Ross v. Parker
Filing
14
ORDER DISMISSING CASE; Order denying Certificate of Appealability; Order Certifying Appeal Not Taken in Good Faith; and Order Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 7/25/13. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
LAMAR ROSS,
Petitioner,
vs.
TONY PARKER,
Respondent.
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No. 10-1093-STA-egb
ORDER OF DISMISSAL
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On April 19, 2010, Petitioner Lamar Ross, Tennessee
Department of Correction prisoner number 367106, an inmate at the
Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee,
filed a pro se petition pursuant to 28 U.S.C. § 2254.
(ECF No. 1.)
On April 26, 2010, Ross paid the filing fee. (ECF No. 3.) On May 4,
2010, United States District Judge J. Daniel Breen transferred the
petition to the Western Division of this district and directed the
Respondent to file the state-court record and a response to the
petition. (ECF No. 4.) Respondent filed an answer to the petition
and the state-court record on June 28, 2010. (ECF Nos. 8 & 9.)
I.
STATE COURT PROCEDURAL HISTORY
On October 17, 2002, a grand jury sitting in Shelby
County, Tennessee, indicted Petitioner Ross on two counts of
aggravated rape. (Indictment, ECF No. 9-1 at 7.)1
On September 24,
2003, following a jury trial in the Criminal Court for Shelby
County, Tennessee, Petitioner was convicted of both counts which
the trial court merged into a single judgment of conviction. (ECF
No. 9-1 at 17-18.) Ross was sentenced to twenty-four years in
prison as a Range I, violent offender. (Notice of Enhancement
Factors, ECF No. 9-1 at 19-22; Judgment, ECF No. 9-1 at 40.) The
Tennessee Court of Criminal Appeals modified the conviction on
count two to rape, a Class B felony, the actual offense charged;
concluded
that
two
of
the
four
enhancement
factors
were
inapplicable under Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004); and reduced Ross’ sentence to
twenty-two years in prison. State v. Ross, No. W2003-02823-CCA–R3CD, 2004 WL 2715348 (Tenn. Crim. App. Nov. 22, 2004), perm app.
denied (Tenn. May 31, 2005).
On December 13, 2005, Ross filed a pro se petition
pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code
Ann. §§ 40-30-101 to -122, in the Criminal Court for Shelby County.
(Pet. for Relief from Conviction or Sentence, ECF No. 9-7 at 2057.) Counsel was appointed to represent Ross (Order, id. at 68),
and an amended and supplemental petition was filed on September 28,
2007.
(Am. Pet. For Post-Conviction Relief, id. at 69-78.)
An
evidentiary hearing was held, and on May 20, 2008, the post-
1
Page citations are to the district court record docket entries.
2
conviction court issued an order denying relief. (Order, id. at 8192.) The Tennessee Court of Criminal Appeals affirmed.
Ross v.
State, No. W2008-01130-CCA-R3-PC, 2009 WL 2568202 (Tenn. Crim. App.
Aug. 20, 2009), perm. app. denied (Tenn. Jan. 25, 2010).
The facts underlying Petitioner’s conviction are set
forth in the opinion of the Tennessee Court of Criminal Appeals on
direct appeal:
The victim in this case, J.F.,2 is a resident of the
Barry Homes, a Memphis public housing development
reserved for the physically and mentally disabled. At
approximately 11:50 p.m. on July 1, 2002, the victim
reported to Carolyn Delbridge, a Memphis Housing
Authority criminal investigator assigned to the building,
that earlier in the day a man had enticed him into
walking with him to a nearby abandoned public housing
complex, where he had forced the victim at knifepoint to
perform oral sex and had penetrated him anally with his
penis.
From
the
victim’s
description,
Delbridge
recognized Lamar Ross, who was a regular visitor in the
Barry Homes, and whom she had seen in the building
earlier that afternoon.
The
victim
subsequently
led
Delbridge,
her
supervisor, and a group of Memphis police officers to the
abandoned housing complex and pointed out the room in
which the rape occurred. There, the officers discovered
Ross asleep on the floor, a gray knife matching the
victim’s description of the weapon used in the attack
underneath a blanket beside his left hand. In addition,
the victim immediately identified Ross as the perpetrator
when the officers removed him from the room. As a result,
Ross was arrested and charged with two counts of
aggravated rape, based on his use of a weapon in the
attack and his rape of a victim he knew or had reason to
know was mentally defective.
At Ross’ September 22-24, 2003, trial, the victim
testified he was forty-one years old and had lived in the
2
It is the policy of this court to identify victims of sexual assault
by their initials only.
3
Barry Homes Housing Development in downtown Memphis for
the past two years and four months. He said he was
sitting outside the building on July 1, 2002, when a man
dressed in blue jeans and a black shirt with a black
design approached and asked him to accompany him to where
he was living, saying something about wanting to show the
victim a “cat hole” and also about having the victim play
basketball with him. The victim said he declined, but the
man grabbed him by the arm and told him to come with him,
repeating that he had something to show him. As they
walked together down the street, the man introduced
himself to the victim as “Lamar Ross.”
After leading the victim into an upstairs vacant
room inside the nearby abandoned Lauderdale Court housing
project, the man suddenly pulled down his clothes,
telling the protesting victim that he had to “do [his]
job.” The victim said he refused and tried to leave, but
the man grabbed him by the neck, pulled out a gray knife,
and threatened that he would be “a dead sucker” if he did
not “suck his penis.” Because he was afraid the man would
hurt him, the victim complied. He said that afterwards,
the man forced him to lower his pants and then penetrated
his rectum with his penis four times, which hurt him.
When finished, the man forced him to wait and walk back
toward the Barry Homes complex with him, threatening that
the victim was “gonna get [his] butt kicked again” if he
refused.
The victim testified that when he returned home he
first related the incident to the manager of his
building, who refused to help, and later to Ms.
Delbridge, the building’s security officer, who called
her supervisor and the police. After describing the
rapist, he led officers to the abandoned housing complex,
where the police discovered a man fitting the rapist’s
description asleep in the room where the incident
occurred. The victim testified he immediately recognized
and identified the man as the perpetrator when the police
brought him out of the room. However, the victim was
unable to identify Ross at trial.
On cross-examination, the victim testified he
completed the eleventh grade but did not graduate. He was
unsure of the exact time the incident occurred, but was
confident it was before dark. He was also confident that
Ross told him his name was “Lamar Ross.” He acknowledged
he had reported the time of the incident as 4:00 p.m. in
4
his statement to police, and had said that Ms. Delbridge
told him the perpetrator’s name was Lamar. He testified
he described the perpetrator as a tan or “khaki-skinned”
man with facial hair, shorter than he was, and dressed in
blue jeans, a black shirt, and white tennis shoes. The
victim said he did not think Ross had been wearing a
condom, and he did not ejaculate in his mouth. He denied
having told anyone that Ross ejaculated, but said he had
mentioned that he saw “some white stuff caked around
[Ross’] penis,” which had an “ill smell to it.” The
victim acknowledged he told police that he was 5' 6" and
thought his assailant was six feet tall. He was unable to
say whether six feet was taller than his height, but
indicated that the man who raped him came up to his ear.
On redirect, he affirmed that he had been able to point
out Ross to the judge in an earlier court proceeding in
the case.
Carolyn Delbridge testified she was working at the
Barry Homes as a criminal investigator for the Memphis
Housing
Authority
on
July
1,
2002,
when
the
“crying-shaken-real distraught” victim came to her at
11:50 p.m. and reported that “somebody made him put their
nasty thing in his mouth.” She said the victim related
that he had been sitting on the stoop when a man wearing
dark jeans, a black long-sleeved shirt with white writing
on it, and white tennis shoes asked him for a beer. The
victim told her that he refused to buy him a beer, and
the man asked him to accompany him to the store. However,
when they reached the abandoned Lauderdale Court
Apartments, the man “pushed ... and shoved him” inside an
apartment, pulled a gray knife, forced him to go upstairs
into a room with a folded blanket on the floor and a pink
candle in the window, and then made him perform oral sex
and anally penetrated him. Delbridge stated that the
victim did not know what a condom was, but answered in
the affirmative when she asked if he had been wet where
the man penetrated him. She agreed that the victim was
mentally disabled, or “a little slow.”
Delbridge testified that the victim led her, her
supervisor, and several Memphis police officers to the
apartment, where they found Ross asleep on some folded
blankets on the floor. She said the victim had previously
described the perpetrator’s foot odor, and she and the
other officers were able to smell Ross’ feet “as soon as
[they] hit that bedroom.” She confirmed that the victim
identified Ross as his rapist at the scene, and testified
5
that a gray knife was discovered near Ross’ left hand on
the floor under a blanket. On cross-examination,
Delbridge testified that Ross checked into the Barry
Homes for a visit at 5:00 p.m. and left around 5:30 or
5:40 p.m. She said the victim told her that the rape
occurred between 8:00 and 8:30 p.m. She acknowledged she
recognized Ross from the victim’s initial description of
his rapist, but was confident she did not tell the victim
his name. On redirect, she testified she recognized Ross
from the victim’s description of his perpetrator’s bad
case of acne and his clothing.
Memphis
Police
Officer
Christopher
Patterson
testified that shortly after midnight on July 2, 2002,
the victim led him and several other officers to the
Lauderdale Court apartment in which the attack had
occurred, where they discovered Ross asleep on the floor.
He confirmed that the victim identified Ross at the scene
as the man who had raped him.
Jerry Hamilton testified he was the manager of
clinical services for Case Management Incorporated, a
private agency that assists clients with mental health
problems to locate housing, food, and other resources in
order to “make adjustments to the community” and to
function as independently as possible. He said that the
victim, a client of his company, had been diagnosed with
a mood disorder and mental retardation and received a
government disability check based on his mental
disability.
Darna Davis testified she was a caseworker for Case
Management, Inc., and had managed the victim’s case since
May. She said her understanding was that the victim had
been diagnosed with both mental retardation and a mood
disorder. She stated that her company managed the
victim’s money, paid his bills, filled and delivered his
monthly prescriptions, and provided transportation for
him to and from the clinic. However, the victim lived on
his own at the Barry Homes, was responsible for taking
his medication daily, and appeared to her to be able to
take care of himself on a daily basis.
Nina Sublette, a nurse practitioner who was accepted
by the trial court as an expert in the field of forensic
nursing, testified she examined the victim at the Memphis
Sexual Assault Resource Center at 2:30 a.m. on July 2,
2002. Although she observed nothing unusual with respect
6
to the victim’s mouth and lips, she found four subacute
lacerations to his anal verge, or the wrinkled part of
his rectum, as well as a larger laceration located
outside the anal verge at the “peri-anal skin area.” All
five lacerations bled easily upon slight manipulation.
Sublette opined that the injuries were “very recent,” had
definitely occurred within the past twenty-four hours and
probably within the past twelve, and were consistent with
“blunt penetrating trauma.” She testified there was no
semen detected on the oral or rectal swabs she collected
from
the
victim
or
from
his
underwear.
On
cross-examination, Sublette testified she had estimated
the time of the assault as 4:00 p.m. based on what the
victim told her. She acknowledged the victim told her he
thought his assailant wore a condom, but could not recall
if she had to first explain to him what a condom was.
Ross elected not to testify and rested his case
without presenting any proof. After deliberating, the
jury returned guilty verdicts in both counts of the
indictment. At the conclusion of the sentencing hearing,
the trial court announced that the convictions would be
merged into a single judgment of conviction and applied
the following enhancement factors to the offense: (2),
Ross has a previous history of criminal convictions or
criminal behavior in addition to those necessary to
establish his range; (6), Ross treated or allowed a
victim to be treated with exceptional cruelty during the
commission of the offense; and (7), the personal injuries
inflicted upon the victim were particularly great. Tenn.
Code Ann. §§ 40-35-114(2), (6), (7) (2003). Without
specifying which, the trial court also found that because
of the alternate theories under which Ross had been
convicted of the two separate counts, which had merged,
either
enhancement
factor
(5),
the
victim
was
particularly vulnerable because of age or physical or
mental disability, or enhancement factor (10), Ross
possessed or employed a deadly weapon during the
commission of the offense, applied. See id. §§
40-35-114(5), (10). Finding no mitigating factors
applicable, the trial court enhanced Ross’ sentence from
the presumptive midpoint of twenty years for a Range I
offender convicted of a Class A felony to twenty-four
years.
State v. Ross, 2004 WL 2715348, at *1-4.
7
II.
PETITIONER’S FEDERAL HABEAS CLAIMS
In this § 2254 petition, Ross contends that his attorneys
rendered
Amendment.
ineffective
(ECF
No.
assistance,
1-6
at
1.)
in
violation
Although
of
Ross
the
Sixth
“adopts
and
incorporates” “all twenty-one instances of ineffective assistance
of counsel at trial and on appeal” as “alleged in his original
petition for post conviction relief filed pro se and Amended and
Supplemental Petition For Post-Conviction Relief filed by appointed
counsel James M. Gully” (ECF No. 1-6 at 9), only two issues were
presented to the Tennessee Court of Criminal Appeals during the
appeal of the denial of post-conviction relief.
Specifically:
(1)
Whether trial counsel was ineffective for failing
to
file
and
argue
a
motion
to
suppress
identification testimony and evidence rendering the
out-of-court
identification
of
petitioner
so
suggestive as to result in misidentification in
violation of the Due Process clauses of the United
States and Tennessee Constitutions; and
(2)
Whether trial counsel was ineffective for failing
to challenge or object to lay witnesses’ testimony
that the alleged victim was diagnosed with a mood
disorder and mental retardation because of a lack
of proper foundation for such testimony or
qualification of the witnesses as experts?
(ECF No. 9-15 at 3).
III. LEGAL STANDARDS
The statutory authority for 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
8
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).
A.
Exhaustion and Procedural Default
Twenty-eight U.S.C. §§ 2254(b) and (c) provide that a
federal court may not grant a writ of habeas corpus on behalf of a
state prisoner unless, with certain exceptions, the prisoner has
exhausted available state remedies by presenting the same claim
sought to be redressed in a federal habeas court to the state
courts. Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388,
1398,
79
L.
Ed.
2d
557
(2011).
The
petitioner
must
“fairly
present”3 each claim to all levels of state court review, up to and
including
the
state’s
highest
court
on
discretionary
review,
Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349, 158 L.
Ed. 2d 64 (2004), except where the state has explicitly disavowed
state supreme court review as an available state remedy, O’Sullivan
v. Boerckel, 526 U.S. 837, 847-48, 119 S. Ct. 1728, 1733-34, 144 L.
Ed. 2d 1 (1999). Tennessee Supreme Court Rule 39 eliminated the
need to seek review in the Tennessee Supreme Court to “be deemed to
have exhausted all available state remedies.” Adams v. Holland, 330
F.3d 398, 402 (6th Cir. 2003), cert. denied, 541 U.S. 956, 124 S.
3
For a claim to be exhausted, “[i]t is not enough that all the facts
necessary to support the federal claim were before the state courts, or that a
somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6,
103 S. Ct. 276, 277, 74 L. Ed.2d 3 (1982) (per curiam)(internal citation
omitted). Nor is it enough to make a general appeal to a broad constitutional
guarantee. Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct. 2074, 2081, 135 L.
Ed. 2d 457 (1996).
9
Ct. 1654, 158 L. Ed. 2d 392 (2004); see also Smith v. Morgan, 371
F. App’x 575, 579 (6th Cir. 2010) (“Adams not only requires the
federal courts to ensure that the state courts have the first
opportunity to review and evaluate legal claims . . . but also
mandates that the federal courts respect the duly-promulgated rule
of the Tennessee Supreme Court that recognizes the law and policymaking function of that court and the court’s desire not to be
entangled in the business of simple error correction”).
The procedural default doctrine is ancillary to the
exhaustion requirement.
See Edwards v. Carpenter, 529 U.S. 446,
452-53, 120 S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) (noting the
interplay between the exhaustion rule and the procedural default
doctrine). If the state court decides a claim on an independent and
adequate state ground, such as a procedural rule prohibiting the
state court from reaching the merits of the constitutional claim,
a petitioner ordinarily is barred from seeking federal habeas
review. Wainwright v. Sykes, 433 U.S. 72, 81-82, 97 S. Ct. 2497,
2503-04, 52 L. Ed. 2d 594 (1977), reh’g denied, 434 U.S. 880, 98 S.
Ct. 241, 54 L. Ed. 2d 163 (Oct. 3, 1977); see Walker v. Martin, ___
U.S. ___, ___, 131 S. Ct. 1120, 1127, 179 L. Ed. 2d 62 (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, 729-30,
10
111 S. Ct. 2546, 2554, 115 L. Ed. 2d 640 (1991)(same).4 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), the claim is technically exhausted, but
procedurally barred. Coleman, 501 U.S. at 731-32, 111 S. Ct. at
2555; see also Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004)
(the procedural default doctrine prevents circumvention of the
exhaustion doctrine), cert. denied, 544 U.S. 928, 125 S. Ct. 1653,
161 L. Ed.2d 490 (2005).5
Under either scenario, a petitioner must show cause to
excuse his failure to present the claim fairly and actual prejudice
stemming from the constitutional violation or, alternatively, that
a
failure
to
review
the
claim
will
result
in
a
fundamental
miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320-21, 115
S. Ct. 851, 864, 130 L. Ed. 2d 808 (1995); Coleman, 501 U.S. at
750, 111 S. Ct. at 2565. The latter showing requires a petitioner
to establish that a constitutional error has probably resulted in
the conviction of a person who is actually innocent of the crime.
4
The state-law ground may be a substantive rule dispositive of the
case, or a procedural barrier to adjudication of the claim on the merits. Walker,
__ U.S. at __, 131 S. Ct. at 1127. A state rule is an “adequate” procedural
ground if it is “firmly established and regularly followed.” Id. (quoting Beard
v. Kindler, 130 S. Ct. 612, 618, 175 L. Ed. 2d 417 (2009)). “A discretionary
state procedural rule . . . can serve as an adequate ground to bar federal habeas
review . . . even if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not others.” Id. at 1128
(quoting Kindler, 130 S. Ct. at 618)(internal citations & quotation marks
omitted).
5
To avoid procedural default, federal law requires a federal habeas
petitioner in Tennessee to present his federal claims to the Tennessee Court of
Criminal Appeals. Covington v. Mills, 110 F. App’x 663, 666 (6th Cir. 2004)
11
Schlup, 513 U.S. at 321, 115 S. Ct. at 864; see also House v. Bell,
547 U.S. 518, 536-539, 126 S. Ct. 2064, 2076-78, 165 L. Ed. 2d 1
(2006) (restating the ways to overcome procedural default and
further explaining the actual innocence exception).
B.
Merits Review
Section 2254(d) establishes the standard for addressing
claims that have been adjudicated in state courts on the merits:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the
evidence
presented
in
the
State
court
proceeding.
28 U.S.C. § 2254(d)(1)-(2). The petitioner carries the burden of
proof for this “difficult to meet” and “highly deferential [AEDPA]
standard,” which “demands that state-court decisions be given the
benefit of the doubt.” Cullen, ___ U.S. at ___, 131 S. Ct. at 1398
(quoting Harrington v. Richter, ___ U.S.
, ___, 131 S. Ct. 770,
786, 178 L. Ed. 2d 624 (2011), and Woodford v. Visciotti, 537 U.S.
19, 24, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002) (per curiam),
12
reh’g denied, 537 U.S. 1149, 123 S. Ct. 957, 154 L. Ed. 2d 855
(Jan. 13, 2003)).6
Review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the
merits. Cullen, ___ U.S. at ___, 131 S. Ct. at 1399. A state
court’s decision is “contrary” to federal law when it “arrives at
a conclusion opposite to that reached” by the Supreme Court on a
question of law or “decides a case differently than” the Supreme
Court
has
“on
a
set
of
materially
indistinguishable
facts.”
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523,
146 L. Ed. 2d 389 (2000).7 An “unreasonable application” of federal
law occurs when the state court “identifies the correct governing
legal
principle
from”
the
Supreme
Court’s
decisions
“but
unreasonably applies that principle to the facts of the prisoner’s
case.”
Id. at 412-13, 120 S. Ct. at 1523. The state court’s
application of clearly established federal law must be “objectively
unreasonable.”
Id. at 409, 120 S. Ct. at 1521. The writ may not
6
The AEDPA standard creates “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, 127 S. Ct. 1933, 1940,
167 L. Ed. 2d 836 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.
Ct. 1495, 1522, 146 L. Ed. 2d 389 (2000)).
7
The “contrary to” standard does not require citation of Supreme Court
cases “so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365,
154 L. Ed. 2d 263 (2002) (per curiam), reh’g denied, 537 U.S. 1148, 123 S. Ct.
955, 154 L. Ed. 2d 854 (Jan. 13, 2003); see Mitchell v. Esparza, 540 U.S. 12, 1516, 124 S. Ct. 7, 10, 157 L. Ed. 2d 263 (2003) (same), reh’g denied, 540 U.S. 12,
16, 124 S. Ct. 1124, 157 L. Ed. 2d 956 (Jan. 12, 2004); Treesh v. Bagley, 612
F.3d 424, 429 (6th Cir. 2010) (same), cert. denied, ___ U.S. ___, 131 S. Ct.
1678, 179 L. Ed. 2d 622 (Mar. 21, 2011).
13
issue merely because the habeas court, in its independent judgment,
determines
that
the
state
court
decision
applied
established federal law erroneously or incorrectly.
clearly
Renico v.
Lett, 559 U.S. 766, ___, 130 S. Ct. 1855, 1862, 176 L. Ed. 2d 678
(2010) (citing Williams, 529 U.S. at 411, 129 S. Ct. at 1522).
There is little case law addressing the standard in §
2254(d)(2)
that
a
decision
was
based
on
“an
unreasonable
determination of facts.” However, in Wood v. Allen, 558 U.S. 290,
301, 130 S. Ct. 841, 849, 175 L. Ed. 2d 738 (2010), reh’g denied,
130 S. Ct. 1942, 176 L. Ed. 2d 405 (Mar. 22, 2010), the Supreme
Court
stated
that
a
state-court
factual
determination
is
not
“unreasonable” merely because the federal habeas court would have
reached a different conclusion.8 In Rice v. Collins, 546 U.S. 333,
126 S. Ct. 969, 163 L. Ed. 2d 824 (2006), the Court explained that
“[r]easonable minds reviewing the record might disagree” about the
factual finding in question, “but on habeas review that does not
suffice to supersede the trial court’s . . . determination.” Rice,
546 U.S. at 341-42, 126 S. Ct. at 976.
8
In Wood, the Supreme Court granted certiorari to resolve whether, to
satisfy § 2254(d)(2), “a petitioner must establish only that the state-court
factual determination on which the decision was based was “unreasonable,” or
whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption
that the determination was correct with clear and convincing evidence.” Wood,
558 U.S. at 293, 299, 120 S. Ct. at 845, 848. However, the Court ultimately found
it unnecessary to reach that issue, and left it open “for another day”. Id. at
300-01, 303, 120 S. Ct. at 849, 851 (citing Rice v. Collins, 546 U.S. 333, 339,
126 S. Ct. 969, 974, 163 L. Ed. 2d 824 (2006) in which the Court recognized that
it is unsettled whether there are some factual disputes to which § 2254(e)(1) is
inapplicable).
14
The Sixth Circuit has described the § 2254(d)(2) standard
as “demanding but not insatiable” and emphasizes that, pursuant to
§ 2254(e)(1), the state court factual determination is presumed to
be correct absent clear and convincing evidence to the contrary.
Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010), reh’g and reh’g
en banc denied (Dec. 28, 2010). A state court adjudication will not
be overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state court proceeding. Id.;
see also Hudson v. Lafler, 421 F. App’x 619, 624 (6th Cir. 2011)
(same).
There is no AEDPA deference and the standards of § 2254(d)
do not apply if a habeas claim is fairly presented in the state
courts but not adjudicated on the merits. Montes v. Trombley, 599
F.3d 490, 494 (6th Cir. 2010), reh’g and reh’g en banc denied (Apr.
20, 2010); see Thompson v. Warden, Belmont Corr. Inst., 598 F.3d
281, 285 (6th Cir. 2010) (a claim that is fairly presented in the
state court but not addressed is subject to de novo review by the
habeas court). The pre-AEDPA de novo review standard applies for
questions of law and mixed questions of law and fact, and the clear
error standard applies to factual findings. Montes, 599 F.3d at 494.
IV.
ANALYSIS OF PETITIONER’S CLAIMS
Ineffective Assistance
Ross
rendered
contends
ineffective
that
his
assistance,
15
trial
in
and
appellate
violation
of
the
counsel
Sixth
Amendment. A claim that ineffective assistance of counsel has
deprived a defendant of his Sixth Amendment right to counsel is
controlled by the standards stated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), reh’g denied,
467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (June 25, 1984).
The benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having
produced a just result.
To
Id. at 686, 104 S. Ct. 2064.
demonstrate
deficient
performance
by
counsel,
a
petitioner must demonstrate that “counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688, 104 S.
Ct. at 2064. “A court considering a claim of ineffective assistance
must apply a ‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance.
[Strickland, 466 U.S.] at 689, 104 S. Ct. 2052. The challenger’s
burden is to show ‘that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’ Id., at 687, 104 S. Ct. 2052.” Harrington v.
Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624
(2011).
To demonstrate prejudice, a prisoner must establish “a
reasonable
probability
that,
but
for
counsel’s
unprofessional
errors, the result of the proceeding would have been different.”
16
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.9 “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.”
Id. at 694; 104 S. Ct. at 2068. “It is not enough to
show that the errors had some conceivable effect on the outcome of
the proceeding. Counsel’s errors must be so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”
Harrington, 131 S. Ct. at 787-88 (internal citations & quotation
marks omitted) (citing Strickland, 466 U.S. at 687, 693, 104 S. Ct.
at 2064, 2052); see also Wong v. Belmontes, 558 U.S. 15, , 130 S.
Ct. 383, 390-91, 175 L. Ed. 2d 328 (2009) (per curiam) (“But
Strickland does not require the State to ‘rule out’” a more
favorable outcome to prevail. “Rather, Strickland places the burden
on the defendant, not the State, to show a ‘reasonable probability’
that the result would have been different”), reh’g denied, 130 S.
Ct. 1122, 175 L. Ed. 2d 931 (Jan. 11, 2010).
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct. 1473, 1485, 176
L. Ed. 2d 284 (2010).
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
9
“[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant[.]”
Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. If a reviewing court finds a
lack of prejudice, it need not determine whether, in fact, counsel’s performance
was deficient. Id.
17
Strickland, 466 U.S., at 689-690, 104 S. Ct. 2052. Even
under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and
with the judge. It is “all too tempting” to “second-guess
counsel’s
assistance
after
conviction
or
adverse
sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell
v. Cone, 535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed.
2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372,
113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). The question is
whether
an
attorney’s
representation
amounted
to
incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Harrington, ___ U.S. at ___, 131 S. Ct. at 788.
The deference to be accorded a state-court decision is
magnified when reviewing an ineffective assistance claim under 28
U.S.C. § 2254(d):
Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both “highly deferential,” id., at 689, 104
S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7,
117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the
two apply in tandem, review is “doubly” so, Knowles [v.
Mirzayance], 556 U.S., at ----, 129 S. Ct. at 1420
[(2009)]. The Strickland standard is a general one, so
the range of reasonable applications is substantial. 556
U.S., at ----, 129 S. Ct. at 1420. Federal habeas courts
must
guard
against
the
danger
of
equating
unreasonableness under Strickland with unreasonableness
under § 2254(d). When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
Id.
The Court of Criminal Appeals summarized the evidence
presented at the post-conviction hearing as follows:
18
The petitioner filed a timely pro se petition for
post-conviction
relief.
Thereafter,
post-conviction
counsel was appointed, an amended petition was filed, and
an evidentiary hearing was held. At the hearing, the
following
pertinent
testimony
was
presented.
The
petitioner testified that in October of 2002, he entered
a plea of “not guilty” and trial counsel was appointed to
represent him on charges of aggravated rape. According to
the petitioner, trial counsel met with him only one time
prior to trial. He stated that while he was in jail
awaiting trial, he received the state’s discovery
package, however, he claimed that trial counsel did not
meet with him to review the package. The petitioner
denied that he spoke with trial counsel regarding an
investigation of the case or potential trial witnesses.
On the day of trial, counsel relayed a plea offer made by
the state.
Regarding the underlying facts of the case, the
petitioner testified that since 1992, he had frequently
gone to Barry Homes to visit a friend. On the day of the
incident, the petitioner signed into Barry Homes at 5:00
p.m. and signed out at 5:20 p.m. A surveillance camera
located outside the entrance at Barry Homes would have
verified his arrival and departure times. He stated that
he did not ask trial counsel to obtain tapes from the
surveillance camera. The petitioner denied that he saw or
talked to the victim prior to July 2, 2002, the day of
his arrest. At the time of his arrest, the petitioner was
living on the street. He stated that he had passed out in
a vacant apartment in Lauderdale Court, an abandoned
public housing complex. The police awoke him, searched
him, and handcuffed him. The petitioner stated that he
was taken outside of the building in handcuffs, and he
saw the victim standing on the sidewalk. One of the
officers asked the victim, “if this was the man.” The
victim first said that the petitioner looked like his
attacker, but then made a definite identification.
The petitioner stated that the victim did not
initially identify him at the preliminary hearing and did
not identify him at trial. On cross-examination, the
petitioner agreed that there were a number of inmates
present in the courtroom at his preliminary hearing. He
further agreed that at one point during the hearing, the
victim identified him as his attacker. The petitioner
stated that when he was arrested, he wore a long sleeve
black shirt, blue jeans, and white tennis shoes. He
19
agreed that at the time of his arrest, his clothes and
bedding matched the victim’s description of the clothes
and bedding of his attacker.
Vertie McNeil, sergeant with the Memphis Police
Department, testified that she was involved in the
investigation of the case and identified statements she
took from the victim and the petitioner. According to the
victim’s statement, he was attacked at approximately 4:00
p.m. on July 1. On cross-examination, Sergeant McNeil
stated that the victim said that his attacker had black
hair and tan skin and was wearing blue jeans, a black
shirt, and white tennis shoes. According to the victim,
his attacker was shorter than his own height, five feet,
six inches, and he was in his 30's or 40's. When Sergeant
McNeil asked the victim if he knew his attacker, he
stated, “I would have known him by his face[.]” Sergeant
McNeil stated that she asked the petitioner about the
attack and he denied any knowledge or involvement. She
stated that she was not subpoenaed to trial and did not
testify.
Sharonda Hampton, lieutenant with the Memphis Police
Department, testified that late on July 1, or early on
July 2, 2002, she and several other officers responded to
a rape call at Barry Homes. Police officers brought the
victim to an abandoned apartment complex and the victim
pointed out the apartment where the rape occurred.
Lieutenant Hampton participated in a search of the
apartment. She stated they found a man asleep on the
floor with a knife beside him. The knife matched the
victim’s description of the knife used by his attacker.
The suspect was handcuffed and brought out of the
building “to see if the victim, ... could identify him.”
Lieutenant Hampton said she did not speak to the victim,
however, according to the other officers, the victim
identified the suspect as his attacker. Lieutenant
Hampton testified that she did not hear any of the police
officers suggest to the victim that the suspect was his
attacker. On cross-examination, Lieutenant Hampton
confirmed that the suspect found in the building matched
the physical description given by the victim, and he was
wearing clothing that matched the victim’s description of
the attacker’s clothes.
Trial counsel testified that on October 29, 2002,
the petitioner was arraigned and she was appointed to
represent him. Counsel stated that she spoke to the
20
petitioner on October 29th, at three subsequent court
appearances and on the first day of trial. Counsel said
that she did not visit the petitioner in jail, however,
she explained, “at that time we were having problems
getting people down to the jail and so we would talk to
people in court.” Counsel stated she received discovery
from the state and sent a copy of the package to the
petitioner. She discussed the state’s discovery package
with the petitioner. She and the petitioner also
discussed potential witnesses for trial. The petitioner
did not ask her to contact any witnesses and did not
request that she obtain surveillance tapes. Counsel
obtained the petitioner’s file from the attorney who had
represented him in General Sessions Court. It was
counsel’s understanding that the petitioner wanted to
proceed on the defense that the victim identified the
wrong person. Counsel was aware that at the time the
petitioner was found by police, he was brought out of the
building in handcuffs before the victim identified him.
However, she did not file a motion to suppress the
identification. Regarding a note in counsel’s file
referring to Dr. Sandra Bolts, counsel explained that she
considered having Dr. Bolts testify regarding the
victim’s mental condition, but decided against it. She
thought that the proof at trial showed that the victim
could take care of himself and that such proof was
beneficial to the petitioner. Counsel stated that she did
not want to do anything to make the victim appear unaware
of his surroundings or unable to identify his attacker.
Counsel testified that her notes from trial
indicated that Mr. Hamilton testified that the victim had
a mood disorder, but was stabilized. Ms. Davis testified
that she saw the victim once a month to ensure everything
was going all right. According to Ms. Davis, the victim
gave himself his own medicine, prepared his own food, and
took care of himself. Referring to a trial transcript,
counsel stated that the prosecutor asked Ms. Davis if it
was her understanding that the victim “has both a mood
disorder and he’s also been diagnosed as mentally
retarded[.]” Ms. Davis responded, “yes.”
Counsel agreed that the trial court ruled that
evidence of the petitioner’s prior convictions would not
be allowed. According to counsel, her position that the
petitioner should not testify was not based on a prior
conviction, but on what the petitioner told her before
trial.
21
On cross-examination, counsel stated that the
petitioner told her “he had been drinking, he was passed
out, he woke up, his pants had been pulled down and [the
victim] had impaled himself on [the petitioner’s] erect
penis.” The petitioner had previously told counsel that
he knew nothing about the rape or the victim. The
petitioner told the attorney who represented him in
General Sessions Court that he was on crack and had been
up for three or four days when he went to Barry Homes to
visit his friend. He told his former attorney that he
only remembered leaving Barry Homes and that the victim
began walking with him. The next thing he knew, he awoke
with the victim on top of him.
Counsel stated that in preparing for trial, she
spoke with the petitioner and all of the witnesses that
she was able to interview. Counsel testified that she
also reviewed a transcript of the preliminary hearing and
confirmed that the victim had identified the petitioner
at the hearing. Counsel spoke with the attorney who had
represented the petitioner in General Sessions Court and
learned that the victim had been a good witness. Counsel
stated that an investigator contacted Sergeant McNeil at
Juvenile Court and told her he was bringing over a
subpoena for trial. When the investigator arrived,
Sergeant McNeil was no longer at Juvenile Court. The
investigator left the subpoena with Terry Fratesi, an
assistant district attorney. Counsel stated that Officer
Delbridge identified the petitioner at trial. Counsel did
not pursue the issue of the identification of the
petitioner because the state had not mentioned that the
victim identified the petitioner at the preliminary
hearing. She did not want to bring up a prior
identification. After taking the matter under advisement,
the post-conviction court entered an order denying the
petition for post-conviction relief. The petitioner has
appealed.
Ross v. State 2009 WL 2568202 at *5-7.
The Tennessee Court of Criminal Appeals cited and applied
the Supreme Court’s decision in Strickland v. Washington while
reviewing Petitioner’s claims, stating:
In order to establish the ineffective assistance of
counsel, the petitioner bears the burden of proving that
22
(1) counsel’s performance was deficient and (2) the
deficient performance prejudiced the defense rendering
the
outcome
unreliable
or
fundamentally
unfair.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); see also Arnold v. State,
143 S.W.3d 784, 787 (Tenn. 2004). Deficient performance
is shown if counsel’s conduct fell below an objective
standard of reasonableness under prevailing professional
standards. Strickland, 466 U.S. at 688; see also Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975) (establishing
that representation should be within the range of
competence demanded of attorneys in criminal cases). A
fair assessment of counsel’s performance, “requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Strickland, 466
U.S. at 689; see also Nichols v. State, 90 S.W.3d 576,
587 (Tenn. 2002). Deference is made to trial strategy or
tactical choices if they are informed ones based upon
adequate preparation. Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). The fact that a particular strategy or
tactical decision failed does not by itself establish
ineffective assistance of counsel. Goad v. State, 938
S.W.2d 363, 369 (Tenn. 1996). Once the petitioner proves
that counsel’s representation fell below a reasonable
standard, the petitioner must also prove prejudice.
Prejudice is shown if, but for counsel’s unprofessional
errors, there is a reasonable probability that the
outcome of the proceeding would have been different.
Strickland, 466 U.S. at 694. Both deficient performance
and prejudice must be established to prove ineffective
assistance of counsel. Id. at 697. If either element of
ineffective
assistance
of
counsel
has
not
been
established, a court need not address the other element.
Id.
Ross v. State 2009 WL 2568202 at *8.
Counsel’s Failure to File a Motion to Suppress the
Victim’s Initial Identification of Petitioner as his
Rapist
Ross
contends
his
identification
by
the
victim
was
“impermissibly suggestive” because he was presented in handcuffs and
identified only after “continued prompting by law enforcement.”
23
(ECF No. 1-6 at 10-11.) The State responds that the Tennessee Court
of Criminal Appeals’ rejection of this issue was not contrary to,
or an unreasonable application of, clearly established law.
(ECF
No. 8 at 11.)
The Tennessee Court of Criminal Appeals denied relief,
stating:
On appeal, the petitioner asserts that trial counsel
was deficient in her representation by failing to file a
motion to suppress the victim’s initial identification of
the petitioner. He argues that the victim’s “show-up”
identification of him was unreliable and made under
suggestive circumstances. He asserts that trial counsel
should have moved to suppress the identification made
while he was in handcuffs and surrounded by police
officers. The petitioner also asserts that the victim’s
alleged mental incapacity rendered the identification
unreliable. According to the petitioner, if trial counsel
had filed and argued a motion to suppress the
identification, the case against him would have been
reduced to purely circumstantial evidence and the
likelihood of conviction would have been severely
diminished.
On appeal, the petitioner acknowledges the holding
in Sloan v. State, 584 S.W.2d 461, 466 (Tenn. Crim. App.
1978) for the proposition, “that despite suggestiveness
in the procedure employed, an out-of-court identification
will withstand a due process attack if the identification
itself is reliable in evaluating the totality of the
circumstances.” In Sloan, the court recognized that a
violation of due process had occurred when the
“identification procedure was so suggestive as to give
rise to ‘a very substantial likelihood of irreparable
misidentification.’” (citing Simmons v. United States,
390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247
(1968)). The reliability of an identification should “be
assessed in light of the suggestiveness of the
identification procedure and the totality of the
circumstances to determine whether a violation of due
process has occurred.” See id. (citing Proctor v. State,
565 S.W.2d 909, 911-912 (Tenn. Crim. App. 1978)). Factors
to be considered in evaluating the reliability of an
24
identification include: (1) the opportunity of the
witness to view the criminal at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy
of the witness’s prior description of the criminal; (4)
the level of certainty demonstrated by the witness at the
confrontation; and (5) the length of time between the
crime and the confrontation. See id. (citing Proctor, 565
S.W.2d at 911-912 (quoting Neil v. Biggers, 409 U.S. 188,
199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972))); see also
State v. Vidal L. Strickland, No. M2002-01714-CCA-R3-CD,
2003 WL 22243440, at *12 (Tenn. Crim. App., at Jackson,
Sept. 30, 2003), perm. app. denied (Tenn. Oct. 17, 2005)
(citing Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L.
Ed. 2d 401)).
Tennessee courts have rejected the use of show-up
identifications to establish the identity of individuals
suspected of a crime unless, “(a) there are imperative
circumstances which necessitate a show-up, or (b) the
show-up occurs as an on-the-scene investigatory procedure
shortly after the commission of the crime.” State v.
Thomas, 780 S.W.2d 379, 381 (Tenn. Crim. App. 1989)
(citations omitted). Imperative circumstances include the
commission of a serious felony where the perpetrator is
still at large. See Strickland, 2003 WL 22243440, at *13
(citation omitted). An identification made during a
confrontation arranged between a victim and a suspect may
be reliable where the identification was part of an
on-the-scene investigation and the victim not only
identified
the
suspect,
but
also
gave
accurate
descriptions of relevant details. See Kenneth Reeder
Isabell v. State, No. 84-120-III, 1986 WL 1676, at *2
(Tenn. Crim. App., at Nashville, Feb. 4, 1986) (citing
Johnson v. State, 596 S.W.2d 97 (Tenn. Crim. App. 1979);
State v. McDougle, 681 S.W.2d 578, 581 (Tenn. Crim. App.
1984)).
In this case, the victim identified the petitioner
when he was brought from the building where he was found
in handcuffs. “The practice of presenting a handcuffed
suspect
in
a
one-on-one
confrontation
has
been
condemned.” Strickland, 2003 WL 22243440, at *13
(citations omitted). However, presenting a suspect in
handcuffs
does
not
establish
that
the
show-up
identification
was
impermissibly
suggestive
when
reliability of the identification may be otherwise
established. See id. The record reveals that the
identification took place within hours of the crime,
25
after the petitioner was found at the location identified
by the victim at the crime scene, and in clothes matching
the
victim’s
description.
Thus,
the
show-up
identification was conducted as part of an on-the-scene
investigatory procedure within hours of the crime. In
addition, a serious felony had been committed and the
armed perpetrator was still at large.
Furthermore, an analysis of the Biggers factors
supports the conclusion that a substantial danger of
misidentification did not exist in this case. See id.
First, due to the nature of the crime and the amount of
time the victim spent with the petitioner, the victim had
the opportunity to clearly view his attacker. Second, the
victim’s description of the petitioner’s clothing, hair,
and actions reveal a high degree of attention paid by the
victim to his assailant. Third, the victim’s description
matched the appearance of the petitioner at the time of
his arrest. Fourth, although the petitioner testified
that the victim hesitated in identifying him, Lieutenant
Hampton testified at the post conviction hearing that the
victim identified the petitioner without assistance. At
trial,
Officer
Patterson
verified
the
victim’s
identification of the petitioner and the crime scene.
Officer Delbridge testified regarding the victim’s
knowledge of details which led to the discovery of the
petitioner. Finally, the identification occurred within
hours of the rape. Thus, all five factors support the
reliability and accuracy of the identification.
In light of the foregoing, we conclude that the
record supports the reliability of the victim’s
identification of the petitioner. The petitioner has
failed to demonstrate that a motion to suppress would
have prevailed or that trial counsel was deficient in
failing to file the motion. Moreover, in the event that
a motion to suppress the identification would have
prevailed, it is not likely that the outcome of the trial
would have been different. The state may prove its case
entirely through circumstantial evidence where facts are
“so clearly interwoven and connected that the finger of
guilt is pointed unerringly at the defendant and the
defendant alone.” State v. Smith, 868 S.W.2d 561, 569
(Tenn. 1993). At trial, Officer Delbridge testified that
the petitioner visited Barry Homes on the day of the rape
and that she recognized the petitioner from the victim’s
initial description of his perpetrator. The petitioner
admitted that his clothing and bedding matched the
26
descriptions given by the victim. Lieutenant Hampton
testified that a knife matching the victim’s description
was found next to the petitioner in the apartment
identified by the victim as the crime scene. Even without
evidence
of
the
victim’s
identification
of
the
petitioner, there was substantial evidence presented at
trial to establish the identity of the petitioner as the
victim’s attacker. Therefore, the petitioner has failed
to show prejudice as a result of trial counsel’s failure
to file a motion to suppress. Accordingly, we conclude
that the record supports the post-conviction court’s
finding that trial counsel’s actions were within an
objective reasonable standard. The petitioner is without
relief on this issue.
Ross v. State 2009 WL 2568202 at *8-10.
The
Tennessee
state
courts
reviewed
the
applicable
Tennessee law and determined that counsel’s performance was not
deficient
or
prejudicial.
Id.
This
Court
has
reviewed
the
transcript of Petitioner’s trial, including the testimony of all
witnesses.
(ECF No. 9-4 at 13-133.)
Before the victim took
officers to Petitioner’s location, the victim described the scene
of the rape, what Petitioner was wearing, the color of Petitioner’s
knife, Petitioner’s bad complexion, and his malodorous feet.
(Id.)
The officers testified that each detail of the victim’s description
was confirmed as accurate before Petitioner was escorted outside to
be identified by the victim.
(Id.)
Furthermore, the record does
not support Petitioner’s allegation that the victim was prompted.
(Id.)
27
Ross makes no argument that the decision of the Tennessee
Court of Criminal Appeals was contrary to Strickland,10 although he
disagrees with the determination that he failed to show either
deficient performance or prejudice. Petitioner has not satisfied his
burden of showing that the decision was objectively unreasonable.
Based on this Court's review of the transcript of Ross’
trial and the transcript of the post-conviction hearing, trial
counsel did not provide ineffective assistance.
Trial counsel was
not deficient in failing to file a motion to suppress.
The motion
would not have been successful based on the reliability and accuracy
of the victim’s identification. The decision of the Tennessee Court
of Criminal Appeals was not an unreasonable determination of the
facts in light
of
the evidence presented in the State court
proceedings. 28 U.S.C. § 2254(d)(2).
A state court's factual
findings are entitled to a presumption of correctness in the absence
of
clear
and
2254(e)(1).
convincing
The
Court
evidence
cannot
to
conclude
the
that
contrary.
the
state
Id.,
§
courts’
determinations were incorrect and DENIES this issue.
10
The Supreme Court has emphasized the narrow scope of the “contrary
to” clause, explaining that “a run-of-the-mill state-court decision applying the
correct legal rule from our cases to the facts of a prisoner’s case would not fit
comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Williams, 529 U.S. at
406, 120 S. Ct. at 1520; see also id. at 407, 120 S. Ct. at 1520 (“If a federal
habeas court can, under the ‘contrary to’ clause, issue the writ whenever it
concludes that the state court’s application of clearly established federal law
was incorrect, the ‘unreasonable application’ test becomes a nullity.”).
28
Counsel’s Failure to Object to Lay Testimony about the
Victim’s Diagnoses
Petitioner faults trial counsel for her failure to object
to the testimony of lay witnesses about the victim’s diagnoses of
a mood disorder and mental retardation. (ECF No. 1-6 at 13.) The
State responds that the state court’s analysis of this issue was a
reasonable application of Strickland, and that Petitioner failed to
show either deficient performance or prejudice.
The Tennessee Court of Criminal Appeals denied relief on
this issue, stating:
The petitioner also asserts that trial counsel was
ineffective in failing to object to lay testimony
regarding the victim’s diagnoses of a mood disorder and
mental retardation. He argues that the testimony of Mr.
Hamilton and Ms. Davis regarding the victim’s mental
condition was offered without a proper foundation. He
further asserts that neither Mr. Hamilton nor Ms. Davis
testified to personal knowledge sufficient to justify the
jury’s consideration of their opinions regarding the
victim’s
mental
capacity.
The
order
of
the
post-conviction court states the following findings:
Petitioner
asserts
trial
counsel
was
ineffective
for
not
objecting
to
witnesses’
testimony regarding victim’s previous diagnoses.
Specifically, Petitioner claims trial counsel should
have objected to Darna Davis and Jerry Hamilton’s
testimonies concerning the victim’s mood disorder
and mental retardation diagnoses because a proper
foundation was not laid nor were the witnesses
qualified as experts. Petitioner further contends
trial counsel should have proffered evidence
rebutting the victim’s alleged mental conditions.
Both Ms. Davis and Mr. Hamilton testified at trial
that they worked for Case Management, Inc. a private
organization that aids clients who have mental
health
problems,
which
provided
the
victim
assistance and managed his disability income. Based
upon the witnesses’ testimonies regarding their
29
employer and job duties, the victim’s diagnoses were
within their personal knowledge to testify about.
Therefore, a proper foundation was laid for their
testimonies. Petitioner has failed to offer any
evidence which trial counsel should have produced at
trial to rebut the victim’s mental conditions.
Furthermore, the Tennessee Criminal Court of Appeals
found the evidence of the victim’s mental defect
“ample.”
This
Court
finds
that
[counsel’s]
representation did not fall below an objective
reasonable standard.
The record does not preponderate against the trial
court’s findings. Because a proper foundation established
that Ms. Davis and Mr. Hamilton could testify regarding
the victim’s mental condition, any objection to their
testimony regarding the victim’s diagnoses would have
lacked merit. Additionally, as pointed out by the
post-conviction court, there was ample proof in the
record regarding the victim’s mental condition. The
victim lived in Barry Homes, a facility reserved for the
disabled. His finances were managed and his personal care
was monitored by Case Management, Inc. Officer Delbridge
testified at trial regarding the victim’s diminished
mental capacity. We conclude that the petitioner has
failed to show that trial counsel was deficient in
failing to object to testimony regarding the victim’s
mental ability. The petitioner has also failed to show
that he was prejudiced. The petitioner is without relief
on this issue.
Ross v. State 2009 WL 2568202 at *10-11.
The Tennessee Court of Criminal Appeals cited and applied
the Supreme Court’s decision in Strickland v. Washington.
Id.
The
Tennessee
had
not
Court
of
Criminal
Appeals
held
that
established prejudice or deficient performance.
Ross
(Id.)
Based on
this Court's review of the trial transcript and the transcript of
testimony during the post-conviction hearing, the decision of the
Tennessee Court of Criminal Appeals did not “result[] in a decision
that was based on an unreasonable determination of the facts in
30
light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2).
Ross’ mischaracterization of the nature of the testimonies
of Davis and Hamilton is not sufficient to demonstrate prejudice,
deficient performance, or an unreasonable determination of the facts
in light of the evidence presented at the state-court hearing, as
required by 28 U.S.C. § 2254(d)(2).
A state court’s factual
findings are entitled to a presumption of correctness in the absence
of
clear
and
2254(e)(1).
convincing
The
Court
evidence
cannot
to
conclude
the
that
contrary.
the
state
Id.,
§
court’s
determination was incorrect and DENIES this issue.
Issues Not Raised During Post-Conviction Appeal
Petitioner did not properly exhaust the remaining nineteen
issues.
Petitioner did not present those claims to the Tennessee
Court of Criminal Appeals in the post-conviction appeal. Baldwin,
541 U.S. at 29, 124 S. Ct. at 1349; O’Sullivan v. Boerckel, 526 U.S.
at 847-48, 119 S. Ct. at 1733-34.
The issues have been exhausted
through Ross’ procedural default, and he has no avenue remaining for
presentation of the claims given the state statute of limitations
on state post-conviction relief.
This procedural default operates
as a complete and independent procedural bar to federal habeas
review of Petitioner’s remaining nineteen claims.
Ross’ contention that post-conviction counsel “abandoned”
(ECF No. 1-6 at 1) these claims during the post-conviction appeal
31
provides him with no relief.
“There is no constitutional right to
an attorney in state post-conviction proceedings.
Consequently, a
petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.” Coleman v. Thompson, 501 U.S. at 752,
111 S. Ct. at 2566 (internal citations omitted).
Attorney error
cannot constitute “cause” for a procedural default “because the
attorney is the petitioner’s agent when acting, or failing to act,
in furtherance of the litigation, and the petitioner must bear the
risk of attorney error.”
Id. at 753, 111 S. Ct. at 2566-67
(internal quotation marks omitted).
Thus, where the State has no
constitutional obligation to ensure that a prisoner is represented
by competent counsel, the petitioner bears the risk of attorney
error.
Id. at 754, 111 S. Ct. at 2567.11
This conclusion is not altered by the Supreme Court’s
recent decision in Martinez v. Ryan, ___ U.S. ___, ___, 132 S. Ct.
1309, 182 L. Ed. 2d 272 (2012), which recognized a narrow exception
to the rule stated in Coleman “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding . . . .”
at ___, 132 S. Ct. at 1320.
Martinez, ___ U.S.
In such cases, “a procedural default
will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance of counsel if, in the initial-review
11
See also 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence
of counsel during Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under section 2254.”).
32
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.”
Id., 132 L. Ed. 2d at 1320.
Martinez arose under an Arizona law that does not permit
ineffective assistance claims to be raised on direct appeal.
at
___,
132
S.
Ct.
at
1313.
“[I]n
Tennessee,
there
is
Id.
no
prohibition against litigation of ineffective counsel claims on
direct appeal, as opposed to collateral proceedings.”
Leberry v.
Howerton, No. 3:10-00624, 2012 WL 2999775, at *1 (M.D. Tenn. July
23, 2012) (internal quotation marks omitted).
Although ineffective
assistance claims are usually raised in post-conviction proceedings
in Tennessee, the decision in Leberry declined to extend the
reasoning of Martinez, explaining that “the equities of concern in
Martinez do not extend to situations where, as here, a petitioner
is represented in his post conviction proceeding by yet another
attorney who is free to make the ineffectiveness of trial counsel
claim.”
Id. at *2.
These
counsel.
issues
were
not
overlooked
by
post-conviction
The issues presented in the pro se petition filed by Ross
(ECF No. 9-7 at 20-57) and the amended and supplemental petition
(Am. Pet. For Post-Conviction Relief, id. at 69-78) were presented
to the post-conviction court.
Testimony was taken on those issues
during the post-conviction hearing and a determination of each issue
was made by the post-conviction trial court.
ECF No. 9-7 at 81-93.)
(ECF No. 9-9 at 5-88;
As in Coleman, 510 U.S. at 755, 111 S. Ct.
33
at 2567, each of Ross’ claims were reviewed by one court, and
Martinez is inapplicable.
The procedural default occurred when
post-conviction counsel exercised his discretion to limit the brief
to
the
Tennessee
arguments.
Court
of
Criminal
Appeals
to
the
strongest
Counsel has no duty to raise frivolous issues and may
exercise his discretion to limit the brief to the Tennessee Court
of Criminal Appeals to the strongest arguments.12
Ross has not
presented any evidence to justify review of these claims in order
to prevent a fundamental miscarriage of justice. Murray v. Carrier,
477 U.S. 478, 495-96, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397
(1986).
The remaining issues presented in this petition are barred
by Petitioner’s procedural default.
Because the issues raised by Ross are either without merit
or barred by procedural default, the Petition is DISMISSED WITH
PREJUDICE. Judgment shall be entered for Respondent.
V.
APPEAL ISSUES
There is no absolute entitlement to appeal a district
court’s denial of a § 2254 petition. Miller-El v. Cockrell, 537 U.S.
322, 335, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003); Bradley
v. Birkett, 156 F. App’x 771, 772 (6th Cir. 2005). The Court must
issue or deny a certificate of appealability (“COA”) when it enters
12
See Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L.
Ed. 2d 434 (1986) (the failure to raise a non-frivolous issue on appeal does not
constitute per se ineffective assistance of counsel, as “[t]his process of
winnowing out weaker arguments on appeal and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective
appellate advocacy”) (internal quotation marks and citation omitted).
34
a final order adverse to a § 2254 petitioner. Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts.
A petitioner may not take an appeal unless a circuit or district
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, and the
COA must indicate the specific issue or issues that satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2) & (3). 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 ‘adequate to deserve encouragement to proceed
further.’” Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039 (citing
Slack v. McDaniel, 529 U.S. 473, 84, 120 S. Ct. 1595, 1603-04, 146
L. Ed. 2d 542 (2000)); Henley v. Bell, 308 F. App’x 989, 990 (6th
Cir. 2009) (per curiam) (same), cert. denied, 555 U.S. 1160, 129 S.
Ct. 1057, 173 L. Ed. 2d 482 (2009). A COA does not require a showing
that the appeal will succeed. Miller, 537 U.S. at 337, 123 S. Ct.
at 1039; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011)
(same). Courts should not issue a COA as a matter of course.
Bradley, 156 F. App’x at 773 (quoting Slack, 537 U.S. at 337, 123
S. Ct. at 1039).
35
In this case, there can be no question that the claims in
this petition are either without merit or barred by procedural
default. Because any appeal by Petitioner on the issues raised in
this petition does not deserve attention, the Court DENIES a
certificate of appealability.
In this case, for the same reasons the Court denies a
certificate of appealability, the Court determines that any appeal
would not be taken in good faith. It is therefore CERTIFIED,
pursuant to Fed. R. App. P. 24(a), that any appeal in this matter
would not be taken in good faith, and leave to appeal in forma
pauperis is DENIED.13
IT IS SO ORDERED this 25th day of July, 2013.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
13
If Petitioner files a notice of appeal, he must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days of the
date of entry of this order. See Fed. R. App. P. 24(a)(5).
36
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