Byrd v. Washburn et al
Filing
20
MEMORANDUM and ORDER: The plaintiff's Objections (Doc. No. 19 ) are OVERRULED, and the R&R's findings and conclusions are ACCEPTED and ADOPTED in their entirety. The plaintiff's Petition for relief under 28 U.S.C. § 2254, as a mended, is DENIED, and this case is DISMISSED. Because the movant has not made a substantial showing of the denial of a constitutional right, the court DENIES a COA. The movant may, however, seek a COA directly from the Sixth Circuit Court of Appe als. The Clerk shall enter judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure. Signed by District Judge Aleta A. Trauger on 3/29/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ln)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MAURICE O. BYRD,
Petitioner,
v.
RUSTY WASHBURN, Warden,
Respondent.
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Case No. 3:18-cv-00142
Judge Aleta A. Trauger
Magistrate Judge Jeffrey S.
Frensley
MEMORANDUM and ORDER
Before the court are petitioner Maurice Byrd’s Objections (Doc. No. 19) to Magistrate
Judge Jeffrey Frensley’s Report and Recommendation (Doc. No. 18), in which the Magistrate
Judge recommends that Byrd’s Petition for the writ of habeas corpus under 28 U.S.C. § 2254, as
amended (Doc. Nos. 1, 11), be denied. For the reasons set forth herein, the court finds the
Objections to be without merit. Accordingly, the court will adopt the R&R and dismiss the
plaintiff’s Petition, as amended, with prejudice.
I.
PROCEDURAL AND FACTUAL BACKGROUND
Following a jury trial in the Circuit Court for Montgomery County, Tennessee in 2009,
Byrd was convicted on charges of aggravated robbery, felony first degree murder, and
premeditated first degree murder. The trial court merged the felony murder and premeditated first
degree murder charges and sentenced him to life imprisonment. That conviction was affirmed by
the Tennessee Court of Criminal Appeals, and the Tennessee Supreme Court denied review. State
v. Byrd, No. M2010-02405-CCA-R3CD, 2012 WL 5989817 (Tenn. Ct. Crim. App. Nov. 29,
2012), perm. to appeal denied (Tenn. Dec. 11, 2013). Byrd’s subsequent state court petition for
post-conviction relief was denied, and that decision was also affirmed. Byrd v. State, No. M2016-
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01061-CCA-R3-PC, 2017 WL 3641716 (Tenn. Crim. App. Aug. 24, 2017).
The petitioner filed his initial habeas corpus Petition (citing 28 U.S.C. § 2241) pro se, but
indicated in a handwritten marginal note that he was represented by counsel. (Doc. No. 1, at 9.)
His attorney thereafter filed a Notice of Appearance and an Amended Petition. (Doc. No. 11.)
Meanwhile, the court had referred the case to the Magistrate Judge for a recommended disposition
under 28 U.S.C. §§ 636(b)(1)(A) and (B). Respondent filed an Answer to the Amended Petition,
denying that the petitioner’s conviction violated his constitutional rights.
In his Petition, Byrd seeks to set aside his conviction on the grounds that his trial counsel
was ineffective for not “fully and completely investigating his case”; his attorney at sentencing
and on appeal had an actual conflict of interest that the petitioner did not waive; and appellate
counsel rendered ineffective assistance of counsel by waiving all appellate issues except
sufficiency of the evidence and by basing her appellate argument entirely on a decision by the
Tennessee Supreme Court that had been overruled in 2011. (Doc. No. 1, at 9.) The Amended
Petition adopts these claims and elaborates on them slightly. It adds that counsel’s reliance on an
overruled decision and the existence of an actual conflict of interest give rise to “structural” defects
in the procedure, requiring that the conviction be overturned even if no prejudice is proven. (Doc.
No. 11, at 2–3.) The magistrate judge, in a thorough and comprehensive opinion, concluded that
the petitioner is not entitled to relief on any of the grounds asserted.
In his Objections to the R&R, the petitioner raises two discrete arguments:
(1) that “abandoning an appeal based solely on law that was, by name, overturned
amount[s] to a structural error [where prejudice is presumed] when the State
specifically points out this obvious error in an appellee’s brief, but no reply brief
addressing the error is filed”; and
(2) that an attorney’s withdrawal from a case, “claiming an actual conflict of
interest exists but later allowing herself to be retained for the same case, amount[s]
to a structural error where prejudice is presumed.”
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(Doc. No. 19, at 3.) The petitioner argues that the Magistrate Judge’s resolution of these issues is
contrary to governing law.
II.
STANDARD OF REVIEW
A.
Review of Objections to a Report and Recommendation
Within fourteen days after being served with a report and recommendation as to a
dispositive matter, any “party may serve and file specific written objections to [a magistrate
judge’s] proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The district court
must review de novo any portion of the report and recommendation “that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “properly” made if it is sufficiently specific
to “enable[] the district judge to focus attention on those issues—factual and legal—that are at the
heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). In conducting its review,
the district court “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
B.
Review of a Petition for Relief Under 28 U.S.C. § 2254
A state prisoner may petition the federal court for relief of his state conviction by
submitting an application of a writ for habeas corpus “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).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal
district court generally may not entertain a petition for the writ of habeas corpus unless the
petitioner has first exhausted all available state-court remedies for each claim in his petition by
fairly presenting his claims to every available level of the state court system. 28 U.S.C. §
2254(b)(1); Duncan v. Henry, 513 U.S. 364, 365–66 (1995). If a petitioner establishes exhaustion
(or that waiver of exhaustion is warranted, see 28 U.S.C. § 2254(b)(1)(B)), the federal court may
review his claims, but its review is extremely deferential to the state court’s resolution of the same
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claims. The federal court cannot grant a habeas petition with respect to a fully exhausted federal
claim unless the state court’s adjudication of that claim “resulted in a decision that 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).
The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). Indeed, “habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.”
Id. at 102–03 (citation and internal quotation omitted).
III.
ANALYSIS
A.
“Abandonment of Appeal and/or Improper Legal Argument”
The homicide for which the petitioner was convicted of murder occurred in 2005; he was
tried and convicted in 2009; his motion for a new trial was litigated in 2009 and 2010; the
Tennessee Supreme Court issued State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011), in January
2011; appellate counsel filed her appellate brief on behalf of the petitioner in May 2011; and the
Tennessee Court of Appeals denied relief in November 2012.
The petitioner insists that this timeline is important, because, in her appellate brief,
appellate counsel “cited only sufficiency of the evidence as a ground for relief, but used State v.
Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)[,] as the appellate standard of review. This was a
problem because Crawford was overturned by the Tennessee Supreme Court by name in State v.
Dorantes[.]” (Doc. No. 11, at 2.) The government’s response brief pointed out that Crawford had
been overruled by Dorantes, but appellate counsel did not file a reply brief.
In Crawford, the Tennessee Supreme Court had adopted a special standard of proof to
justify a criminal conviction premised entirely on circumstantial evidence: “The Crawford
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standard purportedly required the State to prove facts and circumstances ‘so strong and cogent as
to exclude every other reasonable hypothesis save the guilt of the defendant, and that beyond a
reasonable doubt.’” Dorantes, 331 S.W.3d at 380 (quoting Crawford, 470 S.W.2d at 612). In other
words, the Crawford standard imposed a more stringent burden upon the State to prove guilt based
on circumstantial evidence than when direct evidence was presented. In Dorantes, the Tennessee
Supreme Court overruled Crawford, adopting the federal standard in Tennessee and eschewing
any distinction between the standard of proof required in cases based solely upon circumstantial
evidence and that in cases where the State introduces direct evidence of guilt. See Dorantes, 331
S.W.3d at 381 (“We specifically adopt the standard enunciated by the United States Supreme Court
as applicable to prosecutions in this state.”).
Although the Supreme Court did not expressly address in Dorantes whether its holding
applied retroactively, it clearly applied that standard to the defendant whose appeal was before it
in that case. Reversing the Tennessee Court of Appeals’ decision to the contrary, in which it had
applied Crawford, the state supreme court affirmed the defendant’s conviction based on “entirely
circumstantial evidence.” Id. at 389–90. In June 2011, just a few months later, the Tennessee
Supreme Court again affirmed that this standard applied retroactively to defendants charged and
convicted before Dorantes was issued. See State v. Sisk, 343 S.W.3d 60, 68 (Tenn. 2011) (finding
that the Tennessee Court of Appeals did not err in referring to Crawford, because its opinion was
“written prior to [the supreme court’s] decision in Dorantes” but nonetheless “[a]pplying the
standard of proof under Dorantes” to the case before it to “conclude that the jury exercised its
prerogative by determining that the Defendant was guilty”).
The petitioner argued in his state post-conviction proceedings that his counsel was
constitutionally ineffective in relying on Crawford to argue that the evidence was insufficient to
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support his conviction. Generally, to substantiate a claim that his counsel’s performance was so
deficient that his constitutional right to the effective assistance of counsel has been violated, a
petitioner must prove: (1) that his “counsel’s performance was deficient” and (2) that his counsel’s
“deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). As the state post-conviction court and the Magistrate Judge here recognized, the
petitioner’s counsel’s reliance on Crawford several months after Dorantes had been issued was
clearly erroneous. The post-conviction court found, based on this error, that the petitioner had
shown that counsel’s representation fell below a reasonable standard under Strickland’s first prong,
but the court held that the petitioner failed to establish that he had been prejudiced by this error as
required by the second prong. Byrd v. State, 2017 WL 3641716, at *13. Its finding of no prejudice
was based on the petitioner’s failure to show, first, that the outcome of his appeal would have been
different had his attorney argued that the Dorantes standard applied—which imposes a lighter
burden of proof on the state—and, second, that the petitioner did not identify any other issues that
his attorney should have raised in the direct appeal. Id.
The petitioner does not take issue with that conclusion per se. Rather, he argues that
counsel’s error was so egregious that it falls into the category of attorney error for which prejudice
is presumed and that the state courts’ denial of relief on this ground violated clearly established
federal law. In that regard, the Supreme Court has held that prejudice may be presumed in a limited
number of circumstances, including “when a defendant ha[s] suffered an ‘[a]ctual or constructive
denial of the assistance of counsel altogether.’” Smith v. Robbins, 528 U.S. 259, 286 (2000)
(quoting Strickland, 466 U.S. at 692). As the Court explained in Smith, that exception follows from
an earlier decision in which it had “distinguished denial of counsel altogether on appeal, which
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warrants a presumption of prejudice, from mere ineffective assistance of counsel on appeal, which
does not.” Id. (citing Penson v. Ohio, 488 U.S. 75, 88–89 (1988)).
Thus, for example, when counsel fails altogether to file a notice of appeal, despite the
defendant’s request that she do so and thereby forfeiting his ability to appeal, prejudice may be
presumed. See, e.g., Roe v. Flores–Ortega, 528 U.S. 470, 483 (2000); see also Wallace v. State,
121 S.W.3d 652, 658 (Tenn. 2003) (finding that counsel’s failure to file a motion for a new trial
despite the defendant’s request that he do so, resulting in a waiver of all issues on appeal except
for sufficiency of the evidence, was “presumptively prejudicial” (citing United States v. Cronic,
466 U.S. 648, 658, 659 (1984))). The Supreme Court has explained that, in order for “the
possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case” to
arise, “the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 697 (2002) (emphasis
added). That is, counsel must “entirely fail[] to subject the prosecution’s case to meaningful
adversarial testing.” Id. (quoting Cronic, 466 U.S. at 659).
The petitioner here argues that his counsel’s reliance on Crawford amounts to a
constructive denial of the assistance of counsel altogether. The court is not persuaded. Appellate
counsel filed a timely fifty-page brief, laying out in detail the evidence adduced at trial and arguing
that this evidence was entirely circumstantial and insufficient to support the conviction. (Doc. No.
16-10.) While it was clearly erroneous for the attorney to rely on an overruled case, counsel had
in fact filed and argued a motion for a new trial and filed an appellate brief raising a cogent
argument. The petitioner does not contend that the outcome of his appeal would have been different
if counsel had relied on the more demanding Dorantes standard rather than Crawford. Moreover,
the petitioner has not identified any other issues that counsel should have raised on appeal. He
cannot show prejudice, and he cannot show that prejudice should be presumed. Nor, more
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importantly, has he shown that the state courts unreasonably applied clearly established federal
law in holding that his attorney’s error “did not rise to the level of structural defect constituting a
complete denial of counsel.” Byrd, 2017 WL 3641716, at *13 (citing Wallace, 121 S.W.3d at 658–
59).
In his Objections, the petitioner now cites Cooper v. State, 847 S.W.2d 521 (Tenn. Ct. App.
1992), as refuting the Magistrate Judge’s assertion that no law supports the proposition that grossly
inadequate representation by appellate counsel can qualify as a structural error equivalent to the
complete deprivation of appellate counsel, warranting a presumption of prejudice. In Cooper,
however, the defendant merely argued, without pointing to any “specific issue lost or prejudice
incurred,” that his appellate “representation was, in effect, the equivalent of hi[s] having no counsel
at all so as to require no showing of prejudice.” 847 S.W.2d at 536. The court, however, declined
to decide the issue. Id. Cooper, therefore, does not support the petitioner’s argument. 1
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Because Cooper involved the imposition of the death penalty, the direct appeal was heard
by the Tennessee Supreme Court, pursuant to then-existing law. Cooper, 847 S.W.2d at 536 (citing
Tenn. Code Ann. § 39-2-205 (1982) (repealed)). Consequently, in reviewing the petition for postconviction relief, the Tennessee Court of Criminal Appeals held that the petitioner’s claim that he
had ineffective assistance of counsel during his direct appeal had to be considered by the Tennessee
Supreme Court. It transferred the issue to that court.
The Tennessee Supreme Court’s decision taking up the issue does not support petitioner’s
claim either, however. It agreed that the petitioner had a constitutional right to the effective
assistance of counsel on appeal, but it rejected the argument that appellate counsel had been so
ineffective that prejudice should be presumed. Cooper v. State, 849 S.W.3d 744, 746–47 (Tenn.
1993). Specifically, the fact that counsel had “only addressed two issues and did not analyze those
issues at sufficient length” did not amount to a complete abandonment of counsel’s role such that
the petitioner was “left without counsel.” Id. at 747. Because the petitioner failed to demonstrate
prejudice arising from counsel’s allegedly deficient performance, the court denied relief on this
ground. Id.
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Counsel’s conduct in relying on an overruled case undoubtedly constituted deficient
performance. The petitioner does not argue that he was actually prejudiced by this error, however,
and he has not shown that this error amounted to a complete deprivation of the assistance of
counsel, equivalent to having no attorney at all. More to the point, he has not shown that the state
court’s denial of relief based on this claim “resulted in a decision that 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). The petitioner is
not entitled to relief on the basis of this claim, and his objection related to the Magistrate Judge’s
resolution of this issue is without merit.
B.
Actual Conflict of Interest
Aside from the denial of the right to counsel altogether, the Supreme Court has indicated
that prejudice may also be presumed “when counsel is burdened by an actual conflict of interest.”
Smith, 528 U.S. at 287 (quoting Strickland, 466 U.S. at 692). The state court summarily rejected
the petitioner’s claim that he was not required to establish prejudice arising from his counsel’s
conflict of interest, stating only that counsel’s alleged deficiencies did not amount to a structural
defect. Byrd, 2017 WL 3641716, at *13. Its decision in that regard was not contrary to, and did it
involve an “unreasonable application” of, clearly established federal law, nor has the petitioner
shown that it was “based on an unreasonable determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d).
While the Supreme Court has acknowledged that prejudice arising from an actual conflict
of interest may be presumed, it nonetheless requires the defendant in such a case “to show that the
conflict adversely affected his counsel’s performance” in some manner. Smith, 528 U.S. at 287;
see also Strickland, 466 U.S. at 686 (noting that an “actual conflict of interest adversely affecting
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[a] lawyer’s performance renders assistance ineffective” (citing Cuyler v. Sullivan, 446 U.S. 335,
348 (1980)). The petitioner has not remotely suggested that the purported conflict in his case
adversely affected his counsel’s performance. Accordingly, he is not entitled to relief on this
ground either.
IV.
CONCLUSION AND ORDER
The plaintiff’s Objections (Doc. No. 19) are OVERRULED, and the R&R’s findings and
conclusions are ACCEPTED and ADOPTED in their entirety. The plaintiff’s Petition for relief
under 28 U.S.C. § 2254, as amended, is DENIED, and this case is DISMISSED.
Pursuant to Rule 11 of the Rules Governing § 2254 Proceedings, the court must either issue
or deny a certificate of appealability (“COA”). See also 28 U.S.C. § 2253(a). Because the movant
has not made a substantial showing of the denial of a constitutional right, the court DENIES a
COA. Id. § 2253(c)(2). The movant may, however, seek a COA directly from the Sixth Circuit
Court of Appeals. Id. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
The Clerk shall enter judgment in accordance with Rule 58 of the Federal Rules of Civil
Procedure.
It is so ORDERED.
ALETA A. TRAUGER
United States District Judge
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