Burdick v. Frink

Filing 23

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge William L. Campbell, Jr on 9/25/2024. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT JASON BURDICK, #454219,
Petitioner,
v.
WARDEN MARTIN FRINK,
Respondent.

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NO. 3:21-cv-00602
JUDGE CAMPBELL

MEMORANDUM OPINION
I. INTRODUCTION
Around the turn of the 21st century, a series of rapes was committed in Davidson and
Williamson Counties and attributed to a single at-large suspect, nicknamed “the Wooded Rapist.”
Beginning in 2008, Petitioner Robert Jason Burdick was prosecuted and convicted of those crimes.
Petitioner has filed this pro se action for Writ of Habeas Corpus under 28 U.S.C. § 2254,
challenging one such conviction: his 2010 conviction in Williamson County Criminal Court on
charges of aggravated rape and especially aggravated kidnapping, crimes which he committed in
1999. (Doc. No. 1.) After Petitioner filed an Amended Petition (Doc. No. 11), Respondent filed
the state-court record (Doc. Nos. 15–17) and an Answer. (Doc. No. 18.) Petitioner filed a Reply to
Respondent’s Answer (Doc. No. 21), completing the briefing of the issues before this Court.
For the reasons discussed below, the Court finds that an evidentiary hearing is not required
to resolve this matter, as Petitioner is plainly not entitled to habeas relief. See Stanford v. Parker,
266 F.3d 442, 459 (6th Cir. 2001) (stating that evidentiary hearing is not required “if the record
clearly indicates that the petitioner’s claims are either barred from review or without merit”). His
Amended Petition will be denied and this action will be dismissed with prejudice.

II. PROCEDURAL HISTORY
On May 12, 2008, Petitioner was indicted by a Williamson County grand jury and charged,
in Case Number II-CR053486, with fourteen crimes related to a series of rapes that occurred
between 1999 and 2004. (Doc. No. 15-1 at 4–9.) The trial court granted Petitioner’s motion to
sever these fourteen counts of indictment so as to hold separate trials concerning each of three
alleged criminal episodes. (See id. at 52–59.) Counts nine and ten––pertaining to the same victim,
who was a minor at the time of the crimes identified by the initials E.M.––were tried to a jury in
May 2010. The jury found Petitioner guilty of the 1999 aggravated rape and especially aggravated
kidnapping of E.M. Petitioner was subsequently sentenced by the trial court to 25 years on each
count, to be served consecutively to one another and to sentences imposed by the Davidson County
Criminal Court in other proceedings against Petitioner. (Doc. No. 15-4 at 118–19.)
Plaintiff appealed the convictions on Counts 9 and 10 to the Tennessee Court of Criminal
Appeals (TCCA). State v. Burdick, No. M2011-01299-CCA-R3CD, 2012 WL 2151489 (Tenn.
Crim. App. June 13, 2012). The TCCA affirmed, and the Tennessee Supreme Court denied
Petitioner’s application for permission to appeal. Petitioner then instituted post-conviction
proceedings in the trial court, raising claims including the ineffective assistance of counsel. The
trial court denied post-conviction relief after holding an evidentiary hearing, and Petitioner
appealed. The TCCA again affirmed the trial court, finding that Petitioner received effective
assistance from his trial and appellate counsel. Burdick v. State, No. M2020-00141-CCA-R3-PC,
2021 WL 2499313 (Tenn. Crim. App. June 18, 2021). Petitioner then timely filed his habeas
petition in this Court.

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III. FACTS
The following summary of the facts is taken from the TCCA’s decision on direct appeal,
modified here to exclude facts not relevant to the particular habeas claims before this Court. As
the TCCA summarized:
This case arises from a series of rapes that occurred in Williamson and Davidson
Counties and for which the Defendant was indicted. The cases were severed for
trial, and, in this case, the Defendant was tried on charges that he committed the
aggravated rape and especially aggravated kidnapping of the victim, E.M., who was
sixteen years old at the time of these crimes.
At the Defendant’s trial on these charges, the parties presented the following
evidence: E.M. testified that in November 1999 she was living on Foxboro Square
West in Brentwood. The State asked her if that was located “here in Williamson
County,” and E.M. responded “Yes, Ma’am, it is.” E.M. recalled that, at that time,
she was sixteen years old and living with her parents. E.M., a junior at Brentwood
High School taking advanced placement classes, was active in the theater
department. As such, she was acting as the “student director” of the fall play, for
which opening night was scheduled November 2, 1999.
On November 1, 1999, E.M. attended dress rehearsal for the school play, leaving
the rehearsal around 10:00 or 10:30 p.m. She went straight home, ate a piece of
leftover Halloween candy, and fell asleep while watching television around 11:00
p.m. She awoke at around 1:30 a.m., ate a second candy bar, and then went to bed.
Her bedroom was located on the first floor of her parents’ townhouse. Her parents
were asleep in their room located on the second floor of the townhouse. Later that
night, E.M. awoke from a dream to a man, wearing a knit ski mask, pointing a gun
to her temple. His right, gloved hand covered her mouth, and he said, “don’t say a
word, be quiet or I’ll kill you.” E.M. described the gun against her head as
“noticeably cold,” and she recalled that it was black. She also recalled that her
attacker’s eyes were “incredibly blue.”
E.M. said her attacker “escorted” her at gunpoint out of her bedroom and through
the kitchen, where she saw that the sliding glass door was open. She said that the
lock on the door could be “wiggled” open and that she and her parents usually
placed a broomstick handle in the sliding door so that it could not be forced open.
The broomstick, however, was not placed in the door that night. E.M.’s attacker
took her out the sliding glass door, reminding her not to say anything and not to
scream. The attacker took her through the back patio and through the wooden gate
that separated E.M.’s patio from her neighbor’s patio. He took her past some
detached garages and into a garage on the end farthest from her home. E.M. recalled
that it was cold and raining and that she was cold wearing only panties and a Tshirt.
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E.M. recalled that, after they entered the garage, the attacker attempted to cover her
eyes with duct tape but, because her hair and face were wet, the tape did not stick.
The attacker did, however, successfully cover her mouth with duct tape. The
attacker told E.M. to take her clothes off, and she complied, putting her clothes on
the ground. The attacker placed a rug on the ground and told her to lay down on the
rug. E.M. described herself as “tense” with her “fists ... clenched.” She said she was
pressing her legs together because she knew “the only thing that could possibly
come next.” The attacker sat down beside E.M., forced his hands between her legs,
and fondled her vagina. He then put his fingers inside her. The attacker then
“climbed on top” of E.M., forced her legs apart, and forced his penis inside her. He
peeled the duct tape away from her mouth and attempted to kiss her.
With the duct tape away from her mouth, E.M. asked the attacker why he was doing
this, to which he responded that he had been watching her. She asked him why her,
and he responded because she was “beautiful.” E.M. said her attacker asked her
age, and she told him she was sixteen and would be seventeen in two days. He
asked her name, and she gave him her first name. E.M. said she told the attacker
that he had to let her go because she had a school play to direct the following night.
The attacker asked her if she was using birth control, and she said no. E.M. said she
asked the attacker if he was wearing a condom, and he said he wanted her to get
pregnant.
E.M. said that she asked the attacker if she could leave. She said he got off of her
and stood up. She pled with him, saying “Please, I won’t look at you; can I please
put my clothes back on and go?” After she asked again, the attacker said, “yes.”
E.M. said she put her clothes back on, walked pas[t] the attacker, and left, not
knowing whether he was going to kill her. E.M. said that as she rounded the outside
of the garage, she could not hear the attacker behind her, so she started running out
of fear he was going to shoot her in the back. E.M. ran home, entering her yard
through her back gate and going into her house through the sliding door. E.M.
estimated it took her twenty seconds to get from the garage back to her home. She
said she ran upstairs to her parents’ bedroom and screamed that she had just been
raped.
E.M. said that her mother immediately called 911 and that her father ran downstairs.
Shortly thereafter, Brentwood Police Department officers arrived. E.M. gave them
the duct tape that had been on her mouth. She said that she was determined to
preserve any evidence, including her clothing, that could incriminate her attacker.
She did not take a shower or use the restroom in an effort to preserve evidence.
E.M. testified that, after speaking with officers, she went to the emergency room at
Williamson County Medical Center, where Dr. Kristina McCain examined E.M.
At the emergency room, E.M. gave doctors her clothing, and they performed a rape
kit on her. They told her that she would need to return in six months so that they

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could perform a second HIV test on her. E.M. then changed into new clothing and
went to her home where she met with her parents and Detective Tommy Campsey.
...
On cross-examination, . . . E.M. agreed that the entire attack took between seven
and eight minutes. E.M. said she did not see the gun during the rape, and, because
she did not hear the gun placed on the ground, she assumed her attacker put the gun
in his pocket.
...
Dr. Kristina McCain, the attending physician who performed the rape kit on E.M.,
testified that, on November 2, 1999, she treated E.M. She said she obtained samples
from E.M., following the protocols dictated by the rape kit. Dr. McCain described
E.M. as “agitated” and “a little hyper” and, in the doctor’s opinion, E.M. seemed as
if she had been traumatized. Dr. McCain testified that, during her examination, she
used a fluorescent light to examine E.M.’s body, in an effort to find secretions. The
doctor identified some such secretions on E.M.’s labia, and she took a swab of them
to be tested. On cross-examination, Dr. McCain testified that she did not see any
visible signs of trauma to the victim. She also agreed that the victim’s vaginal swab
was negative for the presence of sperm.
Lieutenant Richard Hickey, with the Brentwood Police Department, testified that
he responded to the 911 call in this case. . . . Lieutenant Hickey testified that law
enforcement investigated hundreds of suspects. Some were excluded because they
did not match the physical description. Others were eliminated because they were
incarcerated or living out of state at the time the rape occurred. During the
investigation, the Defendant’s name arose as a suspect.
On cross-examination, Lieutenant Hickey testified that the rug, along with the
victim’s panties and t-shirt, were sent to the Tennessee Bureau of Investigation
(“TBI”) crime laboratory for examination. . . .
Captain Thomas E. Campsey, with the Brentwood Police Department, testified that
he was the captain over the criminal investigation division for the police
department. . . . Captain Campsey testified that investigators continued to follow
leads in this case from 1999 until at least 2008. . . . Captain Campsey testified that,
in April 2008, the Defendant’s name arose as a suspect in E.M.’s rape. As part of
the investigation, officers obtained and executed a search warrant of the
Defendant’s home.
...
Detective Jeff Wiser with the Metropolitan Nashville Police Department testified
that he assisted in executing the search warrant on the Defendant’s home. Detective
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Wiser testified about photographs taken during the execution of the search warrant,
including photographs of multiple handguns found in the Defendant’s home. Police
also seized and photographed several items of dark clothing from the Defendant’s
closet, night-vision goggles, black gloves, and a “mag” light. Detective Wiser said
officers found several different condoms inside a semi-automatic gun case and also
a black ski mask.
Detective Wiser said on May 1, 2008, he obtained a search warrant to take a buccal
swab from the Defendant. The detective sent the swab, which involved Q-tips
swabbed on the inside of the Defendant’s cheek, to the TBI laboratory for analysis.
The parties stipulated that the TBI laboratory analyzed the buccal swab and
determined the Defendant’s DNA profile.
Dr. Qadriyyah Debnam, the forensic scientist at the TBI laboratory who analyzed
evidence in this case, testified that she did not find any DNA on the area rug
submitted by law enforcement. The doctor did, however, find sperm and skin cells
on E.M.’s panties, which she processed for DNA in 1999, when they were
submitted. In 2008, after law enforcement submitted the oral swab from the
Defendant and the TBI created his DNA profile, the doctor compared the
Defendant’s DNA with the DNA found on the panties. She determined that the
DNA profile found on the panties matched the Defendant’s DNA sample taken
from the oral swab. The doctor testified that the probability of an unrelated
individual having the same DNA exceeded the current world population. Dr.
Debnam testified that she analyzed the rape kit performed on E.M. at the hospital,
and she found the presence of sperm but was unable to create a DNA profile from
that sperm.
State v. Burdick, 2012 WL 2151489, at *1–6.
On post-conviction appeal, Petitioner asserted claims “that counsel was ineffective: (1) for
failing to challenge the trial court’s improper application of enhancement factors during
sentencing, and (2) for failing to challenge law enforcement’s placement of a GPS tracking device
on his vehicle.” Burdick v. State, 2021 WL 2499313, at *1. The facts underlying those claims were
summarized by the TCCA, as follows:
[At the evidentiary hearing], the Petitioner admitted that an issue about consecutive
sentencing was raised on appeal, and this court remanded the case to the trial court
to make findings regarding the issue. The Petitioner claimed that he did not see how
the enhancement factor regarding prior criminal convictions or criminal behavior
applied “since it was all under one indictment[.]” However, he acknowledged that
he had cases pending in Davidson County when he was sentenced on the

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Williamson County offenses, but he continued to allege, “[a]ll I was saying [is] it
was all under that same indictment.”
The Petitioner said that during the course of his proceedings, he learned that a GPS
monitoring device was attached to his vehicle, but neither trial nor appellate counsel
ever raised an issue about the suppression of any evidence obtained therefrom. He
thought his two trials1 concluded before the United States Supreme Court issued its
opinion in United States v. Jones, 565 U.S. 400 (2012), holding that law
enforcement could not place a GPS monitoring device on a vehicle without a
warrant, but that his appeals were in the appellate pipeline when Jones was decided,
and his attorney should have raised a Fourth Amendment claim.
On cross-examination, the Petitioner stated that counsel briefly discussed the GPS
issue with him but said that the issue “hasn’t been decided; it’s legal, they can do
this[.]” However, the Petitioner admitted that no evidence was used at trial based
on the GPS device and that he was already in jail when the buccal swabs were taken
from him. He simply extrapolated that the buccal swabs were fruit of the poisonous
tree because the GPS device was placed on his vehicle before he was arrested.
Captain David O’Neil of the Brentwood Police Department testified that he initially
became involved in the investigations involving the Petitioner in 1999 when he
responded to one of the rape calls as a patrol officer. He recalled that that case was
ultimately retired or dismissed at the request of the victim.
Turning to the issue about the GPS device, Captain O’Neil stated that he and his
partner were part of the surveillance team “that was following [the Petitioner]
around.” He remembered that the Petitioner was developed as a suspect on April
27, 2008. The next day, Captain O’Neil and his partner watched the Petitioner at
his place of employment and then followed him with visual surveillance to TG’s
Restaurant in Lavergne. After the Petitioner left the restaurant, Captain O’Neil and
his partner gathered the utensils used by the Petitioner with the consent of the
restaurant owner. They submitted the items to the Tennessee Bureau of
Investigation (“TBI”), which confirmed that the DNA on those items matched the
DNA collected of the unknown suspect in multiple rapes in Williamson and
Davidson Counties. The Nashville Police Department used that information as
probable cause to obtain the swabs from the Petitioner after his arrest on May 1,
2008.
Captain O’Neil testified that they placed a GPS tracker on the Petitioner’s vehicle
on Tuesday, April 29, 2008, the day after the utensils were collected from the
restaurant. He said that Jones had not yet been decided, and they were acting in
good faith on an older decision that said a tracking device could be placed on a
1

Following his trial on Counts 9 and 10 of the 14-count indictment, Petitioner was tried and
convicted on Counts 12, 13, and 14. (See Doc. No. 16.) His post-conviction proceedings related to both
trials/convictions were consolidated for hearing on November 26, 2019. (Doc. No. 17-9 at 56–58; Doc. No.
17-10.)

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vehicle without a warrant. Captain O’Neil stated that they did not gain any
information from the tracking device and were really just using it to protect the
public until they could arrest the Petitioner, who was already a suspect. He said that
they continued with visual surveillance during that period as well, and the purpose
of the GPS was to maintain the Petitioner’s location if visual surveillance was lost
on him. Captain O’Neil recalled that the Petitioner had become a suspect based on
the observations and efforts of Officer Hamm with the Brentwood Police
Department. In light of information gathered by Officer Hamm, the Brentwood and
Metro Nashville Police Departments began visually surveilling the Petitioner,
which led to the collection of the utensils at the restaurant. Captain O’Neil recalled
that a John Doe warrant with the suspect’s DNA profile was issued in Davidson
County prior to the aforementioned surveillance.
Captain O’Neil reiterated that there was no evidence gathered from use of the GPS
device and that the Petitioner was identified as a suspect prior to the GPS being
attached to his vehicle.
...
Trial counsel [who represented Petitioner during his second trial2] said that she was
familiar with the enhancement factors that could be used in sentencing, one of
which was a defendant’s prior convictions or “[p]rior criminal conduct that would
have been conduct that would have occurred prior to the acts that the defendant was
being sentenced [on].” At the time counsel represented the Petitioner, she was
aware that he had criminal cases pending in Davidson County relating to offenses
that occurred prior to the offenses that resulted in convictions in Williamson
County. The Petitioner’s sentencing report reflected that prior criminal activity.
Trial counsel testified that she and the Petitioner discussed the issue about the GPS
device being placed on his vehicle. She recalled that Jones was “in the pipeline ...
[and] obviously ... on [her] radar.” She spoke with Captain O’Neil and another
detective, as well as reviewed the discovery, before advising the Petitioner that she
would not file an additional motion to suppress based on Jones. She explained that
it was her opinion that there was no legal basis to proceed with such motion because
the DNA evidence had been obtained prior to the GPS device being attached to his
car and no evidence had been obtained as a result of the GPS device. Trial counsel
noted that she had already filed and litigated a motion to suppress regarding the
search warrant and warrantless arrest, but after her investigation she did not believe
there was a basis to proceed with a motion to suppress based upon the GPS tracker.
On cross-examination, trial counsel acknowledged that there was not a strategic
reason for not filing a motion to suppress pursuant to Jones “[o]ther than there
2

Only Petitioner’s counsel during his second Williamson County trial (on Counts 12, 13, and 14),
Attorney Dana Ausbrooks, testified at the post-conviction evidentiary hearing. Attorney Ausbrooks was
originally appointed as defense counsel for proceedings on Counts 9 and 10, but substitution of counsel
was ordered early in those proceedings, when Petitioner retained attorneys Fletcher W. Long, Edward T.
Farmer, Carrie W. Gasaway, and John E. Herbison. (See Doc. No. 15-1 at 10–25, 26–27.)

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wasn’t any evidence to suppress.” She reiterated on redirect that she had an ethical
duty to not raise issues unsupported by evidence, “hence [she] did not file it.”
Burdick v. State, 2021 WL 2499313, at *1–3.
IV. CLAIMS OF THE AMENDED PETITION
The Amended Petition asserts the following claims to habeas relief:
1.

The evidence that Petitioner possessed or used a gun during the commission of the charged

crimes, as required to prove the elements of “aggravated” rape and “especially aggravated”
kidnapping, was insufficient to support the jury’s verdict beyond a reasonable doubt.
2.

Petitioner received the ineffective assistance of counsel when:
(a)(1) Trial counsel3 failed to file a motion to suppress evidence gleaned as a result of the

warrantless placement of a GPS device on Petitioner’s vehicle, including the DNA later obtained
from a cheek swab following Petitioner’s arrest; and (2) appellate counsel failed to challenge on
direct appeal the legality of the warrantless GPS device under United States v. Jones, 565 U.S. 400
(2012).
(b) Trial counsel failed to challenge the enhancement of Petitioner’s sentence based upon
Davidson County convictions that had not yet become final but were pending appeal at the time
of his sentencing in Williamson County.
(c) Trial counsel failed to challenge the fact that the jury charge did not sufficiently define
the elements of especially aggravated kidnapping, pursuant to State v. White, 362 S.W.3d 559
(Tenn. Mar. 9, 2012).

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The “trial counsel” whose effectiveness is at issue in this case is Petitioner’s retained representation
in defense of Counts 9 and 10: Attorneys Herbison, Long, Farmer, and Gasaway.

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(d) Trial counsel failed to file a proper motion to suppress the DNA evidence obtained as
a result of Petitioner’s unlawful arrest on May 1, 2008, which was effected pursuant to a 2006
capias warrant for the “John Doe” who matched a DNA profile attached to the warrant.
(e) Trial counsel filed an insufficient motion to suppress the fruits of an unlawful search
conducted pursuant to a warrant issued on April 28, 2008.
(f) Trial counsel failed to argue as a mitigating factor at sentencing that Petitioner
voluntarily released the victim alive, which Section 39-13-305(b)(2) of the Tennessee Code
requires the sentencing court to consider as a mitigating factor.
(Doc. No. 1 at 5–8, 16–18; Doc. No. 11.)
V. ANALYSIS
A. Legal Standard
The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a federal
court may only grant relief if it finds that the error “had substantial and injurious effect or
influence” upon the conviction. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v.
Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met

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before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht
v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,
AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979)). Prior to the passage of AEDPA, district courts applied de novo
review to determine whether “the relevant state court had erred on a question of constitutional law
or on a mixed constitutional question.” Williams v. Taylor, 529 U.S. 362, 402 (2000) (O’Connor,
J., concurring). But now, where state courts have ruled on the merits of a claim, AEDPA imposes
“a substantially higher threshold” for obtaining relief than a de novo review of whether the state
court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing
Williams, 529 U.S. at 410).
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits
in state court unless the state decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” id. § 2254(d)(2). The Supreme Court has
repeatedly held “that AEDPA, by setting forth [these] necessary predicates before state-court
judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.’” White v. Wheeler, 577 U.S. 73, 77 (2015) (quoting
Burt v. Titlow, 571 U.S. 12, 19 (2013)).
A state court’s legal decision is “contrary to” clearly established federal law under
Section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the

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Supreme] Court on a question of law or if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412–13.
An “unreasonable application” under this subsection occurs when “the state court identifies the
correct legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413; White v. Woodall, 572 U.S. 415, 426
(2014). A state court decision is not unreasonable under this standard simply because the federal
court, “in its independent judgment,” finds it erroneous or incorrect. Williams, 529 U.S. at 411.
Rather, to be actionable under Section 2254(d)(1), the state court’s decision “‘must be objectively
unreasonable, not merely wrong; even clear error will not suffice.’” Woods v. Donald, 575 U.S.
312, 316 (2015) (quoting Woodall, 572 U.S. at 419). An objectively unreasonable decision is one
“so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Similarly, a district court on habeas review may not find a state court factual determination
to be unreasonable under Section 2254(d)(2) simply because it disagrees with the determination.
Young v. Hofbauer, 52 F. App’x 234, 237 (6th Cir. 2002). Rather, the determination must be
“objectively unreasonable in light of the evidence presented in the state-court proceeding.” MillerEl v. Cockrell, 537 U.S. 322, 340 (2003). “If reasonable minds reviewing the record might disagree
about the finding in question, on habeas review that does not suffice to supersede the trial court’s
. . . determination.” Brumfield v. Cain, 576 U.S. 305, 314 (2015) (quoting Wood v. Allen, 558 U.S.
290, 301 (2010)) (internal quotation marks omitted). Moreover, a state court’s factual
determinations “shall be presumed to be correct” and the petitioner bears “the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see
also Davis v. Ayala, 576 U.S. 257, 271 (2015) (“State-court factual findings . . . are presumed

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correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing
evidence.’”) (quoting Rice v. Collins, 546 U.S. 333, 338–39 (2006)). Finally, the petitioner may
not prevail under Section 2254(d)(2) simply by showing that a fact was unreasonably determined;
he “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).
AEDPA’s standard for granting relief on a claim rejected on the merits by a state court “is
a ‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt.’” Cullen v. Pinholster, 563
U.S. 170, 181 (2011) (quoting Richter, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19,
24 (2002) (per curiam)). This standard “was meant to be” a high hurdle for petitioners, consistent
with the principle that habeas corpus functions as a guard against only “extreme malfunctions” in
the state’s administration of criminal justice. Harrington, 562 U.S. at 102; see also Woods, 575
U.S. at 316.
Review under AEDPA is not only demanding, but also ordinarily unavailable to state
inmates who have not fully exhausted their remedies in the state court system. Title 28 U.S.C.
Sections 2254(b) and (c) provide that, subject to certain exceptions, a federal court may not grant
a writ of habeas corpus on behalf of a state prisoner unless the prisoner has presented the same
claim sought to be redressed in a federal habeas court to the state courts. Pinholster, 563 U.S. at
182; Kelly v. Lazaroff, 846 F.3d 819, 828 (6th Cir. 2017) (quoting Wagner v. Smith, 581 F.3d 410,
417 (6th Cir. 2009)) (federal claim is exhausted if it was presented “under the same theory” in state
court). This rule has been interpreted by the Supreme Court as one of total exhaustion, Rose v.
Lundy, 455 U.S. 509 (1982), meaning that, as of the time of the habeas petition’s filing, there can
no longer be any available state remedy for any of its claims; if a state remedy is available for any

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habeas claim, the entire petition is subject to dismissal or, in limited circumstances, to stay and
abeyance while the unexhausted claim is pursued in state court. Rhines v. Weber, 544 U.S. 269,
275–78 (2005). A habeas petition is thus fully exhausted if each and every claim was first fairly
presented to the state appellate court4 as a federal constitutional claim in substance, if not
explicitly. See Gray v. Netherland, 518 U.S. 152, 162–63 (1996); Pillette v. Foltz, 824 F.2d 494,
496 (6th Cir. 1987) (requiring the presentation of “the legal and factual substance of every claim
to all levels of state court review”).
However, because the exhaustion requirement “refers only to remedies still available at the
time of the federal petition,” it may also be “satisfied if it is clear that [the habeas petitioner’s]
claims are now procedurally barred under [state] law.” Gray, 518 U.S. at 161 (citations and internal
quotation marks omitted). The doctrine of procedural default is thus a corollary to the rule of
exhaustion, one which ordinarily bars habeas review of claims that were not “fairly presented” for
merits review in state court, either because they were presented in a way that failed to comport
with state procedural rules or because they were not presented at all and no longer can be presented
under state law. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (acknowledging “the interplay
of these two doctrines” and stating that, to avoid an end-run around the exhaustion requirement
and “the values that it serves,” “we ask not only whether a prisoner has exhausted his state
remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly
presented his claims to the state courts”) (emphasis in original; internal citations and quotation
marks omitted). If the state court decides a claim on “adequate and independent state grounds”––
typically a procedural rule prohibiting the state court from reaching the merits of the constitutional

4

In Tennessee, the Court of Criminal Appeals is the highest appellate court to which appeal must be
taken in order to properly exhaust a claim. See Tenn. Sup. Ct. R. 39; Adams v. Holland, 330 F.3d 398, 402–
03 (6th Cir. 2003).

14

claim––the claim will ordinarily be barred from federal habeas review because of its procedural
default. Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also Walker v. Martin, 562 U.S. 307,
315 (2011) (“A federal habeas court will not review a claim rejected by a state court if the decision
of the state court rests on a state law ground that is independent of the federal question and adequate
to support the judgment.”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). Likewise, if a
claim has never been presented to the state courts, but a state-court remedy is no longer available
(e.g., when an applicable statute of limitations bars a claim or state law deems the claim waived),5
then the claim is technically (though not properly) exhausted but barred by procedural default.
Coleman, 501 U.S. at 731–32.
If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Id. at 750. The burden of showing cause and prejudice to
excuse defaulted claims is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir.
1999) (citing Coleman, 501 U.S. at 754). “‘[C]ause’ under the cause and prejudice test must be
something external to the petitioner, something that cannot fairly be attributed to him[,] . . . some
objective factor external to the defense [that] impeded . . . efforts to comply with the State’s
procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of cause include the
unavailability of the factual or legal basis for a claim, interference by officials that makes

5

The Tennessee Post-Conviction Procedure Act provides that “[i]n no event may more than one (1)
petition for post-conviction relief be filed attacking a single judgment”; it then establishes a one-year statute
of limitations for filing that one petition. Tenn. Code Ann. § 40-30-102(a) and (c). The Act further provides
that “[a] ground for relief is waived if the petitioner personally or through an attorney failed to present it
for determination in any proceeding before a court of competent jurisdiction in which the ground could
have been presented,” unless that ground could not be presented due to unconstitutional state action, or is
based on a new and retroactive constitutional right that was not recognized at the time of trial. Id. § 40-30106(g).

15

compliance “impracticable,” or attorney error that violates the right to counsel’s effective
assistance. Id. at 753–54. To establish prejudice, a petitioner “must show not merely a substantial
federal claim, such that the errors at trial created a possibility of prejudice, but rather that the
constitutional violation worked to his actual and substantial disadvantage.” Shinn v. Ramirez, 596
U.S. 366, 379–80 (2022) (citations and internal quotation marks omitted); see also Ambrose v.
Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that “having shown cause, petitioners must
show actual prejudice to excuse their default”). “When a petitioner fails to establish cause to excuse
a procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones,
238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot establish prejudice, the question
of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a “narrow exception” to
the bar of an unexcused default in cases 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, 392–93 (2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord
Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006). To obtain habeas review under this
narrow exception to the procedural-default rule, the petitioner would need to demonstrate his
factual innocence, not the mere legal insufficiency of the State’s proof; a miscarriage-of-justice
claim is not supported by an assertion of mere legal innocence. Lee v. Brunsman, 474 F. App’x
439, 442 (6th Cir. 2012) (citing Bousley v. United States, 523 U.S. 614, 623 (1998), and Calderon
v. Thompson, 523 U.S. 538, 559 (1998)).

16

B. Claims to Relief
1. Claim 1 – Sufficiency of the Evidence
Petitioner claims that the evidence that he possessed or used a gun during the commission
of the charged crimes, as required to prove the elements of “aggravated” rape and “especially
aggravated” kidnapping, was insufficient to support the jury’s verdict beyond a reasonable doubt.
He exhausted this claim on direct appeal before the TCCA, which properly stated the applicable
standard for adjudicating the sufficiency of the convicting evidence as “whether, after considering
the evidence in the light most favorable to the State, ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” State v. Burdick, 2012 WL
2151489, at *11 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In accord with this
standard, “a reviewing court ‘faced with a record of historical facts that supports conflicting
inferences must presume––even if it does not affirmatively appear in the record––that the trier of
fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’”
Cavazos v. Smith, 565 U.S. 1, 6 (2011) (quoting Jackson, 443 U.S. at 326)). Thus, a federal habeas
court must resist substituting its own opinion for that of the convicting jury, York v. Tate, 858 F.2d
322, 329 (6th Cir. 1988), particularly when it comes to matters of witness credibility, which “is an
issue to be left solely within the province of the jury.” Knighton v. Mills, No. 3:07-cv-2, 2011 WL
3843696, at *6 (E.D. Tenn. Aug. 29, 2011) (citing, e.g., Deel v. Jago, 967 F.2d 1079, 1086 (6th
Cir. 1992)).
In addition to this requirement of deference to the jury verdict concerning the elements of
the crime under state law, this Court must defer to the TCCA’s consideration of that verdict under
AEDPA. See Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (stating that “the law commands
deference at two levels” when adjudicating sufficiency-of-the-evidence claim). Here, the TCCA

17

described the statutory elements under consideration and analyzed the proof of those elements, as
follows:
1. Aggravated Rape
As relevant to this case, aggravated rape is the unlawful sexual penetration of a
victim by the defendant accompanied by force or coercion to accomplish the act,
and the defendant is armed with a weapon or any article used or fashioned to lead
the victim reasonably to believe it to be a weapon. T.C.A. § 39-13-502(a)(1) (2010).
The Defendant rests his contention of the sufficiency of the evidence on whether
he possessed a gun during the rape, saying that [the victim’s] testimony that he had
a weapon was too vague. The evidence, viewed in the light most favorable to the
State, proves that the Defendant, wearing a black ski mask, entered E.M.’s home
while she was sleeping. He placed a gun to the side of her head and told her not to
say a word or he would kill her. He then “escorted” her out of her bedroom and
through the sliding glass doors, ultimately to a garage where he told her to lie down
on a small area rug. The Defendant proceeded to sexually penetrate the victim. The
victim testified that she assumed that the Defendant placed the gun in his pocket
during the actual rape, in part because she did not hear him place it on the ground.
During a search of the Defendant’s home, law enforcement officers found multiple
guns, a black ski mask, and condoms inside a gun case. DNA found on the victim’s
panties matched the Defendant’s DNA profile. We conclude that this evidence
sufficiently supports the Defendant’s conviction for aggravated rape.
2. Especially Aggravated Kidnapping
As relevant to this case, especially aggravated kidnapping “is false imprisonment
... [a]ccomplished with a deadly weapon....” T.C.A. § 39-13-305(a)(1), (4) (2010).
“A person commits ... false imprisonment who knowingly removes or confines
another unlawfully so as to interfere substantially with the other’s liberty.” T.C.A.
§ 39-13-302(a) (2010). “‘Deadly weapon’ means: (A) A firearm or anything
manifestly designed, made or adapted for the purpose of inflicting death or serious
bodily injury; or (B) Anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” T.C.A. § 39-11-106(a)(5)
(2010). “‘Firearm’ means any weapon designed, made or adapted to expel a
projectile by the action of an explosive or any device readily convertible to that
use.” T.C.A. § 39-11-106(a)(11) (2010).
The Defendant again contests the sufficiency of the proof supporting that he
possessed a weapon when he falsely imprisoned E.M., contending E.M.’s
testimony was too vague. E.M. testified that, when the Defendant came into her
room on the night of the attack, he placed a black, shiny gun that was eight to ten
inches in length next to her head. She said the gun felt cold against her skin. The
Defendant led the victim at gunpoint outside the sliding glass doors of her home
18

and into a garage. When police officers searched the Defendant’s house, they found
multiple guns, including a handgun in a gym bag. This, in combination with the
victim’s definitive testimony about the gun, is sufficient to prove that the Defendant
possessed a deadly weapon when he falsely imprisoned her. The Defendant is not
entitled to relief on this issue.
State v. Burdick, 2012 WL 2151489, at *12–13.
Petitioner renews in this Court his argument that the victim’s testimony concerning the gun
was vague and uncorroborated, and therefore constitutionally insufficient to establish his
possession of a gun during either crime. He frames the issue as “[w]hether or not the evidence was
sufficient to establish beyond a reasonable doubt that he used a gun during the rape [and
kidnapping] in order to force the victim to submit to” those crimes. (Doc. No. 2 at 18–19.) He
further argues that the discovery of guns in a search of his home in 2008 does not have any
evidentiary value vis-à-vis his possession of a gun in 1999, on the night of the crimes.
Regardless of the relevance (or lack thereof) of his gun-possession in 2008, Petitioner’s
argument that the State was required to prove that he used a gun to accomplish the act of rape––
rather than simply to prove that he was “armed with a weapon or any article used or fashioned to
lead the victim reasonably to believe it to be a weapon,” Tenn. Code Ann. § 39-13-502(a)(1)––
misses the mark. In support of this argument, he cites State v. Mitchell, No. C.C.A. 87-152-III,
1988 WL 32362, at *1 (Tenn. Crim. App. Apr. 7, 1988), in which the TCCA found the evidence
of weapon-use insufficient with regard to the second of two rapes, the second rape having occurred
in a car after the rapist had driven his victim away from the house where he first raped her, leaving
his weapon behind. But in Mitchell, there was affirmative evidence that a weapon possessed by
the rapist had been recovered at the site of the first rape, and zero evidence establishing that he had
any other weapon in the car where he committed the second rape. Id. Conversely, the victim in the
instant case testified that a gun had been held to her head in her bedroom; that she was escorted at

19

gunpoint from the residence; that she assumed the gun was in Petitioner’s pocket during the rape
because she had not heard him place it on the ground; and that, when she was allowed to walk past
Petitioner and exit the garage where the rape occurred, “she started running out of fear he was
going to shoot her in the back.” State v. Burdick, 2012 WL 2151489, at *1–3. Considered in the
light most favorable to the State, this testimony provides sufficient evidence to prove beyond a
reasonable doubt that Petitioner possessed a gun (or an implement the victim believed to be a gun)
in the garage where the rape occurred.
In his briefing, Petitioner repeatedly emphasizes that the State failed entirely to prove that
he used a gun “during the act of rape” or “during the sexual penetration.” (Doc. No. 21 at 7–12.)
But the statute only requires the use of “force or coercion . . . to accomplish the act,” and that the
accused be “armed with a weapon.” Tenn. Code Ann. § 39-13-502(a)(1). The evidence in this case
clearly established that force was used to accomplish the rape. Moreover, the TCCA has clarified
that “the element of being armed with a weapon” in an aggravated rape case “is satisfied when a
defendant has a weapon in his actual or constructive possession”; the law “does not require that a
defendant employ the weapon or directly threaten the victim with the weapon.” State v. Jones, No.
M2015-00720-CCA-R3-CD, 2016 WL 3621513, at *6 (Tenn. Crim. App. June 29, 2016) (citing
State v. Moore, 703 S.W.2d 183, 186 (Tenn. Crim. App. 1985)).
Nor did the victim’s testimony need to be corroborated in order to be credited. The jury
was entitled to rely exclusively on that testimony to find that Petitioner was in possession of a
weapon when he raped the victim. See State v. Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000)
(stating that “there is no requirement that the [rape] victim’s testimony be corroborated,” and
rejecting argument regarding unreliability of victim’s testimony because “t]he credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence

20

are matters entrusted exclusively to the jury”); see also Curtis v. Boyd, No. 3:20-CV-00559, 2023
WL 2699973, at *41, 47 (M.D. Tenn. Mar. 29, 2023) (citing, e.g., Smith, supra). While Petitioner
questions the victim’s ability to describe the gun’s shiny, black appearance “in the dark of night”
after having been “awakened from her sleep . . . in such a scared, startled state of mind” (Doc. No.
2 at 17, 23; Doc. No. 21 at 15), “[a]n attack on witness credibility does not challenge the sufficiency
of the evidence, only its quality.” Curtis, 2023 WL 2699973, at *47 (quoting Humphrey v. Mills,
54 F. App’x 433, 434 (6th Cir. 2002)).
As to whether Petitioner possessed a gun in the house where the kidnapping occurred, see
State v. Burdick, 2012 WL 2151489, at *7 (“the especially aggravated kidnapping occurred in
E.M.’s house”), and “accomplished” the kidnapping with that gun “or by display of any article
used or fashioned to lead the victim to reasonably believe it to be a deadly weapon,” Tenn. Code
Ann. § 39-13-305(a)(1), the victim’s testimony that Petitioner “placed a black, shiny gun that was
eight to ten inches in length next to her head,” and that “the gun felt cold against her skin,” is
sufficient to prove this aggravating element ––as found by the TCCA, and for the reasons discussed
above relating to the jury’s province to weigh victim testimony.
In sum, this Court must defer to the jury’s findings on these factual issues, and to the
TCCA’s reasonable determination that sufficient evidence supported those findings. Accordingly,
Claim 1 has no merit.
2. Claim 2 – Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel arises under the Sixth Amendment and is
properly analyzed under the two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984),
which asks: (1) whether counsel was deficient in representing Petitioner; and (2) whether counsel’s
alleged deficiency prejudiced the defense so as to deprive Petitioner of a fair trial. Id. at 687. To

21

meet Strickland’s first prong, Petitioner must establish that his counsel’s representation “fell below
an objective standard of reasonableness,” and must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, [he]
must overcome the presumption that . . . the challenged action ‘might be considered sound trial
strategy.’” Id. at 688–89 (quoting Michel v. State of La., 350 U.S. 91, 101 (1955)). The “prejudice”
component of the claim “focuses on the question of whether counsel’s deficient performance
renders the result of the . . . proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364,
372 (1993). It requires a showing that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
When an exhausted claim of ineffective assistance of counsel is raised in a federal habeas
petition, review under AEDPA is “doubly deferential,” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009), in that “Strickland requires deference to counsel and AEDPA requires deference to the
state court.” Moody v. Parris, No. 20-5299, 2022 WL 3788503, at *4 (6th Cir. Aug. 30, 2022).
The question then is not whether 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).
Petitioner’s ineffective-assistance claim was properly exhausted only insofar as it relates
to Claim 2(a)––counsel’s failure to challenge evidence gleaned as a result of the warrantless
placement of a GPS device on Petitioner’s vehicle, including the DNA later obtained from a cheek
swab following Petitioner’s arrest; and Claim 2(b)––counsel’s failure to challenge the
enhancement of Petitioner’s sentence based upon Davidson County convictions that had not yet

22

become final but were pending appeal at the time of his sentencing in Williamson County. The
TCCA applied the Strickland standard to these claims, see Burdick v. State, 2021 WL 2499313, at
*4, as described below.
a. Claim 2(a) – Warrantless GPS Tracking
First, with respect to the ineffective-assistance claim concerning GPS tracking, the TCCA
found as follows:
The Petitioner argues that both trial and appellate counsels rendered ineffective
assistance for failing to challenge law enforcement’s placement of a GPS tracking
device on his vehicle without a warrant, “which ultimately led to his arrest and the
taking of his DNA sample resulting in his conviction.”
In support of his argument, the Petitioner points out that while his case was in the
appellate pipeline, the United States Supreme Court issued its opinion in Jones, 565
U.S. 400, holding that the attachment of a GPS tracking device to a defendant’s
vehicle constituted a search within the meaning of the Fourth Amendment thus
necessitating a warrant. He claims that counsel should have challenged his arrest
“based upon an unreasonable seizure of his person stemming from an illegal
search” and sought to suppress “all evidence obtained from [his] person, his vehicle
and his home as fruits of an unconstitutional search and seizure.” He also contends
that “once law enforcement lost sight [of him] visually, ... law enforcement relied
upon the GPS device to locate [him] ... and did initiate a ‘stop’ of the vehicle and
effect an ‘arrest’ of his person without a warrant.”
...
At the post-conviction hearing, [Attorney Ausbrooks, counsel for Counts
12, 13, and 14] testified that she and the Petitioner discussed the issue about the
GPS device being placed on his vehicle. She knew that Jones was in the appellate
pipeline and was aware of its ramifications. She spoke with Captain O’Neil and
another detective, as well as reviewed the discovery, before advising the Petitioner
that she would not file an additional motion to suppress based on Jones. She
explained that it was her opinion that there was no legal basis to proceed with such
motion because the DNA evidence had been obtained prior to the GPS device being
attached to his car, and no evidence had been obtained as a result of the GPS device.
Counsel noted that she had already filed and litigated a motion to suppress
regarding the search warrant and warrantless arrest, but after her investigation she
did not believe there was a basis to proceed with a motion to suppress based upon
the GPS tracker, and she had an ethical duty not to file a frivolous motion.

23

In ruling on this issue, the post-conviction court found that there was not an ethical
basis for counsel to file a motion to suppress based on the GPS tracking device
“because there was in fact no legal or factual connection between the GPS tracking
and the DNA evidence.... Consequently, ... the Petitioner has failed to show that
[counsel’s] performance fell below the standard required for criminal defense
attorneys.”
The Petitioner’s argument disregards the fact that no information or evidence was
gathered as a result of the tracking device. The police had already obtained the
Petitioner’s DNA from utensils that he had used at a restaurant before the device
was installed on his vehicle, and the DNA on those items matched the DNA
collected of the unknown suspect in multiple rapes in Williamson and Davidson
Counties. Evidence of the Petitioner’s DNA was not fruit of the poisonous tree as
the police had already obtained the sample before attaching the device to his
vehicle. We determine that neither trial nor appellate counsel rendered deficient
performance by failing to raise what would have been a frivolous claim. In addition,
the Petitioner has not established prejudice because none of the evidence used to
secure his arrest and convictions arose from the tracking device.
Id. at *5–6.
Petitioner claims “that law enforcement’s placement of the GPS tracking device on his
vehicle without a warrant while monitoring his every movement for a period [of] three (3) days
constituted an unreasonable search,” and that his subsequent arrest and buccal swab for DNA
evidence is the fruit of that unreasonable search. (Doc. No. 21 at 18.) However, as Petitioner
himself concedes, these subsequent events also followed the return of “DNA testing . . . on the
eating utensils from Tee Gee’s Restaurant” (Doc. No. 2 at 31), where he had been tracked by visual
surveillance according to the post-conviction testimony of Captain O’Neil. (Doc. No. 17-10 at 22–
23.) Thus, even if the warrantless placement of the GPS device could reasonably have been argued
to be unlawful, counsel could not reasonably have believed that a motion to suppress the postarrest DNA evidence would have succeeded, because that later evidence (obtained via buccal
swab) was not the fruit of the GPS data; rather, as found by the TCCA, it was the fruit of the match
between DNA left by the John Doe rape suspect and the DNA Petitioner left on his restaurant
utensils, which was collected and submitted for analysis after law enforcement visually tracked
24

Petitioner to the restaurant, without the use of GPS data. Compare United States v. Kelly, No. 175110, 2017 WL 7310402, at *2 (6th Cir. Nov. 14, 2017) (rejecting argument based on allegedly
unlawful search of defendant’s workplace, “because no contraband was found at [his] workplace,
and thus the search of his workplace had no effect on his conviction”) (citing, e.g., United States
v. Smith, No. 13–5258 (6th Cir. Apr. 30, 2014) (order) (finding defendant’s argument that the
district court erred in denying his pretrial motion to suppress the fruits of an allegedly illegal search
to be moot because no evidence from the search was used at trial)).
The record supports the TCCA’s finding that the buccal-swab DNA evidence ultimately
used against Petitioner at trial was secured because of his DNA identification using a previously
collected sample.6 At a minimum, the record supports the finding that the DNA evidence was not
secured as a result of illegal monitoring of his location. But even if the opposite were true, and law
enforcement’s use of ill-gotten location data allowed (by domino effect) for the collection of DNA
evidence, it is not likely that the nexus between the means used to locate Petitioner and the DNA
evidence obtained from him two days later would have been found close enough to warrant
exclusion of the DNA evidence as fruit of the poisonous tree. See United States v. Williams, 615
F.3d 657, 668–69 (6th Cir. 2010) (noting that “[t]he Supreme Court has explained . . . that not all
evidence must be suppressed simply because it would not have come to light but for the illegal
actions of the police”; rather, courts must inquire whether connection between illegality and
evidence is attenuated by lack of temporal proximity, presence of intervening circumstances, and
lack of purposeful or flagrant police misconduct) (citations omitted)); see also United States v.

6

As Petitioner highlights in his Reply (Doc. No. 21 at 22), Captain O’Neil testified at Petitioner’s
post-conviction evidentiary hearing that the DNA collected from the utensils provided probable cause for
the search warrant used to obtain the buccal swab samples, which in turn yielded the DNA evidence
introduced against Petitioner at trial. (Doc. No. 17-10 at 31–32.)

25

Chavez-Chavez, No. 07CR1408 WQH, 2008 WL 1847229, at *8 (S.D. Cal. Apr. 22, 2008) (stating
that “[t]he nexus between the original illegality and the specific evidence subject to challenge must
be a close one[;] . . . [i]t is not sufficient to demonstrate taint that . . . an illegal search uncovers
the alleged perpetrator’s identity and therefore directs [law enforcement’s] attention to [him]”).
Thus, it is clear that Petitioner was not prejudiced as a result of the unchallenged use of GPS
monitoring without a warrant.
In sum, the TCCA reasonably determined that counsel was not deficient in failing to
challenge the warrantless use of GPS tracking, and that Petitioner was not prejudiced thereby.
Petitioner’s claim to the contrary is without merit.
b. Claim 2(b) – Sentence Enhancement
Next, as to Petitioner’s ineffective-assistance claim related to sentence enhancement, the
TCCA found as follows:
The Petitioner asserts that counsel rendered ineffective assistance for failing to
challenge the trial court’s enhancement of his sentence based on “prior convictions”
that “were nothing more than the first convictions handed down in a series of jury
trials stemming from a 13-count indictment in Davidson and Williamson
Counties.” He notes that the trial court used his Davidson County convictions for
attempted aggravated rape and especially aggravated kidnapping to enhance his
sentence based on prior criminal conduct, and he acknowledges that he was
convicted in this case after he was convicted for the Davidson County rapes.
However, he asserts that because he had not committed new crimes or served time
for the Davidson County convictions at the time of his arrest, he did not have a
previous history of criminal convictions.
This court has previously held that “trial courts can consider criminal convictions
or any other criminal behavior which occurred prior to the sentencing hearing as
being ‘a previous history of criminal convictions or criminal behavior’ under Tenn.
Code Ann. § 40-35-114(1), regardless of whether the convictions or behavior
occurred before or after the criminal conduct under consideration.” State v. Jordan,
116 S.W.3d 8, 24 (Tenn. Crim. App. 2003) (internal quotation omitted). . . .
According to the Petitioner’s presentence report, the criminal acts committed in
Davidson County took place prior to the Petitioner’s sentencing in the present cases.
We, therefore, conclude that counsel was not ineffective for failing to challenge the
application of this enhancement factor.
26

In his reply brief, the Petitioner additionally asserts that because the Davidson
County convictions had not become final and that appeal was pending at the time
he was sentenced on the Williamson County convictions, those convictions could
not be used to enhance his sentence. The Petitioner cites cases from Texas and
Louisiana as persuasive authority for this supposition. This angle still does not
entitle the Petitioner to relief. The trial court could have enhanced the Petitioner’s
sentence based on prior criminal convictions or criminal behavior, see Tenn. Code
Ann. § 40-35-114(1), and the Petitioner’s activities in Davidson County could
certainly qualify as criminal behavior. Thus, there was no prejudice caused by
counsel’s not challenging the trial court’s enhancement of his sentence based on
“prior convictions.”
Burdick v. State, 2021 WL 2499313, at *5.
In his Reply, Petitioner claims that the prior convictions upon which the sentencing court
relied had not yet become final at the time of his sentencing, that the reliance upon them to enhance
his sentence was therefore unlawful, and that trial and appellate counsel were deficient in failing
to raise this challenge. Petitioner concedes that the trial court could properly have enhanced his
sentence based on the criminal behavior which led the juries in his prior cases to convict him, but
he argues that the applicable statute, Section 40-35-114(1) of the Tennessee Code, requires the
court to enhance based on either prior (final) criminal convictions or prior criminal behavior; that
“[t]he trial court in this case chose to apply previous history of convictions over behavior”; and
that the court was bound by that choice and the erroneous sentence it produced. (Doc. No. 21 at
30–34; see also Doc. No. 2 at 50 (“The trial judge chose specifically criminal convictions, and is
now bound by that choice.” (emphasis in original)).)
Even if Petitioner’s position regarding the operation of Section 40-35-114(1)––i.e., that an
enhancement under that section which is explicitly based only on prior “convictions” must stand
or fall based on the finality of those convictions at the time of sentencing, without considering any
underlying criminal behavior––were defensible under Tennessee law (and he has offered no
authority, nor can the Court find any, to suggest that it is), the TCCA’s rejection of his federal
27

constitutional claim for failure to demonstrate prejudice was clearly reasonable. In short, because
the trial court could unquestionably have applied Section 40-35-114(1) to enhance Petitioner’s
sentence based on his prior criminal “behavior,” irrespective of the finality at that time of any
resulting convictions, Petitioner cannot establish that counsel’s failure to challenge the
enhancement prejudiced him under Strickland––which requires a “reasonable probability” that
“the result of the proceeding would have been different” but for counsel’s failure. 466 U.S. at 694.
Notably, if appellate counsel had raised the matter, any error in explicitly identifying only prior
convictions and not prior behavior as a basis for enhancement under Section 40-35-114(1) would
have been easily corrected on de novo review, without producing a different result. See State v.
Nelson, No. M2023-00176-CCA-R3-CD, 2024 WL 1192985, at *15–16 (Tenn. Crim. App. Mar.
20, 2024). This claim has no merit.
c. Claim 2(c) – Inadequate Jury Instructions
In Claim 2(c), Petitioner asserts that trial counsel failed to challenge the jury charge’s
definition of the elements of especially aggravated kidnapping in light of the Tennessee Supreme
Court’s decision in State v. White, 362 S.W.3d 559 (Tenn. 2012). Petitioner concedes that he
procedurally defaulted Claim 2(c), as well as his other remaining ineffective-assistance claims, by
failing to raise them on post-conviction review.
Because there is no longer any available state court remedy for these claimed violations,
see Tenn. Code Ann. § 40-30-102(c) (limiting availability of post-conviction relief to “the filing
of only one (1) petition”), the claims are technically exhausted, but procedurally barred from
habeas review unless Petitioner “can demonstrate cause for the default and actual prejudice” from
the claimed violations, or that a fundamental miscarriage of justice will result if this Court does
not consider them. Coleman, 501 U.S. at 731–32, 750.

28

Petitioner asserts the ineffective assistance of his post-conviction counsel as cause for the
procedural default of his remaining claims. (See Doc. No. 2 at 67–70.) The Supreme Court has
“explained clearly that ‘cause’ under the cause and prejudice test must be something external to
the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753.
Attorney error is attributable to a habeas petitioner, and thus may not serve as cause for a
procedural default, if the error is made at a stage of the proceedings when there is no right to
counsel under the Sixth Amendment. Id. at 754. The Supreme Court held in Coleman that, because
there is no constitutional right to counsel in state post-conviction proceedings, any attorney error
at that stage that leads to the waiver of claims in state court “cannot constitute cause to excuse the
default in federal habeas.” Id. at 752, 757.
However, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court modified “the
unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction
proceeding does not qualify as cause to excuse a procedural default,” “by recognizing a narrow
exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. This
exception stems from the recognition, “as an equitable matter, that the initial-review collateral
proceeding, if undertaken without counsel or with ineffective counsel, may not have been
sufficient to ensure that proper consideration was given to a substantial claim” of trial counsel’s
ineffectiveness, when that claim could not have been raised on direct appeal because of state
procedural rules. Id. at 13. In Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court extended
the applicability of the Martinez exception to states with procedural frameworks that do not
technically preclude an ineffective-assistance claim on direct appeal, but make it unlikely that the
opportunity to raise that claim at that time will be a meaningful one. Id. at 429. The Sixth Circuit

29

then held in Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014), that under Tennessee’s procedural
scheme, the initial post-conviction proceeding is the first meaningful opportunity to raise a claim
of ineffective assistance of trial counsel. Id. at 795–96.
Thus, for each defaulted claim of ineffective assistance at trial, Petitioner may overcome
the default under Martinez if he can show that the default resulted from his initial post-conviction
counsel’s ineffectiveness under Strickland’s standards, and that the underlying claim of trial
counsel’s ineffectiveness is a “substantial one, which is to say that . . . the claim has some merit.”
Martinez, 566 U.S. at 13–14. The Sixth Circuit has provided the following framework to evaluate
claims under Martinez:
As to these claims, the district court should determine . . . : (1) whether state postconviction counsel was ineffective, . . . and (2) whether [Petitioner’s] claims of
ineffective assistance of counsel were “substantial” within the meaning of
Martinez, Sutton, and Trevino. Questions (1) and (2) determine whether there is
cause. The next question is (3) whether [Petitioner] can demonstrate prejudice.
Finally, the last step is: (4) if the district court concludes that [Petitioner] establishes
cause and prejudice as to any of his claims, the district court should evaluate such
claims on the merits. . . . [E]ven “[a] finding of cause and prejudice does not entitle
the prisoner to habeas relief. It merely allows a federal court to consider the merits
of a claim that otherwise would have been procedurally defaulted.” Martinez, 132
S. Ct. at 1320.
Atkins v. Holloway, 792 F.3d 654, 660 (6th Cir. 2015) (some internal citations omitted).
Whether post-conviction counsel was constitutionally ineffective is necessarily connected
to the strength of the claim he failed to raise, so “in many habeas cases seeking to overcome
procedural default under Martinez, it will be more efficient for the reviewing court to consider in
the first instance whether the alleged underlying ineffective assistance of counsel was ‘substantial’
enough to satisfy the ‘actual prejudice’ prong of Coleman.” Thorne v. Hollway, No. 3:14–cv–0695,
2014 WL 4411680, at *23 (M.D. Tenn. Sept. 8, 2014), aff’d sub nom. Thorne v. Lester, 641 F.
App’x 541 (6th Cir. 2016).
30

Petitioner’s claim concerning the jury instruction on the elements of especially aggravated
kidnapping is not substantial. He asserts that, although the Tennessee Supreme Court had not yet
decided State v. White––which overruled prior precedent and articulated a new model for
instructing Tennessee juries in cases where kidnapping is charged along with other felonies with
overlapping elements, to ensure that the demands of due process are met––trial counsel should
have objected to the especially-aggravated-kidnapping jury instruction based on the rationale
underlying White, in order to protect his due process rights. Petitioner acknowledges that the
decision in White was handed down while his case was pending on direct appeal, but nonetheless
argues that trial counsel performed deficiently in failing to present “the same or similar argument
made by the attorneys for Jason Lee White,” an “ordinary . . . argument which ha[d] been repeated
for over 22 years at the time.” (Doc. No. 21 at 38–39.) But counsel’s failure to present a longrejected argument for the Tennessee Supreme Court’s reversal of its prior, binding decisions on
this legal issue is a far cry from performance outside the “wide range of reasonable professional
assistance” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 689.
In a case where, as here, the habeas petitioner’s state criminal case was pending on direct
appeal at the time White was decided,7 the district court in Hubbard v. Lebo, No. 2:17-CV-02452TLP-TMP, 2020 WL 5753199 (W.D. Tenn. Sept. 25, 2020), denied the claim “that the federal Due
Process Clause requires a trial court to have instructed a jury consistent with the White decision
while presiding over a case before the Tennessee Supreme Court even decided White,” finding that
the trial court committed no error in charging the jury because “[a]t the time of trial, the judge had

7

The White court “intended retroactive application of the ruling to those already tried cases in the
appellate pipeline, that is pending direct appeal, at the time it was filed and that its use of the word
‘retroactive’ was intended to prevent use of the ruling for collateral attack.” State v. Osby, No. W201200408-CCA-R3-CD, 2012 WL 5381371, at *7 (Tenn. Crim. App. Nov. 2, 2012). However, Petitioner has
not pursued a claim of trial court error under White in this case, but only a claim that trial counsel
ineffectively failed to object to the jury charge based on the rationale underlying White.

31

no basis for giving the instruction.” Id. at *11–12 (emphasis in original). This reasoning applies
all the more convincingly to the claim of ineffective assistance before this Court, as trial counsel
simply had no legal basis for objecting to the instruction given to Petitioner’s jury. The claim that
trial counsel was ineffective for nevertheless failing to object is insubstantial, and its default
unexcused.
d. Claim 2(d) – Failure to Move to Suppress Based on Unlawful Arrest
Petitioner claims that trial counsel failed to file a proper motion to suppress the DNA
evidence obtained as a result of his unlawful arrest on May 1, 2008, which was effected pursuant
to a 2006 capias warrant for the “John Doe” who matched a DNA profile attached to the warrant.
This claim is procedurally defaulted. In attempting to overcome the default, Petitioner argues that
Martinez applies, and that post-conviction counsel was deficient in failing to raise this claim of
trial counsel’s ineffectiveness because there was no probable cause to believe that Petitioner was
the John Doe suspect. (See Doc. No. 2 at 59–63; Doc. No. 21 at 44–46.)
The post-conviction attorney initially appointed to represent Petitioner, Mr. Neil Campbell,
did present this claim during initial post-conviction proceedings, in “Petitioner’s Second Amended
Petition for Post Conviction Relief” filed on December 11, 2017. (Doc. No. 17-5 at 42–51, 43.)
Petitioner’s subsequent, retained post-conviction attorney, Mr. Douglas Trant, then filed an
additional “Amendment to Petition for Post-Conviction Relief” in both Williamson County postconviction cases on August 8, 2018 (Doc. No. 17-7 at 30–34), for the purpose of adding a claim
of trial court error related to admission of unlawfully seized DNA evidence. (Id. at 30.) Both Mr.
Trant and Petitioner certified that the latter amendment did not supplant, but “added to” the existing
post-conviction petition. (Id. at 32–33.) The State was directed to file a response to the Amended
Petition in an order captioned for filing in both post-conviction cases. (Doc. No. 17-7 at 48.) The

32

State filed its “Response to Amended Petitions for Post-Conviction Relief” on November 15, 2018
(Doc. No. 17-7 at 52–55) and made arguments to rebut the claims that “trial counsel was ineffective
by not filing a motion to suppress [fruits of] [Petitioner’s] unlawful arrest, as well as fruits of an
unlawful search.” (Id. at 53 (citing, e.g., State v. Burdick, No. M2011-01299-CCA-R3-CD (Tenn.
Crim. App. June 13, 2012).)
At the November 26, 2019 post-conviction evidentiary hearing, Mr. Trant called Petitioner
as his only witness and focused his examination on “a couple of the issues that [he] raise[d] in that
Post Conviction [Petition],” namely, the ineffective-assistance claims related to GPS tracking and
sentence enhancement (denominated above as Claims 2(a) and 2(b)). (Doc. No. 17-10 at 8.)
Otherwise, Mr. Trant briefly referred the court to “the pleadings” and “the petition” in submitting
his case to the court. (Id. at 6, 49.) The trial court denied post-conviction relief in a ruling from the
bench, announcing its decision that Petitioner had failed to show any deficiency “with respect to
the two issues he raises, sentencing enhancement consideration and the not filing a Motion to
Suppress related to the GPS tracking.” (Id. at 55.) Mr. Trant did not object to this characterization
of the issues before the court. The trial court’s oral ruling was later incorporated into a written
“Order Dismissing Post-Conviction Petition.” (Doc. No. 17-8 at 48.) The order announced that the
“cause came before the Court . . . on [Petitioner’s] Petition and Amended Petitions for PostConviction Relief” on November 26, 2019, when “Petitioner raised two issues during the hearing,”
neither of which supported relief. (Id.) Petitioner expressly waived his right to an appointed postconviction appellate attorney (id. at 117–120) and appealed this decision pro se, raising only these
two issues. (See Doc. No. 17-30 at 7.)
It is not at all clear to this Court that Claim 2(d) was defaulted because Petitioner received
the ineffective assistance of counsel on initial post-conviction review––as required to trigger

33

Martinez’s exception, see Rogers v. Mays, 69 F.4th 381, 395–96 (6th Cir. 2023)––rather than
because Petitioner failed to raise the claim on post-conviction appeal. The TCCA would certainly
have had jurisdiction to consider any issues that were “formally raised in the post-conviction
petition or an amendment.” Lowe v. State, No. M2022-01490-CCA-R3-PC, 2024 WL 2874148, at
*10 (Tenn. Crim. App. June 7, 2024) (citation omitted). Had Claim 2(d) been raised on postconviction appeal, the TCCA may well have found the claim waived because Petitioner (through
counsel) did not develop it at the evidentiary hearing. But that outcome is by no means inescapable,
particularly because the claim was not just raised in Petitioner’s pleadings but argued by both
parties in their pre-hearing briefing. See Olive v. State, No. M2023-00719-CCA-R3-PC, 2024 WL
2797015, at *7 (Tenn. Crim. App. May 31, 2024) (finding waiver where claim was “mentioned”
in amended petition, but post-conviction counsel was given chance at hearing to outline claims he
would be addressing and failed to include claim at issue); Sexton v. State, No. M2023-00320-CCAR3-PC, 2024 WL 1617907, at *12 (Tenn. Crim. App. Apr. 15, 2024), app. denied (Tenn. Aug. 14,
2024) (finding ineffective-assistance claim waived “because Petitioner did not raise this issue in
any of his petitions or argue the issue at the post-conviction hearing”); see also Middlebrooks v.
Carpenter, 843 F.3d 1127, 1140 (6th Cir. 2016) (finding that ineffective-assistance claims raised
in an initial post-conviction petition but not supported by proof at evidentiary hearing were not
defaulted at initial review and thus “not saved by Martinez-Trevino,” though “[s]ignificantly,” the
order denying post-conviction relief included a catch-all finding that such claims were “without
merit” because they were “grounds upon which no proof was offered”). If Claim 2(d) was not
defaulted until Petitioner failed to include it on post-conviction appeal, then post-conviction
counsel’s failure to explicitly assert it during the evidentiary hearing cannot supply cause excusing
the default under Martinez, and Petitioner makes no other attempt to show cause.

34

Regardless, Claim 2(d) does not present a substantial claim of trial counsel’s
ineffectiveness. “To be substantial, an ineffective-assistance-of-trial-counsel claim must, among
other things, be supported by evidence.” Rogers, 69 F.4th at 396 (citing Martinez, 566 U.S. at 15–
16). Petitioner does not assert any evidentiary support for Claim 2(d); he merely asserts, in
conclusory fashion, that “[a]t the time of []his arrest, there was no probable cause to believe that
the Petitioner was the “John Doe” alleged in the [2006 capias warrant].” (Doc. No. 1 at 17; see
also Doc. No. 2 at 59–63, Doc. No. 21 at 44–46.) Moreover, as the State argued in its written
response to this claim before the post-conviction court, “[t]he Tennessee Supreme Court addressed
the ‘John Doe’ arrest in this case and found no error.” (Doc. No. 17-7 at 53.) Indeed, in State v.
Burdick, 395 S.W.3d 120 (Tenn. 2012), the Tennessee Supreme Court took up the question of
whether the John Doe warrant identifying Petitioner’s unique DNA profile was sufficient to
commence the criminal prosecution against him and, once a superseding indictment was filed in
Petitioner’s name, to satisfy his constitutional right to notice of the charge against him. In a
unanimous decision, the Tennessee Supreme Court answered that two-part question in the
affirmative and affirmed Petitioner’s Davidson County conviction for attempted aggravated rape.
Id. at 121–22, 130. Accordingly, Claim 2(d) is not substantial under Martinez.
e. Claim 2(e) – Failure to Adequately Move to Suppress Based on Unlawful Search
In this claim, Petitioner asserts that trial counsel filed an insufficient motion to suppress
the fruits of an unlawful search conducted pursuant to a warrant issued on May 1, 2008. (Doc. No.
15-4 at 20–31.) This claim, too, was raised by Attorney Campbell in Petitioner’s Second Amended
Petition for Post-Conviction Relief (Doc. No. 17-5 at 42, 43–46) and responded to by the State
(Doc. No. 17-7 at 53) but not addressed on the merits by the post-conviction trial court or asserted
on post-conviction appeal. As explained with regard to Claim 2(d), the Court is not confident that

35

Martinez applies to Claim 2(e). But even if it does, this ineffective-assistance claim is plainly not
substantial.
Petitioner’s arguments in support of this claim (Doc. No. 2 at 63–66) repeat the arguments
made in the post-conviction trial court by Attorney Campbell. (Doc. No. 17-5 at 43–46.) Petitioner
critiques the 14-page motion to suppress filed by trial counsel (Doc. No. 15-4 at 5–19) and asserts
the legal arguments Petitioner would have offered instead of, or in addition to, the arguments made
by trial counsel in that motion or at the suppression hearing. (Doc. No. 15-7.) One witness testified
at the suppression hearing: Officer Elliott Hamm of the Brentwood Police Department. Officer
Hamm conducted a traffic stop of Petitioner in the early morning hours of April 28, 2008, and that
traffic stop yielded the facts that were offered as probable cause for the May 1, 2008 search
warrant. (See Doc. No. 15-4 at 28–29.) The suppression motion was heard and denied by the trial
court, and its denial was upheld by the TCCA on direct appeal, based on the determination that
Officer Hamm’s warrantless stop of Petitioner was constitutionally permissible. State v. Burdick,
2012 WL 2151489, at *7–11. Petitioner now claims that trial counsel was deficient in failing to
argue that “Petitioner was, at most, a mere suspect in what was alleged to be an attempted car
burglary” when he was stopped by Officer Hamm. (Doc. No. 2 at 63.) He further claims that trial
counsel failed to (1) cite applicable Sixth Circuit cases or (2) conduct an adequate investigation
into the veracity of the allegations made in the search warrant affidavit, either of which would have
produced a better chance at suppression than the authorities and arguments used by trial counsel
to show a lack of probable cause. (Id. at 64–66.)
Petitioner’s contentions as to what issues trial counsel should have argued and what cases
counsel should have cited fail for the same reason: counsel did in fact make the arguments
Petitioner advances, even if different cases were cited to support those arguments. Petitioner

36

contends that trial counsel should have argued that the judicial authorization to search his house
and person for evidence of rape was unlawful because it followed an initial detention on suspicion
of an altogether different crime. He also argues that counsel should have cited certain Sixth Circuit
cases––all of which found a lack of probable cause to search a residence for evidence of a crime
that was disconnected, by factual context or by the passage of time, from the reason the resident
was being investigated.8 But trial counsel’s suppression motion––filed, heard, and decided as a
motion to exclude evidence from all proceedings under the original, 14-count indictment––pointed
out that the search warrant affidavit referred to multiple rapes and other attacks that were attributed
to the then-unknown “Wooded Rapist” between 1994 and 2006, only one of which occurred (in
2004) in the Meadowlake neighborhood where Petitioner was stopped by Officer Hamm, and the
rest of which occurred in the Forest Hills area. (Doc. No. 15-4 at 11.) Counsel argued:
This 2004 rape occurred about two blocks away from where a suspicious person
was seen in the early morning hours of April 28, 2008. For the search warrant to be
valid, the affidavit must show probable cause that Robert Burdick committed this
2004 rape, and that the searches of his person, residence, business and vehicle
would uncover evidence that he did commit that crime.
...
The mere fact that a man was seen on foot in the Meadowlake neighborhood early
in the morning on April 28, 2008 is not probable cause that the same man committed
a rape in this neighborhood in November 2004, nor that this man committed
multiple rapes in the Forest Hills area between 1994 and 2006.
8

See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (considering defective warrant
application that “established probable cause for one crime (child molestation) but designed and requested
a search for evidence of an entirely different crime (child pornography)”); United States v. Hython, 443
F.3d 480, 486–87 (6th Cir. 2006) (finding warrant “invalid on staleness grounds” where residence alleged
to be locus of drug activity, but without any indication of when such activity took place); United States v.
Laughton, 409 F.3d 744, 747 (6th Cir. 2005) (finding a lack of probable cause where warrant application
“failed to make any connection between the residence to be searched and the facts of criminal activity that
the officer set out in his affidavit . . . [and] also failed to indicate any connection between the defendant and
the address given or between the defendant and any of the criminal activity that occurred there”). (Plaintiff
also cites United States v. Spikes, 158 F.3d 913 (6th Cir. 1998), for its purported finding that a search
warrant application lacked indicia of recent criminal activity and was thus stale, but the application in Spikes
was determined not to be stale because the alleged criminal activity at the residence “was of an ongoing
and continuous nature.” Id. at 924.)

37

In order to establish probable cause, an affidavit must set forth facts from which a
magistrate can determine “whether the facts are too stale to establish probable cause
at the time issuance of the warrant is sought.” State v. Vann, 976 S.W.2d 93, 105.
… While the lapse of time between the commission of a crime and the issuance of
a search warrant may affect the likelihood that incriminating evidence will be
found, probable cause is a case-by-case determination. . . .
The fact that a man was walking in a neighborhood late at night, even if that
neighborhood has no noticeable foot traffic, does not suggest that this particular
man committed a rape in the same neighborhood four years earlier. That a rape had
been committed four years earlier does not suggest that the man on foot committed
that earlier offense. The lengthy time span between the 2004 rape and the suspicious
person seen on April 28, 2008 destroys any possible nexus between the two events.
(Id. at 12–14.) Thus, rather than failing to argue the disconnect between grounds for Petitioner’s
initial detention and the evidence targeted by the subsequent search warrant, counsel actually
focused the trial court’s attention on these matters. Petitioner’s claim to the contrary fails.
Petitioner further claims that trial counsel failed to conduct an adequate investigation into
the veracity of the allegations made in the search warrant affidavit. He asserts that an adequate
investigation would have caused counsel to challenge Officer Hamm’s explanation that Petitioner
appeared to have “just changed” into dry clothes (which were not “dark” as the original report of
a suspicious-looking person had indicated) and the corresponding suggestion that it had recently
rained, when public weather reports would have shown “an absence of precipitation on April 28,
2008.”9 (Doc. No. 2 at 65.) Petitioner further asserts that trial counsel should have discovered the
falsity of the affidavit’s allegation that a 2005 sketch of “the Wooded Rapist” “closely resembled
Robert Burdick’s most recent State of Tennessee issued Driver License photograph.” (Id.) But
again, both inconsistencies––Petitioner’s clothing compared to the reportedly dark clothing of the

9

The Court notes that Officer Hamm’s encounter with Petitioner took place during the early morning
hours of April 28, 2008. Petitioner does not make any argument that refers to public weather reports for
days prior to April 28.

38

suspect, and his resemblance to a sketch of the man suspected of being “the Wooded Rapist”––
were raised in trial counsel’s suppression motion:
When Mr. Burdick was stopped by Officer Hamm, he did not even match the
description of the suspicious person described on the 911 call. … The suspicious
person was described as a man about 5’7” in dark clothes with a black mask over
his face. When Officer Hamm stopped Robert Burdick in his Jeep at 1:30 a.m., he
described him as 5’11”, 200 pounds with a muscular build, brown hair and blue
eyes. He was wearing camouflage pants, with tennis shoes and a gray T-shirt. These
descriptions do not match.
...
The affidavit also asserts that Robert Burdick matches the sketch of the “Wooded
Rapist” done by the TBI. … [However], the TBI sketch that was done in 2005 is
not incorporated into the affidavit, nor does the affidavit incorporate Robert
Burdick’s driver’s license photograph. Thus, there is no way that a magistrate could
compare the photograph of Robert Burdick with the TBI sketch of the man who
attempted to rape a woman in 2005.
(Doc. No. 15-4 at 15–17.)
While Petitioner might in hindsight prefer that a finer point have been put on certain
arguments for suppression, that different or additional cases have been cited, or that factual
inconsistencies in the warrant application have been put under a brighter spotlight, those
preferences do not support a substantial claim of ineffective assistance of counsel in this case. This
defaulted claim is not saved by Martinez.
f. Claim 2(f) – Failure to Argue Mitigating Factor Required by Statute
Lastly, Petitioner claims that trial counsel failed to “argue and require” that the trial court
consider at sentencing the mitigating factor that the victim was voluntarily released alive––
consideration which Section 39-13-305(b)(2) of the Tennessee Code mandates. (Doc. No. 11 at 3.)
That Code section, which defines the crime of especially aggravated kidnapping, provides that
“[i]f the offender voluntarily releases the victim alive or voluntarily provides information leading
to the victim’s safe release, such actions shall be considered by the court as a mitigating factor at
39

the time of sentencing.” Tenn. Code Ann. § 39-13-305(b)(2). E.M., the rape and kidnapping victim
in this case, was released alive. In sentencing Petitioner, the trial court found that the aggravating
factor of his “previous history of criminal convictions or criminal behavior” was “established in
an overwhelming way.” (Doc. No. 15-14 at 50.) The court then found “that this record is void of
any factor which the Court could title a mitigating factor” (id. at 51), and the transcript of the
sentencing hearing does not reveal any explicit consideration of the fact that the victim did not
escape but was allowed to return to her home after Petitioner raped her.
Even though trial counsel might ideally have objected to the court’s failure to explicitly
consider a statutorily required mitigating factor, this Court does not view counsel’s failure to do
so as an instance of deficient performance “so serious that counsel was not functioning as the
‘counsel’ guaranteed [his client] by the Sixth Amendment.” Strickland, 466 U.S. at 687. More
saliently though, and as Respondent argues, this claim is also insubstantial because Petitioner
cannot show prejudice. As the TCCA has noted, “[t]he Sentencing Commission Comments to
Subsection (b) state that the court is required to consider the voluntary safe release of the victim
as a mitigating factor. This provision reflects the concern for the safety of the victim.” State v.
Pipkin, No. 01C01-9605-CR-00210, 1997 WL 749430, at *8 (Tenn. Crim. App. Dec. 4, 1997).
Petitioner’s claim that, after kidnapping and raping his young victim under threat of deadly
violence, he released her “safely” and “unharmed” (Doc. No. 11 at 3, 7) is manifestly untrue. The
trial court specifically found, after receiving testimony from the victim and her family, that those
individuals had suffered “a huge impact” on their present and future emotional health as a result
of “the loathsome way that [Petitioner] treated the victim.” (Doc. No. 15-14 at 48, 53.) The court
in Pipkin cited such a confluence of rape, use of a deadly weapon, and resulting emotional trauma
to a young victim to find that, “[e]ven if applicable, this mitigating factor” of voluntary release of

40

the victim alive under § 39-13-305(b)(2) “would be entitled to little, if any, weight.” 1997 WL
749430, at *8. See also State v. Nelson, No. M2023-00176-CCA-R3-CD, 2024 WL 1192985, at
*16 (Tenn. Crim. App. Mar. 20, 2024) (finding that although mitigation evidence “should have
been considered and addressed . . . even if the trial court ultimately assigned little or no weight to
it,” the trial court’s sentencing determination was due deference on appeal, where record supported
finding that “trial court was aware of the mitigating circumstances but implicitly rejected them”).
This Court finds it safe to say in this instance that any deficient performance by trial counsel in
failing to “argue and require” explicit consideration of this mitigating factor was nonprejudicial
under Strickland, as the fact that Petitioner released the victim after kidnapping and raping her was
likely implicitly rejected as a factor that the sentencing court “could [not] title” as mitigating, and,
in any event, obviously had no real likelihood of altering the result of the proceeding. Strickland,
466 U.S. at 694. This claim of ineffective assistance is insubstantial, and therefore cannot be
further considered.
VI. CONCLUSION
For the reasons stated above, Petitioner is not entitled to relief under Section 2254. The
Amended Petition will be DENIED and this action will be DISMISSED.
The Court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a Section 2254 petitioner. Rule 11, Rules Gov’g § 2254 Cases. A petitioner may
not take an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R.
App. P. 22(b)(1). A COA may issue only if the petitioner “has made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). A “substantial showing” is made when
the petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues presented were

41

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (citations and internal quotation marks omitted). “[A] COA does not require a showing that
the appeal will succeed,” but courts should not issue a COA as a matter of course. Id. at 337.
Because reasonable jurists could not debate whether Petitioner’s claims should have been
resolved differently or are deserving of encouragement to proceed further, the Court will DENY a
COA. Petitioner may seek a COA directly from the Sixth Circuit Court of Appeals. Rule 11(a),
Rules Gov’g § 2254 Cases.
An appropriate Order is filed herewith.
____________________________________
WILLIAM L. CAMPBELL, JR.
CHIEF UNITED STATES DISTRICT JUDGE

42