King v. Mays
Filing
35
MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 1/14/2021. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEFFREY KING,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
TONY MAYS, Warden,
Respondent.
NOS. 3:18-cv-00112 (LEAD CASE),
3:18-cv-00017, 3:18-cv-00018
JUDGE CAMPBELL
MEMORANDUM OPINION
Petitioner Jeffrey King, a former state inmate 1 proceeding pro se, has filed three habeas
corpus actions pursuant to 28 U.S.C. § 2254, including the instant case, challenging the legality of
his Sumner, Davidson, and Rutherford County convictions and combined effective 40-year prison
sentence. 2 Respondent has filed the record of proceedings in state court (Doc. No. 12) and his
Answer to the Petition (Doc. No. 14). Petitioner has filed original and supplemental briefs in Reply
to Respondent’s Answer. (Doc. Nos. 22, 24.)
This matter is ripe for the Court’s review, and the Court has jurisdiction. Respondent does
not dispute that the Petition in this case is timely, that this is Petitioner’s first Section 2254 petition
1
Petitioner was released on parole in 2019 but remains “in custody” for purposes of the Court’s
jurisdiction of his habeas petition. See Smith v. Tennessee Bd. of Prob. & Parole, No. 3:11-cv-739, 2012
WL 1933669, at *1 (M.D. Tenn. May 29, 2012) (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)
(holding that a state prisoner who has been placed on parole is “in custody” for purposes of habeas statute)).
2
Petitioner’s charges in all counties were resolved in a global plea agreement negotiated by his
Sumner County counsel, who was Petitioner’s primary attorney for all purposes relevant to his habeas
petitions (which only assert ineffective-assistance-of-counsel claims). Accordingly, references in this
Memorandum Opinion to the record of state-court proceedings, as well as to the record of the parties’ filings
(which are substantially identical across Petitioner’s three cases but were entered on the various dockets
with slight differences in numbering) will correspond to the docket of Case No. 3:18-cv-00112, the action
attacking Petitioner’s Sumner County convictions and the lead case for these purposes.
related to this judgment of conviction, and that the claims of the Petition have been exhausted.
(Doc. No. 14 at 1–2.) Having reviewed Petitioner’s arguments and the underlying record, the Court
finds that an evidentiary hearing is not required. As explained below, Petitioner is not entitled to
relief under Section 2254, and his Petition will therefore be denied by Order entered
contemporaneously with this Memorandum Opinion.
I. BACKGROUND
A. Proceedings in the Trial Court and on Direct Appeal
Petitioner was indicted in 2009 along with numerous co-defendants including his brother,
Kasey King, on a litany of charges related to his participation in a drug ring operating in Davidson,
Sumner, Rutherford, Wilson, and Cheatham Counties in Tennessee. After dismissal of the charges
in Wilson and Cheatham Counties, the case against Petitioner was approved for prosecution in the
remaining three Counties by Davidson County Assistant District Attorney General John
Zimmerman. Petitioner retained Nashville lawyer Kimberly S. Hodde to represent him in the
Sumner County case. He was appointed counsel in the Davidson and Rutherford County cases,
though these lawyers deferred to Hodde as primary counsel for purposes of constructing
Petitioner’s defense, arguing for suppression of the evidence against him, and conducting plea
negotiations. (See Doc. No. 12-64 at 12–20.)
The case against Petitioner, including multiple charges of possession and delivery of large
amounts of marijuana, money laundering, and related charges of conspiracy, was largely based
upon evidence obtained through a large-scale wiretap investigation. Between October 7 and 10,
2008, law enforcement applied for four wiretaps which Davidson County Judge Mark Fishburn
authorized: two on cellphones belonging to Bruce Dady, one on a cellphone belonging to
Petitioner, and one on a cellphone belonging to Vernon Lockhart. These wiretap applications were
2
“substantially similar,” and the wiretaps formed the foundation of an investigation that would grow
to include 23 wiretaps and 24 wiretap extensions. State v. King, 437 S.W.3d 856, 860–62 (Tenn.
Crim. App. 2013), perm. app. denied (Tenn. Feb. 12, 2014).
On July 26, 2010, Hodde (hereinafter, “counsel”) moved to suppress the wiretap evidence
in Sumner County. (Doc. No. 12-3 at 22–91.) Substantially identical motions to suppress were also
filed in Davidson and Rutherford Counties. The motions to suppress argued that the wiretaps were
not properly authorized under the relevant Tennessee statute, which provides as follows:
Upon an application the judge may enter an ex parte order, as requested or as
modified, authorizing interception of wire, oral or electronic communications
within the district in which the judge is sitting, and outside that district but within
this state in the case of a mobile interception device, if the judge determines on the
basis of the facts submitted by the applicant that:
(1) There is probable cause for belief that an individual is committing, has
committed, or is about to commit a particular offense enumerated in § 40-6305;
(2) There is probable cause for belief that particular communications
concerning that offense will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous; and
(4) There is probable cause for belief that the facilities from which, or the place
where, the wire, oral or electronic communications are to be intercepted are
being used, or about to be used, in connection with the commission of the
offense, or are leased to, listed in the name of, or commonly used by the person.
Tenn. Code Ann. § 40-6-304(c). The Sumner County court held an evidentiary hearing on
Petitioner’s motion to suppress (Doc. No. 12-44) and subsequently denied it (Doc. No. 12-4 at 22–
38), as did the courts in Davidson County (Doc. No. 12-2 at 20–52) and Rutherford County (Doc.
No. 12-6 at 4–10). Unlike the Davidson and Rutherford County courts, the Sumner County court
heard and granted Petitioner’s motion for permission to file an interlocutory appeal from its
3
suppression ruling (Doc. No. 12-45), but the Tennessee Court of Criminal Appeals subsequently
declined review, as did the Tennessee Supreme Court. (Doc. Nos. 12-46, 12-47.)
Thereafter, pursuant to a global plea agreement, Petitioner entered conditional guilty pleas
in each county. 3 Under the plea agreement, all charges in all counties 4 were resolved with an
overall effective sentence of 40 years, to be served as a Range II, multiple offender at 35% release
eligibility. (Doc. No. 12-64 at 19; Doc. No. 12-4 at 40–52.) In conjunction with the guilty pleas,
and pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), Petitioner reserved the following
certified questions of law for appellate review:
In the trial court, the Defendant moved to suppress the fruits of electronic
surveillance on numerous grounds: (1) that the initial wiretap Applications lacked
probable cause to justify interception in violation of T.C.A. §§ 40–6–304(c) and
40–6–305, specifically including the Applications’ failure to demonstrate the
statutorily required nexus between the phone to be intercepted and the alleged
illegal activity sought to be intercepted; (2) that the initial Applications failed to
demonstrate a constitutionally sufficient requisite necessity for the use of electronic
surveillance pursuant to T.C.A. § 40–6–304(a)(3) and 18 U.S.C. § 2518(1)(c); (3)
that all subsequent wiretaps were the fruits of the prior illegal wiretap interceptions
and therefore, were fruits of the poisonous tree; (4) that the notarized but unsigned
3
It appears that all defendants in this multi-county prosecution pled guilty except Lockhart. The
Court takes judicial notice that, after a jury trial in Davidson County, Lockhart was sentenced to an effective
94-year prison term upon being convicted of the following offenses: conspiracy to sell 300 pounds or more
of marijuana within a drug-free school zone, possession of 300 pounds or more of marijuana with intent to
deliver within a drug-free school zone, ten counts of money laundering, possession of ten pounds or more
of marijuana with intent to deliver within a drug-free school zone, and facilitation of possession of ten
pounds or more of marijuana with intent to deliver. See State v. Lockhart, No. M2013-01275-CCA-R3-CD,
2015 WL 5244672, at *1 (Tenn. Crim. App. Sept. 8, 2015); see also Doc. No. 12-64 at 119–23 (colloquy
at evidentiary hearing with regard to potential effect of Lockhart’s conviction, sentence, and appeal if
Petitioner were to win post-conviction relief).
4
In Sumner County, Petitioner pled guilty to conspiracy to possess over 70 pounds of marijuana,
delivery of over 10 pounds of marijuana, possession of over 70 pounds of marijuana, delivery of over 10
pounds of marijuana, delivery of over 10 pounds of marijuana, possession of a firearm during the
commission of a felony, and seven counts of money laundering. (Doc. No. 12-4 at 40–52.) In Davidson
County, Petitioner pled guilty to conspiracy to sell over 300 pounds of marijuana, two counts of conspiracy
to commit money laundering, delivery of over 70 pounds of marijuana, two counts of money laundering,
delivery of over 10 pounds of marijuana, possession of over 10 pounds of marijuana with intent to sell,
possession of over 300 pounds of marijuana with intent to sell, and criminal forfeiture. (Doc. No. 12-2 at
92–103.) In Rutherford County, Petitioner pled guilty to conspiracy to sell over 70 pounds of marijuana
and possession of over 70 pounds of marijuana. (Doc. No. 12-5 at 149–50.)
4
affidavit requesting a second extension of the wiretap for telephone number (615)
584–6075 was statutorily deficient to support interception; (5) that, in addition to
being a fruit of the prior illegal interceptions, the subsequent interception of
telephone (615) 653–2294 lacked probable cause to justify interception in violation
of T.C.A. §§ 40–6–304(c) and 40–6–305 because they [sic] failed to make a
sufficient link between the phone and suspected criminal activity or the targets of
the investigation; (6) that, in addition to being a fruit of the prior illegal
interceptions, the subsequent interception of telephone (615) 818–2839 lacked
probable cause to justify interception in violation of T.C.A. §§ 40–6–304(c) and
40–6–305 because they [sic] failed to make a sufficient link between the phone and
suspected criminal activity or the targets of the investigation; (7) that the
Applications for extensions of the wiretaps failed to articulate a statutorily
sanctioned purpose justifying continuing interception; (8) that the issuing Court
neglected its duty as a neutral and detached magistrate and acted as an
impermissible rubber stamp for law enforcement; and, (9) that the Applications
contain omissions and material misstatements that undercut any showing of
requisite necessity for the wiretaps.
King, 437 S.W.3d at 863–64. 5 Petitioner then filed timely appeals in each county for consideration
of these issues.
The Tennessee Court of Criminal Appeals consolidated all cases in all counties against
Petitioner and his brother for purposes of appeal. Id. at 864. The court determined that several of
the certified questions were not dispositive and thus unreviewable; it found dispositive, and thus
reviewed, four of the nine questions presented. Id. at 867–89. Specifically, the appellate court
reviewed the questions of whether the wiretap applications provided a substantial basis for
probable cause in accordance with the standard recited at Tennessee Code Annotated § 40–6–
304(c)(4); whether the wiretap applications satisfied the requisite necessity requirement found at
§ 40–6–304(a)(3); whether the wiretap applications contained errors that invalidated the
applications; and whether subsequent wiretaps and wiretap extensions were illegal as fruits of the
poisonous tree. Id. at 870–86. In addressing the first of these questions, the Court of Criminal
Appeals made the following clarification:
5
These certified questions were also reserved in the conditional plea entered by Petitioner’s brother,
who pled guilty to charges in Davidson and Rutherford Counties. King, 437 S.W.3d at 863.
5
Although the first of the Defendants’ certified questions refers specifically only to
“the statutorily required nexus between the phone to be intercepted and the alleged
illegal activity sought to be intercepted,” the Defendants clarify in their reply brief
that the “heart” of their probable cause challenge is that “[t]he State never
conducted consensually monitored and recorded calls to any of the target
telephones to discuss any target offense or criminal conduct.” That is, the
Defendants contend that the State failed to satisfy the nexus requirement set forth
in subsection (c)(4) of the Wiretap Statute, which requires probable cause to believe
that the targeted telephone is “being used, or [is] about to be used, in connection
with the commission of the offense.” Tenn. Code Ann. § 40–6–304(c)(4). As our
supreme court has emphasized, “[n]o issue beyond the scope of the certified
question will be considered.” State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988);
see also State v. Day, 263 S.W.3d 891, 899–900 (Tenn. 2008) (limiting its
consideration to the “narrow issue” presented explicitly in the certified question
and emphasizing “[o]nce again ... the importance of clearly identifying the scope
and limits of an issue intended to be preserved by a certified question”). Therefore,
we decline to address any potential contention that there was no “probable cause
for belief that particular communications concerning [the] offense will be obtained
through the interception.” Tenn. Code Ann. § 40–6–304(c)(2).
Id. at 867 n.14. The Court of Criminal Appeals then reviewed the suppression rulings of the lower
courts, as follows:
The Rutherford County trial court found that “the relevant wiretap applications
contained sufficient information to support Judge Fishburn’s finding of probable
cause that targets were committing, had committed, or were about to commit a
crime included in Tenn.Code Ann. § 39–17–417(j)(13)” and that the Issuing Court
“had a substantial basis to believe that [Defendant J. King] was using these phones
[sic] in furtherance of his criminal operation.”
The Sumner County trial court rejected the Defendants’ argument that subsection
(c)(4) required probable cause to believe that the targeted telephone number was
being used to commit the Target Crimes and, instead, focused on the alternative
probable cause requirement, that there be probable cause to believe that the targeted
telephone number was “leased to, listed in the name of, or commonly used by” the
targeted person. Tenn. Code Ann. § 40–6–304(c)(4). Cf. United States v.
Dadanovic, Criminal No. 09–63–ART, 2010 WL 3620251, at *9 (E.D. Ky. Sept.
10, 2010) (recognizing that the federal counterpart to this provision “is satisfied
either if 1) the phone is being used by someone in connection with the offense or
2) it is commonly used by an individual who ‘is committing, has committed, or is
about to commit a particular offense’”) (citing 18 U.S.C. § 2518(3)(d)) (emphases
added). The Sumner County trial court ruled that “[t]he Applications clearly show
that the original Application’s phones were listed in the name of the Targets’ wives,
and the Pen Registers showed that these phones were being used by the targets in
communication with the other conspirators.”
6
The Davidson County trial court, like the Rutherford County trial court, ruled that
the Applications sufficiently established probable cause to believe that the targeted
telephones were being used to commit the Target Crimes:
The information in the Applications provided the issuing judge a substantial
basis to find probable cause that interception of the target phones would
provide evidence of the conspiracy. As [indicated by pen register statistics],
target suspects made a high volume of calls to other suspected co-conspirators
between the July–September 2008 time period [covered by the pen register].
For example: the Application for Lockhart’s telephone cited that there were
401 calls between Lockhart and Jeffrey King and 480 calls between Lockhart
and [Cheyenne] Davis within the three-month period; the Application for
Jeffrey King’s phone cited 336 calls between Jeffrey King and Kasey King and
178 calls between Jeffrey King and Dady for that same period. . . . The Sixth
Circuit, among other federal courts, has concluded that where “there is a
recurring pattern of multiple connections among the phone calls, between and
among recognized members of the conspiracy ... [it] adds to the evidence
amounting to ‘a fair probability’ that interception of further calls would reveal
evidence of a crime.” United States v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988)
(reversed District Court’s decision granting suppression motion)[.]
Accordingly, the Court finds that each [of] the initial four applications speak
for themselves and the four corners of the initial four applications provide
probable cause for the interception.
As the Defendants apparently do, we construe the Davidson County trial court’s
finding that the [four] Initial Applications were sufficient on which to “find
probable cause that interception of the target phones would provide evidence of the
conspiracy,” the probable cause requirement set forth in (c)(2), as including a
finding that the target phones were being used to commit the conspiracy, one of the
probable cause requirements set forth in (c)(4).
King, 437 S.W.3d at 867–68.
The Court of Criminal Appeals proceeded to find that Petitioner was not entitled to relief
on any certified question presented and that the courts below did not err in denying his motions to
suppress the wiretap evidence; it thus affirmed Petitioner’s convictions. See id. at 889.
On February 12, 2014, the Tennessee Supreme Court declined to review the case.
7
B. Post-Conviction Proceedings
Petitioner filed timely petitions for post-conviction relief in all three counties. (See Doc.
No. 12-62 at 3–11.) Petitioner retained post-conviction counsel, who filed the same memorandum
of law in support of the claims raised in Petitioner’s pro se petition in all counties (see id. at 16–
42) as well as supplements to the petition in Davidson and Sumner Counties. Each of the three
post-conviction courts denied relief after holding an evidentiary hearing. Petitioner appealed those
rulings to the Tennessee Court of Criminal Appeals. In separate decisions which employ virtually
identical language, the Court of Criminal Appeals affirmed the denial of post-conviction relief,
and the Tennessee Supreme Court subsequently declined discretionary review in all three cases.
King v. State, No. M2016-02166-CCA-R3-PC, 2017 WL 3974093 (Tenn. Crim. App. Sept. 8,
2017), perm. app. denied (Tenn. Nov. 16, 2017); King v. State, No. M2016-01224-CCA-R3-PC,
2017 WL 2805200 (Tenn. Crim. App. June 28, 2017), perm. app. denied (Tenn. Oct. 4, 2017);
King v. State, No. M2016-01646-CCA-R3-PC, 2017 WL 2805202 (Tenn. Crim. App. June 28,
2017), perm. app. denied (Tenn. Oct. 4, 2017). 6
The Tennessee Court of Criminal Appeals described Petitioner’s post-conviction petition
and evidentiary hearing as follows:
The Petitioner then filed a petition for post-conviction relief, pro se, in which he
alleged that he had received the ineffective assistance of counsel and that his guilty
pleas were not knowingly and voluntarily entered. He argued that counsel was
ineffective for failing to address on appeal the legality of Tennessee Code
Annotated section 40–6–304(c)(2). He further argued that he entered his guilty
pleas under the impression that his nine certified questions would be addressed in
turn by the appellate court, would be deemed dispositive because of the agreement
of the parties, and that a determination in his favor on any of the questions would
result in his convictions being reversed. The post-conviction court appointed an
attorney and subsequently held a hearing, during which the following evidence was
6
Because the language is the same in all three appellate decisions, the Court will for simplicity’s
sake refer hereinafter only to the post-conviction decision of the Court of Criminal Appeals in the case out
of Sumner County, King v. State, No. M2016-02166-CCA-R3-PC, 2017 WL 3974093 (Tenn. Crim. App.
Sept. 8, 2017).
8
presented: Counsel testified that she worked as a criminal defense attorney for
fifteen years and had handled hundreds of drug cases throughout her career. She
stated that she had dealt with eighty to one hundred cases that had wiretapping
issues and that she had “actively litigated” forty to fifty wiretap cases. She testified
that she was “very experienced” at the time she represented the Petitioner. Counsel
recalled that the Petitioner was charged in multiple counties and that she
represented him in Sumner County and assisted with his representation in the other
counties (hereinafter “Sumner Counsel”). Sumner Counsel was the Petitioner’s
primary attorney, and she stated that the Sumner County case “took the lead” over
the Rutherford County and Davidson County cases.
Sumner Counsel testified that she spent a “tremendous” amount of time with the
Petitioner and had a very good working relationship with him. She was his “primary
point of contact” for his cases, and the majority of the litigation happened in Sumner
County where she represented him. Sumner Counsel spoke with the attorneys in
the Petitioner’s other cases, and they met jointly with the Petitioner on occasion.
Sumner Counsel described the Petitioner as a “profoundly smart guy” who wanted
to be involved in his case and participate in his defense. As such, Sumner Counsel
had many discussions with him about the litigation strategy over the course of an
estimated seventy-five meetings. Sumner Counsel arranged for the Petitioner to
have access to a computer while incarcerated on which he reviewed his discovery
file. She felt that the Petitioner “trusted [Sumner Counsel’s] judgment,” although
she recalled that he had a somewhat strained relationship with another of his
attorneys.
Regarding the Petitioner’s direct appeal, Sumner Counsel testified that all of the
Petitioner’s cases were consolidated and that she wrote the appellate brief and
argued the case. About the plea negotiations with the State, Sumner Counsel
recalled that the State made an initial offer that “may have been forty [years] at
thirty percent” but that a certified question was not included in the deal. Lengthy
negotiations followed because the State insisted that the Petitioner plead guilty in
multiple counties, which Sumner Counsel felt was unnecessary and excessive.
Sumner Counsel also recalled that the State made an offer in exchange for the
Petitioner’s cooperation as a witness, and the Petitioner did not want to cooperate.
Regarding the certified questions of law in relation to the wiretap issue, Sumner
Counsel said that this was “incredibly important” to the Petitioner because he felt
very strongly that the wiretaps were unlawful. The Petitioner understood, and the
State agreed, that without the wiretap evidence, the State’s case would essentially
have to be dismissed. As a result, the wiretap issue was also “incredibly important
to [Sumner Counsel] legally.” She agreed that if the certified questions had not been
a part of the plea deal, the Petitioner would not have accepted the deal. She stated
that the “certified question[s] were the enticing factor for that plea deal for [the
Petitioner].”
9
Turning back to her representation of the Petitioner, Sumner Counsel recalled that
she reviewed with the Petitioner “every bit” of the discovery. Based on the State’s
evidence, she and the Petitioner “knew collectively that if we went to trial we were
in trouble.” “[The Petitioner’s] perspective, he knew that if he went to trial he would
be convicted.” Sumner Counsel had prepared documentation of the Petitioner’s
maximum potential exposure if he was convicted by a jury, and it was ninety years
or more with much of the sentence to be served at 100 percent because of school
zone enhancements. Sumner Counsel stated:
[I]t was very important to [the Petitioner] that the certified question[s] be
heard. And my advice would have been to him, although I thought the
[State’s] offer was terrible and I thought it was way too much time in the
case, . . . we didn’t have a lot of choices, those were our choices. . . . But
with the certified question[s] I really felt strongly that he should consider
the offer. It gave him what he wanted, gave him the opportunity to be
heard on appeal on these issues, and it gave him some control of his future
in the sense of a definitive resolution.
Sumner Counsel stated that she was not a “seller” of plea agreements and believed
that a case should go to trial if a defendant so desired. She stated that she never
pressured clients to give up their right to a trial. About the motion to suppress the
wiretaps, Sumner Counsel felt strongly that the wiretaps were unlawful and that
everything that flowed from the wiretaps should be suppressed. Sumner Counsel
recalled that she reviewed each wiretap and made an independent judgment on each
one as to whether to file a motion to suppress.
Turning back to the certified questions of law, Sumner Counsel recalled that she
was in discussion with the State for four to six weeks about the question. She was
“very concerned about the trickiness of a certified question” because the appellate
court was “notorious for finding ways not to hear certified questions,” and she told
the Petitioner that she had been “a victim” of that occurrence on more than one
occasion. As such, Sumner Counsel “cautioned” the Petitioner about the “tricky
process from a procedural perspective.” The State agreed to the submission of a
certified question of law, and the State allowed Sumner Counsel flexibility as to
how to craft the question. The Petitioner and Sumner Counsel discussed the
certified questions and what issues to include. Sumner Counsel “knew” that some
of the nine questions were not dispositive, while some of the others were. Sumner
Counsel explained the risk to the Petitioner that the appellate court might find
certain ones were not dispositive and would decide not to rule on them for this
reason. She advised him that there was “an equal chance” that the appellate court
would go ahead and rule on the questions even if they were not dispositive. She
testified, however, that the main certified questions were dispositive, and if the
appellate court ruled in the Petitioner’s favor on those main questions, the case
would “disappear” for the Petitioner.
10
Sumner Counsel acknowledged the complexities involved with a certified question
of law and stated that, even though she thought the Petitioner was a very intelligent
person, she knew that the procedural process for review of a certified question was
difficult to understand. She took plenty of time to discuss the complexities with the
Petitioner but could not say whether he was able to understand or absorb them.
When asked if Sumner Counsel thought the Petitioner might have gotten a different
impression than she had from their discussions, she replied, “It’s possible.”
About the first certified question, whether “the initial wiretap Applications lacked
probable cause to justify interception in violation of T.C.A. §§ 40–6–304(c) and
40–6–305, specifically including the Applications’ failure to demonstrate the
statutorily required nexus between the phone to be intercepted and the alleged
illegal activity sought to be intercepted[,]” Sumner Counsel agreed that the
appellate court addressed this question but declined to rule on several of the
requirements of subsection (c) of the statute based on what it deemed Sumner
Counsel’s narrowing of the issue to subsection (c)(4) in the reply brief. Sumner
Counsel disagreed with this, saying that she had focused on one prong, (c)(4), in
her reply brief because of the State’s argument in its response brief but had
thoroughly briefed the issue on all subsection (c). She stated that she had no regrets
about the way she briefed the issue and that she had done so thoroughly but that the
argument was hurt by the appellate court’s limited analysis. As to this argument,
and every other aspect of the case, Sumner Counsel told the Petitioner that she could
not guarantee the outcome at any stage. Sumner Counsel testified that the Petitioner
was upset after the appellate court issued its opinion finding many of the questions
were not dispositive and declining to rule on the merits of those it deemed not
dispositive. The Petitioner was upset with Sumner Counsel for taking away his
avenue of appeal.
On cross-examination, Sumner Counsel reiterated that the Petitioner was very
active in his case and asked a lot of questions. Based on his questions, Sumner
Counsel felt the Petitioner had a good understanding of the case and his right to a
jury trial. Sumner Counsel believed that the Petitioner understood he was giving up
his right to a jury trial by deciding to plead guilty with certified questions reserved.
She testified that he understood that if he proceeded to trial, his risk of conviction
was great but that he would retain his right to appeal every issue. Sumner Counsel
reiterated that she explained to the Petitioner the risk of dismissal on the “front end”
of the certified questions because of a mistake in the “paperwork” but told him that
she was confident that would not happen because she had successfully pursued
certified questions recently and had done so successfully on the “paperwork” side
of it. She did discuss the “other hazards” of a certified question, including the issue
of “calling” something dispositive when it was not and how the appellate court
would decline to rule in that situation. She discussed with the Petitioner the risk of
putting his case in the “Court of Criminal Appeals’ hands” versus putting it in the
hands of a jury and the difference between a ninety-plus-year sentence with an
automatic right to appeal versus a shorter sentence with some risks on appeal
because of the certified question. Sumner Counsel gave the Petitioner her best
11
forecast as to how each scenario might play out; however, she stated that she could
not have forecasted that the appellate court would conclude that she had narrowed
the first issue in her brief and then decline to rule on it; this issue, she felt, was the
“heart” of the case. The appellate briefs drafted by Sumner Counsel were admitted
into the record as exhibits.
The Petitioner’s Davidson County attorney (hereinafter “Davidson Counsel”)
testified that he represented the Petitioner on the Davidson County charges. He filed
a motion to suppress the wiretap evidence by tailoring Sumner Counsel’s motion
to the facts in Davidson County. He also observed the suppression hearing held in
Sumner County, argued by Sumner Counsel, where he “learned a lot” about a case
such as this one involving large amounts of drugs over a long period of time.
Davidson Counsel testified that he did not make any substantive changes to Sumner
Counsel’s motion; however, he did litigate the motion himself. Davidson Counsel
recalled that he did not meet with the Petitioner independently from Sumner
Counsel and stated that they met jointly with the Petitioner three or four times. The
Petitioner “made it clear” to Davidson Counsel that the Petitioner thought Sumner
Counsel was more knowledgeable and he was more interested in her opinion on the
law. Davidson Counsel willingly assumed the role of “second fiddle.”
As for the certified questions reserved in the Petitioner’s Davidson County plea,
Davidson Counsel testified that Sumner Counsel offered to draft the certified
questions, and he accepted her offer. Davidson Counsel recalled attending a
meeting with the Petitioner and Sumner Counsel about a possible plea deal, and the
Petitioner expressed that he was not happy with the State’s offer. The Petitioner
and Sumner Counsel discussed “the pros and cons” of proceeding to trial, and
Davidson Counsel offered his opinion that, based on his prior dealings in Davidson
County Criminal Court, this amount of drugs often resulted in the maximum
sentence. Davidson Counsel recalled that he initiated discussions about a reduction
of the plea offer sentence, but the State declined and expressed its desire for the
Petitioner to turn down the State’s offer and proceed to trial. Davidson Counsel
agreed that the plea deal encompassing all three counties was a “package deal” from
the outset and was never going to be anything other than a global settlement.
Davidson Counsel agreed that he had nothing to do with the certified questions or
the appellate issues.
Davidson Counsel agreed that the Petitioner was motivated to enter a guilty plea
because of the certified questions and that Sumner Counsel felt strongly that if the
appellate court addressed the certified questions, the Petitioner would be granted
relief. The Petitioner was otherwise “reluctant” to enter a guilty plea. Davidson
Counsel stated that Sumner Counsel was confident that the Petitioner would win on
appeal but agreed that there were “prerequisites” to her confidence. He stated, “The
qualifiers were there,” pertaining to Sumner Counsel’s predictions of success on
appeal.
12
The Petitioner testified that Sumner Counsel’s testimony regarding their
relationship was accurate. The Petitioner retained her on the recommendation of
another attorney that she was the premier wiretap lawyer in the State. The Petitioner
agreed that Sumner Counsel was very knowledgeable, although his reading of some
of the wiretap law differed from hers. The Petitioner stated that he was amenable
to Sumner Counsel being the lead counsel for all the suppression hearings, meaning
her legal work was used by his other attorneys in the other counties.
Regarding the certified questions, the Petitioner agreed that he had no knowledge
of the law or procedure surrounding them and was reluctant to take the plea deal
because he was giving up his right to appeal many issues that were not included in
the certified questions. The Petitioner acknowledged that he was exposed to lengthy
sentences in the three counties but that it was more important to him to have his
issues heard on appeal. Sumner Counsel explained to him that certified questions
of law are “particular” in the way they are drafted and that it can be difficult to
prevail in an appellate court or even have them considered. The Petitioner recalled
that Sumner Counsel had modeled the certified questions for his case from certified
questions she had successfully used in another case. The Petitioner understood that
all of the certified questions would be heard and that they were each deemed
dispositive by agreement of the Petitioner, the State, and the trial court. Sumner
Counsel did not tell the Petitioner that all of the questions were dispositive, but the
Petitioner did not know at the time that the appellate court would be making an
independent conclusion about whether a question was dispositive before review on
the merits. The Petitioner believed that the “barrier” was getting the State and the
trial court to agree, not the appellate court. He was not aware that the appellate court
could “divide” the questions and deem some dispositive and others not.
The Petitioner testified that he became more knowledgeable on the wiretap law and
certified question procedure and that he did not agree with the way Sumner Counsel
framed her argument about the wiretap statute in the appellate brief. The Petitioner
testified that he did not feel that Davidson Counsel was prepared for the suppression
hearing because he used Sumner Counsel’s motion and did not do the research
himself or prepare independently. The Petitioner acknowledged that Sumner
Counsel’s appellate argument employed federal law and that this was a case of first
impression at the state level. Regarding the drafting of the certified questions, the
Petitioner testified that he was present and had input but that the majority of them
were drafted by Sumner Counsel.
On cross-examination, the Petitioner testified that he did not knowingly enter his
guilty plea because he would have chosen to go to trial if he had known that the
agreement of the parties was not sufficient to guarantee a finding that the questions
were dispositive and would be considered. He agreed that at the guilty plea
submission hearing, he was asked if he wished to waive his right to trial and that he
affirmed that he did.
13
The Petitioner’s Rutherford County attorney (hereinafter “Rutherford Counsel”)
testified that the Petitioner’s charges in Rutherford County were not as serious as
the other counties. He stated that most of his contact with the other attorneys was
with Sumner Counsel and that the Petitioner wanted him to follow Sumner
Counsel’s lead with regard to the wiretap issues. His understanding was that all the
defenses in the various counties were based on one theory that Sumner Counsel had
researched and prepared. Rutherford Counsel recalled that in Rutherford County
the Petitioner entered a plea to an A or B felony with a forty-year sentence to be
served at 30 percent. He stated that the Petitioner was not happy about the plea or
the sentence, but he agreed to enter the plea in order to have appellate review of his
certified questions of law. Rutherford Counsel agreed that Sumner Counsel
prepared the certified questions of law and that he made no substantive changes.
King v. State, No. M2016-01224-CCA-R3-PC, 2017 WL 2805200, at *3–7 (Tenn. Crim. App.
June 28, 2017).
After he was denied post-conviction relief in state court, Petitioner filed his pro se Petitions
under Section 2254 in this Court.
II. CLAIMS OF THE PETITION
Petitioner’s pro se Petitions assert seven claims of ineffective assistance of counsel in
violation of the Sixth Amendment. 7 These claims rely on:
(1) counsel’s failure to ensure that all certified questions were dispositive or that all
dispositive issues were included in those questions, or to inform him that the Court of Criminal
Appeals could deem any certified question non-dispositive and thus decline to address it;
(2) counsel’s failure, in briefing the certified questions before the Court of Criminal
Appeals, to assert effectively her argument under Tenn. Code Ann. § 40-6-304(c)(2), thereby
allowing the Court of Criminal Appeals to deem the argument waived;
7
Petitioner’s ineffective-assistance claims identify failures of Attorney Hodde, who “did all the
research and work for each county of which all of the other attorneys essentially adopted without having
done their own research . . . .” (Doc. No. 2 at 17.) Thus, to the extent that Petitioner claims that counsel
other than Hodde were ineffective, any such claim is based on deficient performance imputed to those
lawyers from Hodde’s alleged failures.
14
(3) counsel’s failure before the trial court to assert the wiretap application’s failure to
establish probable cause to believe that interceptions of Petitioner’s cellphone would reveal
particular communications concerning a charged offense, as required by Section 40-6-304(c)(2),
rather than merely that a high volume of calls was made to co-conspirators from Petitioner’s
cellphone;
(4) counsel’s failure to argue adequately for suppression or raise a proper certified question
based on the trial court’s acting as a rubber stamp for the prosecution’s wiretap applications;
(5) counsel’s failure to know or advise him properly that the plea agreement offered by the
state required him to admit guilt on certain charges that the state could not otherwise have won
conviction on, including (a) separate conspiracy charges in each of the three counties based on the
same evidence, which could only have been used to show the existence of a single conspiracy; and
(b) charges of money laundering, when his admitted conduct did not suffice to establish all
statutory elements of the crime;
(6) counsel’s failure to seek the dismissal of the prosecution or the disqualification of the
prosecutor based on his conflict of interest in representing the State in both the criminal
prosecution and in civil forfeiture proceedings, where the prosecutor sought the forfeiture of
Petitioner’s assets for the benefit of the 20th Judicial Drug Task Force; and
(7) counsel’s failure to challenge the prosecution’s retaliatory filing of charges in multiple
counties and targeting of assets for forfeiture when those assets were not involved with illegal
activity.
(Doc. No. 2 at 30–75; Doc. No. 22 at 3–4.)
15
III. LEGAL STANDARD
The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a federal
court may only grant relief if it finds that the error “had substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v.
Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met
before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht
v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,
AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes “a
substantially higher threshold” for obtaining relief than a de novo review of whether the state
court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams v. Taylor, 529 U.S. 362, 410 (2000)).
16
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits
in state court unless the state decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or
“was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1), (d)(2). A state court’s legal decision is “contrary
to” clearly established federal law under Section 2254(d)(1) “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. at 412–13. An “unreasonable application”
occurs when “the state court identifies the correct legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A
state court decision is not unreasonable under this standard simply because the federal court finds
it erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court’s
decision applies federal law in an objectively unreasonable manner. Id. at 410–12.
Similarly, a district court on habeas review may not find a state court factual determination
to be unreasonable under Section 2254(d)(2) simply because it disagrees with the determination;
rather, the determination must be “‘objectively unreasonable’ in light of the evidence presented in
the state court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002). “A state
court decision involves ‘an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding’ only if it is shown that the state court’s presumptively
correct factual findings are rebutted by ‘clear and convincing evidence’ and do not have support
in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting Section 2254(d)(2)
and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 & n.3 (6th Cir. 2014) (observing that
17
the Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did
not read Matthews to take a clear position on a circuit split about whether clear and convincing
rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under Section
2254(d)(2), “it is not enough for the petitioner to show some unreasonable determination of fact;
rather, the petitioner must show that the resulting state court decision was ‘based on’ that
unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
The standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the
merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for evaluating statecourt rulings, which demands that state-court decisions be given the benefit of the doubt.’” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Richter, 562 U.S. at 102, and Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Petitioner bears the burden of proof. Pinholster,
563 U.S. at 181.
Even that demanding review, however, is ordinarily only available to state inmates who
have fully exhausted their remedies in the state court system. 28 U.S.C. §§ 2254(b) and (c) provide
that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with
certain exceptions, the prisoner has presented the same claim sought to be redressed in a federal
habeas court to the state courts. Pinholster, 563 U.S. at 182; Kelly v. Lazaroff, 846 F.3d 819, 828
(6th Cir. 2017) (quoting Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009)) (petitioner must
present the “same claim under the same theory” to the state court). This rule has been interpreted
by the Supreme Court as one of total exhaustion, Rose v. Lundy, 455 U.S. 509 (1982), meaning
that each and every claim set forth in the federal habeas corpus petition must have been presented
18
to the state appellate court. 8 Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824
F.2d 494, 496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and factual
substance of every claim to all levels of state court review”). Moreover, the substance of the claim
must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152,
162–63 (1996).
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v.
Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the
procedural default doctrine). If the state court decides a claim on an independent and adequate
state ground, such as a procedural rule prohibiting the state court from reaching the merits of the
constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review.
Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also Walker v. Martin, 562 U.S. 307, 315
(2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of
the state court rests on a state law ground that is independent of the federal question and adequate
to support the judgment”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). If a claim has
never been presented to the state courts, but a state court remedy is no longer available (e.g., when
an applicable statute of limitations bars a claim or state law deems the claim waived), 9 then the
claim is technically exhausted, but procedurally barred. Coleman, 501 U.S. at 731–32.
8
In Tennessee, the Court of Criminal Appeals is the highest appellate court to which appeal must
be taken in order to properly exhaust a claim. See Tenn. Sup. Ct. R. 39; Adams v. Holland, 330 F.3d 398,
402–03 (6th Cir. 2003).
9
The Tennessee Post-Conviction Procedure Act provides that “[i]n no event may more than one (1)
petition for post-conviction relief be filed attacking a single judgment,” and establishes a one-year statute
of limitations for filing that one petition. Tenn. Code Ann. § 40-30-102(a) and (c). The Act further provides
that “[a] ground for relief is waived if the petitioner personally or through an attorney failed to present it
for determination in any proceeding before a court of competent jurisdiction in which the ground could
have been presented,” unless that ground could not be presented due to unconstitutional state action, or is
based on a new and retroactive constitutional right that was not recognized at the time of trial. Id. § 40-30106(g).
19
If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The burden of showing cause and
prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412,
418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754). “‘[C]ause’ under the cause and prejudice
test must be something external to the petitioner, something that cannot fairly be attributed to
him[;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with
the State’s procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of cause
include the unavailability of the factual or legal basis for a claim or interference by officials that
makes compliance “impracticable.” Id. To establish prejudice, a petitioner must demonstrate that
the constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux,
58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see
also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that “having shown cause,
petitioners must show actual prejudice to excuse their default”). “When a petitioner fails to
establish cause to excuse a procedural default, a court does not need to address the issue of
prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot
establish prejudice, the question of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has “probably resulted” in the conviction of
one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392
20
(2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord Lundgren v. Mitchell, 440
F.3d 754, 764 (6th Cir. 2006).
IV. ANALYSIS
The Petitions present seven claims of ineffective assistance of counsel. All federal claims
of ineffective assistance of counsel are subject to the highly deferential two-prong standard of
Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether counsel was deficient in
representing the defendant; and (2) whether counsel’s alleged deficiency prejudiced the defense
so as to deprive the defendant of a fair trial. Id. at 687. Because the Sixth Amendment right to
counsel extends to the plea-bargaining process, the Strickland test “applies to challenges to guilty
pleas based on ineffective assistance of counsel.” Lafler v. Cooper, 566 U.S. 156, 162–63 (2012)
(quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). The right to effective assistance of counsel also
extends to the “first appeal of right,” and representation there is also subject to evaluation under
Strickland. Mapes v. Tate, 388 F.3d 187, 191 (6th Cir. 2004).
To meet Strickland’s first prong, a petitioner must establish that his attorney’s
representation “fell below an objective standard of reasonableness,” and must overcome the
“strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that . . . the challenged action
‘might be considered sound trial strategy.’” Id. at 688–89. The “prejudice” component of the claim
“focuses on the question of whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372
(1993). Prejudice under Strickland requires showing that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
21
confidence in the outcome.” Id. In the context of a claim based on ineffectiveness at the pleabargaining stage, prejudice is shown by demonstrating “a reasonable probability that, but for
counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. at 59.
A. Properly Exhausted Claims
Petitioner’s first two ineffective-assistance claims––(1) that counsel failed to ensure that
all certified questions were dispositive or that all dispositive issues were included in those
questions, or to inform him that the Court of Criminal Appeals could deem any certified question
non-dispositive and thus decline to address it, and (2) that counsel, in briefing the certified
questions before the Court of Criminal Appeals, failed to assert effectively her argument under
Tenn. Code Ann. § 40-6-304(c)(2), allowing the Court of Criminal Appeals to deem the argument
waived––were properly exhausted before the state courts and are thus appropriately considered
here.
However, as discussed above, a federal court may not grant habeas relief on a claim that
has been rejected on the merits by a state court, unless the petitioner shows that the state court’s
decision “was contrary to” law clearly established by the United States Supreme Court, that it
“involved an unreasonable application of” such law, or that it “was based on an unreasonable
determination of the facts” in light of the record before the state court. 28 U.S.C. §§ 2254(d)(1)
and (2); Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus, when an exhausted claim of
ineffective assistance of counsel is raised in a federal habeas petition, the question to be resolved
is not whether the petitioner’s counsel was ineffective. Rather, “[t]he pivotal question is whether
the state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter,
562 U.S. at 101. As the Supreme Court clarified in Harrington,
22
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be no different than
if, for example, this Court were adjudicating a Strickland claim on direct review of
a criminal conviction in a United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different. For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from an
incorrect application of federal law. A state court must be granted a deference and
latitude that are not in operation when the case involves review under the Strickland
standard itself.
Id. (internal quotation marks and citation omitted).
The Tennessee Court of Criminal Appeals correctly identified and summarized the
Strickland standard applicable to Petitioner’s claims. See King v. State, 2017 WL 2805200, at *10–
11. Accordingly, the critical question is whether the state court applied Strickland reasonably in
reaching its conclusions. First, with respect to Petitioner’s claim that counsel failed to ensure that
all certified questions were dispositive or that all dispositive issues were included in those
questions, or to inform him that the Court of Criminal Appeals could deem any certified question
non-dispositive and thus decline to address it, the Court of Criminal Appeals concluded as follows:
The Petitioner claims that his plea was unknowingly and involuntarily entered
because he received the ineffective assistance of counsel. He stated that after the
trial court ruled on his motion to suppress, “instead of going to trial, [Sumner
Counsel] negotiated a plea agreement, where the cases in all three counties would
be resolved for a sentence of 40 years.” He claims that because Sumner Counsel
was lead counsel in the cases throughout the various counties, her actions and
decisions should be attributed to the attorneys in those other counties. The State
responds that the evidence presented shows that the Petitioner’s plea was entered
knowingly and voluntarily, and that without a transcript of the Petitioner’s guilty
plea, which the State notes is not included in the record, we are to presume the postconviction[ ] court[’s] findings correct. We agree with the State.
***
The post-conviction court, in its order, found that Petitioner had affirmed at the
guilty plea hearing that he was making his own decision to plead guilty, as reflected
in the “comprehensive colloquy” placed before the post-conviction court. The postconviction court held that the record and plea transcript “affirmatively demonstrates
that the Petitioner’s guilty plea was made with an awareness of the consequences,
and, as such, the guilty plea was voluntarily, intelligently, and knowingly entered.”
23
The evidence presented at the post-conviction hearing was that it was the
Petitioner’s decision to enter a guilty plea and reserve a certified question of law.
He was not “happy” about the plea, but he chose not to risk a trial where he faced
possible lengthy sentences. Instead, he elected to accept the State’s offer that
greatly reduced his sentence while still retaining review of his certified questions
of law. Sumner Counsel testified that the Petitioner was very engaged in the
preparation of his case and in the decision whether to go to trial or plead guilty.
Rutherford and Davidson Counsels affirmed that this was their impression of the
discussions they observed. Sumner Counsel also stated that she did not like the
State’s offer and felt that the State was charging the Petitioner excessively. She
further testified that she gave her clients the option to proceed to trial and did not
shy away from trying a case. In this case, however, where the Petitioner faced a
lengthy sentence approaching 100 years, Sumner Counsel encouraged him to enter
a plea. Together, Sumner Counsel and the Petitioner weighed the risk of taking his
case to trial, where he faced a lengthy sentence but retained all his rights of appeal,
versus entering a guilty plea for a sentence of less than half the potential prison time
but reduced rights of appeal. The Petitioner affirmed that he was asked at the guilty
plea hearing whether he understood his right to trial and that he was giving up that
right, which he stated he did. Based on this evidence, we conclude that the
Petitioner’s plea was entered knowingly and voluntarily and that Counsel’s
representation of the Petitioner with regard to his decision was effective. Thus, he
is not entitled to relief.
The Petitioner next claims that Sumner Counsel was ineffective in her preparation
of the certified questions of law and in her educating the Petitioner on the applicable
law. The Petitioner claims that Sumner Counsel admitted that she knew that several
of the certified questions were not dispositive but that she also knew that the
Petitioner was only accepting the plea offer because he wanted his issues heard on
appeal. He contends that Sumner Counsel “crafted [ ] certified question[s] that she
knew to be ineffective in assisting [the Petitioner] to allow that to happen.” The
State responds that the evidence does not preponderate against the post-conviction
court’s findings that Sumner Counsel did not guarantee the Petitioner success on
appeal and informed the Petitioner in advance that his success on appeal depended
on the appellate court’s interpretations of the law. We agree with the State.
The post-conviction court found that the Petitioner had agreed that Sumner Counsel
had advised him of the procedural risks of the certified question and that she
advised that she could not guarantee that the questions would be deemed dispositive
by the appellate court. The post-conviction court found that Sumner Counsel in no
way guaranteed him success on appeal and credited Sumner Counsel’s testimony
that she had adequately advised him of the risks related to the decision to proceed
in this manner.
Our review of the evidence shows that the evidence does not preponderate against
these findings and that Sumner Counsel was not ineffective in her representation of
24
the Petitioner regarding the certified questions of law. Sumner Counsel advised the
Petitioner that there was the possibility that his questions would not be deemed
dispositive and that this meant there was a risk that his issues would not be heard.
Sumner Counsel fully understood the importance of the certified questions to the
Petitioner and spent multiple meetings discussing the option to take his case to trial
or accept a lesser sentence with the certified questions reserved. Sumner Counsel’s
prior experience with certified questions on appeal allowed her to advise the
Petitioner of the risks but also the possibility for success. Sumner Counsel was not
ineffective in her representation of the Petitioner in this regard.
The Petitioner points us to several decisions promulgating the standards and
limitations for certified questions of law to which he claims Sumner Counsel did
not adhere. State v. Preston stated that it was the appellate court’s determination,
not that of the trial court and the agreement of the parties, as to whether the certified
question was dispositive. 759 S.W.2d 647 (Tenn. 1988). The Petitioner argues that
Sumner Counsel was aware of this law, however, she failed to caution the Petitioner
that the certified questions might not be heard. We disagree. The evidence shows
that Sumner Counsel advised the Petitioner that, although not all questions would
be deemed dispositive, she chose to include them anyway because it was her
experience in the past that the appellate court would sometimes overlook whether
a question was dispositive and choose to review it. This, however, was not
“guaranteed” by Sumner Counsel, and the Petitioner testified that he was informed
of that. The Petitioner is not entitled to relief on this issue.
King, 2017 WL 2805200, at *11–13.
The Court of Criminal Appeals reasonably analyzed these issues and determined that
counsel was not ineffective under Strickland. The post-conviction court credited counsel’s
testimony regarding her advice and strategy with respect to the certified questions over Petitioner’s
contrary testimony, and the Court of Criminal Appeals found no reason to disturb that credibility
finding. Neither court found any basis for concluding that counsel performed deficiently in crafting
the certified questions, which “specifically include[ed] the [wiretap] Applications’ failure to
demonstrate the statutorily required nexus between the phone to be intercepted and the alleged
illegal activity sought to be intercepted” under Section 40-6-304(c), King, 437 S. W. 3d at 863;
Doc. No. 12-4 at 57, without excluding any subsection thereof. The state courts on initial postconviction review and post-conviction appeal found that this presentation of the probable cause
25
issue did not waive any argument under the applicable subsections of Section 40-6-304(c). King,
2017 WL 2805200, at *13.
Based on the testimonial record, the Court of Criminal Appeals found that Petitioner,
contrary to his assertion, had been fully advised of the risk that some certified questions might not
be reviewed based on an appellate finding that they are non-dispositive, and had endorsed the
decision to include all questions in the plea reservation in hopes of being rewarded with appellate
review, based on counsel’s “experience in the past that the appellate court would sometimes
overlook whether a question was dispositive and choose to review it.” Id. The Court of Criminal
Appeals further found that, “[t]ogether, Sumner Counsel and the Petitioner weighed the risk of
taking his case to trial, where he faced a lengthy sentence but retained all his rights of appeal,
versus entering a guilty plea for a sentence of less than half the potential prison time but reduced
rights of appeal,” and “elected to accept the State’s offer” of the latter “while still retaining review
of his certified questions of law.” Id. at *12. The Court of Criminal Appeals reasonably applied
Strickland in determining that counsel did not perform deficiently at the plea-negotiation stage,
with respect to Petitioner’s certified questions or otherwise.
Next, as to counsel’s performance in the Court of Criminal Appeals and her argument under
Tenn. Code Ann. § 40-6-304(c)(2), the appellate court concluded as follows:
The Petitioner lastly contends that Sumner Counsel provided ineffective assistance
of counsel on appeal when she “waived [the Petitioner’s] primary argument on his
direct appeal,” that being his argument related to the probable cause requirement
found at Tennessee Code Annotated section 40–6–304(c)(2). He contends that
Sumner Counsel improperly narrowed his appellate argument to one prong of the
statute, (c)(4), in her reply brief, causing the appellate court to waive consideration
of what he contends was his strongest argument. The State responds that Sumner
Counsel’s decisions to “use her reply brief to hone in on the specific issue the State
focused on in its response brief was a reasonable strategic decision.” We agree with
the State.
26
The post-conviction court adopted the following findings with respect to this
argument:
First, [Sumner Counsel] testified that she briefed all of the issues raised in
the certified question, which is supported by the comprehensive filing
introduced as an exhibit to the post-conviction hearing. [Sumner Counsel]
explained that since the State focused its response brief on one particular
issue, she elected to hone in on that issue in her reply brief; however, she
did not waive any issues by devoting her allotted number of reply brief
page [sic] to hone in on countering the State’s arguments. The Court
credits [Sumner Counsel’s] testimony and finds she made a reasonable
strategic decision. [The] Petitioner has not demonstrated by clear and
convincing evidence that [Sumner Counsel] was ineffective. The Court
also notes that [the] Petitioner testified to the accuracy of [Sumner
Counsel’s] testimony.
The evidence does not preponderate against the trial court’s findings. Sumner
Counsel provided her original appellate brief and reply brief as exhibits at the
hearing and testified that she argued all prongs of the statute in her first brief and
then, after the State responded, she addressed their particular argument in her reply
brief. She stated that nothing that she did limited or waived her argument as to
certain aspects of the statute and that she felt the appellate court had incorrectly
determined that she had done so. We have reviewed the briefs from the direct appeal
and have determined that the evidence does not preponderate against the postconviction court’s finding that Sumner Counsel fully briefed the Petitioner’s
argument related to the probable cause requirement found at Tennessee Code
Annotated section 40–6–304(c). Sumner Counsel addressed the subsections of the
statute in her brief that she felt most strongly aided her argument that the wiretaps
were unlawful. While this Court’s decision did limit the Petitioner’s argument, we
conclude that the Petitioner has not shown that Sumner Counsel was ineffective in
this regard; she made a strategic decision to focus her argument in the reply brief
that we will not second guess. The Petitioner is not entitled to relief.
Id. at *13.
The Court of Criminal Appeals reasonably applied Strickland in finding that counsel’s
briefing of the issues on appeal was driven by sound strategy, and that the construction of her reply
brief on direct appeal did not result from any deficient performance on her part in focusing her
reply around the arguments made in the state’s response. Cf. Moore v. Nixon, No. 3:14-cv-00247,
2018 WL 2009613, at *15 (M.D. Tenn. Apr. 30, 2018) (“That co-counsel elected to focus her oral
argument on one aspect of the suppression argument was a strategic choice that ‘falls within the
27
wide range of reasonable professional assistance’” under Strickland.) Though it did not explicitly
acknowledge error in the prior decision to exclude counsel’s argument under Section 40-6304(c)(2) from consideration on direct appeal, the Court of Criminal Appeals found that counsel
had not waived that argument after raising it in her certified questions, and thus could not be found
to have rendered ineffective assistance on appeal. Indeed, counsel thoroughly argued the
“telephone nexus issue” in her opening appellate brief by reference to the “specific probable cause
requirements” of all pertinent subsections of Section 40-6-304(c) (see Doc. No. 12-55 at 72, 74–
88), critiquing the state’s “focus[ ] only upon Tennessee Code Annotated § 40-6-304(c)(4)” in
responding to her suppression motion, rather than “§ 40-6-304(c)(1), (2) and (4) as a whole.” (Id.
at 81.) Even in counsel’s fateful reply brief, before referring to the requirement of subsection (c)(4)
as “the heart” of her probable cause challenge, counsel takes the state to task for “only offer[ing]
one (1) paragraph (really one (1) sentence) alleging the State complied with T.C.A. § 40-6304(c)(2),” and repeats the argument “set forth in great detail” in her opening brief––that relevant
Sixth Circuit authority supports her position rather than the state’s vis-à-vis subsection (c)(2).
(Doc. No. 12-57 at 18–21.) Plainly, counsel was not constitutionally ineffective in presenting these
issues to the Court of Criminal Appeals.
For these reasons, the Court finds no merit in Petitioner’s properly exhausted claims of
ineffective assistance of counsel.
B. Procedurally Defaulted Claims
Respondent asserts, and Petitioner concedes, that the remaining claims of the Petition were
procedurally defaulted when they were not raised during post-conviction review. Because there is
no longer any available state court remedy for these claimed violations, the claims are technically
exhausted, but procedurally barred from habeas review unless Petitioner “can demonstrate cause
28
for the default and actual prejudice” from the claimed violations, or that a fundamental miscarriage
of justice will result if this Court does not consider them. Coleman, 501 U.S. at 731–32, 750.
Petitioner asserts the ineffective assistance of his post-conviction counsel as cause for the
procedural default of his remaining claims. The Supreme Court has “explained clearly that ‘cause’
under the cause and prejudice test must be something external to the petitioner, something that
cannot fairly be attributed to him.” Id. at 753. Attorney error is attributable to a habeas petitioner,
and thus may not serve as cause for a procedural default, if the error is made at a stage of the
proceedings when there is no right to counsel under the Sixth Amendment. Id. at 754. The Supreme
Court held in Coleman that, because there is no constitutional right to counsel in state postconviction proceedings, any attorney error at that stage that leads to the waiver of claims in state
court “cannot constitute cause to excuse the default in federal habeas.” Id. at 752, 757.
However, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court modified “the
unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction
proceeding does not qualify as cause to excuse a procedural default, “by recognizing a narrow
exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. This
exception stems from the recognition, “as an equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with ineffective counsel, may not have been
sufficient to ensure that proper consideration was given to a substantial claim” of trial counsel’s
ineffectiveness, when that claim could not have been raised on direct appeal because of state
procedural rules. Id. at 13. In Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court extended
the applicability of the Martinez exception to states with procedural frameworks that do not
preclude an ineffective-assistance claim on direct appeal, but make it unlikely that the opportunity
29
to raise that claim at that time will be a meaningful one. Id. at 429. The Sixth Circuit held in Sutton
v. Carpenter, 745 F.3d 787 (6th Cir. 2014), that under Tennessee’s procedural scheme, the initial
post-conviction proceeding is the first meaningful opportunity to raise a claim of ineffective
assistance of trial counsel. Id. at 795–96.
Thus, for each defaulted claim of ineffective assistance at trial, Petitioner may overcome
the default under Martinez if he can show that the default resulted from his initial post-conviction
counsel’s ineffectiveness under Strickland’s standards, and that the underlying claim of trial
counsel’s ineffectiveness is a “substantial one, which is to say that . . . the claim has some merit.”
Martinez, 566 U.S. at 13–14. The Sixth Circuit has provided the following framework to evaluate
claims under Martinez:
As to these claims, the district court should determine . . . : (1) whether state postconviction counsel was ineffective, . . . and (2) whether [Petitioner’s] claims of
ineffective assistance of counsel were “substantial” within the meaning of
Martinez, Sutton, and Trevino. Questions (1) and (2) determine whether there is
cause. The next question is (3) whether [Petitioner] can demonstrate prejudice.
Finally, the last step is: (4) if the district court concludes that [Petitioner] establishes
cause and prejudice as to any of his claims, the district court should evaluate such
claims on the merits. . . . [E]ven “[a] finding of cause and prejudice does not entitle
the prisoner to habeas relief. It merely allows a federal court to consider the merits
of a claim that otherwise would have been procedurally defaulted.” Martinez, 132
S. Ct. at 1320.
Atkins v. Holloway, 792 F.3d 654, 660 (6th Cir. 2015) (some internal citations omitted).
Whether post-conviction counsel was constitutionally ineffective is necessarily connected
to the strength of the claim he failed to raise, so “in many habeas cases seeking to overcome
procedural default under Martinez, it will be more efficient for the reviewing court to consider in
the first instance whether the alleged underlying ineffective assistance of counsel was ‘substantial’
enough to satisfy the ‘actual prejudice’ prong of Coleman.” Thorne v. Hollway, No. 3:14–cv–0695,
2014 WL 4411680, at *23 (M.D. Tenn. Sept. 8, 2014), aff’d sub nom. Thorne v. Lester, 641 F.
30
App’x 541 (6th Cir. 2016). For the reasons that follow, each of Petitioner’s ineffective-assistance
claims is insubstantial and thus fails to overcome default under Martinez.
1. Claim 3
Petitioner claims that counsel was ineffective when she did not assert before the trial courts
that the wiretap application failed to establish probable cause to believe that interceptions of
Petitioner’s cellphone would reveal particular communications concerning a charged offense, as
required by Section 40-6-304(c)(2), rather than merely that a high volume of calls was made to coconspirators from Petitioner’s cellphone. To the extent that this claim focuses on counsel’s
arguments for suppression of the wiretap evidence, rather than her crafting of the certified
questions discussed above, it is a defaulted claim subject to review for substantiality. However,
the claim fails the substantiality test, because counsel made this exact assertion in her
comprehensive argument for suppression of the wiretap evidence based on lack of probable cause
(see Doc. No. 12-3 at 69, 73–77), and the Sumner County court, in denying counsel’s motion to
suppress, explicitly found “probable cause for belief that particular communications concerning
conspiracy to deliver over 700 pounds of marijuana will be obtained through the interception[.]”
(Doc. No. 12-4 at 31.) In short, counsel did precisely what Petitioner faults her for not doing. This
ineffective-assistance claim is thus insubstantial and not subject to further review under Martinez.
2. Claim 4
Petitioner claims that counsel was ineffective in failing to argue adequately for suppression
or to raise a proper certified question based on the trial court’s acting as a rubber stamp for the
prosecution’s wiretap applications. Counsel raised this argument in her motion to suppress (Doc.
No. 12-3 at 62–63) and as a certified question (Doc. No. 12-4 at 58; Doc. No. 12-55 at 112–14),
but Petitioner argues that she “did not properly lay the foundation relative [to] this point by
31
establishing that this suppression would have eliminated” large swaths of incriminating evidence
collected pursuant to the rubber-stamped wiretap authorizations. (Doc. No. 2 at 55–57.)
Petitioner offers no authority to suggest that highlighting the significance of the evidence
in question is necessary or appropriate in a motion to suppress, much less that an attorney is
ineffective for failing to do so. The Supreme Court has stated that “courts must . . . insist that the
magistrate purport to perform his neutral and detached function and not serve merely as a rubber
stamp for the police,” United States v. Leon, 468 U.S. 897, 914 (1984) (citations and internal
quotation marks omitted), but it does not appear to have found a Sixth Amendment violation
resulting from counsel’s failure to pursue the enforcement of this proposition beyond raising the
relevant argument(s). Nor was counsel required to argue every nook and cranny of each component
of her certified question, regardless of the relative strength or weakness of such arguments, in order
to provide effective representation. See Jones v. Barnes, 463 U.S. 745, 751–53 (1983)
(“Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at
most on a few key issues. . . . A brief that raises every colorable issue runs the risk of burying good
arguments . . . in a verbal mound made up of strong and weak contentions.”).
Counsel made the “rubber-stamp” argument in both the trial and appellate courts, and not
in a perfunctory or insubstantial way. Her failure to lay a more extensive foundation for this
argument or to present it differently in her certified questions of law was not ineffective. This claim
is not substantial.
3. Claim 5
Petitioner claims that counsel failed to know or advise him properly that the plea agreement
offered by the state required him to admit guilt to certain charges on which the state could not
32
otherwise have obtained convictions, including (1) separate conspiracy charges in each of the three
counties based on the same evidence, which could only have been used to show the existence of a
single conspiracy; and (2) charges of money laundering, when his admitted conduct did not suffice
to establish all statutory elements of the crime. Petitioner argues that counsel did not discern
deficiencies in the charges against him because she “failed to subject the prosecution’s case to the
proper adversarial testing.” (Doc. No. 2 at 59.) He claims that the record “overwhelmingly
establishes” that he “wanted a trial and . . . would not have pled guilty” if he had known of the
alleged defects in certain charges of indictment. (Id. at 61.) For several reasons, this claim lacks
substance.
First, Petitioner claims that counsel allowed him to plead guilty to drug, conspiracy, and
money laundering offenses “that were not offenses” in multiple counties without analyzing
potential double jeopardy issues and giving him the “information he needed to know as to what he
was truly facing in order to make an informed decision relative [to] accepting a plea or risking a
trial.” (Doc. No. 2 at 60.) But he testified at his Davidson County post-conviction hearing (the
transcript of which was incorporated into the record of his Sumner and Rutherford County postconviction proceedings (see Doc. No. 12-63 at 6; Case No. 3:18-cv-00018, Doc. No. 11-63 at 3–
4)) that he had discussed with counsel “about we wouldn’t be able to tell -- what would fall under
double jeopardy and so on and so forth,” and agreed that he understood that “if [he’d] had a trial
in one of the counties, it may have prevented a prosecution on some of the counts in other
counties[.]” (Doc. No. 12-64 at 91–92.) He was thus aware of at least the potential for dismissal
of some of the charges he faced if he rejected the state’s plea offer and proceeded to trial.
Second, Petitioner’s conspiracy and drug trafficking charges in Sumner, Davidson, and
Rutherford Counties were rendered in indictments that differed in the dates of the conspiracies
33
charged, the identities of Petitioner’s co-conspirators, and the overt acts taken in furtherance of the
charged conspiracies. (Compare Doc. No. 12-1 at 5–31 and Doc. No. 12-3 at 3–21 with Doc. No.
12-5 at 4–5.) These differences suggest that, rather than being charged with “multiple offenses
[that] are the object of the same agreement or continuous conspiratorial relationship” and therefore
amount to one conspiracy under state law, Tenn. Code Ann. § 39-12-103(c), Petitioner was
properly charged with, and pled guilty to, a series of conspiracies with different groups of coconspirators to carry out similar criminal conduct in multiple jurisdictions. He has therefore not
shown that the indictments placed him in jeopardy of multiple punishments for the same
conspiracy. Cf. United States v. Leal, 330 F. Supp. 3d 1257, 1276–77 (D.N.M. 2018), aff’d, 921
F.3d 951 (10th Cir. 2019) (“In June, 2016, Leal conspired with B. Tapia, and C. Tapia to distribute
methamphetamine; in July 2016, Leal allegedly conspired with Carmona, and Arreola-Palma to
distribute methamphetamine. These conspiracies are distinct and do not overlap in time.
Consequently, the Double Jeopardy Clause does not apply.”) (internal citation omitted).
Third, with regard to his money laundering convictions, Petitioner argues that the charges
were objectionable because, during his Davidson County plea to the charge of conspiracy to
commit money laundering, he only admitted to using criminal proceeds to buy property in the
Bahamas; he did not admit that he used those proceeds with the intent to conceal or disguise their
source, as required to commit the offense of money laundering. He thus appears to claim that
counsel, who attended the Davidson County plea hearing (see Doc. No. 12-64 at 17), should not
have advised him subsequently to plead guilty to any money laundering charges. (See Doc. No. 22
at 36–37, 47–49.) In her post-conviction testimony, counsel confirmed that Petitioner “had some
defenses as to some of the money laundering counts in this case that I thought were just improperly
charged[,] [b]ut on the real meaningful counts . . . that carried a hundred percent time, the counts
34
that carried a lot of potential exposure, we really didn’t have a defense if the wiretap proof came
in[,] . . . [s]o it was all about the wiretap.” (Doc. No. 12-64 at 23.) While Petitioner’s coconspirator, Lockhart, ultimately succeeded in winning reversal of money laundering verdicts
involving different transactions because the state failed at trial to prove intent to conceal, Lockhart,
2015 WL 5244672, at *42, it does not follow that counsel unreasonably advised Petitioner to plead
guilty to similar charges, when in doing so he preserved a pathway to appellate review of the
wiretap issues and ensured a much shorter overall sentence.
Even if a substantial claim of counsel’s deficient performance could be made, it is clear
that any ineffectiveness “was [not] ‘substantial’ enough to satisfy the ‘actual prejudice’ prong of
Coleman.” Thorne, 2014 WL 4411680, at *23. In an attempt to establish prejudice resulting from
any deficient advice to plead guilty to those charges that would potentially have been dismissed
on double jeopardy grounds, or those money laundering charges that did not appear to be supported
by proof of intent to conceal the ill-gotten nature of the funds, Petitioner asserts that “he no doubt
would not have pled guilty absent counsel’s ineffectiveness in permitting him to ple[a]d to charges
under a false premise that he could be convicted of all offenses in all counties when in fact the
same was impossible.” (Doc. No. 2 at 60.) But this self-serving statement is not supported by any
credible reason to believe that Petitioner would have scuttled the entire plea agreement for the sake
of winning the dismissal of those charges, especially given that pleading to those charges did not
impact the overall length of his sentence. 10 As noted by the court in Hernandez v. United States,
No. 09 CIV. 6496, 2010 WL 1558559 (S.D.N.Y. Apr. 19, 2010):
Because a convicted defendant will always have a strong incentive to make a
prejudice claim after conviction, courts are skeptical of the defendant’s own “selfserving, post-conviction testimony” that but for counsel’s bad advice, the defendant
10
Petitioner’s 40-year prison term was established by consecutive 20-year sentences on one
conspiracy conviction and one drug conviction, with all other sentences to be served concurrently. (See
Doc. No. 12-4 at 40–52.)
35
would have pled guilty or gone to trial. See Purdy v. Zeldes, 337 F.3d 253, 259 (2d
Cir. 2003) (in addressing prejudice showing required on ineffective assistance
claim, court noted that “a convicted felon’s self-serving testimony is not likely to
be credible”); Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (self-serving
statement in memorandum that defendant “would have to have been insane not to
accept the plea agreement for the minimum sentence” insufficient); Andrews v.
United States, No. 08 Civ. 3325, 2009 WL 860702, at *6 (S.D.N.Y. Mar. 31, 2009)
(rejecting petitioner’s self-serving contention that he would have pled guilty before
trial if counsel had secured actual inculpatory audio evidence beforehand); cf.
United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998) (habeas petitioner
showed prejudice under Strickland by providing “objective evidence” of a disparity
between Guidelines sentencing exposure and the sentence exposure represented by
counsel in addition to petitioner’s statement concerning his intentions).
Id. at *11.
At Petitioner’s post-conviction hearing, his Davidson County attorney testified that “the
plea deal encompassing all three counties was a ‘package deal’ from the outset and was never
going to be anything other than a global settlement,” and that the state was eager to take the case
to trial if Petitioner balked at the plea offer. King, 2017 WL 2805200, at *6; see also Doc. No. 1264 at 19 (transcript of counsel’s testimony that plea deal “was certainly a package deal” for
disposition of all charges in all counties). The post-conviction testimonial record establishes that
Petitioner understood the global nature of the plea offer, understood that he was likely to be
convicted based on the wiretap evidence and heavily sentenced if he went to trial, and agreed to
forgo important trial and appellate rights contingent upon his ability to reserve certified questions
for appeal––all of which concerned the legality of wiretap authorizations which, if found to be
unlawful, would have resulted in the dismissal of all charges against him. Id. at *4–7. Counsel
testified that Petitioner “felt very strongly, as did I, that there was a real problem with these
wiretaps,” that he knew “the State’s case against him was built on these wiretaps,” and that “he
felt that if he could prevail on the wiretaps it would effectively undo the impact this case was
having on his life.” (Doc. No. 12-64 at 21.) Petitioner’s testimony confirmed that, while he
36
understood the sentence he would have faced had he gone to trial, 11 having the ability to pursue
the full spectrum of issues on appeal was “so important to [him] that [he] would have risked that
just to have them heard,” but for the ability to reserve certified questions on the most critical issues
alongside his guilty plea. (Id. at 90–94, 118.) These certified questions regarding the wiretap
evidence––not Petitioner’s professed assumption that all charges in all counties were viable––were
the hinge upon which his guilty plea swung, “the enticing factor for that plea deal for Mr. King.”
(Doc. No. 12-64 at 22 (emphasis added).) Petitioner cannot demonstrate a “reasonable probability”
that, but for counsel’s failure to advise him properly, he would have risked his full sentence
exposure by proceeding to trial for the sake of winning dismissal of only certain charges, as he
claims here. Hill, 474 U.S. at 59.
In sum, this ineffective-assistance claim is not substantial.
4. Claims 6 and 7
In Claim 6, Petitioner asserts that counsel was ineffective in failing to seek the dismissal
of the prosecution or the disqualification of the prosecutor based on his conflict of interest in
representing the state in both the criminal prosecution and in civil forfeiture proceedings, where
the prosecutor sought the forfeiture of Petitioner’s assets for the benefit of the 20th Judicial Drug
Task Force. This claim is based on his assertion of the unconstitutionality of “the construction of
Tennessee’s Judicial District Drug Task Forces” and the 20th Judicial Drug Task Force’s
“arrangement with and within the Davidson County Prosecutor’s Office,” as well as the
prosecutor’s dual role in investigating and prosecuting on the criminal side while pursuing civil
forfeiture proceedings against a co-defendant. (Doc. No. 24 at 2; Doc. No. 2 at 69.)
11
Counsel testified that she “forecasted Mr. King’s potential trial exposure in the ninety plus year
range” with “[f]ifty plus years . . . at a hundred percent if those school zone counts were stacked.” (Doc.
No. 12-64 at 24.)
37
Respondent contends that counsel could not have been ineffective in this regard because
(1) the prosecutor, General Zimmerman, was a Davidson County employee who was duly
appointed to prosecute Petitioner in Sumner and Rutherford Counties pursuant to state law (Doc.
No. 14 at 38 (citing Tenn. Code Ann. § 8-7-106(b)(1)), and (2) “Judicial Drug Task Forces, and
the prosecutor’s role in the task force, are statutorily authorized,” and the statutory scheme dictates
that “[a]ny forfeiture proceeds arising from the activities of a judicial drug task force . . . ‘shall be
used exclusively in a drug enforcement or drug education program of the district attorney as
directed by the board of directors of the judicial drug task force.’” (Id. at 39 (quoting, e.g., Tenn.
Code Ann. § 39-17-420(c).) Respondent further notes that, pursuant to Tenn. Code Ann. §§ 8-7105(c) and 40-33-211(b), “General Zimmerman received a predetermined salary” that was not
conditioned upon or supplemented by funds generated by asset forfeitures. (Id. at 41.)
In Claim 7, Petitioner asserts that counsel failed to challenge the prosecution’s retaliatory
filing of charges in multiple counties to keep him from being released on bail, or from being able
to afford to retain counsel in each county, as well as the prosecution’s targeting of assets for
forfeiture when those assets were not involved with illegal activity. Respondent argues that the
failure to raise such claims of pretrial prosecutorial vindictiveness could not have prejudiced
Petitioner because they could not have resulted in dismissal of the charges against him.
The Court finds that Claims 6 and 7 are not substantial because Petitioner cannot show that
counsel performed deficiently in failing to raise these issues or that he was prejudiced by that
failure. Counsel reasonably decided to focus her defense on the legality of the wiretaps around
which the entire prosecution was based, by attacking the state’s showing of probable cause to
procure the foundational wiretap orders. In the wake of the trial court’s denial of her suppression
motion and the appellate court’s refusal to entertain an interlocutory appeal, counsel might have
38
jeopardized plea negotiations by pursuing concerns over the propriety of the prosecution’s
entanglement with the drug task force, the hats being simultaneously worn by prosecutor
Zimmerman, or issues with the civil forfeiture proceedings against Petitioner. Her failure to do so
was not unreasonable.
Although he alleges a conflict of interest, Petitioner does not claim that the proceedings
against him were tainted by any sort of structural error requiring relief even in the absence of
prejudice. Rather, he complains of “the appearance of impropriety” and argues that counsel
“should have challenged the 20th Judicial District Drug Task Force arrangement in and under the
District Attorney’s Office as violative of the due process clause.” (Doc. No. 2 at 69.) He further
argues that “simply because [the arrangement] is statutorily legal does not mean that it is
Constitutional.” (Doc. No. 22 at 54.) But even if this arrangement under the Tennessee statutory
scheme could be viewed as improper, in order to substantiate his ineffective-assistance claim,
Petitioner must provide some reason to believe that counsel acted unreasonably in failing to assert
a federal due process challenge to the arrangement and that that failure actually prejudiced him.
This, he has failed to do.
Petitioner asserts that “[t]he task force in this case was also essentially the DA’s own
private personally embedded and glamorized police department,” which enabled Zimmerman and
other attorneys in the office to “police, investigate, become witness and prosecutor, confiscate
property and represent [their] civil interest, and hence assure [their] salaries and the other political
interest[s] of those who help[ed them] . . . rise to the top[.]” (Id. at 53–54.) But these speculative
inferences from the mere potential for official misconduct are contraindicated by the statutes that
(1) set Zimmerman’s salary, Tenn. Code Ann. § 8-7-105(c), (2) direct forfeiture proceeds into a
county fund to be used for drug enforcement purposes, id. § 39-17-420(c), and (3) direct that
39
forfeiture proceeds “not be used to supplement the salaries of any public employee or law
enforcement officer,” id. § 40-30-211(b). Moreover, “judicial district task forces are governed by
a board of directors, not the district attorney general.” Tenn. Op. Att’y Gen. No. 12-10, 2012 WL
251874, at *3 n.4 (Jan. 20, 2012) (citing Tenn. Code Ann. § 8-7-110(a)). The two entities jointly
investigate and enable the prosecution of drug crimes, and it is not surprising that they would target
a large criminal enterprise operating in multiple counties. Petitioner has shown no grounds for
finding that counsel performed deficiently by failing to appreciate some apparent
unconstitutionality in the arrangement between these entities, and to challenge the prosecution on
that basis.
Furthermore, Attorney Zimmerman’s prosecution of both the criminal proceedings and
related civil forfeiture actions against Petitioner and his co-defendants does not appear to implicate
Petitioner’s due process rights. Petitioner’s argument to the contrary principally relies on three
Supreme Court decisions–– Tumey v. Ohio, 273 U.S. 510 (1927), Ward v. Village of Monroeville,
409 U.S. 57 (1972), and Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)––and lower-court cases
citing them, for the proposition that, while prosecutors are advocates and need not remain as
financially disinterested as judges in performing their duties, “[a] scheme injecting a personal
interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible
factors into the prosecutorial decision and in some contexts raise serious constitutional questions.”
(Doc. No. 24 at 3 (quoting Marshall, 446 U.S. at 249–50).) Even so, the Court cannot find that in
the context of this case, counsel should reasonably have raised a due process objection to
Zimmerman’s zealous pursuit of forfeitures while leading the prosecution.
In Dick v. Scroggy, 882 F.2d 192 (6th Cir. 1989), the Sixth Circuit found that an attorney
who prosecuted the habeas petitioner on a state DUI charge while simultaneously representing the
40
petitioner’s victim in a civil suit against him did not maintain a “dual role [that] so tainted the
criminal proceedings as to compel the conclusion that petitioner was deprived of his liberty without
due process of law.” Id. at 193. The court explained as follows:
Mindful of the need for particular restraint where a federal court has undertaken
collateral review of the final judgment of a state court, we are not persuaded that
Mr. Dick’s prosecution by a Commonwealth Attorney who may have been less than
disinterested constituted an irregularity “sufficiently fundamental” to justify our
setting aside the conviction in this case.
It bears emphasis, we think, that although the prosecutor is an officer of the court,
the role of the prosecutor is very different from that of the judge. A financial interest
that would disqualify a judge, under cases such as Tumey v. Ohio, 273 U.S. 510, 47
S.Ct. 437, 71 L.Ed. 749 (1927), and Ward v. Village of Monroeville, 409 U.S. 57,
93 S.Ct. 80, 34 L.Ed.2d 267 (1972), may be “too remote and insubstantial to violate
the constitutional constraints applicable to the decisions of [one] performing
prosecutorial functions.” Marshall v. Jerrico, Inc., 446 U.S. 238, 243–44, 100 S.Ct.
1610, 1614, 64 L.Ed.2d 182 (1980). Prosecutors, in an adversary system, “are
necessarily permitted to be zealous in their enforcement of the law.” Id. at 248, 100
S.Ct. at 1616. Prosecutors are supposed to be advocates; judges are not. Thus it is
not without significance, in our view, that in the landmark case of Tumey v. Ohio,
supra, where the mayor of the Village of North College Hill, Ohio, received
significant sums from fines assessed in cases tried in the “mayor’s court” over
which he presided, it was the financial interest of the mayor, sitting as a judge, that
led the Supreme Court to hold that convictions obtained in the mayor’s court were
constitutionally infirm; although the prosecutor received more than twice as much
as the mayor out of the fines assessed, the prosecutor’s financial interest evoked no
critical comment from the Supreme Court.
Dick v. Scroggy, 882 F.2d at 196–97. Following the reasoning of the Sixth Circuit and its
application of this Supreme Court precedent in the habeas context, this Court likewise finds that
the instant habeas case does not involve a sufficiently fundamental irregularity (if any irregularity
at all) in Petitioner’s prosecution and forfeiture proceedings to have required counsel to challenge
them on due process grounds.
As to prejudice, other than his perception of an appearance of impropriety, Petitioner offers
no grounds for finding that the prosecution acted unlawfully in proceeding against him and all
assets of his that were subject to forfeiture. Nor has he referred the Court to any case in which a
41
court has disapproved parallel prosecution and forfeiture actions because they were pursued
through the joint efforts of a district attorney general’s office and drug task force, as occurred in
this case. Furthermore, as it relates to Petitioner’s criminal prosecution, it appears likely that the
remedy for any impropriety would not have been dismissal of the charges against him, but
substitution of a different prosecutor, which would likely not have changed the outcome given the
strength of the evidence against Petitioner. See id. at 197.
In sum, Petitioner has not established that effective counsel would have been bound to raise
a challenge to the arrangement between prosecution and drug task force here, nor any likelihood
that a challenge to this arrangement would have benefitted him. Claim 6 is thus not sufficiently
substantial to warrant further review under Martinez.
With regard to Claim 7, Petitioner cannot demonstrate that counsel ineffectively failed to
challenge the prosecution’s aggressive or vindictive approach to bringing charges in multiple
counties and pursuing Petitioner’s assets. Counsel testified as to her consideration of these issues
in negotiating with Mr. Zimmerman, as follows:
. . . I want to say that we had an initial offer that may have been forty [years] at
thirty percent but the requirements -- but he didn’t have a certified question
permitted in there. Also the State was really insistent on Mr. King cooperating,
which was not going to happen. And when we went back to Mr. Zimmerman and
asked -- let him know that we would not be cooperating and we wanted to do the
certified question I want to say the offer went to forty at thirty-five percent. And I
remember it took a while to put this offer together because Mr. Zimmerman and I
had a lot of debate about the significance of Mr. King, first of all, pleading out of
range but also having to plead in multiple counties. I felt like it was excessive and
unnecessary, it gave him additional criminal convictions. Yeah, I didn’t see why
we couldn’t just plead in one county, but Mr. Zimmerman was insistent that we had
to plead in all counties I want to say because of some sort of forfeiture perspective,
that each county needed to be able to get a piece of the overall forfeiture in the case.
. . . But ultimately it was certainly a package deal . . . that all the counties would be
disposed of through this one disposition.
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(Doc. No. 12-64 at 18–19.) It thus appears that counsel did challenge the multi-county, forfeiturefocused prosecution in negotiations with Mr. Zimmerman, but strategically withheld more
stringent demands on these points in order to secure the state’s agreement to Petitioner’s most
important positions, namely his insistence on not cooperating and on retaining a right to certify
questions for appeal. This strategy was not unreasonable. See Buell v. Mitchell, 274 F.3d 337, 360
(6th Cir. 2001) (tactical judgments made by counsel during the course of the representation “do
not rise to the level of constitutional ineffectiveness”). Moreover, as discussed previously,
Petitioner has not offered any credible reason to believe that, had counsel advised him that the
prosecution’s tactics could be challenged before the trial court as vindictive, he would have
rejected the state’s plea offer and insisted on going to trial. This is not a substantial ineffectiveassistance claim.
Because Petitioner’s defaulted claims of counsel’s ineffectiveness are not substantial, they
do not warrant further consideration pursuant to Martinez and are deemed procedurally defaulted
without cause.
V. CONCLUSION
For the foregoing reasons, the Petition will be denied and this action will be dismissed with
prejudice.
The Court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a Section 2254 petitioner. Rule 11, Rules Gov’g § 2254 Cases. A petitioner may
not take an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R.
App. P. 22(b)(1). A COA may issue only if the petitioner “has made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). A “substantial showing” is made when
the petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree
43
that) the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (citations and internal quotation marks omitted). “[A] COA does not require a showing that
the appeal will succeed,” but courts should not issue a COA as a matter of course. Id. at 337.
Because reasonable jurists could not debate whether Petitioner’s claims should have been
resolved differently or are deserving of encouragement to proceed further, the Court will deny a
COA. Petitioner may seek a COA directly from the Sixth Circuit Court of Appeals. Rule 11(a),
Rules Gov’g § 2254 Cases.
An appropriate Order is filed herewith.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE
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