Petitioner’s more
specific challenges in Claims 5.G and 5.H, discussed below. The testing component is subsumed
by Claim 5.F, Petitioner’s assertion that counsel failed to obtain independent DNA testing before
trial. As discussed above, supra Section V.B.3, the Court liberally construed this sub-claim to have
been exhausted on post-conviction appeal, and the TCCA’s rejection of it was not unreasonable.
Finally, as to the chain of custody component, Petitioner raised this same basic argument
in his pro se post-conviction petition. That is, Petitioner asserted that counsel was ineffective for
failing to challenge the chain of custody of DNA evidence at trial. (Doc. No. 22-29 at 99–100.)
Here, likewise, Petitioner essentially asserts that counsel could have undermined the chain of
custody at trial if he would have “properly assess[ed] and review[ed his] assignment of error”
before trial. The post-conviction court rejected this claim (Doc. No. 22-29 at 141), 12 and Petitioner
did not raise it on post-conviction appeal. Ineffective assistance of post-conviction counsel can act
as cause only when the ineffectiveness occurs at the initial review stage, not the appeal stage.
12
The post-conviction court specifically rejected Petitioner’s claim that “counsel should have explored and presented
cross contamination and substitution defenses to the jury.” (Doc. No. 22-29 at 141.) To the extent that Petitioner is
attempting to assert a different chain of custody claim here, the Court concludes that it is insubstantial because
Petitioner has not provided sufficient supporting factual allegations to satisfy Habeas Rule 2(c)’s pleading standard.
See Lynn v. Donahue, No. 1:14-cv-01284, 2017 WL 5930304, at *7 n.1 (W.D. Tenn. Nov. 30, 2017) (citations
omitted) (noting that habeas claims are “subject to dismissal” if “they are pled only as general allegations which fail
to identify the specific error and the resulting prejudice”). For instance, Petitioner seems to assert that counsel provided
inadequate assistance by not addressing “the fact that Detective Bill Pridemore[] examined the case exhibits seven
different times.” (Doc. No. 3 at 4.) But Petitioner supports this assertion with a citation to the TCCA’s opinion on
direct appeal of his other case from around the same time. (Id. (citing Barrett, 2012 WL 2914119, at *5).)
51
Atkins, 792 F.3d at 661 (emphasis added) (quoting West v. Carpenter, 790 F.3d 693, 699 (6th Cir.
2015)) (“[A]ttorney error at state post-conviction appellate proceedings cannot excuse procedural
default.”). Accordingly, because the post-conviction trial court ruled on the chain of custody
component of this sub-claim, it is procedurally defaulted without cause. For all of these reasons,
Claim 5.E will be denied.
Turning to Petitioner’s specific challenges to the collection of DNA evidence, Claim 5.G
asserts that counsel provided ineffective assistance by failing to request a pretrial Dunaway
hearing 13 “to determine whether the warrant[]less DNA search” violated the Fourth Amendment.
(Doc. No. 3 at 9, 16.) Similarly, in Claim 5.H, Petitioner asserts that counsel “should have objected
and moved to suppress the introduction of the test results following the warrantless [second] DNA
search.” (Id. at 15–16.) Despite using different terminology for the name of motion that counsel
should have filed, the substance of both sub-claims is the same—counsel was ineffective for failing
to properly challenge the admissibility of a second, warrantless DNA search before trial. The
Court, accordingly, considers these two sub-claims together.
These claims have no factual support. Petitioner makes a conclusory assertion that the
DNA evidence obtained from this second DNA search “played a significant role in the State’s
case-in-chief.” (Doc. No. 3 at 15.) And he attempts to support this assertion by stating that certain
“unknown male” profiles in the state’s DNA reports were only connected to Petitioner after this
second DNA collection. (Id. at 3, 9.) But there is nothing in the record to reflect that a second DNA
search occurred at all, much less that it occurred in the manner described by Petitioner.
13
Here, Petitioner is presumably referring to the United States Supreme Court’s decision in Dunaway v. New York,
442 U.S. 200 (1979). In Dunaway, the Supreme Court held that “an investigative interrogation . . . must be supported
by probable cause to avoid infringing upon an individual’s Fourth Amendment right to be free from an unreasonable
seizure.” Myers v. Potter, 422 F.3d 347, 356 (6th Cir. 2005) (citing Dunaway, 442 U.S. at 216). Petitioner has not
explained how the holding in Dunaway has any bearing on this claim.
52
Even assuming that law enforcement officers obtained a DNA sample from Petitioner
without a warrant while he was in jail, however, Petitioner has not explained how this second
sample was used against him in this case. It is undisputed that officers collected a DNA sample
from Petitioner pursuant to a search warrant in October 2007, before his arrest. (Doc. No. 3 at 15.)
And the record reflects that the crucial DNA evidence used against Petitioner during trial was
based on this October 2007 sample 14—not some later sample collected without a warrant.
Pat Postiglione, a Metro Nashville Police Detective, testified at trial that the October 2007
sample “was collected by swabbing the inside of [Petitioner’s] mouth on both cheeks.” Barrett,
2012 WL 2870571, at *15. Postiglione “identified the swabs used to collect evidence from
[Petitioner],” and testified that these swabs “were first sent to the TBI laboratory and later sent to
the SERI laboratory in California.” Id.
First, as to the TBI laboratory, DNA expert Chad Johnson testified that he received
Petitioner’s swabs on October 25, 2007, obtained a DNA profile from the swabs, and issued a
report on November 7, 2007. (Doc. No. 22-15 at 63–65.) The FBI requested the DNA profile
generated at the TBI laboratory. (Id. at 65.) Jennifer Luttman, an expert in DNA analysis with the
FBI, used this DNA profile—again, a DNA profile obtained from the October 2007 sample—to
connect Petitioner to DNA on the victim’s blouse. (Id. at 116–20.)
Second, as to the SERI laboratory, DNA expert Gary Harmor testified that he received
Petitioner’s swabs on December 12, 2007. (Doc. No. 22-15 at 37–38.) Harmor gave the swabs to
another SERI employee named Amy Lee, who used the swabs to extract DNA. (Id. at 38–39.)
Harmor then “amplified the extracted DNA, determined the typing, and wrote his report,” which
connected Petitioner to DNA on the victim’s pants. Barrett, 2012 WL 2870571, at *19.
14
Counsel, in fact, filed a pretrial motion to suppress this October 2007 DNA sample. See supra section V.A.1.
53
In sum, Petitioner has not demonstrated that a second, warrantless DNA search occurred,
or that the state used the results of such a search against him at trial. Instead, the record reflects
that experts at the TBI, FBI, and SERI relied on the DNA sample obtained pursuant to a search
warrant in October 2007 to conduct testing that ultimately connected Petitioner’s DNA to DNA
on the victim’s blouse and pants. Accordingly, counsel was not ineffective for failing to challenge
the admissibility of a second, warrantless DNA search before trial, and Claims 5.G and 5.H are
insubstantial.
Finally, in Claim 5.I, Petitioner asserts that counsel was unable to sufficiently attack the
credibility of Sheldon Anter and Andrew Napper at trial because he failed to investigate them
beforehand. (Doc. No. 3 at 13.) This sub-claim is belied by the record.
In a pretrial motion for exculpatory evidence, counsel requested background information
on Anter and Napper, including whether they had been promised or provided compensation in
exchange for their assistance, whether they previously provided any unreliable information in
another case, and whether they demanded compensation for their cooperation in this case. (Doc.
No. 22-1 at 132–33.) In regard to Anter, specifically, counsel asked whether the district attorney
provided him any assistance “with respect to his pending immigration case.” (Id. at 133.) The court
granted the motion (Doc. No. 22-2 at 51), and counsel received the information. Counsel also filed
a pretrial notice of intent to use Anter and Napper’s prior convictions for impeachment purposes.
(Id. at 39–40.) Then, at trial, the state attempted to mitigate the impact of this information by
eliciting some of it on direct examination. (Doc. No. 22-13 at 32–35 (Anter’s testimony); id. at 94,
97 (Napper’s testimony).) This strategy was outside counsel’s control and has no bearing on his
performance. Moreover, counsel extensively cross-examined the witnesses on this information in
an attempt to undermine their credibility. (Id. at 44–46, 69–76 (Anter’s testimony); id. at 98–102,
54
105 (Napper’s testimony).) While putting on Petitioner’s proof, counsel also called Antonio
Johnson, a Corporal at the Davidson County Sheriff’s Office, to impeach Anter’s prior testimony
in which he denied asking Johnson about Petitioner. (Doc. No. 22-16 at 136–39.) Finally, counsel
devoted a substantial portion of closing argument to Anter and Napper’s asserted unreliability.
(Doc. No. 22-17 at 78–81.)
For all of these reasons, the record reflects that counsel’s pretrial investigation of Anter
and Napper was objectively reasonable, and his handling of these witnesses at trial was not
deficient. Petitioner has not identified any alternative strategy toward Anter and Napper with a
reasonable probability of resulting in a different outcome. Claim 5.I will be denied.
b.
Claims 5.J, 5.K, 5.M, 5.N—Assistance During Trial
The final group of sub-claims pertains to counsel’s performance during trial. First, in Claim
5.J, Petitioner asserts that counsel was ineffective in failing to object to the admission of
photographs of the victim from around the time of her death. (Doc. No. 3 at 32–33.) As context,
the prosecution introduced two photographs of the victim through Virginia Trimble, her mother:
one is the victim’s school picture, and the other is a picture of the victim at another child’s birthday
party wearing the same blouse she was wearing when she disappeared. (Doc. No. 22-9 at 52, 72–
73 (introduction of photographs at trial); Doc. No. 22-19 at 2–3, 8–9 photographs).) Petitioner
argues that these photographs were “inflammatory,” “provocative,” and “extremely prejudicial,”
while being either “marginally probative” or “in no way probative.” (Doc. No. 3 at 32–33.)
Petitioner asserts that counsel should have objected to the introduction of the photographs on this
basis. (Id. at 33.)
55
This sub-claim is insubstantial because Petitioner has failed to demonstrate both deficiency
and prejudice. The Tennessee Supreme Court has explained the state law on the admissibility of
photographs as follows:
Tennessee courts have followed a policy of liberality in the admission of
photographs in both civil and criminal cases. State v. Banks, 564 S.W.2d 947, 949
(Tenn. 1978) (citations omitted). This policy translates into the rule that “the
admissibility of photographs lies within the discretion of the trial court.” Id. . . .
However, before a photograph may be admitted into evidence, it must be relevant
to an issue that the jury must decide and the probative value of the photograph must
outweigh any prejudicial effect that it may have upon the trier of fact. State v.
Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1993) (citation omitted); see also Tenn. R. Evid. 401 and 403.
State v. Nesbit, 978 S.W.2d 872, 901 (Tenn. 1998). Moreover, “‘[i]f relevant, the photograph is
not rendered inadmissible because the subject portrayed could be described by words; . . . the
photograph would be cumulative; . . . or [the photograph] is gruesome or for some other reason is
likely to inflame the jury.’” State v. Sparrow, No. M2012–00532–CCA–R3–CD, 2013 WL
1089098, at *22 (Tenn. Crim. App. Mar. 14, 2013) (quoting Collins v. State, 506 S.W.2d 179, 185
(Tenn. Crim. App. 1973)).
Here, both of the challenged photographs were relevant under Tennessee law. The
Tennessee Supreme Court “has previously approved of the admission during trial of a photograph
taken while the victim was alive to establish the corpus delecti of the crime and to prove that the
‘person killed was the same person named in the indictment.’” Id. (quoting Nesbit, 978 S.W.3d at
902). 15 And Ms. Trimble used the victim’s school picture to identify her as the person named in
the indictment. (Doc. No. 22-9 at 52 (“It’s my Marcia.”).)
15
In Nesbit, the Tennessee Supreme Court also noted that under Tennessee’s criminal code prior to 1989, one of the
“material element[s] of the offense of murder” was “proof that the deceased was a ‘reasonable creature in being,’ that
is, to say a child that was born alive.” 978 S.W.2d at 901 n.2 (citing Morgan v. State, 256 S.W. 433, 434 (1923)). That
material element appears to apply here, as the state prosecuted Petitioner for the charged offenses of first-degree
murder and felony murder as they existed in 1975. The victim’s school picture was also relevant for this reason.
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The picture of the victim at another child’s birthday party was also relevant. This picture
was taken a few days before the victim’s disappearance, and showed the victim wearing the same
blouse as she wore when she disappeared. Barrett, 2012 WL 2870571, at *2. This blouse featured
prominently in the state’s case, as a DNA expert would testify that Petitioner’s “DNA profile
matched the major contributor’s [DNA] profile developed from the blouse,” and that “the random
match probability was one in six trillion.” Id. at *21. Accordingly, this challenged photograph was
relevant to show that the blouse belonged to the victim, and that she wore it around the time of her
disappearance.
Because the challenged photographs were relevant, this Court has no basis to conclude that
the trial court would have found them to be inadmissible if counsel had objected to their
introduction. See Sparrow, 2013 WL 1089098, at *22 (quoting Collins, 506 S.W.2d at 185) (“‘If
relevant, the photograph is not rendered inadmissible because the subject portrayed . . . is gruesome
or for some other reason is likely to inflame the jury.’”). Petitioner, therefore, has not demonstrated
that counsel was deficient for failing to do so. Moreover, given all of the evidence presented at
trial, there is not a reasonable probability that there would have been a different outcome if the
jury did not view two photographs of the victim while she was alive. For these reasons, Claim 5.J
is insubstantial.
Next, in Claim 5.K, Petitioner asserts that counsel was ineffective for failing to object when
the prosecutor played a video recording of a jail altercation without sound and explained “to the
jury what was happening as the jury watched.” (Doc. No. 3 at 28.) As an initial matter, the record
belies Petitioner’s assertion that the prosecutor explained what was happening while this recording
played. It is true that the video recording did not have audio. But it was Sheldon Anter, not the
prosecutor, who explained the activity in the video to the jury. Barrett, 2012 WL 2870571, at *13
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(“The video recording introduced during Ms. Ray’s testimony, which had no audio, was played
for the jury as Mr. Anter narrated it.”). Anter testified that this video showed an altercation between
Petitioner and fellow inmate Frank White, precipitated by White taunting Petitioner about being a
“baby killer and a rapist.” (Doc. No. 22-13 at 38–41.) And the TCCA found that Anter’s “testimony
regarding the altercation between [Petitioner] and Frank White was consistent with the video
recording of the altercation.” Barrett, 2012 WL 2870571, at *26.
Even liberally construing Claim 5.K as a challenge to counsel’s handling of Anter’s
testimony regarding the video recording, however, the sub-claim is still meritless. Counsel did not
lodge an objection to this testimony at trial, but he did file a pretrial motion to exclude some of
Anter’s expected testimony under Tennessee Rule of Evidence 404(b). (Doc. No. 22-1 at 148,
150–51.) At a pretrial hearing, Anter testified that, during the altercation, Petitioner told White that
“he had killed four people and had no problem killing again,” and that he would “kill [White] like
[he] killed them blue-eyed bitches.” (Doc. No. 22-6 at 81.) The court found Anter’s testimony
regarding this first statement to be admissible, and the second statement to be inadmissible. (Doc.
No. 22-7 at 8–10.) Additionally, in an effort to mitigate the prejudicial effect on Petitioner, the
court “redacted” the first statement by allowing Anter to testify only that Petitioner said, “I’ve
killed before and I will kill you.” (Id. at 8.) Petitioner challenged the trial court’s ruling on direct
appeal, and the TCCA found that the trial court did not abuse its discretion. Barrett, 2012 WL
2870571, at *32–35.
In short, counsel did not render inadequate performance by failing to object to Anter’s
description of the jail video recording at trial because he litigated the issue before trial. Petitioner
does not explain how counsel’s pretrial challenge to Anter’s expected testimony was deficient, or
58
identify another strategy that counsel should have pursued on this issue. Claim 5.K is not
substantial.
The remaining two sub-claims—Claims 5.M and 5.N—accuse counsel of ineffectiveness
for failing to request certain jury instructions. In Claim 5.M, Petitioner asserts that counsel should
have requested an instruction on the unreliability of Sheldon Anter and Andrew Napper because
they were “criminal and/or professional informants.” (Doc. No. 3 at 23.) Claim 5.N, meanwhile,
relates to Anter’s testimony regarding statements made by Frank White. Here, Petitioner asserts
that White testified against him “through the mouth of . . . Sheldon Anter,” so counsel should have
requested an instruction on the “absentee witness rule.” (Id. at 25–26.)
When reviewing a habeas petitioner’s claim regarding an omitted jury instruction, the
Court considers whether the absence of the instruction “‘so infected the entire trial that the
resulting conviction violates due process.’” Leberry v. Howerton, 583 F. App’x 497, 502 (6th Cir.
2014) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). The asserted error “‘must be so
egregious that [it] render[ed] the entire trial fundamentally unfair. Without such a showing, no
constitutional violation is established and the petitioner is not entitled to relief.’” Wade v.
Timmerman-Cooper, 785 F.3d 1059, 1078 (6th Cir. 2015) (quoting White v. Mitchell, 431 F.3d
517, 533 (6th Cir. 2005)). This is a “very high burden,” id., and Petitioner has not met it in Claims
5.M and 5.N.
First, counsel did not perform deficiently by failing to request an instruction on “criminal
and/or professional informants.” The Court “review[s] jury instructions ‘as a whole, in order to
determine whether they adequately informed the jury of the relevant considerations and provided
a basis in law for aiding the jury in reaching its decision.’” Dixon v. Houk, 737 F.3d 1003, 1010
(6th Cir. 2013) (quoting United States v. Frederick, 406 F.3d 754, 761 (6th Cir. 2005)). Thus, a
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defendant’s constitutional rights are not violated where the trial court “‘adequately inform[s] the
jury regarding the credibility of witness testimony’ and ‘alert[s] the jury to the various
considerations that it should take into account in weighing testimony.’” Goff v. Bagley, 601 F.3d
445, 469 (6th Cir. 2010) (quoting Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000)).
Here, the trial court thoroughly instructed the jury regarding the credibility of witness
testimony. (Doc. No. 22-18 at 24–26.) These instructions were constitutionally adequate, and,
indeed, directly addressed several of Petitioner’s stated concerns regarding the unreliability of
Anter and Napper. Petitioner states that: Napper previously worked as a police informant (Doc.
No. 3 at 23); Anter disliked Petitioner (id. at 28); both Anter and Napper received or expected to
receive benefits from the state in exchange for their testimony (id. at 13); and both had criminal
backgrounds (id. at 23). During trial, the jury heard testimony about these topics from Anter and
Napper. And the court instructed the jury, in part, as follows:
In forming your opinion, as to the credibility of a witness, you may look to the
proof, if any, of the witness’ reputation for truth and veracity; the intelligence and
respectability of the witness; his or her interest or lack of interest in the outcome of
the trial; his or her feelings; his or her apparent fairness or bias; his or her means
of knowledge; his or her appearance and demeanor while testifying; his or her
contradictory statements as to material matters, if any are shown; and all the
evidence in the case tending to corroborate or to contradict him or her.
* * *
If, from the evidence presented, you find that a witness has been convicted of a
prior crime, you can consider such only for the purpose of its effect, if any, on his
or her credibility as a witness.
(Id. at 24–25 (emphasis added).)
The jury had all of the information and instruction necessary to evaluate the credibility of
Anter and Napper’s testimony. The absence of a specific instruction on “criminal and professional
60
informants” did not deprive Petitioner of due process, and counsel was not deficient for failing to
request this instruction at trial. Claim 5.M will be denied.
Second, counsel was also not deficient for failing to request an instruction on the “absentee
witness rule” addressed in Claim 5.N. Petitioner does not explain what this instruction would have
entailed. It appears, however, that Petitioner believes he was entitled to some kind of special
instruction because the introduction of Frank White’s statements, through Sheldon Anter’s
testimony, violated the Confrontation Clause. (See Doc. No. 3 at 25–26); California v. Green, 399
U.S. 149, 179 (1970) (Harlan, J., concurring) (“From the scant information available it may
tentatively by concluded that the Confrontation Clause was meant to constitutionalize a barrier
against flagrant abuses, trials by anonymous accusers, and absentee witnesses.”). Petitioner is
mistaken.
“The Confrontation Clause guarantees a defendant the opportunity to cross-examine the
witnesses against him.” Landers v. Romanowski, 678 F. App’x 295, 300 (6th Cir. 2017) (citing
United States v. Owens, 484 U.S. 554, 559 (1998)). This right of confrontation, however, “applies
only to testimonial statements.” Jackson v. Stovall, 467 F. App’x 440, 443 (6th Cir. 2012) (citing
Davis v. Washington, 547 U.S. 813, 823–26 (2006)). While the Supreme Court has not established
“a comprehensive definition of ‘testimonial,’” Crawford v. Washington, 541 U.S. 36, 68 (2004)
(footnote omitted), it has noted that “[t]estimony . . . is typically ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” Id. at 51 (quoting 2 Noah
Webster, An American Dictionary of the English Language (1828)). Accordingly, the term
“testimonial” most readily applies to statements made at a preliminary hearing, grand jury
proceeding, previous trial, or police interrogation. Id. at 68.
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Here, Anter testified about a statement White made when “taunting” Petitioner in a
common area at the jail immediately prior to a physical altercation between White and Petitioner.
(Doc. No. 22-13 at 38–39); Barrett, 2012 WL 2870571, at *13 (“Mr. Anter testified that on August
16, 2008, Mr. White was taunting the Defendant about being a ‘baby killer and a rapist.’”).) Later
that evening, Anter testified, White continued to taunt Petitioner through vents in the cells. (Doc.
No. 22-13 at 40.) Thus, White’s statements were far from the type of “testimonial” statements that
trigger the protections of the Confrontation Clause. For this reason, counsel was not deficient for
failing to request a special jury instruction regarding White’s supposedly “testifying against
[Petitioner] through” Anter. Petitioner also has not demonstrated a reasonable probability of a
different outcome if counsel had requested such an instruction. Claim 5.N is procedurally defaulted
without cause because it is insubstantial.
VI.
Requests for Discovery and an Evidentiary Hearing
In the reply, Petitioner seeks discovery under Habeas Rule 6 and an evidentiary hearing
under Habeas Rule 8. (Doc. No. 33 at 45–48.) Petitioner is entitled to neither.
First, habeas petitioners do not have a “‘right to automatic discovery.’” Williams v. Bagley,
380 F.3d 932, 974 (6th Cir. 2004) (quoting Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001)).
“Rule 6 embodies the principle that a court must provide discovery in a habeas proceeding only
‘where specific allegations before the court show reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is . . . entitled to relief.’” Id. (quoting
Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)). “‘Conclusory allegations are not enough to
warrant discovery under Rule 6; the petitioner must set forth specific allegations of fact.’”
Cornwell v. Bradshaw, 559 F.3d 398, 409 (6th Cir. 2009) (quoting Williams, 380 F.3d at 974).
62
Here, the only specific factual allegations Petitioner attempts to present in support of his
discovery request, as relevant to this case, 16 pertain to Sheldon Anter and Andrew Napper.
Petitioner alleges that both Anter and Napper “had a tacit non-prosecution agreement in return for
their testimony,” and that Napper “had a tacit sentence reduction agreement in return for his
testimony.” (Doc. No. 33 at 46.) These allegations appear to be speculative rationalizations for
why Anter and Napper agreed to testify, rather than concrete factual allegations. (See id. at 47
(“[T]here is a prima facie case [sic] that the State did in fact have a non-prosecution and leniency
agreement with its key witnesses and is knowingly concealing these facts, acting as if these
witnesses simply came forward out of the goodness of their hearts, as good citizens.”).)
Accordingly, Petitioner’s request for evidence is akin to an impermissible “fishing expedition.”
Williams, 380 F.3d at 974 (quoting Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997)) (“Rule
6 does not ‘sanction fishing expeditions based on a petitioner’s conclusory allegations.’”).
Even if the state possessed evidence regarding favorable agreements with Anter and
Napper, moreover, these materials would not entitle Petitioner to relief. “‘[W]here undisclosed
evidence merely furnishes an additional basis on which to challenge a witness whose credibility
has already been shown to be questionable or who is subject to extensive attack by reason of other
evidence, the undisclosed evidence may be cumulative, and hence not material.’” Davis v. Gross,
No. 18-5406, 2018 WL 8138536, at *3 (6th Cir. Sept. 10, 2018) (quoting Byrd v. Collins, 209 F.3d
486, 518 (6th Cir. 2000)). As the Court explained when rejecting Petitioner’s claim that counsel
was ineffective for failing to investigate Anter and Napper’s backgrounds, supra Section V.C.5.a,
16
Petitioner also alleges that the state withheld material regarding “the TBI investigation of Dr. Levy.” (Doc. No. 33
at 47.) But no one by that name testified at Petitioner’s trial in this case. Instead, this seems to be another reference to
Petitioner’s other criminal case from around the same time. See Barrett v. State, No. 2007-D-3201, 2015 WL
13756082, at *3 (Tenn. Crim. Ct. May 18, 2015) (denying Petitioner’s post-conviction claim that counsel was
ineffective for failing to investigate “whether Dr. Levy was being investigated by the TBI at the time of his trial”),
rev’d on procedural grounds, No. M2015-01143-CCA-R3-PC, 2016 WL 4768698 (Tenn. Crim. App. Sept. 12, 2016).
This allegation, therefore, does not justify discovery here.
63
both the prosecutor and counsel questioned them on their criminal histories and dealings with the
state. This questioning covered Napper’s prior work as a police informant, and counsel called a
jail officer to testify for the sole purpose of impeaching Anter’s testimony. “Given these
circumstances, evidence that [Anter and Napper] struck deals in the current case, while
undoubtedly a basis for impeachment, would have been cumulative in light of the other
impeachment that occurred.” Davis, 2018 WL 8138536, at *3 (citing Byrd, 209 F.3d at 518).
Cumulative impeachment evidence is not a basis for discovery. See id.
Petitioner is also not entitled to an evidentiary hearing. “[W]ith a few exceptions,” none of
which apply here, a district court “‘shall not hold an evidentiary hearing on [a] claim’” where “‘the
applicant has failed to develop the factual basis of [the] claim in State court proceedings.’” Hodges
v. Colson, 727 F.3d 517, 541 (6th Cir. 2013) (quoting 28 U.S.C. § 2254(e)(2)). And the Court
cannot consider new evidence on claims that were adjudicated on the merits in state court. Id.
(citing Pinholster, 563 U.S. at 181). Finally, “[a] district court is not required to hold an evidentiary
hearing if the record ‘precludes habeas relief.’” Muniz v. Smith, 647 F.3d 619, 625 (6th Cir. 2011)
(quoting Schiro v. Landrigan, 550 U.S. 465, 474 (2007)). Applying these principles to this case,
and for the reasons stated throughout the Court’s analysis of Petitioner’s claims, Petitioner’s
request for an evidentiary hearing will be denied.
VII.
Conclusion
For these reasons, Petitioner’s claims are either not cognizable, fail on the merits, or
procedurally defaulted. He is also not entitled to discovery or an evidentiary hearing. Accordingly,
the Petition (Doc. Nos. 1 and 3) will be denied and this action will be dismissed.
Because this constitutes a “final order adverse to” Petitioner, the Court must “issue or deny
a certificate of appealability.” Habeas Rule 11(a). A certificate of appealability may issue only if
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Petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
“If the petition [is] denied on procedural grounds, the petitioner must show, ‘at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.’” Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017) (quoting
Slack, 529 U.S. at 484). Here, the Court concludes that Petitioner has not satisfied these standards,
and will therefore deny a certificate of appealability.
An appropriate Order is filed herewith.
____________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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