Curtis v. Boyd
Filing
58
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 3/29/2023. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DOUGLAS W. CURTIS,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
BERT C. BOYD, Warden,
Respondent.
No. 3:20-cv-00559
JUDGE RICHARDSON
MAGISTRATE JUDGE
NEWBERN
MEMORANDUM OPINION
Petitioner Douglas W. Curtis, an inmate of the Northeast Correctional Complex in
Mountain City, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas
corpus challenging his 2016 conviction on four counts of rape of a child in Lewis County,
Tennessee, for which he currently is serving a term of eighty years’ imprisonment in the Tennessee
Department of Correction. (Doc. No. 1). Respondent filed an Answer to the habeas petition in
which he asks the Court to dismiss the petition. (Doc. No. 28). Petitioner filed a Reply to the
Answer. (Doc. No. 41).
Also pending before the Court are the following pro se motions filed by Petitioner: Motion
for Partial Summary Judgment and Motion to Appoint Counsel (Doc. No. 49); Motion to Request
Permission to Exceed Page Limit (Doc. No. 51); Motion to Request the Habeas Court to Take
Judicial Notice under Fed. R. Evid. 201 (Doc. No. 52); Motion to Request District Court to Rehear
Second Motion to Request Leave for Discovery (Doc. No. 55); and Motion to Request Permission
to Amend Habeas Corpus Petition with Recent Decision from the Sixth Circuit. (Doc. No. 56).
Respondent has not responded to any of these motions. As explained herein, Petitioner’s motions
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will be denied, with the exception of his Motion to Request the Habeas Court to Take Judicial
Notice under Fed. R. Evid. 201 (Doc. No. 52), which will be denied in part and granted in part.
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 Petitioner is not entitled to relief. See Christian v. Hoffner, No. 17-2105, 2018 WL
4489140, at *2 (6th Cir. May 8, 2018) (“A district court is not required to hold an evidentiary
hearing if the record ‘precludes habeas relief.’”) (quoting Schriro v. Landrigan, 550 U.S. 465, 474
(2007))). The petition therefore will be denied, and this action will be dismissed.
I. MOTIONS FOR PARTIAL SUMMARY JUDGMENT, APPOINTMENT OF
COUNSEL, AND TO EXCEED PAGE LIMIT
First, although Petitioner titled his motion “Motion for Partial Summary Judgment and
Appointment of Counsel” (Doc. No. 49), Petitioner makes no request for the appointment of
counsel within his fourteen-page motion. To the extent that Petitioner intends for the title of his
motion alone to request the appointment of counsel, his request will be denied. In any event,
Petitioner has filed numerous lengthy pro se motions after filing his initial petition, evidencing his
ability to represent himself.
Next, Petitioner contends that because Respondent did not respond to Petitioner’s Second
Motion for Leave to Conduct Discovery (Doc. No. 42), Petitioner is entitled to partial summary
judgment as a matter of law. Middle District of Tennessee Local Rule 56.01 provides that, “[i]n
order to assist the Court in ascertaining whether there are any material facts in dispute, any motion
for summary judgment made pursuant to Fed. R. Civ. P. 56 must be accompanied by a separate,
concise statement of the material facts as to which the moving party contends there is no genuine
issue of material fact.” Rule 56.01 continues:
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Each fact must be set forth in a separate, numbered paragraph. Each fact must be
supported by specific citation to the record. After each paragraph, the word
“response” must be inserted and a blank space provided that is reasonably
calculated to allow the non-moving party sufficient space to respond to the assertion
that the fact is undisputed. A copy of the statement of undisputed material facts
must also be provided to opposing counsel in an editable electronic format. The
requirement that a statement of undisputed material facts in the described format
must accompany any motion for summary judgment applies to pro se parties. Pro
se parties are excused from providing a copy of the statement of undisputed material
facts to opposing counsel in an editable electronic format.
M.D. Tenn. Local Rule 56.01(b).
Along with his Motion for Partial Summary Judgment, Petitioner submitted a
Memorandum in support of his motion (Doc. No. 50) and a “Motion to Request Permission to
Exceed Page Limit Concerning Memorandum of Law.” (Doc. No. 51). Petitioner did not, however,
submit the required statement of undisputed facts in the format required by the Local Rules. Per
Local Rule 56.01(b), Petitioner is not exempt from this requirement merely because he is
proceeding pro se. Petitioner’s failure to comply with Local Rule 56.01(b) renders his Motion for
Partial Summary Judgment unreviewable by the Court. Accordingly, the motion (Doc. No. 49)
will be denied, and the Motion to Request Permission to Exceed Page Limit (Doc. No. 51) will be
denied as moot.
True, Respondent did not respond to Petitioner’s Second Motion for Leave to Conduct
Discovery. Local Rule 7.01(3)(a) provides that, excluding motions for reconsideration, “any party
opposing a motion must serve and file a memorandum of law in response, and, if necessary to
support assertions of fact, affidavits and depositions, not later than fourteen (14) days after service
of the motion . . . unless otherwise directed by the Court.” M.D. Tenn. Local Rule 7.01(a)(3)
(emphasis added). The Rule further provides that, “[i]f a timely response is not filed, the motion
shall be deemed to be unopposed, except for motions for reconsideration . . . .” Id.
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In the Court’s Order entered on January 24, 2022, the Court directed the Clerk to refile
Petitioner’s Second Motion for Leave to Conduct Discovery, which was originally docketed as
Doc. No. 42, in its entirety as a pending motion with Addenda A-D and Attachments. (Doc. No.
47 at PageID# 4090). The Court specifically ordered, “Respondent may, but is not required, to
respond to the Motion within 45 days” (id.) (emphasis added), therefore exempting Respondent
from Rule 7.01(3)’s strict requirement to respond to Petitioner’s motion. Thus, even if Petitioner
had complied with Local Rule 56.01(b), Petitioner would not have prevailed on his Motion for
Partial Summary Judgment simply because no response was filed by Respondent to Petitioner’s
Second Motion for Leave to Conduct Discovery.
II. MOTION TO REQUEST THE DISTRICT COURT TO REHEAR SECOND
MOTION TO REQUEST LEAVE FOR DISCOVERY
By Order and accompanying Memorandum Opinion entered on September 28, 2022, the
Court denied Petitioner’s Second Motion to Request Leave for Discovery. (Doc. Nos. 53 and 54).
Petitioner asks the Court to “rehear” or reconsider that motion. (Doc. No. 55).
There is no federal procedural rule permitting motions for reconsideration. While the
Federal Rules do not explicitly permit motions to reconsider, Rule 54(b) of the Federal Rules of
Civil Procedure gives district courts broad discretion to revise interlocutory orders (like the Court’s
challenged Order of September 28, 2022) under certain circumstances. See Rodriguez v. Tenn.
Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004). “This authority allows
district courts ‘to afford such relief from [interlocutory orders] as justice requires.’” Id. (quoting
Citibank N.A. v. Fed. Deposit Ins. Corp., 857 F. Supp. 976, 981 (D.D.C. 1994)). “Traditionally,
courts will find justification for reconsidering interlocutory orders when there is (1) an intervening
change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or
prevent manifest injustice.” Rodriguez, 89 F. App'x at 959. “This standard obviously vests
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significant discretion in district courts.” Id. at 959 n.7. The Court will construe Plaintiff’s motion
(Doc. No. 55) as a motion under Rule 54(b) to revise the Court’s September 28, 2022 Order and
accompanying Memorandum Opinion.
Petitioner does not allege that there has been an interviewing change of controlling law1 or
new evidence available. Rather, he alleges that the Court erred in denying his discovery motion,
specifically that the Court considered the wrong motion submitted by Petitioner. He contends that
the Court “cited to the original denial of discovery and the content of the original motion for
discovery that was submitted by petitioner with his writ of habeas corpus petition” instead of
Petitioner’s Second Motion for Leave to Conduct Discovery (Doc. No. 55 at PageID# 4315).
Petitioner references the Court’s language in footnote 2 of its Memorandum Opinion to support
his contention. In the referenced footnote, the Court observes that Petitioner filed a non-substantive
amendment to his original habeas corpus petition. (Doc. No. 53 at PageID# 4273 n.2). Footnote 2
reads as follows, in its entirety:
Because the Motion to Amend did not make substantive changes to the initial
habeas petition (Doc. No. 12 at PageID# 254) and because Respondent cites to the
original petition in his filings (see, e.g., Doc. No. 28 at PageID# 3105), the Court
will cite to the original petition for ease of reference.
Id. Contrary to Petitioner’s assertion in his motion for reconsideration, the language of footnote 2
does not demonstrate that the Court “cited to the original denial of discovery and the content of
the original motion for discovery that was submitted by petitioner with his writ of habeas corpus
petition.” (Doc. No. 55 at PageID# 4315). Instead, the language demonstrates that, in ruling on
Petitioner’s Second Motion to Request Leave for Discovery, the Court cited to Petitioner’s original
1
After filing his Motion to Rehear (Doc. No. 55), Petitioner filed a motion requesting permission to amend his habeas
petition to include argument based on the Sixth Circuit’s August 3, 2022 decision in Rogers v. Mays, 43 F.4th 530
(2022). (Doc. No. 56). However, as explained infra, that motion will be denied. In his Motion to Rehear, Petitioner
does not refer to any change in existing law.
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habeas petition (see Doc. No. 53 at PageID# 4273 n.2), as did Respondent (see, e.g., Doc. No. 28
at PageID# 3105), for ease of reference. Because Petitioner’s amendment to his original habeas
petition did not make any substantive changes to the petition (see Doc. No. 12 at PageID# 254),
neither Respondent nor the Court failed to consider any new claims or arguments made by
Petitioner in his amended petition. Notably, the Court cites herein to Petitioner’s original habeas
petition once again to match the citation format used by Respondent in his response to the petition.
To support his assertion that the Court ruled on Petitioner’s original discovery motion
instead of his second discovery motion, Petitioner points to the Court’s Order of August 3, 2021.
(Doc. No. 55 at PageID# 4316). In that Order, the Court directed Petitioner to withdraw his original
discovery motion and include everything he wanted in one “second” motion. (Doc. No. 45 at
PageID# 4316). In compliance with that Order, Petitioner subsequently filed a “Motion to
Withdraw First Motion for Discovery and Motion to Withdraw Amendments to Second Motion
for Discovery/Habeas Corpus Relief Brief.” (Doc. No. 46). In that motion, Petitioner sought to
withdraw his First Motion for Discovery (Doc. No. 2) and replace it with his Second Motion for
Leave to Conduct Discovery “with attached Memorandum, Addendums A-D, totaling 25 pages.”
(Doc. No. 42). Petitioner also sought to withdraw his Motion to Amend his Second Motion for
Leave to Conduct Discovery. (Doc. No. 43). By Order entered on January 24, 2022, the Court
liberally construed that motion as seeking permission to file a Second Motion for Leave to Conduct
Discovery in excess of the 25-page limitation set forth in Local Rule 7.02(a)(2) and granted
Petitioner permission to do so. (Doc. No. 47 at PageID# 4090). Further, the Court permitted
Plaintiff to withdraw his First Motion for Discovery (Doc. No. 2) and his Motion to Amend his
Second Motion for Leave to Conduct Discovery (Doc. No. 43). See id. Consequently, the Court
directed the Clerk to refile Petitioner’s Second Motion for Leave to Conduct Discovery, which
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originally was docketed as Doc. No. 42, in its entirety as a pending motion with Addenda A-D and
Attachments. (Id.)
The record shows that the Clerk complied with the Court’s instructions, and the Court
thereafter ruled on Petitioner’s Second Motion for Leave to Conduct Discovery rather than on any
prior motion filed by Petitioner seeking discovery in this case. The Court thoroughly considered
Petitioner’s Second Motion for Leave to Conduct Discovery and arguments advanced therein, as
evidenced by the forty-one-page Memorandum Opinion entered by the Court addressing each
discovery request made by Petitioner. (See Doc. No. 53). The Court has carefully reviewed
Petitioner’s motion to reconsider and the Court’s previous denial of Petitioner’s Second Motion
for Leave to Conduct Discovery. The Court is not persuaded that its prior reasoning and denial are
erroneous. The Court further addresses Petitioner’s concerns about his client file in the subsequent
section regarding Petitioner’s Motion to Take Judicial Notice. Accordingly, Petitioner’s “Motion
to Request District Court to Rehear Second Motion to Request Leave for Discovery,” which (as
noted above) the Court construes as a motion for reconsideration under Rule 54(b), will be denied.
III. MOTION TO TAKE JUDICIAL NOTICE
Petitioner also filed a “Motion to Request the Habeas Court to Take Judicial Notice Under
F.R.Evid. 201.” (Doc. No. 52). In his motion, Petitioner asks the Court to take judicial notice of
certain documents as “adjudicative facts.” (Id. at 1).
Federal Rule of Evidence 201 governs judicial notice of adjudicative facts. The Rule, in
relevant part, provides that “[t]he Court may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can
be accurately and readily determined from sources whose accuracy cannot reasonably be
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questioned.” Fed. R. Evid. 201(b)(1)-(2). The Court “must take judicial notice if a party requests
it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2).
“Judicial notice ‘is a limited tool,’ and for it to be available, ‘a high degree of indisputability
is the essential prerequisite.’” Frees v. Duby, 2010 WL 4923535, at *2 (W.D. Mich. Nov. 29,
2010) (quoting Ventana Med. Sys., Inc. v. St. Paul Fire & Marine Ins. Co., No. cv 09-102, 2010
WL 1752509, at *23 (D. Ariz. Jan. 13, 2010)). “A judicially noticed fact is conclusive in a civil
case.” United States v. Husein, 478 F.3d 318, 337 (6th Cir. 2007). Where “there is considerable
dispute over the significance of [a document’s] contents,” judicial notice of the facts therein is not
appropriate. Husein, 478 F.3d at 337 (citing United States v. Bonds, 12 F.3d 540, 553 (6th Cir.
1993)).
In this motion, Petitioner asks the Court to take judicial notice of the adjudicative facts
within five groups of items: 1) the affidavits and evidence “found in Petitioner’s Second Motion
for Leave to Conduct Discovery”;2 2) the correspondence between Petitioner and Ed Primeau at
Primeau Forensics attached to Petitioner’s Memorandum of Law in support of his Motion for
Partial Summary Judgment;3 3) state court exhibits, records, and files attached to Petitioner’s
Motion to Compel Return of Client’s File;4 4) state court exhibits, records, and files attached to
2
In that motion (Doc. No. 48), Petitioner sought from trial counsel John S. Colley, III (“Colley”) the discovery of his
client file, which allegedly includes (1) Owen’s reports; (2) other case-related forensic interviews and reports; (3) the
original recorder device used to record the controlled phone call allegedly made between Petitioner and his older
daughter; and (4) the Qc2 recording, which Petitioner alleges is a third copy of the recording of the controlled call
produced by the State. The Court denied Petitioner’s motion. (Doc. Nos. 53 & 54).
3
These documents are docketed as Exhibit 1(D) to Doc. No. 50 at PageID# 4235-4267.
4
Respondent filed these documents (Doc. No. 38, Attach. 6 at PageID# 3728-3751), in response to the Court’s May
18, 2021 direction “to respond to Petitioner’s allegation that certain enumerated documents are missing from the state
court record . . . and that those documents are relevant to this case.” (Doc. No. 34 at PageID# 3504). In that Order, the
Court further stated, “Respondent may be inclined to simply file these documents as part of the record and permit the
Court to consider their relevance as appropriate.” (Id. at PageID# 3504-05). Respondent states that he did not include
these documents in the initial state-court record because Respondent considers them “irrelevant to the Court’s initial
review of the pleadings.” (Doc. No. 38 at PageID# 3521). These documents were not included in the official post-
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Petitioner’s Motion to Preserve Evidence;5 and 5) exhibits, records, and files attached to
Petitioner’s Motion to Compel Compliance with Trial Court Order.6 (Doc. No. 52 at PageID#
4270-71).
Petitioner’s first and third requests relate to his attempts to secure the return of his client
file from trial counsel. That is, he asks the Court to take judicial notice of such attempts. Despite
having already addressed this issue by prior Order and Memorandum Opinion (see Doc. Nos. 53
and 54), the Court acknowledges Petitioner’s continuing concerns that he has not received that to
which he feels he is entitled. Therefore, the Court has carefully reviewed the documents referenced
by Petitioner in the instant motion to specifically address Petitioner’s concerns as set forth in his
most recent Motion. The documents include Petitioner’s written requests by letter and motion to
obtain all or at least part of his client file from Colley beginning in 2013 and continuing through
2019 as well as responses to Petitioner’s letters and motions by counsel, state courts, and the
Tennessee Board of Professional Responsibility. (Doc. No. 38, Attach. 6 at PageID# 3728-3751).
These documents show that, in 2016, Colley was in possession of the physical file at issue and
conviction technical record because Petitioner filed these documents after the post-conviction court transferred the
record to the TCCA for Petitioner’s post-conviction appeal. (Compare Doc. No. 38, Attach. 6 (noting motion was
filed on December 21, 2018 and order was filed on March 5, 2019) with Doc. No. 13, Attach. 19 (noting order was
filed on December 20, 2018)).
5
Respondent filed this document, a March 27, 2019 order by the TCCA directing the trial court to preserve the recorder
until further orders of the court (Doc. No. 38, Attach. 5 at PageID# 3724-45), in response to the Court’s May 18, 2021
Order. (Doc. No. 34 at PageID# 3504). Respondent states that he did not include this order in the initial state-court
record because Respondent considers the order “irrelevant to the Court’s initial review of the pleadings.” (Doc. No.
38 at PageID# 3521). The order was not included in the official post-conviction technical record because Petitioner
filed his Motion to Preserve Evidence of the Defendant after the post-conviction court transferred the record to the
TCCA for Petitioner’s post-conviction appeal. See supra n.4.
6
Respondent filed these documents (Doc. No. 38, Attach. 2 at PageID# 3609-3666) in response to the Court’s May
18, 2021 Order. (Doc. No. 34 at PageID# 3504). Respondent states that he did not include this order in the initial statecourt record because Respondent considers the order “irrelevant to the Court’s initial review of the pleadings.” (Doc.
No. 38 at PageID# 3521). The order was not included in the official post-conviction technical record because Petitioner
filed his Motion to Preserve Evidence of the Defendant after the post-conviction court transferred the record to the
TCCA for Petitioner’s post-conviction appeal. See supra n.4. These documents show Petitioner’s efforts to obtain
testing on the recorder to prove his splicing theory.
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made it available to Petitioner. (Id. at PageID# 3736-41). However, Petitioner was incarcerated
and unable to find anyone to retrieve the file for him. (Id.) The documents show that in August
2016, a Board of Professional Responsibility liaison attempted to facilitate a compromise whereby
Colley scanned and burned Petitioner’s file to a CD. (Id. at PageID# 3743). However, Petitioner
provides no further documentation indicating whether Colley or anyone else created a CD of the
file and/or whether Petitioner received a CD of his file. However, Petitioner submits a motion to
compel he filed in state court on December 21, 2018, seeking the return of his file from Colley,
which suggests that Petitioner had not at that time received his file or a CD of his file. (Id. at
PageID# 3726).
Within the existing state-court record is an order entered on March 4, 2019, in which the
state court denied Petitioner’s December 21, 2018 motion, finding as follows:
[T]he Court having made inquiry of Mr. Colley, an officer of the Court, finds that
Mr. Colley has supplied to the Petitioner, or to Petitioner’s subsequent legal
counsel, any and all files that he held for or on behalf of the Petitioner in years past
and no longer has any files in his possession concerning this or any other matters
of the Petitioner’s.
Further, Mr. Colley related that the Petitioner had previously filed a complaint
against him with the Tennessee Board of Professional Responsibility of and
concerning this issue, and that body had concluded that Mr. Colley had no files
belonging to the Petitioner and dismissed that complaint.
(Doc. No. 16, Attach. 1 at PageID# 2967). Petitioner challenges the state court’s denial of his
motion by asking this Court to expand the record in this habeas case to consider a “Sworn
Affidavit” by Petitioner in which he states that “[e]ach of the attorneys listed below confirmed that
they were not given any part of my client file, at any time, by [Colley] or any of his
representatives.” (Doc. No. 50, Attach. 1 at PageID# 4202). However, the “affidavit” is not signed
or dated and bears no notary stamp. (Id.) Furthermore, while its contents are related to Petitioner’s
instant request for judicial notice, the affidavit does not contradict the state-court’s decision.
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Consequently, the Court will not expand the record to consider this document, and Petitioner has
not offered any other evidence to call into question the decision of the state court and the Tennessee
Board of Professional Responsibility. Simply put, the Court remains unaware of the location of
Colley’s client file for Petitioner, and it is unclear whether the file still exists.
Petitioner’s second, fourth, and fifth requests in his Motion to Take Judicial Notice relate
to Petitioner’s attempt to get the original recorder device tested. Most of the documents to which
Petitioner refers are not part of the state-court record in this case. Essentially, then, Petitioner is
asking the Court to expand the record to consider these documents and take judicial notice of the
alleged “specific adjudicative facts” therein as identified by Petitioner in his Motion.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the ability
of a federal habeas court to develop and consider new evidence. Shoop v. Twyford, __ U.S. __,
142 S. Ct. 2037, 2043 (June 21, 2022). Review of factual determinations under Section 2254(d)(2)
is expressly limited to “the evidence presented in the State court proceeding.” See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (holding that review of legal claims under Section 2254(d)(1)
is “limited to the record that was before the state court.”).
Notwithstanding the rule articulated in Cullen, Rule 7 of the Rules Governing Section 2254
Cases in the United States District Courts states that “[i]f the petition is not dismissed, the judge
may direct the parties to expand the record by submitting additional materials relating to the
petition.” R. 7(a), R. Gov’g § 2254 Cases. Rule 7’s advisory notes state that “the purpose [of the
rule] is to enable the judge to dispose of some habeas petitions not dismissed on the pleadings,
without the time and expense required for an evidentiary hearing.” R. 7, R. Gov’g § 2254 Cases
advisory committee’s note. “Unless it is clear from the pleadings and the files and records that the
prisoner is entitled to no relief . . . [i]t may be perfectly appropriate . . . for the district court to
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proceed by requiring that the record be expanded.” Id. (quoting Raines v. United States, 423 F.2d
526, 52930 (4th Cir. 1970)). Thus, Rule 7 suggests that the Court should not permit expansion of
the record if the pleadings and state court record adequately resolve Petitioner’s claims.
If a petitioner moves to expand the record, “the petitioner ought to be subject to the same
constraints that would be imposed if he had sought an evidentiary hearing.” Samatar v. Clarridge,
225 F. App’x 366, 375 (6th Cir. 2007) (citing Owens v. Frank, 394 F.3d 490, 499 (7th Cir. 2005)).
Therefore, Petitioner must also satisfy the statutory prerequisites articulated in Section 2254(e)(2)
to expand the record. Section 2254(e)(2) states:
(2)
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that—
(A)
the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B)
the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty
of the underlying offense.
28 U.S.C. § 2254(e)(2)(A)-(B).
Petitioner has not met his burden to expand the record except with respect to the Affidavit
of Thomas J. Owen dated May 11, 2018. (Doc. No. 48 at PageID# 4099) (citing Doc. No. 13,
Attach. 24 at PageID# 2574-75). The Court will consider that affidavit in ruling on Petitioner’s
claims because 1) the affidavit is signed, dated, and sworn before a notary public; 2) Petitioner’s
trial counsel became aware of the affidavit and, under oath, provided an opinion about it that is
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part of the existing state-court record in this case (Doc. No. 13, Attach. 21 at PageID# 2321-22);
and 3) Petitioner offers Owen’s affidavit in support of Petitioner’s claim that trial counsel rendered
ineffective assistance of counsel by failing to call Owen for the defense. The Court therefore
believes that the interests of justice require the Court to consider the affidavit.
The Court can resolve the claims raised by Petitioner without otherwise expanding the
record and without holding an evidentiary hearing. Petitioner’s motion will be granted in part and
denied in part.
IV. MOTION TO REQUEST PERMISSION TO AMEND HABEAS PETITION
Petitioner requests permission to amend his habeas petition to include argument based on
the Sixth Circuit’s August 3, 2022 decision in Rogers v. Mays, 43 F.4th 530 (2022). In that
decision, the Sixth Circuit found, as a matter of first impression, that the procedural default of a
claim that counsel was ineffective on a motion for new trial in Tennessee can be excused under
the exception allowing ineffective assistance at initial-review collateral proceedings to establish
cause for procedural default of claim of ineffective assistance at trial. Id. at 530. The decision
abrogated Johnson v. Genovese, No. 3:18-cv-00539, 2021 WL 3269954 (M.D. Tenn. July 30,
2021), and Petty v. Hampton, No. 3:18-cv-00576, 2020 WL 3964207 (M.D. Tenn. July 13, 2020).
The respondent in Rogers filed a petition for rehearing en banc which the Sixth Circuit
granted on December 6, 2022. Rogers v. May, 54 F.4th 443 (2022). Sixth Circuit Rule 35(b)
provides that “[t]he effect of the granting of a hearing en banc shall be to vacate the previous
opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet
as a pending appeal.” Thus, the Sixth Circuit’s August 3, 2022 decision and judgment in Rogers
was vacated, the mandate was stayed, and the case was restored to the docket as a pending appeal.
Rogers, 54 F.4th 443.
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Because the Rogers decision on which Petitioner’s Motion (Doc. No. 56) is based has been
vacated, Petitioner’s Motion will be denied.
V. HABEAS PETITION
A. PROCEDURAL HISTORY
A Lewis County, Tennessee grand jury indicted Petitioner on four counts of rape of a child.
State v. Curtis, No. M2015-01372-CCA-R3-CD, 2016 WL 7654946, at *1 (Tenn. Crim. App. Aug.
26, 2016), no perm. appeal filed. Petitioner proceeded to trial, and the jury convicted him as
charged. Id. Petitioner received four consecutive twenty-year sentences. See id. The trial court
denied Petitioner’s motion for a new trial. Id. at *5.
Petitioner appealed, arguing that the evidence was insufficient to support his convictions
and that a portion of the victim’s testimony violated his right to a fair trial. Id. at *1. The Tennessee
Court of Criminal Appeals (TCCA) affirmed Petitioner’s conviction and sentence on August 26,
2016. Id. Petitioner did not apply for discretionary review in the Supreme Court of Tennessee. See
generally id.
On February 2, 2017, Petitioner filed a timely pro se petition for state post-conviction relief.
Curtis v. State, No. M2018-01712-CCA-R3-PC, 2020 WL 476907, at *5 (Tenn. Crim. App. Jan.
30, 2020), perm. appeal denied, (Tenn. June 4, 2020); Doc. No. 13, Attach. 17 at PageID# 1762.
Post-conviction counsel was appointed, and she filed amended petitions for relief. Id. The postconviction court held a hearing on the petitions. Id. at *5-9. At the end of the hearing, the postconviction court expressed its lack of “clear understanding of what facts [the p]etitioner relie[d]
on” to support his claims due to Petitioner’s “rambling throughout his extensive testimony.” Id. at
*9 (internal quotation omitted). The post-conviction court ordered post-conviction counsel to file
a “final summation” of the claims. Id. Post-conviction counsel filed the summation and included
claims of ineffective assistance of trial counsel for failing to challenge the State’s expert witness,
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 14 of 93 PageID #: 4407
failing to call a defense expert at trial, failing to introduce an alibi defense and not reviewing the
bill of particulars with Petitioner, and failing to adequately advise Petitioner regarding the plea
offer. Id.
On July 11, 2018, Petitioner filed a pro se motion seeking time to amend the summation to
include additional claims against appellate counsel. Id. at *9. Because Petitioner was represented
by counsel, the post-conviction court granted post-conviction counsel ten days to add the claims if
she deemed it appropriate. Id. On July 18, 2018, post-conviction counsel filed a response stating
that she had reviewed Petitioner's claims against appellate counsel and found they either lacked
merit or were addressed at the post-conviction hearing. Id. The post-conviction court denied relief.
Id.
Petitioner waived his right to counsel on post-conviction appeal. Id. Petitioner presented
numerous claims of ineffective assistance of both trial and direct appellate counsel on
postconviction appeal before the TCCA, among other claims. Id. at *10. The TCCA affirmed the
denial of post-conviction relief. Id. at *1. The TCCA adjudicated, on the merits, the claims of
ineffective assistance of trial counsel for failure to call Owen at trial, failure to adequately advise
Petitioner about the plea offer, and failure to discuss the bill of particulars with Petitioner. Id. at
*11-15. On the other hand, the TCCA held that Petitioner waived review of his claims of
ineffective assistance of trial counsel for failure to object to 404(b) evidence, failure to request a
Daubert hearing, failure to properly request a continuance, and failure to send the recorder device
to Owen for analysis. Id. The TCCA also determined that Petitioner waived review of his claim of
ineffective assistance of direct appellate counsel, a Brady claim, and several due process claims.
Id. at *15- 16. Petitioner applied for discretionary review in the Supreme Court of Tennessee, and
the court summarily denied his application. (Doc. No. 13, Attach. 32 at Page ID# 2916).
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Petitioner filed the instant pro se petition for a writ of habeas corpus in June 2020. (Doc.
No. 1). After filing his initial petition, Petitioner filed a Motion to Amend. (Doc. No. 9). The Court
granted the motion by Order entered on July 20, 2020, finding that the motion sought no
substantive amendments to the habeas petition and was filed shortly after the filing of the original
petition. (Doc. No. 12 at 2).
By Order entered on July 15, 2020, the Court initially directed Respondent to file the statecourt record and a response to the petition. (Doc. No. 7 at PageID# 227-29). The Court later stayed
a response to the petition pending a response to Petitioner’s discovery motion. (Doc. 12 at PageID#
254). By Order and Memorandum Opinion entered on November 16, 2020, the Court denied
Petitioner’s motion for discovery without prejudice. (Doc. No. 19 at PageID# 3021).
B. STATEMENT OF FACTS
The Tennessee Court of Criminal Appeals summarized the proof adduced at Petitioner’s
trial as follows:
This case arose after the victim, who was twenty-nine years old at the time of trial,
came forward with allegations that the defendant, her father, raped her when she
was a young girl. The victim testified that she was born December 27, 1985.
The State's evidence came primarily from the testimony of the victim and a
recorded telephone call. In the summer of 2011, the victim was living with the
defendant, her brother, and her sister. At that point in time, she had been attending
a church for almost a year and had developed a close relationship with the pastor's
wife, Debbie Landers. During the summer, the victim witnessed an event that
caused her to have concern for another individual. She asked Ms. Landers for
advice, and Ms. Landers testified that she told the victim that the victim had to
report the incident. Ms. Landers recommended that the victim contact the
Department of Children's Services (“DCS”), the sheriff's department, or the city
police. The victim contacted DCS and the Child Advocacy Center (“CAC”), and
the CAC directed her to Investigator Johnny Hilburn of the Lewis County Sheriff's
Department. She went to speak with Investigator Hilburn about the incident, and
he testified that based on his conversation with the victim, he began to believe that
she was a victim of abuse herself. Investigator Hilburn asked the victim if there was
anything in her past that she wished to discuss, and she stated that she was touched
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 16 of 93 PageID #: 4409
by her father. The victim testified that prior to speaking with Investigator Hilburn,
she had not contacted law enforcement regarding the defendant.
The victim testified about four instances of sexual abuse that the defendant
committed against her. The first incident happened on February 14, 1998, when she
was twelve years old. At that time, the victim and the defendant had “a very close
relationship.” The defendant allowed her to stay up late to watch television with
him while her siblings had to go to bed, and she received privileges and gifts that
her siblings did not. On Valentine's Day, the defendant gave the victim a bear, and
she stayed up late to watch television and “hang out with” the defendant. Her
mother, brother, and sister were each asleep in their bedrooms. The victim testified
that the defendant went into his office and laid down a blanket. He returned to the
victim and asked her if she “wanted to mess around.” The victim “shrugged [her]
shoulders,” and the defendant took her by the hand and led her to the office. She
lay down, and the defendant began to touch her body. She testified that the
defendant rubbed his fingers across her vagina and digitally penetrated her vagina.
Once he was finished, he picked up the blanket and went to bed. The victim testified
that she went with the defendant to the office because she loved him and “felt
special” and “wanted to do what he said.”
The victim testified that a second, similar incident also occurred in 1998, when she
was twelve years old. She recalled that she had finished the sixth grade and had
recently made the cheerleading squad. She was staying up late with the defendant,
and he congratulated her on making the cheerleading squad. The defendant then
“disappeared and went into the office and laid down a blanket, came back and asked
[her] if [she] wanted to mess around.” She shrugged her shoulders and went with
him to the office. She lay down, and the defendant touched her body. He touched
her chest and then touched the outside of her vagina, eventually digitally
penetrating her vagina.
A third incident occurred in July of 1998 when the defendant made her perform
oral sex on him. The victim distinguished this incident from the previous two
incidents because she recalled that it occurred on the defendant's birthday. The
defendant and the victim were staying up late watching television when the
defendant “disappeared to put the blanket down in the office.” He returned and
asked the victim if she “wanted to mess around.” She shrugged her shoulders and
went with him to the office. She testified that the defendant was wearing a bathrobe,
and “he pulled it apart at the bottom and asked if he got something special.” He sat
the victim down beside him and “caressed [her] back and hair area.” The defendant
placed his hand on the victim's head, directing her head toward his penis. The victim
placed her mouth on the defendant's penis, and he “guided [her] head up and down.”
The defendant then lifted the victim's head up and ejaculated onto his stomach. The
defendant cleaned up the ejaculate with a blanket that was on the floor, and he
placed the blanket in the washroom. The victim recalled that the defendant told her
that “he wanted to be the one to show [her] the right way to do these things, he
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wanted to be the one to show [her] how to treat a man.” On cross-examination, the
victim stated that this incident occurred in her bedroom on her futon.
The fourth incident occurred on a date between February 7, 1997, and December
26, 1998. The victim testified that during these dates, the defendant drove a church
bus that would pick up the elderly and children and take them to church on
Wednesday nights. One Wednesday night, the victim accompanied the defendant.
After they had dropped off the parishioners and were alone in the van, the defendant
asked the victim if she wanted to mess around. He used his hand to direct the victim
to his penis, and she put her mouth on his penis. After this incident, the victim told
the defendant that she did not want to do these things any longer because it made
her “feel disgusting.”
During the summer between the victim's eighth and ninth grade years, the victim's
parents separated, and the defendant moved to Florida. Each child went to visit him
separately, and the victim went first. Eventually, the victim, her mother, brother,
and sister all moved to Florida, but the defendant and his wife could not reconcile.
The family moved back to Tennessee, and the defendant and the victim's mother
divorced when the victim was in the tenth grade. The victim's mother, brother, and
sister moved to Tullahoma, Tennessee. The victim lived with the defendant in
Hohenwald, Tennessee, and she testified that she did so voluntarily. The victim
continued to have a relationship with the defendant during her high school and
college years, and she described the relationship as “a very husband and wife kind
of relationship.” She testified that she continued to visit and live with the defendant
in college because she “loved him and he was [her] dad.” She testified that she
loved the defendant at the time and cared about him. She explained that she waited
so long to disclose the abuse because she could “forgive and forget,” but seeing
someone else suffering abuse prompted her to contact authorities.
After disclosing the abuse to Investigator Hilburn, the victim participated in a “perp
phone call” with the defendant, which was a controlled telephone call that
Investigator Hilburn recorded. The victim testified that she was reluctant to make
the phone call because she did not “want to betray” the defendant. Investigator
Hilburn directed the victim to ask the defendant about allegations of sexual abuse
against a second child, and he scripted several questions for the victim to ask the
defendant. One particular question was what made the defendant “sexually
attract[ed] to an eight-year-old.” The recorded phone call was played for the jury,
and we have included the relevant portions of that conversation:
Victim: [A child] said that you touch her, like you did when I was a kid, like
touch her.
Defendant: No, that's bullcrap.
...
Defendant: I have never touched that child except to give her a bath ....
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 18 of 93 PageID #: 4411
Victim: I cannot believe that. I cannot believe it. I'm sorry.
...
Defendant: I promise you that's not going on. You just don't know how many
times I want to kill myself over the other deal already. And it's not going to
happen again.
Victim: Can I ask you why you did it to me?
Defendant: Well you know why.
Victim: No, I don't.
...
Victim: After all these years, I still don't know. I need that closure.
Defendant: Well like I said, I know, I know the damage that was done there,
I, you know, I never will forgive myself for that. You know, you just don't
know.
Victim: I don't think you know the damage that was truly done. How I grew
up just hating you so much. ... I've truly forgiven you inside, but it's so hard
to forget.
Defendant: I know that. And if there is anything I could do to change it, I
would. But as far as [the child], there's nothing like that going on and there
never will be.
...
Victim: I really need to know ... why. Honestly ... what makes you think it's
okay to do that though? To have sex with a little girl? A twelve-year-old girl.
Defendant: It wasn't right.
Victim: Then why did you do it, Daddy?
Defendant: I have no answer for that other than I loved you and I'm
[unintelligible] stupid. And I still love you to death, you know that.
...
Victim: So you thought it was okay to show your love like that?
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Defendant: In a way, at the time I did. And of course I have regrets about it.
I've told you. And if there was anything I could do to turn back time, it never
would have happened.
...
Defendant: I've told you before, you know, unfortunately, you're the only
person that I ever even crossed the line, and I don't know why. Like I said, I
love you, and I just made a stupid, stupid, stupid mistake, you know? But, I
don't know, that's why when—I know when you came back to live at home
you was worried about that too, and that's why I've not even, you know, tried
to make you act or see things any different than a father-daughter relationship,
and that's maybe, I guess it's too late for that now. But that's—I wish, in my
heart, that's what I want, you know?
Victim: ... I can never have that love that I wanted for a father, and it hurts
my heart so bad.
Defendant: I wish you had told me way back then, you know?
Victim: I did! Do you not remember me telling you, I wanted stop because I
felt gross? And you just wouldn't. You didn't. You cried, and it made me feel
bad for wanting to stop.
Defendant: Well, just that one time you did, yeah. And then, after that, you
never said nothing else to me. When we moved back here and everything,
you never said a word to me. I guess in my unreality of the whole thing, I
thought you were happy too.
Victim: What, what—I want to know one more thing. At eight years old,
okay, what, just let me, I don't know what made you attracted to me at eight
years old, like, I don't know.
Defendant: You weren't eight.
Victim: How old was I?
Defendant: Like I said about twelve. Eleven, twelve.
...
Defendant: To me, what we had in my stupidity and idiotic self was special,
you know? I—I never touched your brother or your sister, and it's not like I'm
just a pervert running around, you know, molesting kids or whatever. You
know what I'm saying? It's just not that way. And I'm sorry that—that it
happened to you, and I don't know what else to say to you. I tried to make up
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for it any way I can, but I know I can't, and I try to make the best of a bad
situation, if that makes any sense. I try and make you feel as comfortable as
possible, you know. Because I—I do know, because I—you don't know what
I've been through either. It's a two-way thing there. I'm sure it's worse on you,
but it's still—it's bad on me too.
Victim: Alright.
Defendant: And I was hoping you did forgive me, and the way you've been
acting, you did forgive me. And I was just hoping that it was a mistake that
was gonna go away. That you could see me as your dad and nothing more,
and just really be your daddy, you know.
Victim: I've never looked at you and not seen that person. Not once have I
ever looked at you and thought, this is my sweet Dad that I love so much. Not
one time, Dad.
Defendant: Well, I don't know what to say about that either. I deserve it.
Victim: Alright.
Defendant: But I wish you would forgive me....
Victim: Alright.
...
Defendant: And I really am—I really am sorry .... You just don't know how
sorry I am and how much hurt I've been through as well, and it all revolves
around did I hurt you. I'm—I know, you know, you may not think I know,
but I know.
Shortly after the phone call, Investigator Hilburn briefly met with the defendant.
The next day, he interviewed the defendant and informed him that the victim had
made allegations against him. The defendant told Investigator Hilburn that the
victim was upset with him and likely retaliating over a situation that occurred a
week prior to the interview. Investigator Hilburn asked the defendant if he had
received a phone call from the victim the previous day. The defendant replied that
he received numerous phone calls from the victim, and Investigator Hilburn asked
him if he remembered a particular conversation and how he would respond if he
knew that conversation was recorded. The defendant answered that he did not know
what conversation Investigator Hilburn was referring to, and he denied that he was
the person on the recording after Investigator Hilburn played him portions of the
call. Investigator Hilburn received permission to examine the defendant's cell
phone, and he saw that there was a call from the victim's phone number that
matched the time and duration of the recording. The defendant responded that he
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did not receive a phone call from the victim or speak to her at that time. Investigator
Hilburn testified that he had interacted with the defendant prior to the phone call
and was familiar with the defendant's voice. He said that the voice on the recording
appeared to be the defendant's voice.
Investigator Hilburn agreed that his employment with the Lewis County Sheriff's
Department was terminated after the conclusion of the investigation into the
defendant for reasons unrelated to the investigation. He agreed that there were no
references in his notes to the dates that the victim said the abuse occurred.
The victim testified that she paid her college tuition with college loans, and she
used her uncle to co-sign one loan application. She testified that she received
permission from her aunt to use her uncle as a co-signer, but she stated that she had
not personally received permission from him to do so. She later learned that her
uncle did not know about the loan and had not given her permission to use his name.
She testified that she had not asked the defendant for money to help pay off the loan
shortly before making the accusations against him. She also testified that after
graduating from college, she worked for a mental health facility as a caseworker,
and she was fired for violating company policy.
The jury convicted the defendant of four counts of rape of a child as charged.
State v. Curtis, No. M2015-01372-CCA-R3-CD, 2016 WL 7654946, at *1-5 (Tenn. Crim. App.
Aug. 26, 2016).
The Tennessee Court of Criminal Appeals summarized the proof adduced at Petitioner’s
post-conviction hearing as follows:
Following the denial of his direct appeal, the petitioner filed a timely pro se petition
for post-conviction relief, asserting a myriad of claims against trial counsel,
appellate counsel, the trial court, and the State. After the appointment of counsel,
the petitioner filed two amended petitions for post-conviction relief, arguing trial
counsel was ineffective for failing to introduce expert testimony, establish an alibi,
review the bill of particulars with the petitioner, and adequately advise the
petitioner regarding a plea offer, and for stipulating to the authenticity of the
recording. The petitioner also argued appellate counsel was ineffective for failing
to raise “the aforementioned issues” on direct appeal.
At the post-conviction hearing, the petitioner testified he hired trial counsel prior to
his arrest based on good “word of mouth.” The petitioner and trial counsel met three
times, twice in trial counsel's office and once in jail following the petitioner's arrest
on methamphetamine charges. Although trial counsel did not review discovery or
discuss trial strategy, the petitioner believed the State's evidence would consist of
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the testimony of the victim and a recording of an alleged phone conversation
between the victim and the petitioner.
The petitioner denied seeing the indictment or bill of particulars in his case, and, if
he had known the dates of the alleged rapes, he would have provided trial counsel
with information supporting his alibi. Specifically, the petitioner testified the home
office where two of the rapes occurred did not exist during the year the victim
alleged, and, although the victim testified she was raped on the petitioner's birthday
in 1998, the family was camping in California on that date. The victim also alleged
she was raped on Valentine's Day in 1998. However, the petitioner testified he and
his wife “made a big deal” of the holiday and “had a very intimate evening”
together. Additionally, the petitioner could not have raped the victim in the church
van on a Wednesday night because he used his own vehicle to drive to the nursing
home on Thursday nights and only drove the church van on Sunday mornings. The
petitioner testified he told trial counsel about the home office, but trial counsel
refused to introduce the petitioner's alibi at trial because the petitioner did not have
any evidence to support his claim.
Regarding the recording, the petitioner believed the victim secretly recorded
conversations with him and used the skills she learned in her college audio
engineering classes to splice together pieces of the recorded conversations with
questions about child rape. The petitioner testified he hired Mitch Davis, a private
investigator in Nashville, to perform an analysis of the recording. Mr. Davis
confirmed the voice on the recording was the petitioner's but found inconsistencies
in the recording he was not qualified to analyze. Mr. Davis recommended the
petitioner hire Tom Owen to perform further analysis into the recording's
authenticity.
The petitioner paid Mr. Owen $9,500 to perform a forensic analysis of the recording
which revealed multiple anomalies and caused Mr. Owen to question its
authenticity. Unbeknownst to the petitioner, a second version of the recording,
which was taken directly from the server at the Lewis County Sheriff's Department,
was later sent to Mr. Owen for analysis because the first recording was not “in wave
form.” Mr. Owen analyzed this second recording and again found evidence of
tampering. At a pre-trial hearing, Mr. Owen testified the anomalies in the second
recording were caused by (1) someone manually pausing the recorder and (2) poor
cell phone reception. Although Mr. Owen testified the recording was not made by
splicing together separate conversations, he was not aware the victim had taken
audio engineering classes, and the petitioner believed this knowledge may have
changed Mr. Owen's opinion. On cross-examination, the petitioner conceded phone
records showed he received a call from the victim's cell phone on the day of the
recording and the duration of the call approximately matched the duration of the
recording. However, the petitioner testified he did not have his cell phone in his
possession on that day.
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The petitioner believed Mr. Owen was going to testify on his behalf at trial because
his findings “vindicated” the petitioner. However, a few weeks prior to trial, the
petitioner received a letter from trial counsel stating Mr. Owen demanded $17,000
to analyze the original recorder and to replace travel expenses that were lost when
the trial was continued. Because the petitioner was unable to pay the additional
funds, the trial court declared the petitioner indigent, and trial counsel orally
requested a continuance to allow Mr. Owen time to analyze the recorder and
$17,000 to pay for the analysis and travel expenses. Although the trial court directed
trial counsel to make these requests in writing, trial counsel failed to do so. Mr.
Owen did not testify at the petitioner's trial, and trial counsel never explained his
concerns regarding Mr. Owen's potential testimony. On cross-examination, the
petitioner acknowledged trial counsel was able to argue the recording was
manipulated without Mr. Owen's testimony.
Prior to the petitioner's trial, the State presented a plea offer of ten years at 100
percent which would resolve all charges related to both the victim and the victim's
younger sister. Because the petitioner believed trial counsel was going to obtain a
continuance to allow Mr. Owen to analyze the recorder, the petitioner rejected the
offer. Trial counsel then forced the petitioner to sign a statement acknowledging he
was rejecting the offer because he “would rather go to trial and face the rest of [his]
life in prison.” Although the petitioner initially refused to sign the paper, the trial
court later ordered him to sign it. However, if the petitioner had known trial counsel
was not going to allow Mr. Owen to testify, the petitioner would have accepted the
plea offer. Additionally, during the trial, when the petitioner learned Mr. Owen was
not going to testify, he advised trial counsel he wanted to accept the plea offer but
was told it was “too late.”
During the victim's trial testimony, the petitioner wanted trial counsel to question
the victim about her experience and education in audio and video engineering. The
petitioner believed these questions were essential to prove the recording was not
authentic. The petitioner also wanted trial counsel to question the victim about
student loan documents and time sheets she had forged. However, trial counsel
chose to attack the victim's credibility by asking her about a television show she
testified was on prior to one of the rapes. Trial counsel also introduced evidence
proving the show aired in the early evening and was not on at 10:30 p.m. as the
victim had alleged. The petitioner testified trial counsel did not look into the
victim's background, and, if he had, trial counsel would have discovered two arrests
for theft.
During cross-examination, the petitioner acknowledged the victim was asked about
her education, and she stated her degree was in university studies with a
concentration in recording industry and speech and theater. However, the petitioner
testified the victim changed her major prior to his trial so she could testify she was
not an audio engineer. The petitioner also conceded the victim was asked about the
forged loan documents and time sheets, but insisted her answers were misleading
because she did not disclose the details surrounding these incidents.
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When asked about the issues appellate counsel failed to include in his direct appeal,
the petitioner testified appellate counsel should have appealed the trial court's
decision to allow the jury to hear about the allegations against the petitioner's
younger daughter. Although the petitioner asked appellate counsel to include this
issue in the motion for new trial and direct appeal, appellate counsel failed to do so.
However, the petitioner was able to orally raise the issue during the motion for new
trial hearing. Additionally, the petitioner believed appellate counsel should have
appealed the trial court's failure to conduct a proper Daubert hearing to test the
State's expert's qualifications and methods. Following the denial of his direct
appeal, appellate counsel did not inform the petitioner of the possibility of filing a
Rule 11 application with the supreme court.
On cross-examination, the petitioner agreed the strategy at trial was to attack the
authenticity of the recording. He also agreed trial counsel advised the trial court
that the recording did not need to be redacted because it was not “fair to the State”
to ask them to redact portions of the conversation and later argue the recording was
manipulated.
Trial counsel testified he was hired by the petitioner to represent the petitioner on
pending rape of a child charges in Lewis County. Prior to the petitioner's
preliminary hearing, trial counsel attempted to obtain a copy of the recorded
conversation between the petitioner and the victim but was unsuccessful. Trial
counsel later received a copy of the recording in discovery, and, after he and the
petitioner listened to it, the petitioner insisted the male voice on the recording was
not his. Although trial counsel believed it was the petitioner's voice, the petitioner
hired Mr. Owen to analyze the recording for inconsistencies. Because Mr. Owen's
initial report indicated the recording was in an unusual format, trial counsel
contacted the prosecutor to obtain a “strike off of the original recording” and sent
the second recording to Mr. Owen for analysis. This second recording was later
played for the jury at the petitioner's trial.
Because the recording was “so devastating,” trial counsel's trial strategy was to
attack its authenticity. The petitioner first took the position that the voice on the
recording was not his. However, when trial counsel was unable to find an expert
who agreed with this conclusion, the petitioner next theorized the victim used her
expertise in audio engineering to splice together snippets of several conversations
with the petitioner and then scripted her side of the conversation to play against the
petitioner's manufactured responses. However, at Mr. Owen's Daubert hearing, he
testified the recording contained “pauses and clicks” which were the result of
“manipulation by the operator of the recording device” and “cell tower
transmission.” Additionally, while Mr. Owen testified it was possible to manipulate
a recording in the manner theorized by the petitioner, Mr. Owen did not believe that
had happened in this case. Trial counsel was frustrated because Mr. Owen's
testimony at the hearing differed greatly from his initial report. Although Mr. Owen
found a large number of inconsistencies in the first recording, when he analyzed
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the second recording taken from the Lewis County Sheriff's Department's server,
he discovered “80 percent ... of these problems ... were the result of this being a
recording as opposed to a one-off from the digital version.” The few inconsistencies
that remained on the second recording did not advance the petitioner's theory.
Overall, trial counsel believed Mr. Owen's testimony at the pre-trial hearing “went
extremely poorly for him,” and trial counsel was afraid Mr. Owen would fall apart
on cross-examination if he testified at trial. Because Mr. Owen's pre-trial testimony
contradicted much of his initial report, trial counsel believed “the only benefit to
Mr. Owen as a witness would be to confuse the less intelligent jurors” on the panel.
Additionally, following Mr. Owen's testimony at the Daubert hearing, trial counsel
spoke to Mr. Owen about his travel plans for the petitioner's trial. Mr. Owen
informed trial counsel he would need several thousand dollars for airfare, hotel
accommodations, and time. Mr. Owen explained he needed the additional money
because he had used the petitioner's funds to pay for travel expenses associated with
the petitioner's prior trial date, and, although he obtained refunds when the trial was
continued, any money paid to him was nonrefundable. The petitioner was unable
to pay the additional expenses, and, because trial counsel now believed Mr. Owen
was “a charlatan and a fraud,” he made a strategic decision not to call Mr. Owen to
testify at trial.
On cross-examination, trial counsel testified he would not be surprised to learn Mr.
Owen signed a sworn affidavit stating he was not able to recoup his original travel
expenses because “Mr. Owen says whatever he needs to say to make himself look
better.” However, trial counsel reiterated Mr. Owen told him that he “got most of
[the money he spent on travel expenses] back” but refused to testify without
additional funds. Although trial counsel agreed the jury, as the triers of fact, assigns
weight to expert testimony, trial counsel believed any “minuscule benefit” obtained
by Mr. Owen's testimony would be “greatly outweighed” by his performance on
cross-examination.
After trial counsel made the decision not to call Mr. Owen to testify, he focused his
trial strategy on attacking the credibility of the victim and establishing the petitioner
did not have his cell phone on the day of the recorded conversation. Trial counsel
researched the victim's forged loan documents and time sheets. However, because
the victim admitted to signing her uncle's name on the loan documents and altering
the time sheets, trial counsel was unable to introduce any extrinsic evidence.
Furthermore, although the petitioner indicated the victim had an arrest record for
theft, trial counsel was unable to locate any convictions for the victim. Trial counsel
also researched television shows that were airing at the time of the rapes to poke
holes in the victim's timeline. The victim testified Dharma and Greg was playing
shortly before one of the rapes occurred. However, trial counsel was able to present
evidence that the show was not in syndication during the year the victim alleged
she was raped and would not have aired at 10:30 p.m.
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Because the petitioner's strategy at trial was to attack the authenticity of the
recording, trial counsel testified he could not ask the State to redact the victim's
younger sister's name from the recording and later argue the same recording was
manipulated or altered. Additionally, the portion of the recording that contained the
references to the victim's younger sister also included the purported anomalies. If
this portion of the recording was redacted, the jury would be unable to hear these
anomalies.
Trial counsel testified he and the petitioner reviewed the bill of particulars within a
month of the petitioner's trial. Because the victim testified at the preliminary
hearing that she and the petitioner had sex on a daily basis for several years, the
petitioner needed to decide whether he wanted to attack the victim's story of daily
sex as “impossible, implausible and incredible” or whether they would eliminate
the introduction of evidence of possible grooming by attacking only the four
incidents listed in the bill of particulars. After weighing both options, the petitioner
decided to limit the victim's testimony to only the incidents listed in the bill of
particulars. While reviewing the bill of particulars, trial counsel asked the petitioner
if he had an alibi for any of the incidents. However, the petitioner was not able to
provide any names or other information for trial counsel to investigate. Without this
information, the only way to introduce the alibis at trial was through the petitioner's
testimony, and the petitioner chose not to testify.
On cross-examination, trial counsel acknowledged the petitioner told him that he
drove the church bus on Thursdays instead of Wednesdays. However, trial counsel
did not believe this was helpful because the petitioner could not provide church
records to show when he drove the bus or the name of someone who could verify
his story. Additionally, there was nothing to stop the victim from admitting she was
mistaken about the day of the week on which the rape occurred. The petitioner also
told trial counsel he was on vacation in Florida during one of the dates. However,
trial counsel did not want to explore this alibi at trial because the victim was with
the petitioner during this trip, and trial counsel was afraid the petitioner would be
susceptible to prosecution in Florida.
Approximately two weeks prior to trial, the State offered the petitioner a plea deal
of ten years at 100 percent. Although trial counsel was “extremely excited” about
the offer, the petitioner told trial counsel he could not plead guilty to something he
did not do. The State agreed to let the petitioner enter a best interest plea, but the
petitioner was not convinced and requested to speak with his family. Trial counsel
arranged a phone call between the petitioner and his sister, who encouraged the
petitioner to accept the offer. However, after speaking with his sister, the petitioner
told trial counsel he was unable to accept the offer.
Because trial counsel believed the possibility of the petitioner being convicted was
“alarmingly strong” and he wanted to protect himself against future post-conviction
proceedings, trial counsel asked the petitioner to sign a piece of paper
acknowledging the terms of the offer and that he rejected those terms. The
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petitioner initially refused to do so, and the trial court ultimately ordered the
petitioner to sign the paper. Trial counsel testified, at the time the offer was rejected,
the petitioner knew it was unlikely that Mr. Owen would testify at trial.
Additionally, at no time during the trial did the petitioner tell trial counsel he had
changed his mind about accepting the offer. If the petitioner had done so, trial
counsel would have asked the State if the offer was still available.
At the conclusion of the post-conviction hearing, because the petitioner was
“rambling” throughout his extensive testimony, the post-conviction court did not
have “a clear understanding of what facts [the p]etitioner relie[d] on” to support his
claims of ineffective assistance of counsel. Therefore, the post-conviction court
ordered post-conviction counsel to prepare a final summation of the petitioner's
claims. The petitioner's summation was filed on June 28, 2018, and included the
following claims:
a.
b.
c.
d.
[Trial counsel] failed to adequately challenge the State's expert;
[Trial counsel] failed to call an expert to testify on behalf of [the
p]etitioner at his trial;
[Trial counsel] failed to introduce an alibi defense and did not review the
[b]ill of [p]articulars with [the p]etitioner; and
[Trial counsel] failed to adequately advise [the p]etitioner regarding the
State's offer.
On July 11, 2018, the petitioner filed a pro se motion seeking time to amend the
summation to include an additional claim against appellate counsel. However,
because the petitioner was represented by counsel, the post-conviction court
granted post-conviction counsel ten days to add the appellate claim if she deemed
it appropriate. On July 18, 2018, post-conviction counsel filed a response stating
she had reviewed the petitioner's claims against appellate counsel and found they
either lacked merit or were addressed at the post-conviction hearing.
After its review of the evidence presented, the post-conviction court denied relief. Curtis
v. State, No. M2018-01712-CCA-R3-PC, 2020 WL 476907, at *6-9 (Tenn. Crim. App. Jan. 30,
2020).
C. 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
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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). Under Section 2254(d)(1), a
state court’s decision is “contrary to” clearly established federal law “‘if the state court applies a
rule that contradicts the governing law set forth in [Supreme Court] cases’ or ‘if the state court
confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court]
and nevertheless arrives at a [different result].’” Hill v. Curtin, 792 F.3d 670, 676 (6th Cir. 2015)
(en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). “Under the ‘unreasonable
application’ clause of [Section] 2254(d)(1), habeas relief is available if ‘the state court identifies
the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the facts of the prisoner’s case.’” Id. (quoting Harris v. Haeberlin, 526
F.3d 903, 909 (6th Cir. 2008)). A state court’s application is not unreasonable under this standard
simply because a federal court finds it “incorrect or erroneous”—instead, the federal court must
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find that the state court’s application was “objectively unreasonable.” Id. (quoting Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003)).
To grant relief under Section 2254(d)(2), a federal court must find that “the state court’s
factual determination was ‘objectively unreasonable’ in light of the evidence presented in the state
court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002). State court factual
determinations may be found unreasonable 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.” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting Matthews v. Ishee,
486 F.3d 883, 889 (6th Cir. 2007)). “[I]t is not enough for the petitioner to show some unreasonable
determination of fact; rather, the petitioner must show that the resulting state court decision was
‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011)
(citing Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)). 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). Subject to Habeas Rule 7, 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
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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). 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”). In Tennessee, a petitioner is “deemed to have exhausted
all available state remedies for [a] claim” when it is presented to the TCCA. Adams v. Holland,
330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39). Claims that 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).
A procedural default can occur in one of two ways. First, a procedural default may occur
if the state court actually “relied on the procedural bar as an independent basis for its disposition
of the case.” Caldwell v. Mississippi, 472 U. S. 320, 327 (1985). Second, if a petitioner fails to
properly exhaust a claim in state court, and the claim can no longer be raised in state proceedings
because of a failure to follow state procedure for presenting such a claim, the claim is technically
exhausted (given that there is nothing additional the petitioner could do to obtain relief in state
court), but a petitioner is not automatically entitled to present his claim on federal habeas review,
as his claim is procedurally defaulted. Woodford v. Ngo, 548 U. S. 81, 126 (2006).
“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.” Id. at 386. The burden of showing cause and actual prejudice to excuse defaulted
claims is on the habeas petitioner. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Lucas v.
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O’Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman). 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 be used as cause for the underlying defaulted
claim only if the petitioner demonstrates cause and prejudice with respect to the ineffective
assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).
Petitioners in Tennessee also can establish “cause” to excuse the procedural default of a
substantial claim of ineffective assistance of trial counsel by demonstrating the ineffective
assistance of post-conviction 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
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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 ineffectiveassistance-of-trial-counsel 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).
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). A petitioner must show “that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 569 U.
S. 383, 399 (2013) (internal quotation marks omitted) (quoting Schlup v. Delo, 513 U. S. 298, 327
(1995)). For a petitioner to “pass through the gateway” and be permitted to argue the merits of his
defaulted claims, he must show “evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial was free of
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non-harmless constitutional error.” Id. at 401 (internal quotation marks omitted) (quoting Schlup,
513 U. S. at 316).
With these principles in mind, the Court will turn to the examination of the claims raised
in Curtis’s petition for habeas relief.
D. ANALYSIS
Petitioner is not entitled to relief under Section 2254 because his claims are not cognizable
under the Habeas Rules, are without merit, or are procedurally defaulted without sufficient cause.
The Court will address each category of claims in turn.
1. Claims Not Cognizable Under Habeas Rules
Claims 9, 11, and 13 are not cognizable under the Habeas Rules.
a. Claim 9
In Claim 9, Petitioner contends that the post-conviction court deprived him of due process
“by prematurely ending the Post-Conviction Evidentiary Hearing” and depriving him of a “fair
opportunity to submit important material evidence to rebut the testimony of his trial counsel or in
support of [Petitioner’s] testimony at the PCR evidentiary hearing.” (Doc. No. 1 at Page ID# 3441).
Challenges to the adequacy of post-conviction proceedings are not matters that can be
addressed by way of habeas corpus. See Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986)
(referred to in this circuit as “The Kirby rule”). That is because habeas corpus review is not
available where a challenge to such post-conviction proceedings is not directly related to the
petitioner's detention. Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007); Alley v. Bell, 307 F.3d
380, 387 (6th Cir. 2002). The claim of a habeas petitioner “must directly dispute the fact or duration
of the confinement.” Kirby, 794 F.2d at 248. “Because the result of habeas review of the adequacy
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of a post-conviction challenge will not result in a release from confinement, the scope of the writ
does not include such grounds involving the adequacy of state post-conviction proceedings.”
Haight v. Parker, No. 3:02-CV-206-S, 2015 WL 13548182, at *112 (W.D. Ky. July 17, 2015)
(citing Wright v. Lazaroff, 643 F.Supp.2d 971, 990 (S.D. Ohio 2009); Simpson v. Warren, 662
F.Supp.2d 835, 847 (E.D. Mich. 2009); Rockwell v. Palmer, 559 F.Supp.2d 817, 831 (W.D. Mich.
2008); Huffman v. Brunsman, 650 F.Supp.2d 725, 736 (S.D. Ohio 2008)). Thus, Petitioner’s claim
concerning the post-conviction court’s actions are not cognizable notwithstanding Petitioner’s
presentation of the claim on post-conviction appeal.
Petitioner also alleges a due process violation arising from the hearing on his motion for a
new trial. (Doc. No. 1 at Page ID# 38). Petitioner believes his right to due process was violated
because the “trial court ruled on his New Trial hearing without hearing all of petitioner’s
constitutional claims[.]” (Id. at PageID# 36). It is unclear whether challenges to the adequacy of a
state hearing on a motion for new trial can be raised in a federal habeas claim.7 The Supreme Court
has never held that a hearing on a motion for a new trial is a “critical stage of a criminal
proceeding[;]”thus, there is no clearly established federal law “creating a right to counsel at a
hearing on a motion for a new trial.” Coleman v. Bergh, 804 F.3d 816, 819 (6th Cir. 2015). See
Reid v. United States, No. 2:15-cv-02118-JPM-tmp, 2018 WL 11303420, at *6-7 (W.D. Tenn.
Mar. 26, 2018) (citing Coleman and finding there is no clearly established federal right to counsel
at a hearing on a motion for new trial); Haygood v. Quarterman, 239 F. App’x 39, 42 (5th Cir.
2007) (“[T]he Supreme Court has not clearly established whether . . . the Sixth Amendment right
to counsel[] attach[es]” at the motion-for-new-trial phase.”); see also Ford v. Pliler, 99 F. App’x
7
Even if such a challenge could be made, Petitioner did not exhaust this claim by raising it in his post-conviction
proceedings and does not now assert cause to excuse his default. See Curtis, 2020 WL 476907, at *10 (listing issues
raised by Petitioner).
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766 (9th Cir. 2004) (finding that petitioner, whose motion for new trial based on new evidence
“tending to exculpate him” was denied, “has not identified any Supreme Court precedent that
required state trial court to grant him a new trial” based on a violation of due process).
In any event, the record shows that the trial court afforded Petitioner a full and fair hearing
on his motion for a new trial. The transcription of that hearing consists of approximately eighty
pages. (See generally Doc. No. 13, Attach. 13). Petitioner’s testimony constitutes approximately
half of the transcript; thus, clearly the trial judge afforded Petitioner ample opportunity to be heard.
(See id. at PageID# 1630-68).
To the extent Petitioner raises a claim that he was denied a fair hearing based in state law,
that claim also fails. Error in the application of state law is not cognizable in a federal habeas
proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions”); Pulley v. Harris,
465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error
of state law.”). Claim 9 will be dismissed.
b. Claim 11
Petitioner alleges an actual innocence claim in Claim 11. (Doc. No. 1 at Page ID# 47-49).
He claims that is actually innocent of the four counts of rape of a child of which he was convicted.
(Id.)
Freestanding claims of actual innocence are not cognizable on federal habeas review
outside of the capital-case context. Herrera v. Collins, 506 U.S. 390, 404 (1993); Cress v. Palmer,
848 F.3d 844, 854-55 (6th Cir. 2007). This is not a capital case. This claim is not cognizable on
federal habeas review and will be dismissed.
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c. Claim 13
Petitioner alleges a cumulative error claim in Claim 13, arguing his entitlement to relief
due to the “multiple instances of ineffective assistance of trial counsel and appellate counsel
combined with the plain errors’ of the trial court[.]” (Doc. No. 1 at Page ID# 57-60).
Pre-AEDPA, cumulative evidentiary errors could warrant habeas relief. See Walker v.
Engle, 703 F.2d 959, 963 (6th Cir. 1983). However, post-AEDPA, “not even constitutional errors
that would not individually support habeas relief can be cumulated to support habeas relief.”
Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (citing Scott v. Elo, 302 F.3d 598, 607 (6th
Cir. 2002); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002)). Today the law of this Circuit is
that cumulative error claims are not cognizable on habeas review. See Daniels v. Jackson, No. 181342, 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.”).
Petitioner’s claim is not cognizable and therefore must be dismissed.
2. Claims Cognizable Under Habeas Rules and Not Procedurally Defaulted by Petitioner
In his petition Petitioner asserts eight claims of ineffective assistance of counsel. As
explained below, the Court will adjudicate three of these claims on the merits (albeit not de novo
but rather under the AEDPA standard).
Specifically, Petitioner challenges trial counsel’s performance in: not calling a defense
expert witness (Claim 1); not objecting to evidence pursuant to Tennessee Rule of Evidence 404(b)
(Claim 2); not requesting a hearing to determine whether the State’s expert could provide expert
witness testimony pursuant to Tennessee Rule of Evidence 104(a) (Claim 3); allegedly not
properly representing Petitioner during the plea-bargaining stage (Claim 4); not obtaining a
continuance and not requesting state funding for expert-witness testimony (Claim 5); not sending
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the recorder device to the defense’s forensic expert for testing (Claim 6); and not providing the bill
of particulars to Petitioner before trial (Claim 7). (Doc. No. 1 at Page ID# 4-28). In his sole claim
challenging the performance of his appellate counsel, Petitioner faults his appellate counsel for not
adding issues from Petitioner’s pro se motion for a new trial into Petitioner’s brief on direct appeal
in Claim 8. (Id. at Page ID# 29-34). Petitioner exhausted three of these claims, and so the Court
will address them substantively. But under the ADEPA’s demanding standard, these claims afford
Petitioner no relief, because as explained below the TCCA’s resolution of those three claims was
not unreasonable.
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 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 v. Washington, 466 U.S. 668, 686-87 (1984);
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 petitioner to show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
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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 as clearly
established at the time in the holding(s) of the United States Supreme Court, § 2254(d)(1);
“involved an unreasonable application of” such law; or “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, where (as here) a 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. 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
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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.
562 U.S. at 101 (internal quotation marks and citation omitted). In other words, Strickland
mandates deference to counsel’s decisions, and the AEDPA mandates deference to state courts, so
“[h]abeas claims based on ineffective assistance of counsel are evaluated under a “doubly
deferential” standard. Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 2014) (citing Burt v. Titlow, 571
U.S. 12, 15 (2013)).
The Court now turns to Petitioner’s exhausted ineffective-assistance-of-counsel claims.
a. Claim 1: Ineffective assistance of trial counsel in not calling Tom Owen as an
expert
Petitioner alleges that he received ineffective assistance when trial counsel did not call
Owen as an expert witness for the defense. (Doc. No. 1 at Page ID# 4).
Petitioner exhausted this claim. In his post-conviction petition, Petitioner argued that trial
counsel was ineffective for failing to present Owen at trial. (Doc. No. 13, Attach. 25 at PageID#
2652). The post-conviction court disagreed, finding that trial counsel made strategic decisions not
to use Owen’s reports or testimony, decisions that “were well-informed and the result of adequate
preparation.” Curtis, 2020 WL 476907, at *11. The court found that Petitioner’s ineffectiveness
argument “[wa]s made with the benefit of hindsight, a benefit to which he is not entitled [] for
purposes of supporting his [p]ost-[c]onviction petition.” Id.
In affirming the post-conviction court’s denial of relief on this claim, the TCCA credited
trial counsel’s testimony that he did not believe that Owen’s testimony would have advanced
Petitioner’s theory of how the recording was made; although Owen’s initial report appeared
favorable to the defense, he withdrew many of his previous conclusions after analyzing a second
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copy of the recording; and counsel “was afraid Mr. Owen would fall apart on cross-examination.”
And when Owen “demanded additional money before agreeing to testify” after Petitioner’s trial
was continued despite having told trial counsel that he had been able to recoup his travel expenses
from Petitioner’s previous trial date, trial counsel believed Owen was “a charlatan and a fraud.”
Curtis, 2020 WL 476907, at *11; (Doc. No. 13, Attach. 21 at Page ID# 2280-81, 2324-25). The
TCCA noted that “nothing in the record preponderates against the post-conviction court’s factual
findings” and “the fact that a trial strategy or tactic failed or was detrimental to the defense does
not, alone, support a claim for ineffective assistance of counsel.” Id. at *11. Thus, the TCCA denied
relief, agreeing with the post-conviction court that “trial counsel made a strategic decision to not
call Mr. Owen as an expert witness.” Curtis, 2020 WL 476907, at *11; (Doc. No. 13, Attach. 21
at Page ID# 2290-91).
Citing Plyant v. State, 263 S.W.3d 854 (Tenn. 2008), the TCCA affirmed the postconviction court’s denial of relief as to this claim on the additional ground that Petitioner failed to
call Owen at the post-conviction hearing. Curtis, 2020 WL 476907, at *11. In Plyant, the
Tennessee Supreme Court held that, “[t]o succeed on a claim of ineffective assistance of counsel
for failure to call a witness at trial, a post-conviction petitioner should present that witness at the
post-conviction hearing.” Id. at 869. The TCCA found that the state courts could not properly
judge whether there was a “reasonable probability” of a different trial outcome because Petitioner
offered no evidence beyond his own self-serving speculation as to what Owen’s testimony would
have been. 2020 WL 476907, at *11.
The TCCA’s adjudication did not result in a decision that contradicted federal law.
Petitioner does not cite Strickland as the governing law over this ineffective-assistance claim.
(Doc. No. 1 at PageID# 4). Instead, Petitioner relies on Cuyler v. Sullivan, 446 U.S. 335 (1980),
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where the Supreme Court held that a petitioner claiming ineffective assistance of counsel based on
his attorneys’ multiple representation must show “that a conflict of interest actually affected the
adequacy of . . . representation.” Id. at 348-50 (where two lawyers represented three defendants
indicted for the first-degree murders of the same two victims, remanding case to determine whether
the multiple representation had given rise to an actual conflict of interest, as “the [mere] possibility
of conflict is insufficient to impugn a criminal conviction.”). According to Petitioner, trial counsel
here created a conflict of interest by misappropriating funds. (Doc. No. 1 at PageID# 4). Petitioner,
however, cites no evidence to support his allegation. (See id. at PageID# 4-5). Conclusory
allegations without evidentiary support fail to substantiate habeas corpus relief. Prince v. Straub,
78 F. App’x 440, 442 (6th Cir. 2003). Thus, Petitioner has not shown the existence of an actual
conflict under Cuyler. Nor has he shown that, as required under Strickland, any conflict of interest
contributed to deficiencies in trial counsel’s performance such that there is a reasonable probability
that, but for these deficiencies, the outcome of Petitioner’s trial would have been different.
Even if the Court assumes arguendo here that trial counsel’s performance was deficient,
Petitioner has failed to demonstrate that the state court’s finding of no prejudice was unreasonable.
As noted supra, the state courts could not properly judge whether there was a “reasonable
probability” of a different trial outcome had trial counsel called Owen, because Petitioner failed to
present Owen at his evidentiary hearing to testify about the contents of his putative trial testimony.
Curtis, 2020 WL 476907, at *11. Petitioner failed to “come forth with any proof of any such
information or potential testimony[,]” and his “failure to do so is fatal to any attempt to establish”
prejudice under Strickland. Moreland v. Bradshaw, 635 F. Supp. 2d 680, 712 (S.D. Ohio 2009),
aff’d, 699 F.3d 908 (6th Cir. 2012); see also Stevenson v. Perry, No. 1:16-cv-1052, 2018 WL
6186808, at *12 (W.D. Tenn. Nov. 27, 2018) (citing Moreland for the proposition that the
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petitioner failed to show an unreasonable application of Strickland’s prejudice prong when he
failed to call the at-issue witness during his evidentiary hearing).
And although Petitioner maintains that Owen had favorable evidence to submit to the jury
on Petitioner’s behalf (see Doc. No. 48 at PageID# 4099 citing Doc. No. 13, Attach. 24 at PageID#
2574-75), the record shows that, based on the testimony Owen provided at the Daubert hearing,8
Owen’s likely trial testimony would not have supported Petitioner’s working theory regarding the
(inauthenticity of the) recording.9 After trial counsel abandoned Petitioner’s first theory regarding
the recording, at Petitioner’s urging trial counsel pursued a second theory, under which “the victim
used her expertise in audio engineering to splice together snippets of several conversations with
the petitioner and then scripted her side of the conversation to play against the petitioner’s
manufactured responses.” Curtis, 2020 WL 476907, at *8; (Doc. No. 13, Attach. 20 at PageID#
2277). But trial counsel explained that Owen’s testimony at the Daubert hearing, given after he
had tested the second copy of the recording, did not support the splicing theory. (Id. at PageID#
2280). Owen, in fact, testified at the Daubert hearing that he did not conclude that the controlled
call was “actually a recording between [the victim] and a prerecorded snippet of a conversation
8
During state-court proceedings, the attorneys for both Petitioner and Respondent consistently refer to the 2014 pretrial hearing involving the qualifications for both expert witnesses as “the Daubert hearing.” (See e.g., Doc. No. 13,
Attach. 20 at PageID# 2277). For ease of reference, the Court does the same. Notably, there were two parts to the
Daubert hearing. The trial court conducted the first part of “the Daubert hearing” on July 22, 2014, which Owen did
not attend. (Doc. No. 13, Attach. 3). Owen testified in the second part of the Daubert hearing on August 4, 2014. (See
Doc. No. 13, Attach. 5 at PageID# 729 for additional context).The complete transcript of that hearing is found at Doc.
No. 30, Attachs. 1 and 2.
Of note, Respondent previously filed an incomplete transcript of the August 4, 2014 hearing at Doc. No. 13, Attachs.
5 & 6. That transcript was missing pages 79 through 150. Both parties, and the Court, cite to pages from the August
4, 2014 hearing docketed at both Doc. No. 13, Attachs. 1 and 2, and Doc. No. 30, Attachs. 1 and 2, which are
duplicative entries, other than the missing pages 79 through 150, which appear only in the attachments to Doc. No.
30.
9
Trial counsel explained that, initially, Petitioner insisted that it was not his voice on the recording. (See Doc. No. 13,
Attach. 20 at PageID# 2267-68). However, that theory was “pushed aside . . . because no one other than Doug Curtis
would – would agree to that.” (Id. at PageID# 2275-76). In fact, one expert consulted by the defense said, “[T]here’s
no question it’s your client.” (Id. at PageID# 2276).
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with Mr. Curtis.” (Doc. No. 13, Attach. 5 at PageID# 795-96). Owen reiterated: “I don’t know
where you’re getting this, but I don’t think I’ve ever said to anybody that it was a prerecording of
this gentleman and then they cut her in and cut him in or whatever.” (Id. at PageID# 796-97). Trial
counsel summarized his understanding of Owen’s opinion as follows: “[W]hile it's possible to
have pulled off this recording in the way [Petitioner] had suggested, that wasn’t [Owen’s] opinion
at all and he was not willing to stay that’s what happened in this case.” (Doc. No. 13, Attach. 21
at PageID# 2280).10
According to trial counsel’s credited testimony, the defense received the first version of
the recording during discovery. Curtis, 476907, at *7. Owen examined this recording. Id. His
initial report “indicated the recording was in an unusual format,” so trial counsel requested the
State provide a “strike off of the original recording.” Id. The State obliged trial counsel’s request.
Id. The TBI then “burned [the defense] one off of the actual digital recording which was on a
server and [the defense] got that up to Mr. Owen.” (Doc. No. 13, Attach. 20 at Page ID# 2271-72).
It took seven months for Owen to receive the second, “strike off” recording. (Doc. No. 13, Attach.
5 at PageID# 777). Trial counsel acknowledged that this second recording, the “strike off,” was
“as close to the original of the phone call recording that [the defense] could get” because the
original recording “had been overwritten and deleted off.” (Id., Page ID# 2272). Owen and the
State’s expert, Lacey, then analyzed this second recording, which was later played at trial. Curtis,
2020 WL 476907, at *7.
10
Trial counsel ultimately described Petitioner’s splicing theory as a “far-fetched mission impossible perp call” that
Owen “was going to shoot down” if he was called to testify again because the theory was “far-fetched to begin with.”
(Doc. No. 13, Attach. 21 at PageID# 2334). In another part of his testimony, trial counsel called the theory a “fantasy
land idea.” (Id. at PageID# 2393). He testified that he had no expert testimony to support Petitioner’s splicing theory.
(Id. at PageID# 2286).
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While Owen produced a written report in January 2013 after analyzing the first recording
he was provided, he did not provide a written report after analyzing the second, “strike off”
recording. (Doc. No. 13, Attach. 5 at PageID# 785). However, at the Daubert hearing, Owen
testified at length as to how his initial conclusions changed after reviewing the second recording.
(Id. at PageID# 785-804). He testified that the recording “does not represent the event as it actually
occurred” because the recording had been “altered” by someone “who ran the cell company” and
someone “who is in control of the recorder.” (Id. at PageID# 790-92). Owen, however, gave no
indication that he would testify that the second recording was inauthentic. During this testimony,
he unequivocally referred to the second digital recording as “the original.” (Id. at PageID# 787).
As trial counsel recounted:
I don’t recall when—when everything was said and done that Mr. Owen ever saying
in my opinion this is not an authentic recording. But what the final verdict was for
Mr. Owen, once he was exposed, is that there is [sic] some pauses at the beginning
of this recording by the operator of the device and there is [sic] some dropped signal
words missing, that type thing which were inadvertently through the fault of no one
through cell transmission. That’s a long way from saying this is an inauthentic
recording.
(Doc. No. 13, Attach. 21 at PageID# 2335-36).
Furthermore, Owen was unlikely to testify that it was not Petitioner’s voice on the
controlled call. (Id. at PageID# 2236).11 As trial counsel explained, “Mr. Owen was not going to
be of much benefit, and with a skillful cross-examination would have come out and said, no, the
words you are hearing on this, I have no doubt they actually occurred . . . And then we were going
to have two experts saying this is the conversation that took place.” (Id. at PageID# 2339). Owen’s
11
But Owen might have testified that “because there were some pauses by the device operator, there was part of this
missing and it does not reflect the [conversation] that took place.” (Doc. No. 13, Attach. 21 at PageID# 2237). And
counsel admitted that had this testimony been introduced, it could have possibly given the jury some reasonable doubt
“that, hey, this call, we’re not getting the full scope of this conversation that occurred between Mr. Curtis and his
daughter.” (Id.) Nevertheless, counsel ultimately concluded that “the baggage that Mr. Owen brought after the Daubert
hearings was outweighing the little bit of benefit we might have gotten from him, if he even showed up.” (Id.) Trial
counsel’s informed, strategic decision made at that time cannot now be second-guessed with the benefit of hindsight.
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testimony to this effect would have been particularly problematic for the defense, given that
Investigator Hilburn testified that when he interviewed Petitioner the day after the controlled phone
conversation, “it was clear that a phone call had been placed to Doug Curtis’ phone and had taken
place for the approximate 19 and a half minutes that the officer said the recorded phone call took
place the day before[.]” (Doc. No. 13, Attach. 21 at PageID# 2284). Trial counsel conceded:
“Unfortunately, the cell phone records from the carrier matched up perfectly in terms of length of
the phone call, time of the phone call, her phone, Mr. Curtis’ phone, everything matched
unfortunately.” (Doc. No. 13, Attach. 21 at PageID# 2284). Trial counsel reiterated the damning
effect of this corroboration on cross-examination:
Q. So at this point, you now have a recording of a phone call that according to the
officer was placed by [Victim 1] to her father, that the cell phone provider records
corroborated that there was this phone call, and that Doug Curtis’ phone
corroborated that there was this phone call; is that correct?
A. That’s correct.
(Id. at PageID# 2284-85).
The record shows that Owen was likely to testify at trial—as he did at the Daubert
hearing—that he discovered anomalies in the second recording that was provided to him in July
2013. (Doc. No. 13, Attach. 17 at PageID# 1864). He believed these “pauses and clicks” would
have been the result of manipulation by the operator of the recording device, although some of the
pauses “were the result of cell tower transmission during the conversation because Mr. Curtis’
phone and its transmissions were being transmitted by cell wave.” (Doc. No. 13, Attach. 21 at
PageID# 2280). Essentially then, Owen’s testimony would have supported a third theory, that the
recording was manipulated by the operator of the recorder device as the conservation occurred.
Trial counsel testified that this testimony would not have advanced the defense’s theory about the
recording but could have possibly assisted the defense in a limited way:
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I mean, it -- of course sometimes if you don't have anything else, you want to raise
questions for one of the 12 jurors. And you know if you have one conspiracy
theorist on there and and they hear that the police officer who's now in Florida was
cutting the recorder on and off, I -- I guess you could -- you could play on that and
then try to create a reasonable doubt that way, but it was certainly much, much
flimsier than what Mr. Owen had originally indicated to us.
(Id. at PageID# 2281). Trial counsel went on to explain that he cross-examined the officer who
made the recording and challenged his credibility by asking him whether he had been fired from
the sheriff’s department. (Id. at PageID# 2282). Even so, trial counsel testified that Petitioner had
never embraced a theory that “it must have been the officer who manipulated the recording”
because Petitioner insisted that his daughter, with her college-acquired skills, “had somehow made
this recording using past conversations.” (Id. at PageID# 2282-83).
Petitioner points to an undated, unsigned document purportedly prepared by Owen
containing four “Conclusions” and Owen’s “Opinion” regarding the “tape” provided to Owen.
(Doc. No. 50, Attach. 1 at PageID# 4220). Petitioner alleges that this document shows what
Owen’s testimony would have been if trial counsel had put Owen on the stand at Petitioner’s trial.
However, this document is not part of the state-court record. The document does not include
Petitioner’s name, his case number, or a date. The document is unsigned. This unsubstantiated
document will not be considered by the Court in determining what trial testimony Owen might
have provided.
Even if Owen had opined that there were anomalies in the controlled call, and one or more
jurors determined the controlled call was suspect, Owen’s credibility issues indicate that his
testimony likely would not have changed the outcome of Petitioner’s trial. If Owen had testified,
and any of his testimony contradicted the State’s expert witness’s testimony, the jury would have
weighed Owen’s testimony against expert testimony presented by the State. With respect to
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Owen’s credibility, trial counsel, who had practiced law for over 30 years in this community,
testified:
There—maybe it would have been helpful for you to see these two witnesses, but
there wasn’t any comparison in terms of credibility of Mr. Lacy versus Mr. Owen.
It was – it was – it was – they weren’t even in the same ballpark. You had a T-ball
player and a major league baseball player, and Mr. Owen absolutely fell apart in
those hearings.
(Doc. No. 13, Attach. 21 at PageID# 2396-97). Counsel elaborated:
It was clear he [Owen] did not want to come to Hohenwald, Tennessee, to testify.
The hearing that we did late at night or afternoon, whenever it was in Lewis County
with him, I thought went extremely poorly for him. You could tell that it flustered
him, it frustrated him and I – I did not think he would appear – would hold up at all
in front of a Lewis County jury.
(Id. at PageID# 2290). Thus, it is unlikely that the jury would have credited Owen’s testimony
over the State’s expert witness.
Moreover, the victim testified in detail as to the four instances of rape, and no corroborating
physical evidence is required to convict Petitioner of those counts. See infra at p. 77. Thus, the
state courts reasonably determined that Petitioner had not shown prejudice resulting from trial
counsel’s failure to call Owen as an expert for the defense.12
In short, the TCCA’s determination was not contrary to Strickland. Likewise, the TCCA’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. Claim 1 will be dismissed.
b. Claim 4: Ineffective assistance of trial counsel during plea bargaining
Petitioner next argues that trial counsel provided ineffective assistance by failing to
adequately advise Petitioner regarding a plea offer. (Doc. No. 1 at Page ID# 13-16).
12
To the extent that Petitioner’s ineffective-assistance-of-counsel claim based on trial counsel’s failure to call Owen
as a defense witness (Claim 1) overlaps with Petitioner’s ineffective-assistance-of-counsel claims based on trial
counsel’s failure to seek a continuance and funding (Claim 5) and to obtain the original recorder for use in Owen’s
testing (Claim 6), the Court addresses those claims infra rather than here.
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Petitioner raised this claim in his post-conviction proceedings. See Curtis, 2020 WL
476907, at *12-13. The post-conviction court found the evidence established that trial counsel
fully informed Petitioner of the advantages and disadvantages of his decision to reject the plea
offer and concluded that trial counsel was not deficient in explaining the terms of the plea
agreement to Petitioner. Id.
Petitioner exhausted this claim on post-conviction appeal by arguing the claim’s merits in
his appellate brief filed in the TCCA. (Doc. No. 13, Attach. 25 at Page ID# 2667- 71). In reviewing
the post-conviction court’s denial of Petitioner’s ineffective assistance claim based on counsel’s
explanation of the plea agreement, the TCCA began by noting that, when a petitioner alleges that
he rejected a plea offer due to the ineffective assistance of counsel, he “has the burden to show by
a reasonable probability that, but for counsel's deficient representation, (1) he . . . would have
accepted the plea, (2) the prosecution would not have withdrawn the offer, and (3) the trial court
would have accepted the terms of the offer, such that the penalty under its terms would have been
less severe that the penalty actually imposed.” Curtis, 2020 WL 476907, at *13 (citing Nesbit v.
State, 452 S.W. 3d 779, 800-01 (citing Lafler v. Cooper, 56 U.S. 156, 164 (2012)). The TCCA
then found:
At the post-conviction hearing, the petitioner testified the State presented a plea
offer of ten years at 100 percent to resolve the charges related to both the victim
and the victim's younger sister. The petitioner rejected this offer because he
believed the trial was going to be continued to allow Mr. Owen to analyze the
original recorder. However, if he had known Mr. Owen was not going to testify,
the petitioner would have accepted the offer. During the trial, when the petitioner
learned Mr. Owen was not testifying, the petitioner told trial counsel he wanted to
take the offer but was told it was “too late.” Trial counsel testified he was
“extremely excited” about the offer and, after discussing the possibility that Mr.
Owen may not testify at trial, encouraged the petitioner to accept it. After the
petitioner initially rejected the offer, the State agreed to let the petitioner enter a
best interest plea, and trial counsel allowed the petitioner to discuss the offer with
his sister. When the petitioner ultimately decided to reject the offer, trial counsel
wrote the details of the offer on a piece of paper and asked the petitioner to sign it,
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acknowledging he had rejected the offer. The petitioner refused, and the trial court
ordered the petitioner to sign the paper.
The petitioner acknowledged trial counsel discussed the terms of the plea offer with
him and agreed he ultimately rejected the State's offer. Trial counsel testified, when
he and the petitioner discussed the risks associated with proceeding to trial, he told
the petitioner there was a possibility Mr. Owen would not testify. The postconviction court accredited the testimony of trial counsel, and nothing in the record
preponderates against the findings of the post-conviction court. See Tidwell, 922
S.W.2d at 500. Furthermore, as the post-conviction court noted, the petitioner's
signed note acknowledged his decision to reject the offer. Accordingly, we
conclude trial counsel's performance was not deficient during the petitioner's plea
negotiations. The petitioner is not entitled to relief on this issue.
Curtis, 2020 WL 476907, at *13.
These findings by the TCCA were not contrary to law. The TCCA correctly cited and
applied the relevant clearly established federal law, Lafler, to the facts of the case. See Curtis, 2020
WL 476907, at *12-13. Lafler requires a petitioner to show that, but for trial counsel’s deficient
performance, there was a reasonable probability that the petitioner would have accepted the plea.
Lafler, 566 U.S. at 164. The TCCA reasonably found that Petitioner could not make this showing,
as he had signed an acknowledgement filed under seal with the trial court that documented “his
decision to reject the offer.” Curtis, 2020 WL 476907, at *13.
Trial counsel testified at the evidentiary hearing that he was “extremely excited” when the
State offered the plea and that he communicated the plea to Petitioner. (Doc. No. 13, Attach. 21 at
Page ID# 2309). However, Petitioner told trial counsel he could not “plead guilty to something
[he] didn’t do[.]” (Id.) The State then agreed to allow Petitioner to enter a best-interest plea, but
Petitioner wanted to speak with his family before deciding on the plea. (Id.) After speaking to his
sister, Petitioner again rejected the agreement. (Id., Page ID# 2309-10). Trial counsel decided to
memorialize Petitioner’s rejection of the agreement because he thought the chances of Petitioner
“being convicted were alarmingly strong” and thought Petitioner would “probably file” a post-
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conviction relief petition challenging counsel’s performance. (Id. at Page ID# 2310-11). The trial
court ordered Petitioner, who initially refused, to sign an acknowledgement that he was rejecting
the offer. (Id. at Page ID# 2311, 2352-53); Curtis, 2020 WL 476907, at *9, *12-13. Counsel
confirmed that Petitioner rejected the agreement knowing that Owen was unlikely to testify at his
trial. 2020 WL 476907, at *9.
In his petition, Petitioner advances a different version of the facts (Doc. No. 1 at PageID#
13-16), which the post-conviction court rejected. Curtis, 2020 WL 476907, at *13. Petitioner,
however, fails to explain how the TCCA’s decision was based on an unreasonable determination
of the established, credited facts or casts doubt by “clear and convincing evidence” of the
“correctness” of the state court’s findings. See 28 U.S.C. §§ 2254(d)(2), (e)(1); Schriro v.
Landrigan, 550 U.S. 465, 473-74 (2007). The evidence shows that Petitioner understood the offer
and rejected it in favor of trial. Given this evidence, there is no “reasonable probability” that
Petitioner would have accepted the offer, and the TCCA’s application of Lafler is supported in the
record and is reasonable. Donald, 575 U.S. at 316. Consequently, the Court finds that Petitioner is
not entitled to relief on this claim. Claim 4 will be dismissed.
c. Claim 7: Ineffective assistance of trial counsel by failing to provide the bill of
particulars to Petitioner before trial
In Claim 7, Petitioner alleges that trial counsel was ineffective in failing to provide the bill
of particulars to Petitioner before trial. (Doc. No. 1 at Page ID# 25-28). According to Petitioner,
“he never saw a Bill of Particulars or knew what charges or dates he would be tried on that fateful
day; thus, he was denied his due process right to offer an alibi defense to the trier of fact . . . .” (Id.
at PageID# 25). Petitioner contends that, had he reviewed the bill of particulars, he would have
provided trial counsel with alibis for several of the dates given by the victim. (Id.)
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Petitioner raised this claim in his post-conviction proceedings. See Curtis, 2020 WL
476907, at *14. The post-conviction court found that trial counsel had reviewed the bill of
particulars with Petitioner prior to trial and had discussed “each and every allegation and well as
possible defense strategies”; had asked Petitioner to provide any names, records, or witnesses to
help establish an alibi; and had pursued Petitioner’s provided alibis and was never made aware of
any records that would have corroborated those alibis. Id. The court credited trial counsel’s further
testimony that, without any records, Petitioner’s only other option was to testify about occasions
when he drove the church van and challenge the victim’s credibility; however, Petitioner chose
not to testify. Id. The post-conviction court determined, based on these findings, that Petitioner
had not demonstrated that trial counsel was ineffective and denied this claim. Id.
Petitioner exhausted this claim by raising it on appeal. The TCCA denied relief, finding
that the post-conviction court had credited the testimony of trial counsel, and that nothing in the
record preponderated against its findings. Curtis, 2020 WL 476907, at *14-15 (citing Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996)). In addition, the TCCA found that, although Petitioner
argued that trial counsel should have investigated alibi witnesses or introduced evidence to support
Petitioner’s alibi, Petitioner had failed to present any witnesses or evidence at his post-conviction
hearing and therefore could not establish prejudice. Id. (citing Black v. State, 794 S.W.2d 752,
757-58 (Tenn. Crim. App. 1990), and State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)).
The TCCA’s decision was not contrary to law. The TCCA correctly noted and applied
Strickland to its analysis of this claim. Curtis, 2020 WL 476907, at *14-15.
The TCCA reasonably applied Strickland’s performance prong. Although Petitioner
testified that trial counsel had never reviewed the bill of particulars with him (Petitioner), the postconviction court found trial counsel’s testimony to be more credible than Petitioner’s testimony.
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On appeal, the TCCA found that nothing in the record preponderated against the trial court’s
findings. Curtis, 2020 WL 476907, at *14. The record showed that, at Petitioner’s post-conviction
hearing, trial counsel testified that he had “reviewed the [b]ill of [p]articulars with [the p]etitioner
prior to trial and discussed each and every allegation as well as possible defense strategies”;
Petitioner told trial counsel about possible alibis, but he had not provided any evidence (including
potential witnesses) to support the alibis for trial counsel to evaluate; he and Petitioner discussed
an alibi for the “church van incident” but this alibi collapsed because “there would have been other
people in the van or the kids went with [Petitioner] or something like that and that couldn’t have
happened” (Doc. No. 13, Attach. 21 at Page ID# 2304); and he and Petitioner “discussed each
[alibi] and any possible weaknesses on those” and that on “two of the counts, [] there was such a
wide range of dates that there’s not any way to provide an alibi especially years and years later”
(id. at Page ID# 2304-05). Trial counsel’s accredited testimony provides sufficient justification for
the TCCA’s denial of relief based on Strickland’s performance prong, given that “federal judges
are required to afford state courts due respect by overturning their decisions only when there could
be no reasonable dispute that they were wrong.” Woods v. Donald, 575 U.S. 312, 316 (2015). See
Davis v. Ayala, 576 U.S. 257, 273-74 (2015) (citations omitted) (“the determinations of credibility
and demeanor lie particularly within a trial judge’s province” and, “in the absence of extraordinary
circumstances,” a federal habeas court should “defer to the trial court”); Braxton v. Gansheimer,
561 F.3d 453, 458 (6th Cir. 2009) (“a reviewing court must be careful not to substitute its own
judgment for that of the state court by equating the more stringent standard of ‘objectively
unreasonable’ with the more lax standard of ‘clear error.’”).
The TCCA also reasonably applied Strickland’s prejudice prong. The TCCA held that
Petitioner failed to prove prejudice because he “failed to present any witnesses or evidence at the
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post-conviction hearing[.]” Curtis, 2020 WL 476907, at *15. Petitioner’s failure to “come forth
with any proof of any such information or potential testimony . . . is fatal to any attempt to
establish” prejudice under Strickland. Moreland, 635 F. Supp. 2d at 712; see also Stevenson, 2018
WL 6186808, at *12. In short, the TCCA’s application of both Strickland prongs was reasonable.
Finally, Petitioner’s argument as to Claim 7 is fact-based, which the Court construes as a
challenge brought under 28 U.S.C. § 2254(d)(2). Petitioner’s argument fails, however, because it
does not address how the TCCA’s decision was based on an unreasonable determination of the
facts in light of the contents of the record. For example, while Petitioner contends that “bank
records and witness testimony” could have provided alibis, he does not address the fact that he
provided none of this evidence at his evidentiary hearing. (See Doc. No. 1 at Page ID# 26).
Likewise, he claims that property records would have shown that “the rooms petitioner was
convicted of committing sexual crimes in 1998[] did not even exist until the year 2000” but he did
submit those property records at his evidentiary hearing either. (Id.) Petitioner claims that, had he
known about the bill of particulars, he “would have informed [trial counsel] that on one count he
[Petitioner] was in California on his birthday and could not have committed that crime, on another
he never drove the van on a Wednesday night and could not have committed that crime, [and] also
that he and his wife always made the celebration of Valentine’s Day a major all night event and
[therefore he] could not have committed that crime.” (Id. at PageID#27). But again, Petitioner
provided no evidence at his post-conviction hearing to support these assertions.13
13
On cross-examination during Petitioner’s post-conviction hearing, trial counsel acknowledged that Petitioner told
him [trial counsel] that Petitioner drove the church bus on Thursdays instead of Wednesdays. Curtis, 2020 WL 476907,
at *9. However, trial counsel did not believe this statement was helpful because Petitioner could not provide any
church records or witnesses corroborating his story. Id. Additionally, there was nothing to stop the victim from
testifying that she was merely mistaken about the day of the week on which the rape occurred. Id. Petitioner also told
trial counsel that he was on vacation in Florida on one of the dates, but trial counsel did not want to explore this alibi
at trial because the victim was with Petitioner during this trip, and trial counsel was afraid Petitioner would be
susceptible to prosecution in Florida. Id.
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Petitioner also tries to establish factual inconsistencies concerning trial counsel’s meeting
with Petitioner to review this alibi evidence. (See generally Doc. No. 1 at Page ID# 25-28).
However, the accredited record contradicts Petitioner’s contentions. Trial counsel testified that he
and Petitioner “sat there and went over . . . the indictment and the bill of particular response side
by side” because Petitioner needed to decide how the defense would conduct its cross-examination
of the victim during trial. (Doc. No. 13, Attach. 21 at Page ID# 2312-13, 2339-40). Specifically,
trial counsel advised Petitioner on whether the defense should impeach the victim on “all the
implausibility of her original story”—that they were having sex hundreds of time over a period of
years—or “just limit her to . . . four incidents.”14 (Id. at Page ID# 2339-40). Trial counsel recalled
leaving the decision “entirely up to [Petitioner].” (Id. at PageID# 340). Second, while Petitioner
claims that “counsel . . . never came to see him [Petitioner] while he was in jail (Doc. No. 13,
Attach. 21 at PageID# 2386-87), trial counsel recalled meeting with Petitioner “at least five or six
times” on days Petitioner had court hearings, during which time Petitioner was incarcerated.
Finally, trial counsel testified that Petitioner never indicated that he had “bank records or financial
statements” that could have substantiated a possible alibi defense. (Id. at Page ID# 2305).
Consequently, Petitioner has failed to rebut the TCCA’s factual determinations by “clear and
14
At Petitioner’s post-conviction hearing, Colley explained that he had been made aware at Petitioner’s preliminary
hearing of “hundreds” of alleged instances of abuse by Petitioner toward his older daughter, the victim. (Doc. No. 13,
Attach. 21 at PageID# 2297). When the indictment came, the State had alleged (only) four instances. (Id.) Colley
explained that he had two strategic options: “stick to the strictly charged offenses or . . . bring it all in and talk about
how, essentially, how preposterous it is that it happened this many times.” (Id. at PageID# 2298-99). Colley explained
to Petitioner why he needed to decide which approach to take as “there were pros and cons to both sides.” (Id. at
PageID# 2298). When Petitioner decided to limit it to the four instances, it required Colley “to figure a way to keep
her [name redacted] from diverging from a discussion about a specific date or a specific incident onto this story of
having sex on several times a week or almost daily with Mr. Curtis because that would defeat . . . the whole purpose
. . . .” (Id. at PageID# 2299). See also Colley’s testimony during Petitioner’s hearing on the motion for new trial.
Curtis, 2016 WL 7654946 at *6 (trial counsel testified that he was aware of allegations of multiple acts of sexual
abuse by Petitioner against his older daughter, the victim, that were not charged in the indictment and that the victim
alleged the abuse occurred almost daily; trial counsel explained that he had two strategic options: to try just the four
counts and exclude evidence of all other acts of abuse, or to allow evidence of all the abuse and attempt to attack the
credibility of the victim’s testimony; trial counsel explained these options to Petitioner, who instructed him to try just
the four counts).
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convincing evidence.” Pouncy, 846 F.3d at 158. The factual determinations used by the TCCA to
adjudicate this Strickland claim are supported by the record. Claim Seven will be dismissed.
3. Claims Cognizable Under Habeas Rules and Procedurally Defaulted by Petitioner
Petitioner procedurally defaulted five ineffective-assistance-of-counsel claims (Claims 2,
3, 5, 6, 8) and his Claims 10 and 14 without sufficient cause. The Court will begin with the five
defaulted ineffective-assistance-of-counsel claims. Strickland is the governing federal law over
these claims, requiring Petitioner to prove deficient performance by counsel and prejudice to
Petitioner. 466 U.S. at 687.
a. Ineffective-Assistance-of-Counsel Claims
i. Claim 2
Petitioner alleges that trial counsel provided ineffective assistance when he failed to object
to evidence of Petitioner’s other crimes under Tennessee Rule of Evidence 404(b). (Doc. No. 1 at
Page ID# 6-7). First, Petitioner points to a comment the victim made about their “husband and
wife relationship” when she was a teenager and in college. Second, Petitioner points to trial
testimony concerning the alleged molestation he committed against his younger daughter that was
barred by pretrial order. Each of these instances of alleged ineffectiveness will be addressed in
turn below as Claim 2a and 2b, respectively.
a) “Husband and Wife Relationship” Statement
In Claim 2a, Petitioner alleges that trial counsel was ineffective because he failed to object
to particular testimony by the victim. (Doc. No. 1 at PageID# 6-7). Specifically, Petitioner testified
that during her high school and college years, she had a “very close” relationship with her father,
“a very husband and wife kind of relationship.” (Doc. No. 13, Attach. 8 at PageID# 1045).
Petitioner did not present this claim to the TCCA on post-conviction appeal, the first court
of competent jurisdiction. (See Doc. No. 13, Attach. 25 at Page ID# 2662-63); see Curtis, 2020
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WL 476907, at *12. By failing to present the federal constitutional claim to the state courts,
Petitioner procedurally defaulted it. 28 U.S.C. § 2254(c); Coleman, 501 U.S. at 732. He therefore
has waived his claim for purposes of federal habeas corpus review unless he establishes cause for
the default and actual prejudice or that the Court’s failure to address Claim 2a would result in a
fundamental miscarriage of justice.
Petitioner maintains that he demonstrates cause to excuse the default under Martinez v.
Ryan, 566 U.S. 1 (2012), and Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014). Specifically,
Petitioner alleges that post-conviction counsel performed ineffectively by failing to raise trial
counsel’s ineffectiveness in failing to object to the at-issue 404(b) testimony, and post-conviction
counsel’s ineffectiveness constitutes cause for Petitioner’s procedural default of Claim 2a. As
noted infra, “[i]nadequate 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.”
Martinez, 566 U.S. at 9.
The Sixth Circuit has directed a district court considering ineffective-assistance-of-counsel
claims under Martinez and Trevino (discussed above) to first address whether the petitioner can
demonstrate “(1) the absence or ineffective assistance of his post-conviction counsel and (2) the
‘substantial’ nature of his underlying [ineffective assistance of trial counsel claims].” Woolbright
v. Crews, 791 F.3d 628, 637 (6th Cir. 2015). If the petitioner demonstrates these first two elements,
the petitioner has established cause to excuse the procedural default, and the district court must
then determine whether the petitioner can establish prejudice from the alleged ineffective
assistance of trial counsel. See id. If the petitioner successfully establishes cause and prejudice, the
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final step15 is for the district court to evaluate the underlying ineffective assistance of trial counsel
claims on the merits. See Atkins v. Holloway, 792 F.3d 654, 659-60 (6th Cir. 2015).
In demonstrating a substantial claim of ineffective assistance of trial counsel, the petitioner
must prove prejudice under Strickland. See McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d
741, 752 (6th Cir. 2013) (“To be successful under Trevino, [a petitioner] must show a ‘substantial’
claim of ineffective assistance, and this requirement applies as well to the prejudice portion of the
ineffective assistance claim.” (internal citations omitted)). Under Strickland, a petitioner can prove
prejudice by 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. 668, 694. As
one court explains, describing the interplay between Coleman (relating to the prejudice
requirement for excusing procedural default of a claim, whether under Martinez or otherwise) and
Strickland (relating to the prejudice requirement for an underlying ineffective-assistance-ofcounsel claim):
The “actual prejudice” requirement of Coleman and the prejudice requirement of
Strickland overlap such that 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. If not,
because the “cause and prejudice” standard is conjunctive rather than disjunctive,
the reviewing court would have no need to consider whether the petitioner has
established cause to overcome the procedural default, in the form of ineffective
assistance of post-conviction counsel.
Thorne, 2014 WL 4411680, at *23. The Supreme Court has defined this required “substantial”
showing as a showing that the claim has some merit. Martinez, 566 U.S. at 14 (citing Miller-El v.
Cockrell, 537 U.S. 322, (2003)). The threshold inquiry “does not require full consideration of the
15
As noted infra, this step may (to a degree) be taken into account in advance in considering whether the second
above-stated element of prejudice is satisfied. See Thorne v. Hollway, No. 3:14-cv-0695, 2014 WL 4411680, at *23
(M.D. Tenn. Sept. 8, 2014).
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factual or legal basis supporting the claims.” Miller-El, 537 U.S. at 336, 338. Thus, the Court will
undertake a preliminary analysis of Petitioner’s underlying ineffective assistance of trial counsel
Claim 2a to determine whether it has some merit. See Martinez, 566 U.S. 1, 14. In that claim,
Petitioner alleges that trial counsel was ineffective by failing to object to the victim’s husbandwife statement under Rule 404(b).
Martinez, however, provides no relief because the defaulted claim is not substantial; it does
not have merit. 566 U.S. at 14. During Petitioner’s post-convicting hearing, trial counsel testified
that he could not remember whether he objected at the time the victim made the “husband-wife”
comment or whether he (counsel) made a motion to strike following the victim’s testimony. (See
Doc. No. 13, Attach. 21 at PageID# 2300-01). Counsel then explained that perhaps he did not
object to the husband-wife statement, believing that he would have drawn attention to the at-issue
testimony or, as he put it, “ring the bell twice.” (See Doc. No. 13, Attach. 21 at PageID# 20301).
Petitioner does not dispute that this was in fact counsel’s belief. Thus, the record before the Court
shows that trial counsel made a strategic decision not to draw attention to the at-issue comment by
objecting. (Doc. No. 13, Attach. 21 at Page ID# 2301). Trial counsel made this decision based on
his “32 years of practice,” and that strategic decision is now “virtually unchallengeable.” (Id.);
Strickland, 466 U.S. at 688, 690. Therefore, Petitioner cannot show that trial counsel performed
deficiently.
Even assuming arguendo that trial counsel performed deficiently, Petitioner has not
established that he was prejudiced by the purported failure of trial counsel to object to the victim’s
husband-wife statement. See Coleman, 501 U.S. at 750. As noted by the TCCA on direct appeal,
“the evidence against the defendant was substantial, and there is no evidence that [the victim’s
husband-wife statement] affected the outcome of the trial.” Curtis, 2016 WL 7654946, at *7.
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 59 of 93 PageID #: 4452
This claim is not substantial under Woolbright, 791 F.3d 628, 637, and Petitioner has not
shown that he was prejudiced by post-conviction counsel’s failure to raise it. Therefore, Petitioner
cannot demonstrate cause and prejudice to excuse his procedural default of Claim 2a. The claim is
without merit and will be dismissed.
b) Witness Testimony Regarding Molestation of Younger Daughter
In Claim 2b, Petitioner alleges that trial counsel was ineffective because he failed to prevent
the introduction of trial testimony concerning the alleged molestation that Petitioner committed
against his younger daughter (“younger-daughter testimony”). (Doc. No. 1 at PageID# 6).
According to Petitioner, although the trial judge “barred” any such testimony from the victim and
other witnesses, the younger-daughter testimony was allowed, “infecting the trial with
inadmissible other alleged crime evidence.” (Doc. No. 48 at PageID# 4097).
Petitioner included this claim in his pro se post-conviction petition, but he failed to pursue
the claim in either of his amended petitions for post-conviction relief, and he did not specifically
incorporate the claim in his pro se petition into his amended petitions. Curtis, 2020 WL 476907,
at *12. Furthermore, when directed by the post-conviction court to present a summary of the claims
upon which he was seeking relief, Petitioner failed to identify this claim. Id.16 As a result, the postconviction court did not render a ruling on this claim in its order denying relief. On appeal, citing
Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App 2004) (“[A]n issue raised for the first
time on appeal is waived.”), the TCCA determined that Petitioner had waived review of this claim.
16
At his post-conviction hearing, while represented by counsel, Petitioner filed a pro se motion to amend the final
summation. Curtis, 2020 WL 476907, at* 16. Because a defendant in a criminal case cannot proceed pro se while
simultaneously being represented by counsel, the post-conviction court ordered post-conviction counsel to determine
whether Petitioner’s claims had merit and, if so, to amend the final summation accordingly. Id. Post-conviction counsel
reviewed the claims and determined that they either lacked merit or were previously addressed in the final summation.
Id.
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The Cauthern rule constitutes an adequate and independent state procedural ground on
which the TCCA could (and did) rest its denial of relief.17 See Monzo v. Edwards, 281 F.3d 568,
576 (6th Cir. 2002). “When ‘a state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas review of the claims 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.’” Id. at 575 (6th Cir. 2002) (citing Coleman v. Thompson, 501
U.S. 722, 750 (1991)).
Petitioner’s attempt to excuse this procedural default fails. Attorney error does not
constitute “cause” unless it rises to the level of a constitutional violation of the right to counsel
under Strickland. Murray, 477 U.S. at 488. Petitioner blames his attorneys for failing to follow his
directions to include this claim at the various levels of his state-court litigation. According to
Petitioner, “4 of the 5 government witnesses . . . were allowed to inform the jury, without objection
from counsel, the name, age, relationship, and allegations made against petitioner concerning the
alleged other victim.” (Doc. No. 1 at PageID #6; see Doc. No. 48 at PageID# 4097). The existing
record belies Petitioner’s assertions.
The record shows instead that the trial court granted the State’s motion in limine to allow
testimony of prior bad acts committed by Petitioner (Doc. No. 13, Attach. 2 at PageID# 481-82)
because the observations the victim made concerning Petitioner’s alleged abuse of his younger
17
Here, Petitioner’s post-conviction proceedings occurred in 2018 and 2019, and the rule articulated in Cauthern was
followed by the state courts during this time as shown by numerous Tennessee courts citing this rule in a similar
fashion when ruling on claims that were first presented on appeal. See e.g., State v. Morris, No. M2017-01229-CCAR3-CD, 2017 WL 6375952, at *2 (Tenn. Crim. App. Dec. 13, 2017); Croom v. State, No. W2015-01000-CCA-R3PC, 2016 WL 690689, at *8 (Tenn. Crim. App. Feb. 19, 2016), perm. appeal denied, (Tenn. June 24, 2016); Taylor
v. State, No. M2008-00335-CCA-R3-PC, 2009 WL 2047331, at *2 (Tenn. Crim. App. July 14, 2009), perm. appeal
denied, (Tenn. Oct. 19, 2009); Williams v. State, No. E2006-00230-CCA-R3-PC, 2006 WL 3410693, at *2 (Tenn.
Crim. App. Nov. 27, 2006). Thus, the procedural rule in Cauthern cited by the TCCA when it declined to address this
claim on its merits constitutes an adequate and independent state procedural bar to relief. See Monzo, 281 F.3d at 576.
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daughter were “relevant to demonstrate to the jury why [the victim] delayed in notifying law
enforcement of her previous abuse.”18 (Id. at PageID# 481). However, the trial court significantly
limited this testimony. (Id.) The victim and other witnesses were ordered to limit their respective
testimony “to the effect that [the victim] observed something that caused her to become concerned
about another person.” (Id.) The trial court specified that no witness, including the victim, could
testify “as to what [the victim] saw, the identity of the [younger daughter] or the subsequent
conversation with the minor child.” (Id.)
At trial, the victim testified about four instances of rape before she reached the age of
thirteen. Curtis, 2016 WL 7654946, at *1-2. Four State witnesses testified, including the
investigator who recorded the controlled call, and Debbie Landers, the victim’s friend who urged
the victim to report what she witnessed concerning “another individual.” See generally id. at *14. The record shows that these witnesses all testified in accordance with the trial court’s order
concerning Petitioner’s prior bad acts. (Doc. No. 13, Attach. 8 at PageID# 1028, 1043, 1047; Doc.
No. 13, Attach. 9 at PageID# 1117, 1120, 1125).
Under Strickland, trial counsel cannot have rendered a deficient performance by failing to
object or act on a non-meritorious issue. See Hollis v. Perry, No. 3:17-cv-626, 2018 WL 6181354,
at *18 (M.D. Tenn. Nov. 27, 2018) (counsel provided no deficient performance by failing to raise
a nonmeritorious speedy-trial issue), appeal dismissed, No. 19-5051, 2019 WL 3206686 (6th Cir.
Apr. 24, 2019). In other words, mere failure to raise a non-meritorious objection does not constitute
deficient performance. Here, trial counsel had no reason to object, because the witnesses complied
18
Testimony admitted for this (limited) purpose—i.e., to demonstrate to the jury why the victim delayed in notifying
law enforcement of her previous abuse—is not within the scope of Tennessee Rule of Evidence 404(b) because it was
not “admi[tted] to prove the character of [the Petitioner] in order to show action in conformity therewith.”
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with the trial court’s order. Thus, even if this subclaim were not defaulted, Petitioner cannot
establish deficient performance by trial counsel. Claim 2b will be dismissed.
Petitioner concedes that the trial court issued the limiting order but asserts, without
providing evidence, that “alleged Victim 1, as well as[] all of the other witnesses including the
prosecutor” violated the order. (Doc. 48 at PageID# 4097). Petitioner’s main argument with respect
to this testimony is that the victim’s testimony was not credible and the trial judge allowed four
witnesses to offer hearsay testimony. Essentially, then, Petitioner’s arguments speak to the
sufficiency of the evidence used to convict him, not to trial counsel’s alleged failures to object to
testimony that Petitioner claims violated the trial court’s limiting order. Petitioner raises an
insufficiency of evidence claim in Claim 14 in which he questions the victim’s credibility. (See
Doc. No. 1 at PageID# 60-63). The Court will address that claim infra.
ii. Claim 3
Petitioner alleges that he received ineffective assistance of trial counsel when trial counsel
failed to request a Daubert hearing pursuant to Tennessee Rule of Evidence 104(a) concerning the
qualifications of the State’s expert witness, Douglas Lacey. (Doc. No. 1 at PageID# 9-10).
Although Petitioner raised this claim in his post-conviction appellate brief (Doc. No. 13,
Attach. 25 at PageID# 2663-67), Petitioner failed to challenge trial counsel’s decision not to
request an additional Daubert hearing in his original or amended petition for post-conviction relief.
Curtis, 2020 WL 476907, at *12. Additionally, even though Petitioner provided testimony
questioning the State’s expert’s qualifications at Petitioner’s post-conviction hearing, counsel did
not raise in final summation trial counsel’s ineffectiveness in failing to request a separate Daubert
hearing for Lacey. Petitioner then filed a pro se motion to amend the final summation even though
he was represented by counsel. Id. at *15. The post-conviction court refused to entertain
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Petitioner’s pro se motion, noting that a defendant in a criminal case may not proceed pro se
simultaneously while represented by counsel. Instead, the post-conviction court directed counsel
to amend the final summation if she believed Petitioner’s issues had merit, and post-conviction
chose not to amend the summation. Ultimately, the post-conviction court did not rule on whether
trial counsel was ineffective by failing to seek a separate Daubert hearing for the State’s expert.
Id. Invoking Cauthern, 145 S.W.3d at 599, the TCCA found that Petitioner, bound by the actions
of his counsel, had waived the claim by abandoning it at the trial level. See Curtis, 2020 WL
476907, at *12.
As noted supra at page 60, the Cauthern rule constitutes an adequate and independent state
procedural ground on which the TCCA could rest its denial of relief for procedural default
purposes. Thus, the Court can review this defaulted claim only if Petitioner “‘can [either]
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.’” Monzo, 281 F.3d 568, 575 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Petitioner maintains that his appellate counsel was constitutionally ineffective for failing
to argue that trial counsel rendered ineffective assistance when failing to request a Daubert hearing
concerning Lacey’s qualifications. As noted above, “[g]enerally, ineffective assistance of counsel,
either appellate or trial counsel, as defined by Strickland, 466 U.S. at 698, 104 S. Ct. 205216, may
satisfy the standard for ‘cause’ under Coleman, 501 U.S. at 750, 111 S. Ct. 2546.” Jamison v.
Collins, 100 F. Supp. 2d 521, 551 (S.D. Ohio 1998). However, Petitioner’s attempt to show cause
for his procedural default of Claim 3 fails.
“‘[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default
of another claim can itself be procedurally defaulted.’” Hodges, 727 F.3d at 530 (quoting Edwards,
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529 U.S. at 453). Petitioner did not exhaust a claim that direct appellate counsel was ineffective
for failing to attack Lacey’s qualifications. See Curtis, 2020 WL 476907, at *15-16 (on appeal of
the denial of post-conviction relief, Petitioner argued appellate counsel was ineffective by failing
to withdraw, failing to inform Petitioner of his right to file a Rule 11 application, and failing to
raise the 404(b) evidence issue at the motion for new trial hearing). Thus, Petitioner’s
ineffectiveness-of-appellate counsel claim is itself defaulted. However, even if the ineffectivenessof-appeals-counsel claim was not defaulted, Petitioner’s underlying claim (that trial counsel was
ineffective by failing to request a Daubert hearing concerning Lacey’s qualifications) lacks merit.
Appellate counsel could not have been ineffective by failing to raise trial counsel’s ineffectiveness
when there was none.
Under Strickland, counsel must provide an objectively reasonable performance under the
circumstances of the case. 466 U.S. at 688. Tennessee Rule of Evidence 104(a) states that
“[p]reliminary questions concerning the qualification of a person to be a witness . . . shall be
determined by the court[.]” Tenn. R. Evid. 104(a). When a party seeks to introduce expert
testimony, the trial court must determine whether the witness possesses the “knowledge, skill,
experience, training, or education” to qualify as an expert in a field. Tenn. R. Evid. 702.
Considering the applicable Tennessee Rule of Evidence, trial counsel provided an objectively
reasonable performance with respect to Lacey. The record demonstrates that trial counsel
questioned Lacey’s qualifications as an expert at the 2014 hearing concerning Owen’s
qualifications. (See Doc. No. 13, Attach. 3 at Page ID# 642-49, 654-57). And while, at Petitioner’s
trial, trial counsel did not object to Lacey’s “testifying as an expert based on his stated
qualifications,” trial counsel did—in an attempt to undermine the weight, as opposed to the
admissibility, of Lacey’s testimony—attack whether Lacey was qualified (see Doc. No. 13, Attach.
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9 at PageID# 1196-97) and cross-examined Lacey in an attempt to show bias, pointing out that
Lacey was being paid by the State for his testimony and travel time. (See Doc. No. 13, Attach. 9
at PageID# 1219-20). The trial court determined that Lacey was qualified as an expert in the field
of audio forensics under Tennessee Rule of Evidence 702. (Doc. No. 13, Attach. 19 at Page ID#
2106). In so deciding, the court found that Lacey had been subject to peer review, that his
methodologies had been tested, that the evidence presented had been accepted within the scientific
community, and that research had been conducted outside of litigation. (Id.)
Petitioner nevertheless contends that trial counsel should have done more to prevent Lacey
from testifying based on what, according to Petitioner, is the fraudulent nature of the evidence
known as Qc2,19 on which Lacey relied for his expert testimony. Petitioner alleges that “the only
‘fact in issue’ at the trial of the Petitioner was the authenticity of the recording used as evidence
against appellant at his trial.” (Doc. No. 48 at PageID# 4100, 4103). Petitioner further contends
that “[t]he entire trial was based on whether or not the recording was authentic and whether or not
[it] had been manipulated.” (Id. at PageID# 4100). But as the Court found in its previous
Memorandum Opinion denying Petitioner’s request for discovery related to the Qc2 evidence,
Petitioner’s contentions are mistaken. (See Doc. No. 53 at PageID# 4310-12). Prima facie
evidence of rape can be proven through a victim’s testimony. See Elkins, 102 S.W.3d 578, 582;
Smith, 42 S.W.3d 101, 106; Johnson, 1992 WL 80349, at *7. That is also why Petitioner cannot
show that he was prejudiced by trial counsel’s performance with respect to Lacey’s qualifications.
The content of the victim’s testimony and the credibility of the victim were very much issues of
fact in Petitioner’s trial, and the jury resolved those factual disputes in favor of the State. The
19
Petitioner alleges that the the Qc2 recording is “a third copy of the recording of the controlled call produced by the
State at its facility.” (Doc. No. 48 at PageID# 4102). Petitioner does not specify the name of this facility, but trial
counsel testified that the State had a second copy of the recording produced for the defense by the Tennessee Bureau
of Investigation. (Doc. No. 13, Attach. 20 at PageID# 2271).
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 66 of 93 PageID #: 4459
victim’s testimony stands, regardless of Petitioner’s stated concerns regarding the authenticity of
the recording that was admitted and played at trial.
Petitioner has not demonstrated sufficient cause and prejudice to excuse the default of
Claim 3, and the claim must be dismissed.
iii. Claim 5
Claim 5 alleges a claim of ineffective assistance of trial counsel on two interrelated
grounds: 1) for “mishandling” a trial continuance and 2) for failing to request state funds for
Owen’s testimony. (Doc. No. 1 at Page ID# 19-20). Petitioner maintains that when trial counsel
failed to inform Owen that Petitioner’s trial date had been changed, Owen lost the money he had
used to reserve flights, hotels, and car rentals for the prior trial date and thus requested more money
before agreeing to testify at Petitioner’s new trial date. Trial counsel made an oral request for
funding to secure Owen’s attendance at the new trial date, and the trial judge directed counsel to
put his requests for the funding in writing. However, ultimately trial counsel did not submit a
written request.
In his pro se post-conviction petition, Petitioner argued that trial counsel should have
requested a continuance,20 but Petitioner failed to include the claim in either of his amended postconviction petitions. He did not specifically incorporate into his amended petition the issues that
had been raised in his pro se petition. Nor did Petitioner include this issue in his final summation
following the post-conviction hearing. As a result, the post-conviction court did not rule on this
20
While Petitioner did argue that trial counsel should have submitted a written request for funding in his postconviction appellate brief, (Doc. No. 13, Attach. 25 at PageID# 2671-73), the TCCA did not specifically address the
argument in its opinion. See Curtis, 2020 WL 476907, at *13-14. “When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must [engage in a rebuttable] presum[ption] that the federal
claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 300-01 (2013). It is unclear whether such a
presumption applies in this instance. In any event, because trial counsel’s failure to request a continuance and trial
counsel’s failure to request funding are interrelated claims, the Court will address the merits of both claims collectively
herein.
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 67 of 93 PageID #: 4460
issue in its order denying relief. Curtis, 2020 WL 476907, at *14. On appeal of the denial of postconviction relief, the TCCA invoked Cauthern, finding that the court was precluded from
reviewing the issue because Petitioner had waived review. Id.
As noted supra at page 60, the Cauthern rule constitutes an adequate and independent state
procedural ground on which the TCCA could rest its denial of relief for procedural default
purposes. Thus, the Court can review this defaulted claim only if Petitioner “can [either]
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.’” Monzo, 281 F.3d 568, 575 (citing Coleman, 501 U.S. 722, 750).
Petitioner maintains that appellate counsel was constitutionally ineffective for failing to
argue that trial counsel rendered ineffective assistance when failing to request a continuance and
obtain state funding. Again, Petitioner’s attempt to show cause for his procedural default fails
because Petitioner did not exhaust a claim that direct appellate counsel was ineffective in these
ways. See Curtis, 2020 WL 476907, at *15-16 (on appeal of the denial of post-conviction relief,
Petitioner argued appellate counsel was ineffective by failing to withdraw, failing to inform
Petitioner of his right to file a Rule 11 application, and failing to raise the 404(b) evidence issue at
the motion for new trial hearing). Thus, Petitioner’s ineffectiveness-of-appeals-counsel claim is
itself defaulted. See Hodges, 727 F.3d at 530 (quoting Edwards, 529 U.S. at 453) (“[A]n
ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another
claim can itself be procedurally defaulted”). See also Williams v. Lazaroff, 648 F. App'x 548, 55254 (6th Cir. 2016) (holding that Williams’ ineffective assistance of trial counsel claims were
procedurally defaulted and he could not establish cause to excuse the default by relying on the
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 68 of 93 PageID #: 4461
ineffectiveness of appellate counsel, because his ineffective assistance of appellate counsel claim
was itself procedurally defaulted).
However, even if the ineffectiveness of appellate counsel claim was not defaulted,
Petitioner’s underlying claim (that trial counsel was ineffective by failing obtain a continuance and
seek additional funding) lacks merit. Appellate counsel could not have been ineffective by failing
to raise trial counsel’s alleged ineffectiveness in this regard, because (as discussed below) it was
not deficient performance for trial counsel not to seek a continuance or funding to secure Owen’s
presence at trial.
The record shows that trial counsel did not follow up his oral request with a written request
for four reasons. First, Owen was demanding more money from the defense, and Petitioner lacked
funds to pay. (Doc. No. 13, Attach. 21 at PageID# 2288). Counsel chased down a recommendation
by Petitioner to obtain money from a friend who owed Petitioner, but that effort was futile. (Id.)
Counsel explained that “the reality of it was that nobody, certainly not Judge Martin, and most
certainly not the AOC, [wa]s going to give [counsel] $6,000 to get Tom Owen down here to Lewis
County, Tennessee.” (Doc. No. 13, Attach. 21 at PageID# 2291). According to counsel, he knew
the court was “tight” with the State’s money and “AOC is 10 times as tight and [counsel had] been
turned down on $2,000 being too much before.” (Id.)
In any event, counsel believed that Owen should not have requested additional funding in
the first place. Trial counsel explained, at length, how Owen had insisted after the fact that all
money paid to him was nonrefundable as per language on his website (Doc. No. 13, Attach. 21 at
PageID# 2322), even though Owen had “made a big point” of telling counsel that he always
purchased refundable tickets in case plans change. (Id. at PageID# 2321). Counsel felt that “the
bottom line was” that he had “thrown away” the initial money paid to Owen and “didn’t want to
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 69 of 93 PageID #: 4462
send Mr. Owen any more money.” (Id. at PageID# 2322). He considered Owen a “charlatan and a
fraud.” Curtis, 2020 WL 476907, at *11.
Petitioner insists that, in making his decision not to call Owen, trial counsel
misapprehended Owen’s request for additional funds. Petitioner references Owen’s May 11, 2018
affidavit in which he states that he was unable to recoup his original travel expenses and thus
needed additional funding as compensation for his time and travel in order to appear at Petitioner’s
new trial.21 (Doc. No. 54 at PageID# 4270 citing Doc. No. 50, Attach. 1 at PageID# 4216-17). On
cross-examination during Petitioner’s post-conviction hearing, trial counsel was presented with
Owen’s affidavit and testified that “he would not be surprised to learn Mr. Owen signed a sworn
affidavit stating that he was not able to recoup his original travel expenses because ‘Mr. Owen
says whatever he needs to say to make himself look better.’” Curtis, 2020 WL 476907, at *8. Trial
counsel reiterated that Owen told him that he (Owen) “got most of [the money he spent on travel
expenses] back” but refused to testify without additional funds. Thus, the record shows that at the
time he decided not to call Owen, trial counsel: (a) was aware of Owen’s affidavit testimony that
he had not received refunds for the expenses he incurred in connection with Petitioner’s initial trial
date; and (b) simply did not find Owen’s affidavit testimony to be credible.
Third, to request court funding, trial counsel would have needed to obtain another
continuance. As trial counsel explained, “[C]onsidering that [Petitioner’s] last continuance lasted
about a year, I’m pretty sure Mr. Curtis would not and did not authorize me to ask for a continuance
so that we could take the necessary time to go to the AOC and get the Court to approve written
21
Petitioner also references a letter from Owen to Petitioner dated August 13, 2018 in which Owen explains why he
requested more money. (Doc. No. 50, Attach. 1 at PageID# 4215). However, this letter is not part of the state-court
record. Because the letter essentially repeats what Owen said in his sworn affidavit and the Court is considering the
affidavit, the Court will not expand the state-court record to include the letter.
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 70 of 93 PageID #: 4463
motions.” (Doc. No. 13, Attach. 21 at PageID# 2390). If counsel’s request had been granted,
Petitioner’s trial would have been delayed even longer while Owen performed additional testing
and prepared a new report.
Fourth, trial counsel testified that he believed that any “miniscule benefit” obtained by
Owen’s testimony would be “greatly outweighed” by his performance on cross-examination.
Curtis, 2020 WL 476907, at *11. Trial counsel believed Owen’s testimony at the pre-trial hearing
“went extremely poorly for him,” and trial counsel was afraid Owen would “fall apart” on crossexamination if he testified at trial. Id. at *8. Further, because Owen’s pre-trial testimony
contradicted much of his initial report, trial counsel believed that “the only benefit to Mr. Owen as
a witness would be to confuse the less intelligent jurors” on the panel. Id. Counsel explained that
“80 percent of what he [Owen] had told us to begin with turned out not to be the case. He had a
horrible [a]ffect in court at least the limited part that we heard.” (Doc. No. 13, Attach. 21 at PageID
at PageID# 2323). Based on trial counsel’s assessment of Owen’s helpfulness, or lack thereof, trial
counsel decided to change his trial strategy to attacking the credibility of the victim and
establishing that Petitioner did not have his cell phone with him on the day of the controlled call.
Trial counsel emphasized that, “[i]f Mr. Owen had stuck to his guns and could support it on his
first report and not said some of the things he said, testified the way he did at our Daubert hearing,
then, you know, I probably—I might have even faked getting sick and needing an appendicitis to
get Mr. Curtis a new trial.”22 (Doc. No. 13, Attach. 21 at PageID# 2369).
Based on these reasons, trial counsel made a reasonable and informed strategic decision
not to call Owen as an expert witness. It is a “longstanding and sound principle that matters of trial
22
The Court surmises (and certainly hopes) that when he made this statement, trial counsel was being facetious and
simply meant to emphasize his willingness to put Owen on the stand if, in counsel’s estimation, Owen had been more
helpful to the defense.
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 71 of 93 PageID #: 4464
strategy are left to counsel’s discretion.” Dixon v. Houk, 737 F.3d 1003, 1012 (6th Cir. 2013). 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.
Even if the Court assumes for the purposes of this analysis that trial counsel’s performance
was deficient, Petitioner has failed to demonstrate prejudice from trial counsel’s failure to secure
Owen’s testimony at trial. Petitioner insists that Owen had favorable evidence to submit to the jury
on Petitioner’s behalf. However, Owen testified at the Daubert hearing that “80 percent” of the
second recording’s ““problems . . . were the result of this being a recording as opposed to a oneoff from the digital version.” Curtis, 2020 WL 476907, at *8. The remaining “inconsistencies” on
the second recording, which was played at trial, he explained, “did not advance the petitioner’s
theory.” Id.
While it is possible that Owen may have provided testimony favorable to the defense had
he been called as an expert witness, Petitioner did not present Owen at Petitioner’s post-conviction
hearing to testify as to what favorable information Owen might have provided had he been afforded
such opportunity. Moreover, the victim testified in detail as to the four instances of rape, and no
corroborating physical evidence is required to convict Petitioner of those counts. See infra at page
77. Thus, Petitioner has not shown prejudice because of trial counsel’s failure to seek a continuance
and state funding to secure Owen’s testimony at Petitioner’s trial.
Petitioner has not demonstrated sufficient cause and prejudice to excuse the default of
Claim 5. The claim must be dismissed.
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 72 of 93 PageID #: 4465
iv. Claim 6
In Claim 6, Petitioner alleges that trial counsel was ineffective for “failing to send the
critical recorder device to the forensic expert for testing as ordered by the trial judge.” (Doc. No.
1 at PageID# 22-25).
Petitioner raised this claim on post-conviction appeal, (Doc. No. 1 at PageID# 22-24), but
the TCCA invoked an adequate and independent state procedural ground to bar review of the claim,
citing Cauthern. Curtis, 2020 WL 476907, at *4.
Even assuming, however, that Petitioner could show cause and prejudice for the default,
the underlying ineffective assistance of trial counsel claim is without merit. This is true because
Petitioner cannot show that, even if trial counsel’s performance was deficient, the outcome of
Petitioner’s trial would have been different had trial counsel obtained the original recorder device
for Owen to test.
The record shows that the recorder device was available for Owen to examine and test prior
to trial. Specifically, during the Daubert hearing on August 6, 2014, the trial judge confirmed with
the State that the recorder device “is actually in evidence” and “ in control of the clerk,” and “[t]he
State is strictly stating it has no objection to it being sent to Mr. Owen and tested.” (Doc. No. 13,
Attach. 7 at PageID# 929). Trial counsel testified, however, that “at no point did [Owen] tell [trial
counsel], [Owen] can’t do this analysis unless you give [him] the original.” (Doc. No. 13, Attach.
20 at Page ID# 2271). Petitioner correctly points out that the trial judge “strongly urged” trial
counsel to send the original recorder device to Owen, (Doc. No. 13, Attach. 2 at PageID# 447), so
that an “apples to apples comparison of the two experts” could occur, after the judge determined
that the State’s witness had been able to test using the original recorder device and Owen had not
been afforded the chance to do so. (Doc. No. 13, Attach. 21 at PageID# 2371). Trial counsel and
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 73 of 93 PageID #: 4466
the State then discussed how to send the original recorder device to Owen. (Doc. No. 13, Attach.
21 at Page ID# 2371). Ultimately, however, trial counsel elected not to make those arrangements.
Petitioner alleges that trial counsel’s decision constituted constitutionally inadequate performance
because he (trial counsel) did not comply with the judge’s suggestion.
Trial counsel testified that, initially, he believed it was important for both experts to have
access to the same original recorder device. (Id. at PageID# 2372). However, after the Daubert
hearing, “it became clear” to trial counsel “that the overwhelming majority of the problems with
the recording were the result of it being a copy, that it was pointless to—it really didn’t matter
whether [Owen] got the original device or not.” (Doc. No. 13, Attach. 21 at PageID# 2372).
Further, trial counsel noted that Owen’s expert opinion lacked credibility because, among other
reasons, he had “made a huge deal” out of his 12-step methodology, of which step 8 was testing
the recorder device, yet Owen had not tested the recorder device “before giving his opinion that
he was going to go to trial with.” (Id. at PageID# 2373). In fact, trial counsel believed that Owen's
testimony at the Daubert hearing “went extremely poorly for him,” leading trial counsel to fear
that Owen would “fall apart” on cross examination if he testified at trial and testify that he, like
the State’s expert, believed it was Petitioner’s voice on the controlled call. (Doc. No. 13, Attach.
21 at PageID# 2290, 2323); Curtis, 2020 WL 476907, at *8.
Moreover, Owen demanded more money to conduct additional testing on the original
recorder device and to appear in court after the third continuance, leading trial counsel to believe
that Owen was a fraud. (Doc. No. 13, Attach. 21 at PageID# 2399- 2400). Plus, Petitioner was
indigent, and trial counsel did not believe the “AOC” would give him the amount requested by
Owen. (Doc. No. 13, Attach. 21 at PageID# 2291-92). Additionally, requesting court funding
would have required trial counsel to obtain another continuance as he waited on the court’s
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 74 of 93 PageID #: 4467
response and, if the court approved his request, Petitioner’s trial would have been delayed even
longer. As explained by trial counsel, Petitioner “was locked up all this time because he couldn’t
make bond”, and trial counsel did not believe that Petitioner would agree to another lengthy
continuance. (Id.)
Owen testified at the Daubert hearing that it was his understanding that the State’s expert
did not analyze the original recorder device but rather examined one he had purchased that was
identical to the original recorder device. (Doc. No. 13, Attach. 5 at PageID# 793). And Owen
agreed that “[i]n order to look at the original recorder you obviously don’t want to tamper, add
anything take away anything because it’s the original . . . [s]o you routinely . . . as a matter of good
practice . . . would . . . make a clone copy of that recorder.” (Id. at PageID# 803). In response to
the judge’s questions, Owen clarified that, whereas Lacey bought (for testing purposes) the same
kind of recorder device as the original recorder device (made by the same company),23 Owen did
not perform such testing because he believed that all recorder devices are different. (Doc. No. 30,
Attach. 1 at PageID# 3258).
Consistent with that testimony, Owen explicitly testified at Petitioner’s post-conviction
hearing that he (Owen) did not need the original recorder device to offer his expert opinion on the
23
Subsequent exchanges between the attorneys and the judge clarified that Lacey purchased a recorder device that
was the same kind as the original recorder device, but “[t]he device hooked up to the recorder to do the piece that goes
in the ear that does the microphone part” was “an upgraded newer one” because the original type was no longer
available for purchase. (Doc. No. 30, Attach. 1 at PageID# 3263). There is conflicting, confusing evidence in the
record regarding whether Lacey ever tested the original recorder device or recording. (See Doc. No. 30, Attach. 1 at
PageID# 3263-74). Likewise, there is discussion by counsel and the judge reflecting that Owen had been provided
with “the original” [unclear whether recording or recorder device], which thereafter was lost in the mail when Owen
returned it to defense counsel using the United States Postal Service instead of the recommended mailing method.
(Id.) The Court discerns that most of this confusion is the result of the attorneys, witnesses, and judge not making
clear at times whether they are referring to the original recorder device or the original recording. Herein, to refer to
these two respective things, the Court uses the terms “recorder device “ and “recording” to distinguish between the
two and thereby limit such confusion. However, any confusion in the underlying state records does not prevent the
Court from being able to decide all claims raised herein by Petitioner, particularly given Owen’s explicit statement
that his analysis was not incomplete without having tested the original recorder device.
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 75 of 93 PageID #: 4468
recording’s authenticity, contradicting Petitioner’s assertion that testing the original recorder
device is critical:24
Q. But my question is, is your analysis incomplete since you did not look at the
original recorder?
A. No. There are examinations done every day where you don’t have the original
recorder. In fact, most of the time you don’t have the original recorder, especially
when the event happens and three years later it goes to trial, nobody knows where
the original recorder went, regardless of what kind of recorder it is. But there are
many, many instances where you don’t have the original recorder. It’s nice to have
to original recorder, but sometimes you just don’t have it.
(Doc. No. 13, Attach. 17 at PageID# 1885) (emphasis added). The trial judge, who was very
familiar with the competing experts’ claims, noted on the record that Owen’s failure to test the
original recorder “doesn’t invalidate [Owen’s] report.” (Doc. No. 13, Attach. 17 at PageID# 1907).
In short, when experienced trial counsel weighed Owen’s potential usefulness to the
defense, he determined that Owen would not be sufficiently helpful considering the many
problems with Owen, especially given Owen’s testimony that he did not need the original recorder
device and his mistaken belief that the State’s expert had not examined the original recorder device.
Based on the facts and circumstances known to trial counsel at that time, his decision was
reasonable. Therefore, Petitioner has not established that trial counsel provided constitutionally
ineffective assistance by deciding not to send Owen the original recorder device for analysis. See
Strickland, 466 U.S. at 690.
Even if trial counsel had performed deficiently when he decided not to send Owen the
original recorder for analysis, Petitioner cannot show that he was prejudiced by counsel’s decision.
24
Curiously, although Owen testified that it would be “beneficial” to examine the original recorder device and that he
would have run a test on the original recorder device if it had been provided to him (Doc. No. 13, Attach. 17 at PageID#
1872), he also testified without reservation that his analysis was complete even without having examined the original
recorder device. Owen’s apparent position was that he could do a complete analysis without doing everything
“beneficial” for such analysis. The key is that Owen said his analysis was complete, and that is what matters, not that
he happened to also say that doing something additional would be “beneficial.”
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 76 of 93 PageID #: 4469
That is to say, Petitioner cannot show that there is a reasonable probability that the outcome of his
trial would have been different. Petitioner maintains that the State needed the recorder, “the only
physical evidence,” to prove his guilt. (Doc. No. 1 at Page ID# 43). He argues:
This is the tragedy in this instant case[] because the petitioner is being denied the
court-ordered access to the only physical evidence that ties him to the crimes he is
convicted of committing, and the courts themselves have estopped him from
providing the critical proof that he did not incriminate himself in the alleged perp
call used to convict him at trial. This is a “Manifest Injustice in the 1st Degree” and
should be cured by this court ordering the Respondent to turn over the recorder
device for the court ordered testing.
(Doc. No. 48 at PageID# 4115). But the prosecution is not required to corroborate a rape victim’s
testimony with physical (or audio) evidence to satisfy its burden of proof. See State v. Elkins, 102
S.W.3d 578, 582 (Tenn. 2003) (affirming defendant’s conviction for child rape where “jury had to
decide who to believe, [the victim] or his mother” and “[c]learly, the jury chose to believe [the
victim]” despite inconsistencies in his testimony); State v. Smith, 42 S.W.3d 101, 106 (Tenn. 2000)
(finding that “there is no requirement that the [rape] victim’s testimony be corroborated”); State v.
Johnson, No. 03C01-9105CR00157, 1992 WL 80349, at *7 (Tenn. Crim. App. Apr. 22, 1992)
(“prima facie evidence of the rape” can be “proven through the victim’s testimony”). Thus, the
victim’s trial testimony that Petitioner raped her on the four occasions described in the indictment
and bill of particulars provided a sufficient basis—without the controlled-call recording—for the
appellate court’s affirmation of Petitioner’s conviction of four counts of rape of a child. See Curtis,
2016 WL 7654946, at *1-4. Given this testimony, Petitioner cannot show that the outcome of his
trial would have been different had trial counsel sent the recorder to Owen and then presented
Owen during a defense case-in-chief.
In summary, even assuming both that Petitioner could establish cause and prejudice for the
defaulted Claim 6 and that that trial counsel performed deficiently by failing to enable Owen to
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 77 of 93 PageID #: 4470
test the original recorder device, Petitioner cannot establish that the outcome of his trial would
have been different. Claim 6 will be dismissed.
v. Claim 8
Petitioner’s final claim of ineffective assistance is that appellate counsel should have raised
certain “non-frivolous issues” on direct appeal. (Doc. No. 1 at Page ID# 29-30). Petitioner
contends that he [Petitioner] orally raised four issues25 while testifying during his motion-for-newtrial hearing and advised appellate counsel to include those issues in the direct appeal, but appellate
counsel did not follow Petitioner’s instructions.
Petitioner attempted to raise an ineffective assistance of appellate counsel claim during his
post-conviction proceedings. Because Petitioner was represented by counsel at this time, the postconviction court directed counsel to amend the final summation if she believed Petitioner’s
concerns about appellate counsel had merit. Post-conviction chose not to amend the summation.
Petitioner raised an ineffective assistance of appellate counsel claim in his pro se brief filed in
support of his post-conviction appeal. (Doc. No. 13, Attach. 25 at Page ID# 2678-79). The TCCA,
however, found that Petitioner was bound by the actions of his counsel and that Petitioner had
waived the issue by abandoning it (by failing to include the claim in the final summation during
the post-conviction hearing), relying on House, 911 S.W.2d at 714. Curtis, 2020 WL 476907, at
*15.
The TCCA’s reliance on, and application of, the House rule (i.e., that petitioner is bound
by the actions of his counsel) constitutes an adequate and independent state procedural ground on
25
Petitioner alleges that, while testifying at his motion-for-new-trial hearing, he raised trial counsel’s failure to object
to 404(b) victim testimony and to the State’s expert witness’s qualifications as well as trial counsel’s failure to
investigate facts supporting a due process claim and failure to assert Petitioner’s actual innocence. (Doc. No. 1 at
PageID# 29).
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 78 of 93 PageID #: 4471
which the TCCA could (and did) rest its denial of relief for procedural default purposes.26 See
Monzo, 281 F.3d 568, 576. Thus, the Court can review this defaulted claim only if Petitioner “can
[either] 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.’” Monzo, 281 F.3d 568, 575 (citing Coleman, 501 U.S. 722, 750).
Petitioner maintains that his post-conviction counsel was constitutionally ineffective for
failing to argue that direct appellate counsel rendered ineffective assistance when failing to raise
certain issues on appeal. Again, Petitioner’s attempt to show cause for his procedural default fails,
but for a different reason.
“Martinez and Trevino’s equitable exception allowing the ineffective assistance of postconviction counsel to constitute cause for procedural default applies only to claims of ineffective
assistance of trial counsel; it does not apply to any other claims, including ineffective assistance
of appellate counsel.” Hale v. Shoop, No. 1:18-cv-504, 2021 WL 1215793, at *98 (N.D. Ohio Mar.
31, 2021) (citing Martinez, 566 U.S. at 9; Trevino, 569 U.S. at 422). In Davila v. Davis, __ U.S.
__, 137 S. Ct. 2058, 198 L. Ed. 2d 603 (2017), the Supreme Court found that the Martinez/Trevino
exception applies to “a single claim—ineffective assistance of trial counsel—in a single context”
and expressly declined to extend it “to allow federal courts to consider a different kind of defaulted
claim—ineffective assistance of appellate counsel.” Id. at 2062-63. “[T]he law of [the Sixth
26
The House rule is “adequate” because it was and is “firmly established and regularly followed” in Tennessee
jurisprudence before, during, and after “the time of the petitioner’s actions giving rise to the default.” Fautenberry,
515 F.3d at 640-41; see Aguilar v. State, No. M2017-01763-CCA-R3-PC, 2018 WL 6181731, at *2-3 (Tenn. Crim.
App. Nov. 27, 2018), perm. appeal denied, (Tenn. Mar. 28, 2019); Olvera v. State, No. M2009- 00039-CCA-R3-PC,
2010 WL 5343308, at *8 (Tenn. Crim. App. Dec. 22, 2010), no perm. appeal filed; Daniel v. State, No. E2002-02838CCA-R3-PC, 2003 WL 22187067, at *13 (Tenn. Crim. App. Sept. 23, 2003), perm. appeal denied, (Tenn. Dec. 22,
2003); Bates v. State, No. E2000- 02354-CCA-R3-PC, 2001 WL 363067, at *3 (Tenn. Crim. App. Apr. 12, 2001), no
perm. appeal filed; Dean v. State, No. E1998-00135-CCA-R3-PC, 2000 WL 337552, at *8 (Tenn. Crim. App. Mar.
21, 2000), perm. appeal denied, (Tenn. Nov. 13, 2000); Brimmer v. State, 1998 WL 612888, at *33-36 (Tenn. Crim.
App. Sept. 15, 1998).
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 79 of 93 PageID #: 4472
Circuit] is that Martinez/Trevino’s limited exception does not extend to claims of ineffective
assistance of appellate counsel.” Porter v. Genovese, 676 F. App'x 428, 434 (6th Cir. 2017) (citing
Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013)). Thus, Petitioner cannot assert postconviction counsel’s ineffectiveness to excuse the default of Claim 8, which is a claim of appellate
counsel’s ineffectiveness.
In any event, Petitioner’s underlying claim (that direct appellate counsel was ineffective
by failing raise certain issues) lacks merit. Petitioner argues that direct appellate counsel “admitted
in open court . . . that he did not present the defendant [with] a copy of the brief filed on his behalf
prior to the New Trial hearing.” (Doc. No. 1 at PageID# 29). As a result, Petitioner alleges, the
TCCA “refused to analyze” the “404(b) issue.” (Id.) The Court previously has addressed
Petitioner’s ineffectiveness argument with respect to the 404(b) issue and will not repeat its
analysis of that argument here. See supra at pp. 56-63. With respect to the other three issues that
Petitioner alleges appellate counsel should have raised, Petitioner asserts that, had appellate
counsel made Petitioner aware of the claims trial counsel intended to pursue in his motion-fornew-trial brief, Petitioner would have been aware that “[appellate] counsel had left all of the State
and Federal Constitutional claims out of his New Trial brief that he [Petitioner] had provided to
his counsel as issues he wished to have reviewed, and[] [P]etitioner did not want and would not
have agreed to allow references to a second victim.” (Id. at PageID# 30). Petitioner, however, is
mistaken. Appellate counsel, in fact, raised several constitutional issues in Petitioner’s brief in
support of a new trial.27 Petitioner also alleges that counsel failed to raise these issues on direct
27
In a Motion for New Trial and/or A Judgment of Acquittal filed on March 31, 2015, counsel Larry Joe Hinson, Jr.
argued that there was insufficient evidence for the jury to find beyond a reasonable doubt that the victim was under
the age of thirteen at the time of the alleged crimes. (See Doc. No. 13, Attach. 2 at PageID# 532-33). In a subsequent
Motion for New Trial and/or A Judgment of Acquittal filed on May 4, 2015, counsel Larry Joe Hinson, Jr. argued the
evidence was insufficient, the victim’s husband-wife testimony was prejudicial, the jury saw the defendant in
handcuffs and chains, not all of the evidence admitted at trial was given to the jury for deliberation, and the defendant
could not present a full defense due to counts I-IV being tried in lieu of counts V and VI. (See id. at PageID# 557-58).
Case 3:20-cv-00559 Document 58 Filed 03/29/23 Page 80 of 93 PageID #: 4473
appeal as requested by Petitioner. (Doc. No. 1 at PageID# 31). While appellate counsel did not
raise each of the four issues identified by Petitioner, appellate counsel raised the insufficiency of
the evidence claim and the 404(b) testimony claim. See Curtis, 2016 WL 7654946, at *5.
In any event, Petitioner has failed to show how he was prejudiced by appellate counsel’s
failure to raise the other claims on appeal. Although Petitioner spends a great deal of time
explaining how he gave oral testimony and submitted pro se motions and petitions arguing his
points, Petitioner does not demonstrate that, but for appellate counsel’s failure to raise these claims
on appeal, there was a possibility of another outcome. (See Doc. No. 1 at PageID# 29-30).
Petitioner has not demonstrated sufficient cause and prejudice to excuse the default of
Claim 8. The claim, therefore, will be dismissed.
b. Claim 10
Petitioner next alleges that the State violated his right to a fair trial under both the “State
and Federal Constitution” when it “spoliated/erased the original recording from the recording
device prior to having the contents of the contested recorded conversation authenticated[.]” (Doc.
No. 1 at Page ID# 41-46). And “[t]his recording,” says Petitioner, “was the only physical evidence
that tied the petitioner to the charged crimes, with the only other evidence being the uncorroborated
testimony of the alleged victim.” (Doc. No. 1 at PageID# 19).
Petitioner first claims that the destruction of the original recording evidence violated his
rights under the Tennessee Constitution and the ruling of the Tennessee Supreme Court in State v.
Ferguson, 2 S.W.3d 912 (Tenn. 1999). These claims are “not cognizable in a federal habeas corpus
proceeding.” Spalla v. Foltz, 788 F.2d 400, 405 (6th Cir. 1986). See also Lewis v. Jeffers, 497 U.S.
764, 779 (1990) (“federal habeas corpus relief does not lie for errors of state law”); Sinistaj v. Burt,
66 F.3d 804, 807 (6th Cir. 1995) (“Errors of state law alone cannot form the basis of relief under
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federal habeas corpus.”). Thus, the part of Claim 10 based on the Tennessee constitution and
Ferguson fails because it alleges a perceived error based on state law.
In support of his federal claim, Petitioner relies on the Fourteenth Amendment’s due
process clause. (Doc. No. 1 at Page ID# 41). Petitioner raised this claim on post-conviction appeal
(Doc. No. 13, Attach. 25 at PageID# 2685-92), but the TCCA did not review the claim because
Petitioner waived the claim by not raising it on direct appeal. See Curtis, 2020 WL 476907, at *16.
Pursuant to Tennessee Code Annotated § 40-30-106(g), “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[.]” The
TCCA noted that this statute bound Petitioner to “the action or inaction of his attorney” and that,
since Petitioner “could have presented these issues for review on direct appeal but chose not to,”
the claims were waived. Curtis, 2020 WL 476907, at *16. This statutory rule constitutes an
adequate and independent state procedural ground for denying relief based upon procedural
default. See Coe v. Bell, 161 F.3d 320, 329-330 (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 postconviction motion); Hollis v. Perry, No. 3:17-cv-626, 2018 WL 6181354, at *30 (M.D. Tenn. Nov.
27, 2019) (citing Coe and discussing the waiver rule).
In addition, Petitioner failed to include this claim in his final summation during his postconviction hearing. Curtis, 2020 WL 476907, at *16. Since “the issues were not before the postconviction court and no ruling was rendered,” the TCCA found that it was precluded from
reviewing the claim. Id. (citing Cauthern). This rule also constitutes an adequate and independent
state procedural ground for denying relief as explained supra. Monzo, 281 F.3d at 576. Thus, the
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Court can review this defaulted claim only if Petitioner “can [either] 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.’” Monzo, 281
F.3d 568, 575 (citing Coleman v, 501 U.S. 722, 750). Petitioner cannot make this showing.
According to trial counsel’s accredited testimony, the defense received the first version of
the recording from the State during discovery. Curtis, 2020 WL 476907, at *7. Trial counsel
explained that “there’s not any way [he] expected to get anything other than a copy of the original
recording” because that was the standard procedure for how he had received similar evidence from
the State in the past. (Doc. No. 13, Attach. 20 at PageID# 2270). Owen examined the copy of the
recording provided by the State. Id. His initial report “indicated the recording was in an unusual
format,” so trial counsel requested the State provide “a copy as close to the original as possible.”
(Id. at PageID# 2271). According to trial counsel, “the State appreciated that it was important
enough to Mr. Owen’s analysis to get—give him a strike off of the original recording which,
apparently, was digitally stored.” Id. The State obliged, and the TBI “burned [the defense] one off
of the actual digital recording which was on a server and [the defense] got that up to Mr. Owen.”
(Doc. No. 13, Attach. 20 at Page ID# 2271-72). Trial counsel acknowledged that this second
recording, the “strike off,” was “as close to the original of the phone call recording that [the
defense] could get” because the original “had been overwritten and deleted off, and that original
recorder was not available.” (Id. at Page ID# 2272). Owen and the State’s expert, Lacey, then
analyzed this second recording, which was later played at trial. Curtis, 2020 WL 476907, at *7.
Trial counsel stated that “at no point did [Owen] tell [trial counsel], [Owen] can’t do this analysis
unless you give [him] the original.” (Doc. No. 13, Attach. 20 at Page ID# 2271).
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In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held “that suppression by
the prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Id. at 87. Impeachment evidence as well as exculpatory evidence “falls within
the Brady rule.” United States v. Bagley, 473 U.S. 667, 676 (1985). “Favorable evidence is
material, and constitutional error results from its suppression by the government, ‘if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceedings would have been different.’” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting
Bagley, 473 U.S. at 682). Thus, to prevail on a Brady claim, the petitioner must prove that the
evidence at issue was favorable to the defense, that the State willfully or inadvertently suppressed
the evidence, and that, as a result, the petitioner was prejudiced. Brooks v. Tennessee, 626 F.3d
878, 890 (6th Cir. 2010) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). A petitioner
can prove prejudice stemming from the evidentiary suppression by showing that the suppressed
evidence was “material,” meaning there was a “reasonable probability of a different result” had
the evidence been provided to the defense. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (internal
quotations omitted).
Petitioner’s defaulted Brady claim lacks merit. Petitioner has not demonstrated that the
original recording is favorable to him. Owen never requested the original recording. (Doc. No. 13,
Attach. 20 at Page ID# 2271). In fact, Owen asked for a better copy, not the original recording.
(Id.) In addition, after Owen analyzed the “strike off of the original”—which was the closest thing
to the original recording available—Owen opined that the splicing Petitioner theorized likely did
not occur, which also casts doubt on Petitioner’s contention that the original recording was
favorable to his defense for purposes of Brady. And although Petitioner insists that the State needed
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the recording, “the only physical evidence” to prove his guilt (see Doc. No. 1 at PageID# 43), the
Court already has explained that Petitioner is mistaken. While the recording certainly was
incriminating, the evidence before the jury even in the absence of the recording was sufficient to
convict Petitioner, as discussed infra in Claim 14.
In short, the “original recording” was immaterial, that is, there was no “reasonable
probability, that had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Bagley, 473 U.S. at 682. Claim 10, therefore, will be dismissed.
c. Claim 12
In Claim 12 of his petition, Petitioner alleges that the trial court violated his right to due
process because evidence concerning the rape of his younger daughter was admitted during
Petitioner’s trial (which involved charges concerning only the rape of his older daughter). (Doc.
No. 1 at PageID# 52-54). Petitioner also alleges that, in permitting this evidence, the trial court
violated “both State and Federal Rule 14(b) Severing of Offenses.” (Id.)
Petitioner raised this claim to the TCCA on post-conviction appeal, and the TCCA invoked
the waiver rule articulated in Cauthern to deny relief because the issue was not included in
Petitioner’s final summation and the post-conviction court did not render a ruling on the issue in
its order denying relief. (Doc. No. 13, Attach. 25 at Page ID# 2694-2700); Curtis, 2020 WL
476907, at *16.
The Cauthern rule constitutes an adequate and independent state procedural ground on
which the TCCA could rest its denial of relief. Therefore, the Court can address this claim only if
Petitioner pleads sufficient cause and prejudice to excuse the default or shows that the Court’s
failure to address this claim would result in a fundamental miscarriage of justice. This Petitioner
cannot do, because the claim lacks merit.
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First, Petitioner’s claim concerning the alleged misapplication of Tennessee Rule of
Criminal Procedure 14 is not cognizable in habeas corpus. “[F]ederal habeas corpus relief does not
lie for errors of state law” because “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(quotation omitted); Clifton v. Carpenter, 775 F.3d 760, 764 (6th Cir. 2014); see also Watts v.
Leibach, No. 3:17-cv-795, 2019 WL 4343549, at *12-13 (M.D. Tenn. Sept. 12, 2019) (finding that
an alleged error concerning severance of offenses brought pursuant to Tennessee Rule of Criminal
Procedure 14 is not cognizable for review under Section 2254).
Second, Petitioner’s claim concerning Federal Rule of Criminal Procedure 14’s
applicability to his state-court criminal trial also is not cognizable. The Federal Rules of Criminal
Procedure do not apply to state proceedings and are not constitutional mandates that state courts
must follow. See Murphy v. Sloan, No. 1:14-cv-2445, 2015 WL 7450993, at *12 (N.D. Ohio Oct.
27, 2015), report & recommendation adopted 2015 WL 7455564, at *1 (N.D. Ohio Nov. 23,
2015); Felder v. Ohio Adult Parole Auth., No. 1:07-cv-1535, 2009 WL 3763067, at *14 (N.D.
Ohio Nov. 9, 2009) (citing Alvarez v. Straub, 21 F. App’x 281, 283 (6th Cir. 2001)); see also
Ahlswede v. Wolff, 720 F.2d 1108, 1110 (9th Cir. 1983) (finding that an alleged violation of a
Federal Rule of Criminal Procedure is not cognizable in a petition for a writ of habeas corpus).
Third, the record before the Court shows that the witnesses’ testimonial statements about
which Petitioner complains were sterilized pursuant to the trial court’s order on the State’s motion
in limine concerning Petitioner’s conduct with his younger daughter. (See Doc. No. 13, Attach. 8
at Page ID# 1028, 1043, 1047; Doc. No. 13, Attach. 9 at Page ID# 1117, 1120, 1125). While
testifying at trial, the victim acknowledged that she had “become concerned . . . for another
individual” before describing the steps she took that eventually led to Petitioner’s prosecution.
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(See Doc. No. 13, Attach. 8 at PageID# 1028-1030). She did not name her younger sister or
describe what she saw that caused her to become concerned. (Id.) During cross examination, the
victim conformed her testimony to the trial court’s instructions when she noted that she waited to
pursue charges against Petitioner “[b]ecause [she] can forgive and forget, but when [she] saw
someone else in trouble with that, that’s why [she] went to [police].” (Id. at PageID# 1043). Again,
the victim did not identify her younger sister or provide any details regarding the age or gender of
the person about whom she thought was “in trouble.” (Id.)
Witness Debbie Landers complied with the court’s order by acknowledging that the victim
asked her for advice because she was “concern[ed] about another person.” (Doc. No. 13, Attach.
9 at PageID# 1117). Landers did not reveal any additional details about the person or what the
victim said she saw besides stating that, “because the situation involved a minor”, Landers believed
they were required to report within two days. (Id.) Likewise, both M’Le Hudgins (an employee of
the Davis House Child Advocacy Center) and Investigator Hilburn did not reveal the younger
daughter’s identity when testifying. (Id. at PageID#1120, 1125).28 Although Petitioner contends
that the trial court’s admission of this evidence so permeated the trial that Petitioner could not
receive a fair trial, the record shows that the victim and witnesses’ testimonies were sufficiently
neutralized to protect Petitioner’s rights while allowing the victim to provide important context on
the very material issue of why, after such a long hiatus, she finally reported the rapes. And to the
extent Petitioner contends that evidence about an alleged second victim constituted improper
28
Hudgins testified that the victim “was nervous and tearful and just upset and she wanted to know who she could
talk to if she was worried about somebody.” (Doc. No. 13, Attach. 9 at PageID# 1120). Hilburn testified that the victim
told him “[s]he was concerned about another individual” and, “[b]ased on the conversation and things she was saying
I began to believe she had been the victim of abuse herself.” (Id. at PageID# 1125).
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propensity evidence (see Doc. No. 1 at PageID# 54), there was a very proper non-propensity
purpose for this testimony, namely, explaining why the victim came forward when she did.
As for the recording that was played for the jury and referenced Petitioner’s younger
daughter, Petitioner “agreed trial counsel advised the trial court that the recording did not need to
be redacted because it was not ‘fair to the State’ to ask them to redact portions of the conversation
and later argue the recording was manipulated.” Curtis, 2020 WL 476907, at *7. Thus, Petitioner’s
argument he “contested the playing of the unredacted recording” is contradicted by his own
testimony. (Doc. No. 1 at Page ID# 53).
This claim is without merit and will be dismissed.
d. Claim 14
In his final claim, Petitioner alleges that the State failed to introduce sufficient evidence to
convict him of the child rapes. (Doc. No. 1 at PageID# 60-63).
Although Petitioner properly exhausted an insufficiency-of-the-evidence claim regarding
the State’s use of leading questions29 (see Doc. No. 13, Attach. 14 at PageID# 1719-21), Petitioner
did not raise an insufficiency-of-the-evidence claim based on the credibility of the victim and other
State witnesses’ testimony. It is too late now for Petitioner to return to state court and assert the
claim. Therefore, the claim is technically exhausted but procedurally defaulted. Regardless of the
default, this claim lacks merit.
Petitioner was convicted of four counts of rape of a child. Tennessee defines “rape of a
child” as “the unlawful sexual penetration of a victim by the defendant or the defendant by a victim,
if the victim is more than three (3) years of age but less than thirteen (13) years of age.” Tenn.
29
On direct appeal, Petitioner argued that the trial judge should not have allowed the prosecutor’s use of leading
questions when questioning Petitioner’s older daughter and, without the testimony garnered from those leading
questions, the evidence used to convict Petitioner was insufficient. (See Doc. No. 13, Attach. 14 at PageID# 1719).
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Code Ann. § 39-13-522(a) (2010). “Fellatio” and “any other intrusion, however slight, of any part
of a person’s body” constitutes “sexual penetration.” Id. § 39-13-501(7). Here, the victim’s
testimony satisfies the elements of “rape of a child.”
At trial, the victim described Petitioner “penetrat[ing] her vagina with his fingers” on
Valentine’s Day in 1998 (Doc. No. 13, Attach. 8 at PageID# 1031, 1036-37); described a similar
incident of digital-vaginal penetration after being named a cheerleader later that year (id. at
PageID# 1037-39); described performing fellatio on Petitioner on his birthday in 1998 (id. at
PageID# 1040-41); and described performing fellatio on Petitioner in a church bus between
February 7, 1997 and December 26, 1998 (id. at PageID# 1042). The victim testified that these
incidents occurred when she was twelve years old. (Id. at PageID# 1031). She testified that, after
the fourth incident, she told Petitioner that she wanted him to stop because what he described as
“messing around” made her “feel disgusting.” (Id. at PageID# 1043). She additionally testified that
her father (Petitioner) told her that “he wanted to be the one to show [her] the right way to do these
things, he wanted to be the one to show [her] how to treat a man.” (Id. at PageID# 1041). She
explained to the jury that she did not want to (although she ultimately agreed to) make the “perp
call” suggested by Investigator Hilburn because she “didn’t want to betray” her dad. (Id. at
PageID# 1047).
Petitioner insists that there is no physical evidence corroborating the victim’s testimony.
(Doc. No. 1 at PageID# 62). But the State does not need to corroborate the victim’s testimony to
establish Petitioner’s guilt. See State v. Smith, 42 S.W.3d 101, 106 (Tenn. 2000) (finding that “there
is no requirement that the [rape] victim’s testimony be corroborated”).
In arguing that the evidence is insufficient, Petitioner questions the victim’s credibility.
(See Doc. No. 1 at PageID# 60-63). However, the jury clearly believed the victim, even after
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hearing her admit to two distinct instances of dishonest conduct (Doc. No. 13, Attach. 8 at PageID#
1023-25, Attach. 10 at PageID# 1287) and to possibly being confused about the precise locations
where the rapes occurred (id. at PageID# 1075-78). Crucially, “[t]he credibility of the witnesses,
the weight to be given their testimony, and the reconciliation of conflicts in the evidence are
matters entrusted exclusively to the jury as the triers of fact.” State v. Cribs, 967 S.W.2d 773, 793
(Tenn. 1998). Importantly, “[a]n attack on witness credibility does not challenge the sufficiency
of the evidence, only its quality.” Humphrey v. Mills, 54 F. App’x 433, 434 (6th Cir. 2002).
The witness’s accredited testimony constituted sufficient evidence of Petitioner’s
numerous rapes he committed against his then-prepubescent daughter. Petitioner has presented
nothing to show that, if this claim were not defaulted, the evidence presented to the jury was
insufficient to sustain his convictions. This claim, though defaulted anyway, is nonetheless without
merit. Claim 14 will be dismissed.
Finally, to the extent that Petitioner invokes the fundamental-miscarriage-of-justice
exception to excuse his default of Claim 14 and other claims, he is unable to make the required
showing. A habeas petitioner can overcome a procedural default by demonstrating that “failure to
consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). The “fundamental miscarriage of justice” gateway is open to a petitioner
who submits new evidence showing that “a constitutional violation has probably resulted in the
conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, (1995) (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)); McQuiggin v. Perkins, 569 U.S. 383, 392–96
(2013); Williams v. Bagley, 380 F.3d 932, 973 (6th Cir. 2004). “To establish the requisite
probability, the petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in light of the new evidence.” Williams, 380 F.3d at 973. Notably, a claim of
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innocence in this context is “not itself a constitutional claim, but instead a gateway through which
a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.” Schlup, 513 U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993) ).
Petitioner points to Owen’s analysis of the recording of the controlled call as proof of his
actual innocence. However, Owen’s analysis and testimony concerning the recording were not
“exculpatory,” as was shown through the testimonies of trial counsel during post-conviction
review and Owen himself at the Daubert hearing. Indeed, Owen thought that a spliced recording—
had one in fact been created as Petitioner speculated—“would probably be able to be identified
because it’s very hard to do something like that and make it sound natural.” (Doc. No. 13, Attach.
17 at Page ID# 1873). Counsel opted not to advance Petitioner’s splicing theory because there was
no evidence to support it, including from Owen. And, as counsel stated, “frankly, it wasn’t
believable or plausible.” (Doc. No. 13, Attach. 21 at PageID# 2334-35).
Petitioner also insists that the Court should consider correspondence between Petitioner
and Ed Primeau, a purported forensics expert in audio engineering. Petitioner believes this
correspondence shows that Primeau is willing to test the original recorder and/or recording and
would offer an expert opinion exonerating Petitioner of his crimes. However, this correspondence
is not part of the existing state-court record, and Petitioner did not present this correspondence or
Primeau himself at Petitioner’s post-conviction hearing.
Furthermore, it is doubtful that a reasonable juror would have concluded that any testimony
by Owen or Primeau about the original recorder or recording trumped the victim’s testimony about
what Petitioner did to her and when. In addition, the recording of the controlled conversation
(“perp call”) corroborated Petitioner’s testimony. The recording was admitted into evidence under
Tennessee law, and Petitioner has not shown that the recording was improperly admitted. Even
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assuming that Petitioner was unconstitutionally prevented from making valid arguments that could
have cast doubt on the accuracy of the admitted recording, those claims would go to the weight of
the admitted recording and would not change the fact that there was validly admitted corroborating
evidence.
E. SUMMARY
In summary, Petitioner is not entitled to relief under Section 2254 because each of his
claims either is not cognizable under the Habeas Rules, is without merit, or is procedurally
defaulted without sufficient cause. Moreover, Petitioner has not shown that failure to consider his
defaulted claims will result in a fundamental miscarriage of justice. The petition therefore will be
denied in its entirety.
VI. CONCLUSION
For the reasons set forth herein, the Court will deny Petitioner’s Motion for Partial
Summary Judgment and Motion to Appoint Counsel (Doc. No. 49); Motion to Request Permission
to Exceed Page Limit (Doc. No. 51); Motion to Request District Court to Rehear Second Motion
to Request Leave for Discovery, which the Court construes as a motion for reconsideration under
Rule 54(b) (Doc. No. 55); and Motion to Request Permission to Amend Habeas Corpus Petition
with Recent Decision from the Sixth Circuit. (Doc. No. 56).
Petitioner’s Motion to Request the Habeas Court to Take Judicial Notice under Fed. R.
Evid. 201, which the Court construes as a motion to take judicial notice and to expand the record
(Doc. No. 52), will be denied in part and granted in part. Specifically, the motion will be granted
insofar as the Court expands the state-court record to consider the Affidavit of Thomas J. Owen
dated May 11, 2018. The motion will be denied in all other aspects.
Further, the petition seeking relief under 28 U.S.C. § 2254 will be denied, and this action
will be dismissed with prejudice. In so ruling, the Court notes that it does not write on a clear slate
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in adjudicating the petition. The Court does not resolve the petition by deciding, for example,
whether Petitioner was in fact guilty (and if so, of what), whether Petitioner should have been
convicted by the jury (and if so, of what), or even whether it personally believes in the first instance
that Petitioner’s claims are meritorious. Instead, in the manner discussed herein in detail, it applies
established principles to determine the extent to which it can review Petitioner’s claims at all, and,
for those claims that it determines it can review, it applies the demanding standards of AEDPA.
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, 537 U.S. at 327. 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 Petitioner’s claims, the
Court will deny a COA. However, Petitioner may seek a COA from the Sixth Circuit.
An appropriate Order will be entered.
______________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
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