Newton v. Phillips

Filing 24

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/1/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOSEPH NEWTON,
Petitioner,
v.
SHAWN PHILLIPS, Warden,
Respondent.

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No. 3:18-cv-00431
Judge Trauger

MEMORANDUM
Pending before the court is Joseph Newton’s pro se petition under 28 U.S.C. § 2254 for a
writ of habeas corpus challenging his 2012 conviction for two counts of rape. Newton is an inmate
at the Northwest Correctional Complex in Tiptonville, Tennessee, where he currently is serving a
sentence of eight years’ imprisonment in the Tennessee Department of Correction. (Doc. No. 1).
The respondent has responded to the petition (Doc. No. 16), and the petitioner has replied
to the respondent’s answer (Doc. No. 22). The petition is ripe for review, and this court has
jurisdiction pursuant to 28 U.S.C. § 2241(d). Having fully considered the record, the court finds
that an evidentiary hearing is not needed, and the petitioner is not entitled to relief. The petition
therefore will be denied and this action will be dismissed.
I.

Procedural History
On September 12, 2012, a Davidson County jury convicted the petitioner of two counts of

rape. The trial court imposed an eight-year sentence. (Doc. No. 1 at 1).
The Tennessee Court of Criminal Appeals affirmed the petitioner’s convictions and
sentence. State v. Newton, No. M2014-00603-CCA-R3-CD, 2015 WL 1543386 (Tenn. Ct. Crim.
App. Apr. 2, 2015), perm. app. denied (Tenn. July 17, 2015). The Tennessee Supreme Court

1

denied the petitioner’s application for discretionary review on June 6, 2018. Id. The petitioner
did not seek a petition for writ of certiorari from the United States Supreme Court.
On September 4, 2015, the petitioner filed a timely, pro se petition for post-conviction
relief. (Doc. No. 15, Attach. 12 at 23-43). On July 15, 2016, the petitioner filed an amended
petition through counsel. (Id. at 55-71) Following an evidentiary hearing, the post-conviction
court denied relief on October 4, 2016. (Id. at 75-82). On November 29, 2017, the Tennessee
Court of Criminal Appeals affirmed the judgment of the post-conviction court. Newton v. State,
No. M2016-02240-CCA-R3-PC, 2017 WL 5901032 (Tenn. Crim. App. Nov. 29, 2017), perm.
app. denied (Tenn. Mar. 14, 2018). The Tennessee Supreme Court denied the petitioner’s
application for discretionary review on March 14, 2018. Id.
On May 1, 2018,1 the petitioner filed the instant pro se petition for writ of habeas corpus.
(Doc. No. 1 at 16). By order entered on August 10, 2018, the court directed the respondent to file
an answer, plead or otherwise respond to the petition in conformance with Habeas Rule 5. (Doc.
No. 10). The respondent filed his response on November 21, 2018, conceding that the petition is
timely and urging the court to dismiss the petition. (Doc. No. 16 at 2).
The petitioner asserts seven claims for relief:
Claim 1: Petitioner was denied effective assistance of counsel when successor counsel2
failed to call him to testify at the motion for new trial hearing;
1

Under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266, 270 (1988), and the Sixth Circuit’s subsequent
extension of that rule in Richard v. Ray, 290 F.3d 810, 812 (6th Cir. 2002) and Scott v. Evans, 116 Fed. App’x 699,
701 (6th Cir. 2004), a prisoner’s legal mail is considered "filed" when he deposits his mail in the prison mail system
to be forwarded to the Clerk of Court. Pursuant to this authority, the court finds that the petitioner filed his petition on
May 1, 2018, the date he signed the petition (Doc. No. 1 at 16), even though the Clerk of Court received and docketed
the petition on May 7, 2017. Throughout this Memorandum, all dates as they pertain to the federal filings of the
petitioner will reflect the court’s application of the prison mailbox rule.

2

After his conviction and sentencing, the petitioner retained two new attorneys, one of whom represented him after
sentencing and through the hearing on the motion for a new trial (“successor counsel”) and one of whom also
represented him on appeal (“appellate counsel”). The court will use these terms, in addition to “trial counsel,”
throughout this opinion for ease of reference.

2

Claim 2: Petitioner was denied effective assistance of counsel when trial and successor
counsel failed to interview and call certain witnesses to testify at the trial and the motion for new
trial hearing;
Claim 3: Petitioner was denied effective assistance of counsel at his motion for new trial
hearing because successor counsel raised ineffective assistance of counsel claims at the motion for
new trial hearing and on direct appeal;
Claim 4: Petitioner was denied effective assistance of counsel when appellate counsel
failed to raise a sufficiency of evidence claim on direct appeal;
Claim 5: Petitioner was denied effective assistance of counsel when appellate counsel
failed to cite legal authority in support of his argument that trial counsel’s closing argument was
prejudicial;
Claim 6: Petitioner was denied effective assistance of counsel when appellate counsel
failed to raise the issue of sentencing on direct appeal; and
Claim 7: Petitioner was denied due process of law by the cumulative effect of the errors at
trial.
III.

Summary of the Evidence
A.

Trial Proceedings

The Tennessee Court of Criminal Appeals summarized the proof adduced at the
defendant’s trial as follows:
The victim testified that on November 17, 2009, she attended a work-related dinner,
where she consumed several alcoholic drinks. She subsequently drove her vehicle
to several different bars and continued to consume alcohol. The last bar that she
visited was Broadway Brewhouse, located at the corner of 19th Avenue and
Broadway in Nashville. When the bar closed at 3:00 a.m., several bar employees
and the victim mutually agreed that the victim should depart in a taxi.

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Douglas Tribble was working as a barback at Broadway Brewhouse and
remembered having a conversation with the victim. Mr. Tribble became concerned
that the victim may have consumed too much alcohol, and he spoke with his
manager about placing her in a taxi. Mr. Tribble explained to the victim that he did
not believe it was a good idea for her to operate her vehicle, and the victim agreed.
Mr. Tribble exited the bar with the victim to assist her in hailing a cab. He recalled
that he flagged down a white Allied taxi that was operated by a black male. He
could not see the driver's face in detail because it was dark and the taxi was across
the street, but he made a notation that the taxi's number was either “70, 71, or 77.”
Mr. Tribble testified that it was his habit always to note the number of a cab if he
placed a person into the cab. He began this practice after an incident that occurred
many years earlier with a co-worker. Mr. Tribble placed his co-worker in a cab and
learned the next day that the driver had assaulted the co-worker, stolen her money,
“and then left her on the side of the road for dead.” After the incident, Mr. Tribble
promised himself “that if anytime [he] ever put somebody in a cab, [he] would
always remember the number of the cab.”
When the victim entered the taxi, she informed the driver that she wished to go to
“Belmont off of 18th Avenue.” The taxi started in that direction, but when the
victim asked the driver to turn left on Magnolia, the cab continued straight instead
of turning. Initially, the victim believed that the driver had simply missed the turn
and would turn around to take her to her destination. However, the driver turned to
her and told her to “shut up.”
After continuing to drive, the driver “whipped into a cul-de-sac.” He climbed into
the backseat of the taxi and forced himself on the victim. He pulled down the
victim's pants and underwear and penetrated her vagina with his penis. The victim
did not consent to this action, and she was fearful while it was happening. The
victim believed that the assault lasted “maybe 10 minutes or 15 minutes, five
minutes” but stated that “[i]t felt like two hours[.]”
The defendant returned to the driver's seat of the taxi after penetrating the victim.
The victim immediately exited the taxi, running “as fast as [her] legs would take
[her].” She purposefully left the door of the taxi open to slow the driver down, in
case he attempted to pursue her. The victim ran into a well-lit area of “an apartment
or condo community” and telephoned police.
Officer Paul Goebel of the Metropolitan Nashville Police Department responded to
the victim's call. He testified that he arrived at the apartment complex around 4:00
a.m. and that the victim informed him that she had been attacked a short distance
from the apartment complex. Officer Goebel noted that the victim appeared to be
intoxicated but stated that she was able to articulate what had occurred. He testified
that the victim never attempted to conceal the fact that she was intoxicated. The
victim told him that a black male between the ages of twenty-seven and thirty-two
years old attacked her. After speaking with the victim for a few moments, Officer
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Goebel transported her to General Hospital, where a nurse practitioner performed
a “Medical/Legal Examination” and a rape kit.
Connie Lynn Barrow was the nurse practitioner who was on call for the Sexual
Assault/Victim Response Team when the victim came to General Hospital. She
testified that as part of her duties, she took the medical forensic health history of
the victim, performed a “head to toe physical assessment,” examined the victim for
trauma, and collected any evidence that she “deem[ed] to be appropriate.” Ms.
Barrow observed a small, “slightly purple” bruise on the victim's right breast and a
“small reddened abrasion” on the victim's right knee. She asked the victim if her
assailant had kissed her anywhere, and the victim responded that he may have
attempted to kiss her on her breast and mouth. Ms. Barrow administered swabs to
the victim's mouth and face in order to detect any potential saliva left by the
attacker. She performed a swab of the outside and inside of the victim's vagina to
check for semen, along with a cervical swab of her vagina and a swab around her
anus. Ms. Barrow also performed a “cervical culture checking” for gonorrhea, and
she treated the victim for gonorrhea.
Detective Robert Carrigan, a Metropolitan Nashville police officer, worked in the
Sex Crimes Division. He testified that he arrived at the hospital after the victim was
transported and that he spoke with her before Ms. Barrow conducted her
examination. He observed that the victim “appeared extremely intoxicated” and had
trouble remaining awake. Detective Carrigan noted that “[i]t was just a difficult
time for an interview.” In this first interview, the victim described her assailant as
a black male with medium skin tone. In a subsequent interview several days later,
the victim described her attacker as a “[l]ight skinned male black.” The only
variation in the two interviews of the description of her attacker was his skin tone.
He spoke with her several days later, when she was far more “lucid.”
Detective Carrigan testified that the swabs taken from the victim were sent to the
Tennessee Bureau of Investigation (TBI) crime lab for analysis. Semen was
discovered on the vaginal and peri-anal swabs, but the DNA profile did not reveal
a match with anyone currently in the TBI system. After speaking with the manager
on duty at Broadway Brewhouse the evening of the incident and with Mr. Tribble,
Detective Carrigan began to develop the drivers of Allied taxi cabs 70, 71, and 77
as potential suspects. The defendant was the driver of cab number 70. Detective
Carrigan spoke with all three drivers, and all three agreed to provide a consensual
DNA swab. When Detective Carrigan showed the defendant a photograph of the
victim, he denied having ever seen, met, picked up, or provided a ride to the victim.
He also denied ever having a sexual relationship with anyone inside of his taxi.
Detective Carrigan sent the DNA swabs of the three drivers to the TBI laboratory,
and testing revealed a positive match between the semen found in the swabs taken
from the victim and the defendant's DNA profile. Several days after learning of this
match, Detective Carrigan showed the victim a photograph lineup that included a
photograph of the defendant. He had shown the victim several prior lineups of
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Allied taxi cab drivers, but the victim did not select any of the men in the
photographs as her attacker. After viewing the lineup with the defendant's
photograph, the victim selected that photograph, stating that she was “70% sure”
that it was a photograph of her attacker. She clarified that seventy percent sure
meant “that [she] was pretty darn sure.”
Special Agent Bradley Everett worked for the TBI Crime Laboratory as a special
agent forensic scientist and DNA technical leader for the TBI. After receiving the
defendant's DNA swab, Special Agent Everett found that the defendant's DNA
profile matched that of the sperm found in the swabs taken from the victim. He
testified that the probability of an individual other than the defendant having that
DNA profile was greater than the world population. He further opined that “it
would be scientifically unreasonable to assume” that the DNA profile did not come
from the defendant.
The defense did not put on any proof. Although trial counsel informed the jury in
his opening statement that the defendant would testify, the defendant did not do so.
Trial counsel began his closing argument by stating that he “would submit that in
the absence of DNA in this case, this case would be a loser.” He further told the
jury, “I told you in opening statements that [the defendant] was going to testify.
Typically in law school they tell you not to tell the jury what they can expect to
hear, but this was a [tactical] decision so if you're going to blame anybody blame
me, just don't hold it against [the defendant.]” Trial counsel also stated, “This is an
identity case. There was a rape and there was no consent, that is not even an issue.
There was a rape but the issue is identity.”
At the conclusion of the proof, the jury found the defendant guilty of two counts of
rape. The trial court merged both counts and sentenced the defendant to an eightyear sentence.
State v. Newton, 2015 WL 1543386, at **1-3.
The petitioner then filed a motion seeking a new trial. The Tennessee Court of
Criminal Appeals recalled the testimony presented at the new trial hearing as follows:
At the motion for new trial hearing, the defendant raised only the issue of
ineffective assistance of counsel, and trial counsel testified.
Trial counsel testified that, prior to trial, he was aware that the State had DNA
evidence identifying the defendant as the perpetrator of the rape of the victim. He
stated that he hired an expert to attempt to refute the testimony of the State's DNA
expert and that his expert was unable to provide an opinion that would refute that
of the State. He said that he had several discussions prior to trial about whether the
defendant would testify at trial. Trial counsel informed the defendant that if he
testified at trial, a consent defense would be the only plausible defense to the
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charge, in light of the State's DNA evidence. Trial counsel believed that if the
defendant were to testify that he did not commit the crime, the testimony would
have been unhelpful because it would have been inconsistent with the State's DNA
findings.
Trial counsel met with the defendant “in person at least eight times” and spoke with
him numerous times on the telephone. Trial counsel testified that the “defense
shifted weekly from not there, to it was consensual, to even she attacked him.” A
week before the trial, after speaking with the defendant, trial counsel had
established that their trial strategy would be to assert a defense of consent. Trial
counsel prepared a potential cross-examination of the victim to use when
employing the consent defense. However, on the day of trial, the defense “shifted
to I didn't do it again.” The defendant wanted trial counsel to argue that he was not
at the scene of the crime, despite the DNA evidence, and he informed trial counsel
that he wished to testify.
When trial counsel told the jury that the defendant would testify, he did so after the
defendant informed him that he would testify. Trial counsel anticipated that the
defendant would testify that he was not present at the scene of the crime and did
not rape the victim. He agreed that such testimony would be inconsistent with the
scientific proof offered in the case. Trial counsel stated that he attempted to
maintain a defense that was consistent with his client's desires but that “every case
[was] different.” Trial counsel said that on the day of the trial, the defendant
“insisted that he did not do it, and—but he still wanted to testify[.]” As a result, trial
counsel's strategy was to abandon the consent defense and adopt the theory that the
defendant was not the person who raped the victim.
Trial counsel testified that he informed the defendant of his belief that the strategy
of claiming that he did not rape the victim “was not the best strategy to pursue[.]”
The defendant disagreed, and trial counsel continued with the defense of mistaken
identity because the defendant would not adopt a defense of consent.
Trial counsel testified that his biggest obstacle as counsel was “getting [the
defendant] to agree on any defense consistently[.]” He stated that the defendant
decided not to take the stand after hearing the State's proof and that trial counsel
believed this was a smart decision. Trial counsel agreed that if the defendant
testified that the encounter was consensual, it would have been inconsistent with
the statement that he gave to Detective Carrigan. He further agreed that the proof
showed that the defendant did not take the victim where she wished to go and that
she jumped out of the taxi cab in a deserted area. He confirmed that the victim's
behavior was not consistent with the behavior of a person who had engaged in
consensual sex. Trial counsel testified that because the victim “was such a strong
witness[,]” he was unsure how successful it would have been to raise a defense of
consent.
During closing arguments, the trial court asked defense counsel the following:
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Are you creating a new defense for every defendant that comes down the line
because he tells his lawyer I insist that you get up and tell this jury that I'm going
to testify, and then he says I'm not going to testify so I'm entitled to a new trial
because my lawyer said that I was going to testify and I didn't? Now what is to
prevent every defendant that ever walks into this courtroom from doing that?
....
If your client tells you I want you to tell that jury that I'm going to testify because I
am going to testify, are you telling me that you wouldn't stand up here and tell that?
....
You are not going to get up and do what your client asked you to do?
....
Then you are ineffective, are you not?
State v. Newton, 2015 WL 1543386, at **3-4.
The trial court denied the motion for new trial, finding that “everything that [trial
counsel] did was effective in this matter.” Id. at *5. On direct appeal, the trial court
affirmed the judgment of the trial court. Id. at *8.
B.

Post-Conviction Proceedings
The Tennessee Court of Criminal Appeals summarized the proof adduced at the

petitioner’s post-conviction evidentiary hearing as follows:
The Petitioner filed a post-conviction petition, alleging various deficiencies at all
stages of his representation. In particular, the Petitioner alleged that successor
counsel prematurely brought claims of ineffective assistance of counsel, that he
should have been called to testify at the motion for a new trial, that his attorneys
failed to present an alibi witness, that appellate counsel was deficient in failing to
raise various issues, and that he was entitled to relief for cumulative error.
At the hearing, successor counsel testified that he spoke to the Petitioner about the
various issues that could be raised on appeal. The Petitioner wanted to pursue an
ineffective assistance of counsel claim. Successor counsel testified that he had a
lengthy period of time to prepare for the hearing and that he felt he could adequately
raise an ineffective assistance of counsel claim on direct appeal because he was
able to fully review the record, investigate and present evidence, and essentially
treat the hearing on the motion for a new trial as a post-conviction hearing.
Successor counsel discussed with the Petitioner whether or not the Petitioner should
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testify at the motion hearing, and the Petitioner made the choice not to testify.
Successor counsel noted that the primary alleged deficiency was that trial counsel
had rashly promised the jury that the Petitioner would testify, and successor counsel
did not believe that the Petitioner's testimony would have had any bearing on that
subject. The Petitioner never told successor counsel that he had been prevented
from testifying at trial, and successor counsel's review of the record revealed that
the Petitioner had been thoroughly advised of his rights when he decided not to
testify.
Successor counsel testified that the Petitioner continued to assert his innocence
throughout his representation but that the Petitioner did so under two inconsistent
theories: mistaken identity and consent. He testified that the victim left the bar at
around 3:00 a.m. and that there was only a lapse of around forty-five minutes to an
hour before she called police to report the crime, making the Petitioner's claim that
they had driven to his house, engaged in consensual sex, and driven back toward
the Green Hills area improbable.
The Petitioner told successor counsel that Mr. Francis Kobri could give favorable
testimony on his behalf, and successor counsel interviewed Mr. Kobri. The motion
for a new trial did not allege that trial counsel was deficient in failing to discover
Mr. Kobri because the Petitioner did not tell successor counsel about Mr. Kobri
until “way later in the process.” Successor counsel determined that Mr. Kobri's
statements were not credible. Mr. Kobri claimed that he had seen the Petitioner with
the victim at around 11:00 p.m. on the night of the rape at the house that Mr. Kobri
and the Petitioner shared in another part of town. Evidence at trial had established
that the victim was with her friends and her sister at that time and that she first
encountered the Petitioner around 3:00 a.m. when a bar employee placed her into
his taxi. Furthermore, the statements were inconsistent with the Petitioner's
continued claims of mistaken identity.
Mr. Kobri testified at the post-conviction hearing that in November 2009, when the
rape occurred, he was living with the Petitioner and generally worked from 4:00
p.m. to 2:00 a.m. He testified that after returning home from work around 3:00 a.m.
on the night of the rape, he saw the Petitioner and the victim together at his home.
About fifteen minutes later, the Petitioner asked to borrow Mr. Kobri's car, despite
the fact that the Petitioner's taxi was at the home. Mr. Kobri acknowledged that he
had attended the Petitioner's 2012 trial and sentencing hearing without volunteering
this information. He also acknowledged that he had initially stated to successor
counsel that he saw the Petitioner with the victim much earlier in the evening. He
explained that he initially did not remember the time because years had passed
between the 2009 rape and the 2014 hearing on the motion for a new trial but that,
in preparation for the 2016 hearing, “[w]hen I tried to remember and I tried to see,
that's why I said it can be this time as well.”
The Petitioner testified that successor counsel made the decision to pursue the
ineffective assistance of counsel claim on direct appeal. The Petitioner asserted that
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he told successor counsel that he had wanted to testify at trial and that trial counsel
had prevented him from testifying. He claimed that trial counsel told him that he
would be able to testify at another stage of the proceeding. The Petitioner did not
tell successor counsel that he wanted to testify at the motion hearing but told him
that trial counsel's testimony was not accurate.
The Petitioner stated that if he had testified at either the trial or the hearing on the
motion for a new trial, he would have maintained that the victim consented to sexual
intercourse. He acknowledged having told Detective Carrigan that he had never
seen the victim or had sex with her but claimed that he did not “pay[ ] attention” to
the victim's photograph because he had never raped anyone in his taxi. According
to the Petitioner, the victim did not want to go home when she got into the taxi but
wanted to go to his house, which was a ten-to twelve-minute drive, in order “to pass
the time.” He acknowledged that his testimony at the sentencing hearing was
inconsistent with a claim that the victim consented, and he acknowledged that he
did not mention Mr. Kobri's anticipated testimony at the sentencing hearing. The
Petitioner claimed he told trial counsel to summon Mr. Kobri as a witness.
The post-conviction court denied relief. The post-conviction court found that
successor counsel was not ineffective for presenting claims hinged on ineffective
assistance of counsel because he was able to adequately prepare for the hearing and
to present evidence to support the Petitioner's ineffective assistance of counsel
claims.
Likewise, the post-conviction court declined to find that successor counsel was
ineffective for not presenting the Petitioner's testimony at the hearing on the motion
for a new trial. The post-conviction court credited trial counsel's and successor
counsel's testimony that the Petitioner chose not to testify at trial and at the hearing
on the motion for a new trial. The court found that the Petitioner's proffered
testimony that he was prevented from testifying at trial would have contradicted his
sworn statements made pursuant to Momon v. State, 18 S.W.3d 152, 162 (Tenn.
1999), on reh'g (Mar. 30, 2000), and would not have led to a different result if they
had been introduced at the hearing on the motion for a new trial. The postconviction court found that the Petitioner urged trial counsel to pursue a defense of
mistaken identity and not consent and that the Petitioner's claims regarding consent
were simply not credible. The post-conviction court found that successor counsel
was not deficient in refusing to present the testimony of Mr. Kobri because
elements of Mr. Kobri's testimony were vague, inconsistent, and “ma[de] little
sense,” and because the post-conviction court credited trial counsel's and successor
counsel's testimony that the Petitioner's theory of his alleged innocence was
constantly changing.
The post-conviction court found that there was no prejudice in appellate counsel's
failure to raise sufficiency of the evidence or sentencing on appeal because the
issues did not have merit. The post-conviction court found that trial counsel's
closing argument was a matter of strategy and accordingly concluded that there was
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no prejudice arising from appellate counsel's failure to cite to case law regarding
any errors in closing argument. The post-conviction court denied relief.
Newton, 2017 WL 5901032, at **3-5. The appellate court affirmed the judgment of
the post-conviction court. Id. at *11.
III.

Standard of Review
The petition in this case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). The AEDPA was enacted “to reduce delays in the execution of state and
federal criminal sentences . . . and to further the principles of comity, finality, and federalism.”
Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal citations and quotation marks omitted).
As the Supreme Court explained, the AEDPA “recognizes a foundational principle of our federal
system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571
U.S. 12, 19 (2013). The AEDPA, therefore, “erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court.” Id.
One of the AEDPA's most significant limitations on the federal courts' authority to issue
writs of habeas corpus is found in 28 U.S .C. § 2254(d). Under the AEDPA, the court may grant
a writ of habeas corpus on a claim that was adjudicated on the merits in state court if that
adjudication:
(1) 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
(2) resulted in a decision that 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); Williams v. Taylor, 529 U.S. 362, 405 (2000).
The state court’s factual findings are presumed to be correct, and they can be contravened
only if the petitioner can show by clear and convincing evidence that the state court’s factual
11

findings were erroneous.

28 U.S.C. § 2254(e)(1).

State-court factual findings are “only

unreasonable where they are ‘rebutted by clear and convincing evidence’ and do not have support
in the record.” Moritz v. Woods, 692 Fed. App’x 249, 254 (6th Cir. 2017) (quoting Pouncy v.
Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (internal quotation marks omitted)). As the Supreme
Court has advised, “[t]he question under AEDPA is not whether a federal court believes the state
court's determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams,
529 U.S. at 410). Review under § 2254(d) (1) “is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011).
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available
state remedies, 28 U.S.C. § 2254(b), thereby giving the State the ‘opportunity to pass upon and
correct’ alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (citations omitted). “To provide the State with the necessary ‘opportunity,’ the prisoner
must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Id.
(citation omitted); Gray v. Netherland, 518 U.S. 152, 162–63 (1996) (the substance of the claim
must have been presented as a federal constitutional claim). This rule has been interpreted by the
Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509, 522 (1982). Thus, each
and every claim set forth in the federal habeas corpus petition must have been presented to the
state appellate court. See Picard v. Connor, 404 U.S. 270, 275 (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”).

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Claims which are not exhausted are procedurally defaulted and “ordinarily may not be
considered by a federal court on habeas review.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002).
Procedural default also occurs where the state court “actually . . . relie[s] on [a state] procedural
bar as an independent basis for its disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320,
327 (1985). To cause a procedural default, the state court's ruling must “rest[ ] on a state law
ground that is independent of the federal question and adequate to support the judgment.”
Coleman, 501 U.S. at 729.
“In order to gain consideration of a claim that is procedurally defaulted, a petitioner must
demonstrate cause and prejudice for the failure, or that a miscarriage of justice will result from the
lack of review.” Alley, 307 F.3d at 386. 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 v. Thompson, 501 U.S. 722, 754 (1991)). A petitioner may establish cause by
“show[ing] that some objective factor external to the defense impeded counsel's efforts to comply
with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective
impediments include an unavailable claim or interference by officials that made compliance
impracticable. Id.

Constitutionally ineffective assistance of trial or appellate counsel may

constitute cause. Murray, 477 U.S. at 488–89. Generally, however, if a petitioner asserts
ineffective assistance of counsel as cause for a default, that ineffective assistance claim must itself
have been presented to the state courts as an independent claim before it may be used to establish
cause. Id. If the ineffective assistance claim is not presented to the state courts in the manner that
state law requires, that claim is itself procedurally defaulted and can only be used as cause for the
underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the
ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000).

13

Petitioners in Tennessee also can establish “cause” to excuse the procedural default of a
substantial claim of ineffective assistance by demonstrating the ineffective assistance of postconviction counsel in failing to raise the claim in initial review post-conviction proceedings. See
Martinez v. Ryan, 566 U.S. 1, 5-6 (2012) (creating an exception to Coleman where state law
prohibits ineffective assistance claims on direct appeal); Trevino v. Thaler, 569 U.S. 413, 429
(2013) (extending Martinez to states with procedural frameworks that make meaningful
opportunity to raise ineffective assistance claim on direct appeal unlikely); Sutton v. Carpenter,
745 F.3d 787, 792 (6th Cir. 2014) (holding that Martinez and Trevino apply in Tennessee). The
Supreme Court's creation in Martinez of a narrow exception to the procedural default bar stemmed
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.” Martinez, 566 U.S. at 13. In other
words, Martinez requires that the ineffective assistance of post-conviction counsel occur during
the “initial-review collateral proceeding,” and that “the underlying ineffective-assistance-of-trialcounsel claim [be] a substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit.” See id. at 13-15. Importantly, Martinez did not dispense with the “actual
prejudice” prong of the standard for overcoming procedural default first articulated by the Supreme
Court in Coleman.
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) (emphasis in original)). “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) (citations omitted).

14

Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the Supreme Court also has recognized a narrow exception to the cause
requirement where a constitutional violation has “probably resulted” in the conviction of one who
is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing
Murray, 477 U.S. at 496).
IV.

Analysis
With these principles in mind, the court will turn to the examination of the seven claims

raised in Newton’s petition for habeas relief, six of which are ineffective assistance of counsel
claims.
A.

Ineffective Assistance of Counsel Claims

The Sixth Amendment to the United States Constitution, as applied to the states through
the Fourteenth Amendment, guarantees the right of a person accused of a crime to the effective
assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must
show (1) deficient performance of counsel and (2) prejudice to the defendant. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Bell v. Cone, 535 U.S. 685, 694-95 (2002). Trial counsel’s
performance is deficient when it falls below an objective standard of reasonableness. See
Strickland, 466 U.S. at 686-87; Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000), cert. denied,
531 U.S. 1035 (2000).

In assessing performance, “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.” Strickland, 466
U.S. at 690-91. Reasonable attorneys may disagree on the appropriate strategy for defending a
client. Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004). The prejudice element requires a

15

petitioner to show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
A court hearing an ineffective assistance of counsel claim must consider the totality of the
evidence. Strickland, 466 U.S. at 695. “The determinative issue is not whether petitioner’s counsel
was ineffective but whether he was so thoroughly ineffective that defeat was ‘snatched from the
jaws of victory.’” West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (quoting United States v.
Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc)). “Judicial scrutiny of counsel’s performance
must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Strickland, 466 U.S. at 689.
As discussed above, federal habeas relief may not be granted under 28 U.S.C. § 2254 unless
the petitioner shows that the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of 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),(2). Thus, when a claim of
ineffective assistance of counsel is raised in a federal habeas petition, such as here, 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. 86, 101 (2011). As the Supreme Court clarified in Harrington:
This is different from asking whether defense counsel's performance fell
below Strickland's standard. Were that the inquiry, the analysis would be no
different than if, for example, this Court were adjudicating a Strickland claim on
direct review of a criminal conviction in a United States district court. Under
16

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.
Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted).
1.

Successor counsel failed to call the defendant to testify at the motion
for new trial hearing

In his first sub-claim of ineffective assistance of counsel, the petitioner alleges that
successor counsel was constitutionally ineffective because he failed to call the petitioner to testify
at the motion for new trial hearing. (Doc. No. 1 at 5). According to the petitioner, his testimony
would have established that trial counsel performed deficiently by preventing him from testifying
at trial. (Id.)
The petitioner raised this claim in his post-conviction petition and on appeal of the denial
of his petition. Newton, 2017 WL 5901032, at *8. At the petitioner’s post-conviction hearing, he
testified that he had told successor counsel that he had wanted to testify at trial and that trial counsel
had prevented him from testifying. Id. at *4. He claimed that trial counsel told him that he would
be able to testify at another stage of the proceeding. The petitioner testified that he did not tell
successor counsel that he wanted to testify at the motion hearing but told him that trial counsel’s
testimony was not accurate. Id.
In evaluating this claim, the post-conviction court credited trial counsel’s and successor
counsel’s testimony that the petitioner chose not to testify at trial and at the hearing on the motion
for a new trial. Id. The court noted that the petitioner’s testimony, if given, that he was prevented
from testifying at trial would have contradicted his sworn statements that he was choosing not to
testify. Id. The court found that the petitioner had insisted to trial counsel that “it was a case of
mistaken identity” and that the evidence undermined a defense of consent. Id. In denying relief,
17

the court determined that the petitioner had made a “knowing and voluntary choice” not to testify
both at the trial and at the hearing on the motion for a new trial. Id.
The Tennessee Court of Criminal Appeals began its analysis of the petitioner’s ineffective
assistance of counsel claims by setting forth the proper legal standard for those claims. Id. at **56. Applying Strickland, the court first noted that it was bound by the post-conviction court’s
credibility determinations, so long as the evidence did not preponderate against them. Id. at *8.
The court determined that the evidence in the record supported the post-conviction court’s
conclusion that successor counsel’s performance was not deficient, agreeing that Petitioner made
“a knowing and voluntary choice not to testify both at trial and at the hearing on the motion for
new trial.” Id. The state appellate court also agreed with the post-conviction court’s finding that
the petitioner had not established prejudice because his testimony at the hearing would not have
established that he was prevented from testifying at trial or that consent would have been a
reasonable defense. Id.
These findings are not unreasonable. The evidence shows that the petitioner elected not to
testify at the motion for new trial hearing; therefore, he cannot show that counsel was deficient in
failing to call him to testify. Further, the petitioner’s testimony at the hearing would not have
established that he was prevented from testifying at trial or that consent would have been a
reasonable defense; thus, the petitioner cannot establish prejudice as a result of successor counsel’s
failure to call him to testify to these matters. Consequently, the court finds that the petitioner has
not shown that he is entitled to relief on this claim because the appellate court’s determination was
not contrary to Strickland. Neither was the appellate court’s ineffective assistance determination
based on an unreasonable determination of the facts or an unreasonable applicable of Strickland’s
standards to those facts. Further, the state court’s determinations are entitled to a presumption of

18

correctness in the absence of clear and convincing evidence to the contrary, see 28 U.S.C. §
2254(e)(1), which the petitioner has not submitted. Claim A(1) is without merit and will be
dismissed.
2.

Trial and successor counsel failed to interview and/or call material
witnesses to testify

Next, the petitioner alleges that trial counsel and successor counsel were ineffective for
failing to interview and/or call material witnesses at trial and at the motion for a new trial hearing.
(Doc. No. 1 at 7). The petitioner does not specify which witnesses or what information these
witnesses would have provided. (Id.)
The petitioner raised this claim on post-conviction appeal, specifically arguing that trial
counsel and successor counsel were ineffective for failing to uncover and present the testimony of
one witness, Francis Kobri. Newton, 2017 WL 5901032, at *8. The claim presented by the
petitioner now is a different, broader claim. This new claim references failure to interview and
call an unnamed, unspecified number of witnesses. However, “[a] constitutional claim presented
to the federal courts that does not rest on the same theory as was presented to the state courts is
procedurally defaulted.” Wong v. Woney, 142 F.3d 313, 321-22 (6th Cir. 1998).
Because the petitioner has never fully and fairly presented this new claim to the state courts,
and a state procedural rule prohibits the state court from extending further consideration to the
claim, the claim is deemed exhausted (since there is no “available” state remedy) but procedurally
defaulted from federal habeas review. See Coleman, 501 U.S. at 752-53. The petitioner, therefore,
has waived his claim for purposes of federal habeas corpus review unless he establishes cause for
the default and actual prejudice as a result of the alleged errors. The petitioner does not even argue
that he can establish cause and prejudice or make a showing of a fundamental miscarriage of
justice. Therefore, the court finds that the petitioner has procedurally defaulted this claim.
19

As to the petitioner’s claim that trial counsel was ineffective for failing to investigate and
present the testimony of Mr. Kobri, the Tennessee Court of Criminal Appeals found that the
petitioner waived this claim under Tennessee Code Annotated § 40-30-106(g) because he failed to
present it to the post-conviction court. Newton, 2017 WL 5901032, at *8. Further, because the
petitioner had brought an ineffective assistance claim against trial counsel on direct appeal, those
claims could not be relitigated in a post-conviction proceeding, “even though the petitioner may
not have made the same allegations on direct appeal that he now makes in his post-conviction
petition.” Id. (citations omitted). Having applied the waiver rule, the state appellate court did not
reach the merits of the claim. Id.
The Tennessee waiver rule, Tenn. Code Ann. § 40-30-106(g), constitutes an adequate and
independent state procedural ground for denying relief. See Coe v. Bell, 161 F.3d 320, 329-331
(6th Cir. 1998) (holding that court was unable to reach merits of Coe’s malice jury instructions
claim because claim was procedurally barred due to Coe having waived claim by failing to raise it
at trial, on direct appeal, or in his first state post-conviction motion). Thus, federal habeas review
of the claim is barred unless the petitioner can demonstrate that cause and prejudice will excuse
the procedural default or that failure to consider the claim will result in a fundamental miscarriage
of justice. See Harris, 489 U.S. at 262; Coe, 161 F.3d at 329-30. As with his other procedurally
defaulted claim, the petitioner makes no attempt to demonstrate cause and prejudice to excuse his
procedural default of this claim. The claim is procedurally defaulted and will be dismissed.
As to the petitioner’s exhausted claim that successor counsel was ineffective for failing to
investigate and present the testimony of Mr. Kobri, the Tennessee Court of Criminal Appeals
agreed with the post-conviction court that Mr. Kobri’s version of the events “fundamentally lacked
credibility.” Newton, 2017 WL 5901032, at *9. Mr. Kobri testified that he saw Petitioner and the

20

victim together at 11:00 p.m. Id. This statement was inconsistent with the timeline of events
confirmed by all the other evidence at trial, which was that the victim was with friends until 3:00
a.m. when the victim got in the taxi. Id. Two years later, at the post-conviction hearing, Mr.
Kobri’s version of the events changed; he “suddenly recalled” that he had seen the victim and the
petitioner, whose trial he attended, at 3:00 a.m. rather than 11:00 p.m. as he previously stated. Id.
The record supports the state courts’ findings that Mr. Kobri’s testimony was untruthful
and that successor counsel made a strategic decision not to present testimony that lacked
credibility. It is a “longstanding and sound principle that matters of trial strategy are left to
counsel’s discretion.” Dixon v. Houk, 737 F.3d 1003, 1012 (6th Cir. 2013). In order to fairly assess
an attorney’s performance, “every effort [must] be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at that time.” Strickland, 466 U.S. at 689. “[S]trategic choices
made after a thorough investigation of the law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. In addition, Mr. Kobri’s testimony was inconsistent with the
petitioner’s claim of mistaken identity and the prosecution’s timeline of events. As a result, the
petitioner cannot demonstrate that successor counsel’s performance was deficient by failing to
present the testimony of Mr. Kobri.
The court finds that the petitioner has not shown that he is entitled to relief on this claim
because the appellate court’s determination was not contrary to Strickland. Neither was the
appellate court’s ineffective assistance determination based on an unreasonable determination of
the facts or an unreasonable applicable of Strickland’s standards to those facts. Further, the state
court’s determinations are entitled to a presumption of correctness in the absence of clear and

21

convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1), which the petitioner has not
submitted. Claim A(2) is without merit and will be dismissed.
3.

Successor counsel raised the claim of ineffective assistance claims at the
motion for new trial hearing and on direct appeal

Third, the petitioner contends that successor counsel was deficient by raising the ineffective
assistance of counsel claim at the motion for new trial hearing and on direct appeal instead of
waiting to raise the claim for the first time in a petition for post-conviction relief. (Doc. No. 1 at
8).
The petitioner raised this claim in his petition for post-conviction relief. The postconviction court found that successor counsel had ample opportunity to review the record,
investigate allegations of deficient performance, investigate potential witnesses, and call witnesses
to present evidence in support of his ineffective assistance claim. Newton, 2017 WL 5901032, at
*7.

Because successor counsel was able to adequately prepare for the hearing and to present

evidence to support the petitioner’s ineffective assistance of counsel claims, the post-conviction
court found that successor counsel had not provided ineffective assistance of counsel in raising the
ineffective assistance claims prior to post-conviction proceedings. Id.
On appeal, the petitioner argued that successor counsel’s representation was deficient
because he prematurely raised ineffective assistance claims and doing so was “fraught with peril.”
Id. The petitioner also argued that, because successor counsel called trial counsel to testify, he
was unable to ask trial counsel leading questions on cross-examination. Id.
In reviewing this claim, the Tennessee Court of Criminal Appeals observed that, indeed,
raising a claim of ineffective assistance of counsel on direct appeal is “fraught with peril.” Id.
(citing Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). That is because, the
court explained, when the issue is raised on direct appeal, appellants risk having the issue resolved
22

without the opportunity to prove their allegations in an evidentiary hearing. See id. (citing
Thompson, 958 S.W.2d at 162). In addition, once a claim of ineffective assistance of trial counsel
has been raised, the issue will be considered previously determined in a subsequent post-conviction
action. Id. (citing Tenn. Code Ann. § 40-30-106(h)).
With regard to the petitioner’s claim that he was denied the opportunity to ask trial counsel
leading questions on cross-examination, the Tennessee Court of Criminal Appeals found that this
claim was waived because the petitioner had failed to provide argument or citations in his brief.
Id. at *7 (citing Tenn. Crim. Ct. App. R. 10(b)). Having applied the waiver rule, the state appellate
court did not reach the merits of the claim. Id. The application of the waiver rule constitutes an
adequate and independent state procedural ground for denying relief. See Coe, 161 F.3d 320, 329331. Thus, federal habeas review of the claim is barred unless the petitioner can demonstrate that
cause and prejudice will excuse the procedural default or that failure to consider the claim will
result in a fundamental miscarriage of justice. See Harris, 489 U.S. at 262; Coe, 161 F.3d at 32930. Here, the petitioner has not so demonstrated. Thus, the claim is procedurally defaulted and
will be not be considered by this court.
With regard to the petitioner’s exhausted claim that successor counsel was ineffective in
raising ineffective assistance of trial counsel claims prior to post-conviction review, the Tennessee
Court of Criminal Appeals agreed with the post-conviction court that the record established that
successor counsel had ample opportunity to review the record, investigate allegations of deficient
performance, investigate potential witnesses, and call witnesses to present evidence in support of
his ineffective assistance claim. Id. at *7. The Tennessee Court of Criminal Appeals found that
successor counsel’s “mere act of raising the claims prior to post-conviction” was not deficient or
prejudicial. Id.

23

The appellate court did not unreasonably apply Strickland when it denied the petitioner
relief on this claim. Successor counsel made a strategic decision to raise the claims when he did.
Strickland, 466 U.S. at 690. Nevertheless, even if successor counsel’s performance had been
deficient, the petitioner has not established prejudice. As the Tennessee Court of Criminal Appeals
noted, the petitioner makes no concrete allegations regarding how raising the issues on direct
appeal deprived him of a meaningful opportunity to present his claims. Neither does the petitioner
point to a way in which waiting to raise the ineffective assistance claim at post-conviction review
would have resulted in a reasonable probability of a different outcome.

The Sixth Circuit has

instructed that when “one is left with pure speculation on whether the outcome of [the criminal
proceeding] could have been any different, [there is] an insufficient basis for a successful claim of
prejudice.” Baze v. Parker, 371, F.3d 310, 322 (6th Cir.2004), cert. denied, 544 U.S. 931 (2005).
The court finds that the appellate court’s decision neither contradicted nor unreasonably
applied Strickland under these circumstances and was not based on an unreasonable determination
of the established facts. Claim A(3) lacks merit and will be dismissed.
4.

Appellate counsel’s failure to raise sufficiency of evidence claim

In the petitioner’s fourth sub-claim of ineffective assistance of counsel, the petitioner
contends that appellate counsel’s failure to raise a sufficiency of evidence claim on direct appeal
constituted ineffective assistance of counsel. (Doc. No. 1 at 10).
The petitioner raised this claim in his post-conviction petition. At his post-conviction
hearing, however, the petitioner failed to present any evidence or argument that the proof at trial
failed to establish any particular element of the crime. Newton, 2017 WL 5901032, at *9. The
court found that there was no prejudice because the evidence was sufficient to sustain the verdict.
Id.

24

On appeal of the denial of post-conviction relief, the Tennessee Court of Criminal Appeals
affirmed, finding that,
[c]onsidering that the evidence was supported by the overwhelming evidence that
the victim was raped, that DNA evidence linked the Petitioner to the rape, that the
victim was able to identify the Petitioner, and that the Petitioner’s taxi number
matched that given by a witness, appellate counsel’s strategic decision not raise the
issue was not deficient or prejudicial.
Id.
The appellate court did not unreasonably apply Strickland when it denied the petitioner
relief on this claim. “[T]he Constitution guarantees criminal defendants only a fair trial and a
competent attorney. It does not insure that defense counsel will recognize and raise every
conceivable constitutional claim.” Engle v. Isaac, 456 U.S. 107, 134 (1982); Caver v. Straub, 349
F.3d 340, 348–49 (6th Cir. 2003) (explaining that the Strickland analysis “does not require an
attorney to raise every non-frivolous issue on appeal”). Consequently, ineffective assistance of
appellate counsel claims are governed by the same Strickland standard as claims of ineffective
assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000). To prevail, a petitioner
must show that counsel's performance was deficient and that he was prejudiced as a result.
Strickland, 466 U.S. 668, 687. To show prejudice, the petitioner must demonstrate that, but for
counsel's poor performance, “there is a reasonable probability” the result of his appeal would have
been different. Id. at 694. “Appellate counsel cannot be found to be ineffective for ‘failure to raise
an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer
v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
Here, where the jury was presented with overwhelming evidence that the victim was raped,
the DNA linked the petitioner to the rape, the victim identified the petitioner as the rapist, and the
petitioner’s taxi number matched the number given by a witness, a sufficiency of evidence claim

25

would not have provided appellate relief if counsel had raised the claim on direct appeal. Appellate
counsel made a strategic decision not to raise this claim on direct appeal, and this choice was
neither deficient nor prejudicial. The court finds that the decision of the Tennessee Court of
Criminal Appeals neither contradicted nor unreasonably applied Strickland under these
circumstances and was not based on an unreasonable determination of the established facts. Claim
A(4) lacks merit and will be dismissed.
5.

Appellate counsel’s failure to cite authority in his closing argument

In his fifth sub-claim of ineffective assistance of counsel, the petitioner takes issue with
appellate counsel’s failure to cite legal authority in support of his argument that trial counsel made
improper concessions during his closing argument. (Doc. No. 1 at 15).
On direct appeal, appellate counsel argued that it was unreasonable for trial counsel to
concede in closing argument that there was a rape and there was no consent. Newton, 2015 WL
1543386, at *8. Appellate counsel also argued that trial counsel’s statement that the case “would
have been a loser” absent the DNA evidence was constitutionally ineffective representation. Id.
The Tennessee Court of Criminal Appeals concluded that these issues were waived because the
petitioner had failed to provide any argument or citations of authority to support the claim for
relief. Newton, 2015 WL 1543386, at *8.
When the petitioner raised this claim on post-conviction relief, the post-conviction court
found that trial counsel’s closing argument was a strategic choice and that there was no prejudice
from failure to brief the issue. Newton, 2017 WL 5901032, at *10.
In reviewing the denial of this claim on post-conviction appeal, the Tennessee Court of
Criminal Appeals made two initial observations: (1) the petitioner had told trial counsel that he
intended to testify that he was not the perpetrator of the crime and this was a case of mistaken

26

identity and (2) trial counsel had argued in closing that the victim has been raped but that someone
else was the perpetrator, consistent with the theory of the case that the petitioner had selected. Id.
The Tennessee Court of Criminal Appeals ultimately denied relief, explaining:
[t]he facts of the matter are that the State’s evidence was overwhelming and that
trial counsel did not have a rational closing argument to present to the jury. The
mistaken identity defense was contradicted by DNA evidence, by the victim’s
identification, and by the bar employee’s identification of the taxi’s number. The
consent defense was not credible because it was belied by the Petitioner’s own
statement that he had never seen the victim and because the victim was able to
escape and report the crime immediately after its occurrence. Moreover, trial
counsel had to select a theory of the case to pursue at the beginning of the trial, at
a time when the Petitioner insisted that he would be giving testimony supporting
mistaken identity. Trial counsel could not credibly change this strategy for closing
argument. The Petitioner has cited to no authority that “counsel’s concession
strategy was unreasonable.” Florida v. Nixon, 543 U.S. 175, 189 (2004).
Accordingly, he cannot demonstrate any prejudice in appellate counsel’s lack of
citation to authority in his appellate brief. He is not entitled to relief.
Id. at *10.
The Tennessee Court of Criminal Appeals thoroughly analyzed trial counsel’s closing
argument and determined that trial counsel’s choices were strategic and limited due to the
petitioner’s own choices. Therefore, even if trial counsel’s performance were deficient, as the
petitioner alleges, the petitioner cannot demonstrate that he was prejudiced by appellate counsel’s
failure to cite authorities in the brief in support of the argument that trial counsel’s closing
argument was defective. Counsel cannot be ineffective by failing to raise an argument that is
meritless. The appellate court found that the petitioner failed to establish that there was a
reasonable probability that, even if appellate counsel had supported her argument with citations,
the outcome for the petitioner would have been different. This decision was not contrary to
Strickland.

The appellate court’s ineffective assistance determination was not based on an

unreasonable determination of the facts or an unreasonable applicable of Strickland’s standards to
those facts. Further, the state court’s determinations are entitled to a presumption of correctness
27

in the absence of clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1), which
the petitioner has not submitted. Claim A(5) is without merit and will be dismissed.
6.

Appellate counsel’s failure to raise the issue of sentencing

Finally, the petitioner alleges that he received ineffective assistance of counsel when
appellate counsel did not raise the issue of alternative sentencing on direct appeal. (Doc. No. 1 at
15). The trial court denied the petitioner probation, noting the petitioner’s failure to accept
responsibility and his lack of remorse. Newton, 2017 WL 5901032, at *10.
On appeal of the denial of post-conviction relief on this claim, the Tennessee Court of
Criminal Appeals found that the trial court’s denial of probation was not an abuse of discretion
because the petitioner had not presented any evidence that the trial court’s sentencing decision was
illogical, based on an incorrect legal standard, or based on a clearly erroneous assessment of proof.
Id. The court further found that appellate counsel made a “reasonable strategic decision to rely on
some issues to the exclusion of others on appeal,” and the petitioner had not demonstrated
deficiency or prejudice. Id.
This decision was not an unreasonable application of federal law. The record supports the
state courts’ rejection of this claim. As noted above, the petitioner does not have a constitutional
right to have appellate counsel raise every non-frivolous issue on appeal. See Caver, 349 F.3d
340, 348-49. Although the petitioner argued that he was eligible for alternative sentencing and
that his lack of criminal history and the testimony of his friends and family weighed in favor of an
alternative sentence, the petitioner presented no evidence that the trial court’s decision was
illogical, based on an incorrect legal standard, or based on a clearly erroneous assessment of proof.
Newton, 2017 WL 5901032, at *10. His argument was, as the state court noted, “merely a quarrel
with the trial court’s weighing of the evidence.” Id. The appellate court determined that the trial

28

court did not abuse its discretion in sentencing the petitioner, especially considering the
petitioner’s failure to accept responsibility and lack of remorse. Id.
Counsel made a strategic choice in deciding not to raise the issue of alternative sentencing
on direct appeal—as the appellate court put it, “to rely on some issues to the exclusion of others
on appeal.” Id. It is a “longstanding and sound principle that matters of trial strategy are left to
counsel’s discretion.” See Dixon, 737 F.3d 1003, 1012. Considering the petitioner’s failure to
accept responsibility and lack of remorse, counsel’s strategic decision to forego the issue of
alternative sentencing was reasonable, as the state appellate court concluded.
The court finds that the decision of the Tennessee Court of Criminal Appeals was not based
on an unreasonable determination of the facts in light of the evidence presented in the state court
proceedings. Furthermore, given the evidence and testimony adduced at trial, the court finds that
the state court’s decision to reject this claim was not an unreasonable application of the law. This
claim, like the petitioner’s other ineffective assistance of counsel claims, lacks merit and will be
dismissed.
B.

Cumulative Error

The petitioner also alleges that “the cumulative effect of the errors at trial rose to the level
of a violation of the Fourteenth Amendment.” (Doc. No. 1 at 15). However, the law of this circuit
is that cumulative error claims are not cognizable on habeas review. See Daniels v. Jackson, No.
18-1342, 2018 WL 4621942, at *6 (6th Cir. July 17, 2018) (quoting Williams v. Anderson, 460
F.3d 789, 816 (6th Cir. 2006)) (“[T]he law of [the Sixth Circuit] is that cumulative error claims
are not cognizable on habeas [review] because the Supreme Court has not spoken on this issue.”).
The petitioner’s claim is not cognizable and therefore must be dismissed.
V.

Conclusion

29

For the reasons set forth herein, the petition filed by Joseph Newton seeking relief under §
2254 will be denied, and this action will be dismissed with prejudice.
Federal Rule of Appellate Procedure 22 provides that an appeal of the denial of a habeas
petition may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing § 2254 Cases requires that a district court issue or deny a
COA when it enters a final order. A COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court's resolution
of his constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003). The
district court must either issue a COA indicating which issues satisfy the required showing or
provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P.
22(b).
Because jurists of reason would not disagree with the resolution of the petitioner’s claim,
the court will deny a COA.
An appropriate order will be entered.

____________________________________
Aleta A. Trauger
United States District Judge

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