Davis v. Tennessee Board of Probation and Paroles

Filing 10

ORDER OF DISMISSAL, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Chief Judge J. Daniel Breen on 11/7/16. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

KENNETH LYLE DAVIS,
Petitioner,
v.
ROBERT E. COOPER, JR.
Respondent.

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No. 1:13-1177-JDB-egb

ORDER OF DISMISSAL,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On June 7, 2013, Petitioner Kenneth Lyle Davis, who is currently on parole in Milan,
Tennessee, filed a petition pursuant to 28 U.S.C. § 2254, a memorandum in support, and
supporting exhibits.

(Petition (“Pet.”), ECF No. 1, Memorandum (“Mem.”) in Support

(“Supp.”), ECF Nos. 1-1 & 1-2, Exhibits (“Ex.”), ECF No. 1-3.) Petitioner paid the filing fee.
(Receipt, ECF No. 2.) On October 22, 2013, the Court directed Respondent, Robert E. Cooper,
Jr., then Attorney General of Tennessee, to file a response to the petition. (Order, ECF No. 4.)
On December 13, 2013, Respondent filed the state court record (Record (“R.”), ECF No. 7.) and
on December 16, 2013, an answer. (Answer, ECF No. 8.) On January 8, 2014, Davis filed a
reply. (Reply, ECF No. 9.)
As is more fully discussed below, the issues raised here by Petitioner fail because the
state court identified and applied the correct governing legal principles from federal law.
Therefore, the petition is DISMISSED.

I.

STATE COURT PROCEDURAL HISTORY
On May 1, 2007, a grand jury in Madison County, Tennessee indicted Davis on one count

of possession of methamphetamine with the intent to sell and/or deliver, one count of possession
of drug paraphernalia, one count of driving on a cancelled, suspended, or revoked license, and
one count of reckless driving. (R., Indictments, ECF No. 7-1 at PageID 102-06.) On September
27, 2007, a jury trial began in Madison County Circuit Court and concluded with the jury
convicting Davis of all counts. (Trial Transcript (“Tr.”), ECF No. 7-2 at PageID 160, 277-79.)
The trial court sentenced him to an effective ten-year sentence, to be served consecutively to a
prior sentence. (R., Judgments, ECF No. 7-1 at PageID 136-39.) Davis’ motion for a new trial
(Mot., ECF No. 7-1 at PageID 140) was denied on January 15, 2008. (R., Order, ECF No. 7-1 at
PageID 144.) He filed a timely notice of appeal. (R., Notice of Appeal, ECF No. 7-1 at PageID
148.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the trial court’s judgments.
State v. Davis, No. W2008-00226-CCA-R3-CD, 2009 WL 160927 (Tenn. Crim. App. Jan. 23,
2009), perm. app. denied (Tenn. June 15, 2009).
On April 13, 2010, Davis filed a pro se petition in Shelby County Criminal Court
pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to
-122. (R., Pet. for Post-Conviction Relief, ECF No. 7-16 at PageID 606-37.) On June 3, 2010,
he filed an amended petition. (R., First Amended (“Am.”) Pet., ECF No. 7-16 at PageID 65267.) On March 1, 2011, Petitioner filed a second amended petition. (R., Second Am. Pet., ECF
No. 7-16 at PageID 696-709.) His motion seeking permission to file a third amended petition
(R., Motion (“Mot.”), ECF No. 7-16 at PageID 747-51) was denied. (Post-conviction Tr., ECF
No. 7-19 at PageID 819-20.) After conducting an evidentiary hearing, the post-conviction court
entered its order denying relief on September 12, 2011. (R., Order, ECF No. 7-16 at PageID
2

759-64.) The TCCA affirmed the denial of relief. Davis v. State, No. W2011-02049-CCA-R3PC, 2012 WL 3156593 (Tenn. Crim. App. Aug. 2, 2012), perm. app. denied (Tenn. Dec. 13,
2012).
II.

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 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

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 pursuant to 28
U.S.C. § 2254(b) and (c). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner must
“fairly present”1 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 (2004), except where
the state has explicitly disavowed state supreme court review as an available state remedy,
O’Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999).

Tennessee Supreme Court Rule 39

eliminated the need for a habeas petitioner to seek review in the Tennessee Supreme Court and
the presentment of the claim to the Court of Criminal Appeals by the litigant shall “be deemed to

1

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 (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 (1996).
3

have exhausted all available state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir.
2003); see Smith v. Morgan, 371 F. App’x 575, 579 (6th Cir. 2010).
There is also a procedural default doctrine ancillary to the exhaustion requirement. See
Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (noting the interplay between the exhaustion
rule and the procedural default doctrine). If the state court decides a claim on an adequate and
independent 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 due to the procedural default doctrine. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977);
see 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”) (internal quotation
marks and citation omitted)).2 In general, however, “we may only treat a state court order as
enforcing the procedural default rule when it unambiguously relied on that rule.” Peoples v.
Lafler, 734 F.3d 503, 512 (6th Cir. 2013).
If a petitioner’s claim has been procedurally defaulted at the state level, the petitioner
must show cause to excuse his failure to present the claim 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 (1995); Coleman v.

2

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, 562 U.S. at 315. A state rule is an
“adequate” procedural ground if it is “firmly established and regularly followed.” Id. at 316
(quoting Beard v. Kindler, 558 U.S. at 60-61 (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.
(quoting Kindler, 558 U.S. at 54.) (internal quotation marks and citations omitted).
4

Thompson, 501 U.S. 722, 750 (1991). 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. Schlup, 513 U.S. at 321; see also House v. Bell, 547 U.S. 518, 536-539 (2006)
(restating the ways to overcome procedural default and further explaining the actual innocence
exception).
B.

Merits Review

Pursuant to Section 2254(d), where a claim has been adjudicated in state courts on the
merits, a habeas petition should only be granted if the resolution 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). 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, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102
(2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits. Cullen, 563 U.S. at 182. 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 (2000).
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
5

principle to the facts of the prisoner’s case.” Id. at 412-13. The state court’s application of
clearly established federal law must be “objectively unreasonable” for the writ to issue. Id. at
409. The writ may not issue merely because the habeas court, “in its independent judgment,”
determines that the “state court decision applied clearly established federal law erroneously or
incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citing Williams, 529 U.S. at 411).
There is little case law addressing the standard in § 2254(d)(2) when a decision was
based on “an unreasonable determination of facts.” However, in Wood v. Allen, 558 U.S. 290,
301 (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.3 In Rice v. Collins, 546 U.S. 333 (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.
The Sixth Circuit has described the § 2254(d)(2) standard as “demanding but not
insatiable” and emphasized 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). A state court adjudication will not be overturned on factual

3

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. The Court ultimately found it unnecessary to reach that
issue, and left it open “for another day”. Id. at 300- 01, 303 (citing Rice v. Collins, 546 U.S. 333,
339 (2006), in which the Court recognized that it is unsettled whether there are some factual
disputes to which § 2254(e)(1) is inapplicable).
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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).
III.

PETITIONER’S FEDERAL HABEAS CLAIMS
In the § 2254 petition, Davis raises the following issues4:
1.

The evidence was insufficient to support his convictions for possession of
methamphetamine with intent to sell and/or deliver and for possession of
drug paraphernalia (Pet., ECF No. 1 at PageID 5); and

2.

Trial counsel provided ineffective assistance by:
a.

failing to interview Sergeant Barnes before the suppression hearing
and trial (id. at PageID 8);

b.

failing to investigate the audio/video mechanics of Sergeant
Barnes’ on-board video/audio system (id.); and

c.

failing to discover the police department’s maintenance record
requirement for repairs done on fleet vehicles. (Id.)

Issue 1 was raised on direct appeal. (R., Brief (“Br.”) of the Appellant, ECF No. 7-9 at
PageID 476.) Issues 2 (a)-(c) were presented to the TCCA in the post-conviction appeal. (R.,
Br. of the Appellant, ECF No. 7-21 at PageID 1098-99.) Each claim is addressed below.
IV.

ANALYSIS OF PETITIONER’S CLAIMS
A.

Sufficiency of the Evidence

Davis contends that the evidence was insufficient to support his convictions for
possession of methamphetamine with intent to sell and/or deliver and for possession of unlawful
drug paraphernalia because the State did not establish constructive possession beyond a

4

Petitioner also contended that the trial court’s denial of his motion to suppress was
unconstitutional. (Pet., ECF No. 1 at PageID 7.) The State responded that the issue was
noncognizable. (Answer, ECF No. 8 at PageID 1238.) In the reply, Davis has conceded that the
issue is noncognizable in this federal habeas proceeding and has withdrawn the issue from
consideration. (Reply, ECF No. 9 at PageID 1268-69.)
7

reasonable doubt. (Pet., ECF No. 1 at PageID 5.) The State responds that this claim should be
dismissed on the merits because the TCCA correctly applied clearly established federal law and
made a reasonable determination of the facts. (Answer, ECF No. 8 at PageID 1239.) The Court
agrees with the State.
Petitioner relies on his direct appeal argument that the State failed to produce evidence of
his knowledge and intent. (Pet., ECF No. 1-1 at PageID 20, 27.) He contends that his ownership
of the vehicle was the only evidence linking him to possession of the drugs and drug
paraphernalia. (Id. at PageID 22.) The inmate also insists that testimony demonstrated that his
passenger was in possession of a cylinder of the drugs. (Id.) Davis believes that all confiscated
items should have been tested for fingerprints. (Id. at PageID 22-23.) He maintains that he was
merely giving his passenger a ride and that the bag with the confiscated items belonged to the
passenger. (Id. at PageID 23.) He argues that the State failed to demonstrate that he had any
intent to exercise dominion and control over the drugs or contraband. (Id.)
The TCCA summarized the facts underlying Petitioner’s convictions on direct appeal:
On January 21, 2007, the Defendant was stopped by an officer with the Madison
County Sheriff’s Department. The vehicle was searched, and illegal drugs and
paraphernalia were discovered inside. Subsequently, the Defendant was charged
with possession of methamphetamine with the intent to sell; possession of
methamphetamine with the intent to deliver; possession of drug paraphernalia;
reckless driving; and driving on a canceled, suspended, or revoked license. See
Tenn. Code Ann. §§ 39-17-417, 39-17-425, 55-10-205, 55-50-504. Thereafter,
the Defendant filed a motion to suppress the evidence, claiming that he did not
voluntarily consent to the search of his automobile.
A hearing on the motion to suppress was conducted on September 20, 2007.
Officer Shane Barnes of the Madison County Sheriff’s Department testified that,
on January 21, 2007, at approximately 6:45 p.m., he was sitting at a red light at
the intersection of North Parkway and Highway 70, located in Madison County.
It was dark outside, and “medium traffic conditions” were present in the area. He
observed a Ford Ranger pickup truck make a turn at high rate of speed “onto
Parkway going westbound from Highway 70.”
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According to Officer Barnes, the turn was “real noticeable because of the speed
and the fact that [the Defendant] went over both lanes of traffic into the turn lane,
the opposing lane of traffic.” He relayed that the Defendant’s vehicle “was
speeding in an unsafe condition to make that turn in a proper way.” Officer
Barnes opined that the Defendant was traveling at forty or fifty miles per hour
when he made the turn. Moreover, he described the Defendant’s driving as
erratic, aggressive, and reckless.
Officer Barnes initiated a traffic stop. Officer Barnes explained to the Defendant
that he was checking to see if the Defendant “was impaired or the reason why he
made a reckless turn.” The Defendant was very cooperative, and Officer Barnes
did not smell any alcohol on the Defendant’s person. The Defendant had a female
passenger, Marilyn Riggs, in the vehicle.
Officer Barnes requested the Defendant’s driver’s license. Following a check of
the license, Officer Barnes learned that the Defendant’s license was suspended
due to the Defendant’s failure to pay child support. Rather than arresting the
Defendant, Officer Barnes began issuing a citation and intended on letting the
Defendant go. Officer Barnes learned that Ms. Riggs did not have a valid license
either. Unwilling to let either individual drive away in the truck, Officer Barnes
let the Defendant use his cell phone to have someone come pick them up.
As Officer Barnes “was finishing up the ticket[,]” he asked the Defendant for
consent to search the automobile. According to Officer Barnes, the Defendant
responded, “Sure. Go ahead. No problem.” Officer Barnes waited for another
officer to arrive on the scene, which did not take “very long[,]” and he then began
searching the vehicle.
Officer Barnes went to the passenger side of the truck, opened the door, and
started looking around. He observed a “Game Boy type bag sitting in the middle”
between the passenger and the driver. “It was sitting right in the center console.”
According to Officer Barnes, both individuals would have had access to the bag.
Officer Barnes looked inside the bag and discovered approximately 15.9 grams of
methamphetamine, six clear glass pipes, one red plastic pipe, a pair of scissors, a
white spoon, a small torch, multiple plastic bags of different sizes, a small
composition book containing names and phone numbers, and a small metal
container. When asked the significance of the items found inside the bag, Officer
Barnes stated, based on his experience, that the drugs were for resale.
After discovery of the drugs and paraphernalia, both the Defendant and Ms. Riggs
were placed under arrest, and the Metro Narcotics Division was contacted.
Neither person claimed ownership of the bag.

9

On cross-examination, Officer Barnes acknowledged that he did not attempt to get
written consent from the Defendant before searching the vehicle. He did not do
so because the car was equipped with a video system that recorded traffic stops.
However, the audio was not working when Officer Barnes stopped the Defendant,
so there was just a video with no sound.
Officer Barnes also stated that he found a small metal vial in Ms. Riggs’
possession.
The Defendant testified that Officer Barnes did not request his consent to search
his vehicle. Moreover, the Defendant was unaware that his license was
suspended. According to the Defendant, Officer Barnes found a metal cylinder
under the passenger seat, which “looked like methamphetamines.” Officer Barnes
asked Ms. Riggs if she was going to claim the cylinder, to which she said no.
On cross-examination, the Defendant acknowledged that he owned the vehicle.
He denied that the bag belonged to him.
At the conclusion of the suppression hearing, the trial court determined that the
Defendant voluntarily consented to the search of his truck. Thus, the evidence
was admissible against the Defendant, and he proceeded to trial.
Officer Barnes provided a similar account of the events at trial. At trial, Officer
Barnes further opined that the composition book was a “type of thing commonly
used by a drug dealer to keep up with his customers.” Officer Barnes also
testified that the metal container was found underneath the passenger seat and, in
his opinion, appeared to contain methamphetamine. He stated that he observed
the container “rolling” when Ms. Riggs exited the vehicle. Officer Barnes further
noted that a pill bottle was discovered inside the bag where the drugs were found.
Inside the pill bottle was a necklace with a heart charm on it.
The videotape was shown to the jury and admitted as an exhibit. Moreover,
testing by the Tennessee Bureau of Investigation confirmed that the two bags
discovered during the search of the Defendant’s truck contained
methamphetamine; 13.8 grams in one bag, and 1.5 grams in the other. No
fingerprint analysis was conducted.
The Defendant did not testify at trial or present any evidence in his defense.
State v. Davis, 2009 WL 160927 at *1-*3.

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After reviewing the trial testimony, the TCCA concluded that the evidence was sufficient
to establish that Davis constructively possessed the drugs and paraphernalia. Id. at *6. The
TCCA held:
While the Defendant suggested that the contraband found in his truck was Ms.
Riggs’ and not his, it was the jury’s prerogative to accredit witness testimony and
weigh the evidence. It was undisputed that the Defendant owned the vehicle and
that he was in control of the vehicle when the police stopped him. According to
the testimony of Officer Barnes, the methamphetamine was recovered from the
center of the seat, within arm’s reach of the Defendant. He needed only to reach
to the middle of the truck he was driving and take the bag of drugs and
paraphernalia into his hand in order to be in actual possession of it. In this case,
the jury could reasonably infer from the evidence that the Defendant exercised
constructive possession of the methamphetamine with the intent to sell and/or
deliver it and possession of the drug paraphernalia.
Id.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court held that:
“[I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 if the settled procedural prerequisites for such a claim have otherwise been
satisfied - the applicant is entitled to habeas corpus relief if it is found that upon
the record evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.”
443 U.S. at 324. This standard requires a federal district court to examine the evidence in the
light most favorable to the State. Id. at 326 (“[A] federal habeas corpus 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.”).
“Constructive possession requires evidence supporting the conclusion that the defendant
had the ability to exercise knowing dominion and control over the items in question.” United
States v. Wettstain, 618 F.3d 577, 586 (6th Cir. 2010) (internal quotation marks omitted).
Possession may be established through circumstantial evidence. United States v. Welch, 97 F.3d
11

142, 150 (6th Cir. 1996) (citing United States v. White, 932 F.2d 588, 590 (6th Cir. 1991)). The
Sixth Circuit has emphasized that constructive possession requires a specific intent. See United
States v. Bailey, 553 F.3d 940, 945 (6th Cir. 2009). A defendant must “knowingly ha[ve] the
power and the intention at a given time to exercise dominion and control over an object, either
directly or through others.” United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005) (quoting
United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)); see United States v. Newsom, 452
F.3d 593, 606 (6th Cir. 2006). Proof that one knowingly and intentionally has dominion over the
premises where the contraband is found “is sufficient to establish constructive possession.”
Kincaide, 145 F.3d at 782.
Davis has no credible argument that the decision of the Tennessee Court of Criminal
Appeals was contrary to Jackson v. Virginia. Officer Shane Barnes testified that the drugs and
paraphernalia were found in a Game Boy bag the middle of the front seat of a truck owned and
occupied by Petitioner. (R., Trial Tr., ECF No. 7-2 at PageID 176.) The bag was within
Petitioner’s reach and contained multiple resale baggies, a composition book, scales,
approximately six glass crack pipes, a plastic pipe, scissors, and small little containers for
carrying and mixing. (Id. at PageID 183, 191.) The composition book had names and phone
numbers, information of the type used by a drug dealer to keep up with his customers. (Id. at
PageID 186-87.) Sergeant Barnes testified that the bag was not tested for fingerprints because
the surface of the bag was rigid nylon and not an acceptable surface for fingerprints. (Id. at
PageID 207, 229.) He related that the bag was also within arm’s reach of Davis’ passenger and
that a metal container of suspected methamphetamine was found underneath where she had been
sitting. (Id. at PageID 207.) The cylinder rolled out when the passenger got out of the seat and
was the only confiscated item that was not found in the bag. (Id. at PageID 226.) The aggregate
12

weight of the drugs was 15.3 grams. (Id. at PageID 256.) Although it is clear that the passenger
had access to the bag, the focus is whether the evidence, “viewed in the light most favorable to
the government, would allow a rational trier of fact to find the defendant guilty beyond a
reasonable doubt.” United States v. Burchard, 580 F.3d 341, 352 (6th Cir. 2009) (quoting
United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003)).
The TCCA applied the correct legal rule and cited as support both Jackson v. Virginia
and state cases applying the Jackson standard.

The TCCA determined that, applying all

inferences from the evidence most favorable to the State, the evidence was sufficient to establish
that Davis constructively possessed the drugs and paraphernalia. State v. Davis, 2009 WL
160927 at *6. The evidence and reasonable inferences drawn in favor of the State provided a
sufficient basis for a rational factfinder to conclude beyond a reasonable doubt that Davis
possessed and was aware of the drugs and paraphernalia under a constructive possession theory
because of the obvious location of the bag in his own vehicle.
Based on this Court’s review of the transcript of Davis’ trial (R., Trial Tr., ECF No 7-2),
the testimony and evidence were more than sufficient to permit the jury to find that Davis was
guilty of constructive possession of methamphetamine with the intent to sell and/or deliver and
constructive possession of unlawful drug paraphernalia. This issue is without merit and is
DENIED.
B.

Ineffective Assistance of Counsel

Davis contends that his trial counsel was ineffective because counsel failed to interview
Sergeant Barnes before the suppression hearing and trial, failed to investigate the audio/video
mechanics of Sergeant Barnes’ on-board video/audio system, and did not discover the police
department’s maintenance record requirement for repairs done on fleet vehicles. (Pet., ECF No.
13

1 at PageID 8.) The State responds that these claims should be dismissed because the ineffective
assistance analysis by the TCCA was not contrary to, or an unreasonable application of,
Strickland v. Washington, 466 U.S. 668 (1984). (Answer, ECF No. 8 at PageID 1244.)
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, 466 U.S. at 687.
To succeed on this claim, a movant must demonstrate two elements: 1) that counsel’s
performance was deficient, and 2) “that the deficient performance prejudiced the defense.” Id.
“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.” Id. at 686.
To establish deficient performance, a person challenging a conviction “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. 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.” Id. at 689.
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.
To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.5 “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “It is not enough ‘to show that the errors had some conceivable effect on
the outcome of the proceeding.’ [Strickland,] at 693. Counsel’s errors must be ‘so serious as to

5

If a reviewing court finds a lack of prejudice, it need not determine whether, in fact,
counsel’s performance was deficient. Strickland, 466 U.S. at 697.
14

deprive the defendant of a fair trial, a trial whose result is reliable.’ Id., at 687.” Harrington,
562 U.S. at 104 (citing Strickland, 466 U.S. at 687, 693); see also Wong v. Belmontes, 558 U.S.
15, 27 (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.”).
The deference to be accorded a state-court decision under 28 U.S.C. § 2254(d) is
magnified when reviewing an ineffective assistance claim:
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; Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997), and when the two apply in tandem, review is “doubly” so,
Knowles [v. Mirzayance], 556 U.S., at 123, 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 123, 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.
Harrington, 562 U.S. at 105.
Davis contends that, had counsel interviewed Barnes before the hearing on the motion to
suppress, counsel would have discovered the videotape of Davis’ arrest had no audio and could
have questioned the officer about the reason. (Mem. in Supp. ECF No. 1-1 at PageID 43-44.)
Petitioner believes that trial counsel should have investigated why the tape contained no audio.
(Id.) He points to inconsistencies in Barnes’ testimony and contends that an investigation would
have undermined the officer’s credibility. (Id. at PageID 45.) The inmate testified during the
post-conviction hearing that counsel should have requested the maintenance records for Barnes’
vehicle even though he admitted that none existed. (R., Post-conviction Tr., ECF No. 7-19 at
PageID 55-58.)
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Sergeant Barnes testified at the suppression hearing that the reason he did not obtain
written consent to search Davis’ vehicle was because his car had a video system and the officer
did not realize until later that there was an audio issue. (R., Suppression Tr., ECF No. 7-5 at
PageID 329.) Barnes stated that he did not know why the audio did not work because “they
check it out and they tell me everything is okay.” (Id.) He related that the audio problem had
been fixed and the current problem with the video was something else. (Id.) The witness stated,
“it’s a little transmitter. It was in the transmitter box and they had to replace that, that was fixed.
(Id. at PageID 329-30.)
Barnes recalled during the trial that Davis’ traffic stop and arrest were recorded on
videotape. (R., Trial Tr., ECF No. 7-2 at PageID 209.) He explained the lack of audio,
testifying:
My camera system, you have a box that is a transmitter and the antenna is the mic
cable that goes up to the microphone. My antenna had some problems and I
didn’t have any audio on it. Sometimes it works and sometimes it doesn’t. It’s
been corrected. The box has actually been replaced. That’s why there is no audio
here because the antenna apparently wasn’t making connection with the car
antenna. The cable was messed up.
(Id. at PageID 214-15.)
At the post-conviction hearing, Barnes said that the video systems in 2008 had a body
microphone that ran on a nine volt battery. (R., Post-conviction Tr. ECF No. 7-20 at PageID
967.) Barnes stated that at the beginning of the tour of duty, he checked his system to make sure
it was operating properly, but later the battery quit and he did not know it until he reviewed the
tape. (Id. at PageID 967-68.) He testified that the light is on, but the audio is not coming
through because, once out of the car, it operated on radio frequency. (Id. at PageID 968.) The

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officer stated that he replaced the battery himself. (Id.) He further explained the battery was in
the transmitter box which is attached by cables on the duty belt. (Id. at PageID 969.)
Trial counsel admitted that he did not investigate whether the Sheriff’s departments were
required to keep records of maintenance on video systems. (R., Post-conviction Tr., ECF No. 719 at PageID 925.) Counsel testified that, while he could have investigated maintenance records,
he did not see that it was relevant to Davis’ guilt. (Id. at PageID 926.) Counsel observed that he
did not believe anything was wrong with the video other than the lack of audio and, in his
opinion, the audio had not been intentionally removed. (Id. at PageID 929.)
Captain Anthony Heavner testified at the post-conviction hearing that, at the time of
Davis’ arrest, he was in charge of maintenance of Sheriff’s Department fleet vehicles. (Id. at
PageID 947.) He recalled that he responded to Davis’ request for maintenance records on
Sergeant Barnes’ vehicle, in a letter stating:
After having spoken with you by phone on January 19, I did speak with Sergeant
Barnes regarding the incident on January 1, 2007. He stated there was no repair
needed to the video/audio recording and the sending unit volt battery had run
down. Sergeant Barnes stated that he replaced the battery with a new one.
(Id. at PageID 949, ECF No. 7-20 at PageID 955.) Heavner stated there were no maintenance
records because there were no repairs. (Id. at PageID 955-56.) He noted that he did not keep
records about batteries running down and that Barnes had replaced the battery himself. (Id. at
PageID 957.)
The post-conviction trial court determined that there were no maintenance records that
could have been discovered to impeach Sergeant Barnes’ testimony. (R., Order, ECF No. 7-16 at
PageID 762.) The post-conviction court concluded:
There was a minor inconsistency in the officer’s explanation for the failure of his
transmitter between his suppression hearing testimony and the explanation at trial.
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Both explanations, however were consistent with a bad battery. This issue is
expanded way out of proportion by the petitioner. Trial counsel was certainly not
responsible for the officer’s testimony, and there were no maintenance records to
find. Furthermore, consent to search was not an issue before the jury. That issue
had already been resolved at the suppression hearing . . . . Trial counsel complied
with all professional standards, and the petitioner had competent counsel and a
fair trial.
(Id. at PageID 763.)
During the post-conviction appeal, the TCCA identified and cited the proper standard for
the analysis of Petitioner’s claims of ineffective assistance. Davis, 2012 WL 3156593, at *9-11.
After reviewing the post-conviction trial court’s determination, the TCCA held:

The Petitioner contends Counsel was ineffective because he failed to adequately
investigate the following: the circumstances surrounding the traffic stop; the
videotape mechanics; and police department maintenance records. The Petitioner
notes that Officer Barnes testified during the suppression hearing, explaining the
equipment malfunction by saying “[I]t’s a little transmitter. It was in the
transmitter box and they had to replace that. That was fixed.” The Petitioner
states that Counsel failed in his duty to investigate whether there were any
maintenance records indicating that the transmitter box had been replaced. The
State counters that Counsel’s explanation for not pursing [sic] the circumstances
surrounding the traffic stop and the malfunctioning audio equipment was
reasonable and that the Petitioner had not proven that he was prejudiced by
Counsel’s representation.
...
We agree with the post-conviction court that the Petitioner has not proven by
clear and convincing evidence that Counsel was ineffective in this regard. The
evidence proved that the audio equipment malfunctioned because of a low battery.
Officer Barnes changed the battery, which did not produce any maintenance
records for Counsel to find. . . . He is not entitled to relief on this issue.
Id. at *11. The Tennessee courts found that trial counsel’s performance was not deficient and
Davis failed to establish any prejudice. Id.
Based on this Court’s review of the post-conviction testimony (R., Post-conviction Tr.,
ECF No. 7-19 & ECF No. 7-20), as well as the transcript of the hearing on the motion to
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suppress (R., Mot. to Suppress Tr., ECF No. 7-5) and the transcript of trial (R., Trial Tr., ECF
No. 7-2), Davis failed to either establish that his trial counsel was deficient in his representation
or that he suffered any prejudice from counsel’s decisions. Deference to the state court decision
on these issues is therefore appropriate. Issues 2(a)-(c) are DENIED.
The issues raised in this petition are without merit. The petition is DISMISSED WITH
PREJUDICE. Judgment shall be entered for Respondent.
V.

APPELLATE 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 (2003). The Court must issue or deny a certificate of
appealability (“COA”) when it enters 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
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)); Henley v. Bell, 308 F. App’x 989, 990 (6th
Cir. 2009) (per curiam) (holding a prisoner must demonstrate that reasonable jurists could
disagree with the district court’s resolution of his constitutional claims or that the issues
presented warrant encouragement to proceed further). A COA does not require a showing that
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the appeal will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 81415 (6th Cir. 2011) (same). However, courts should not issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005) (quoting Slack, 537 U.S. at 337).
In this case, there can be no question that the claims in this petition are without merit.
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 it 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.6

IT IS SO ORDERED, this 7th day of November, 2016.

s/ J. DANIEL BREEN
J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

6

If Petitioner files a notice of appeal, he must pay the full $505 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).
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