Winkfield v. Donahue

Filing 29

ORDER DENYING § 2254 PETITION, DENYING MOTION FOR SUBPOENA, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKIN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 7/24/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
SAMUEL WINKFIELD,
Petitioner,
v.
CHERRY LINDAMOOD,
Respondent.

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No. 1:14-cv-01182-STA-egb

ORDER DENYING § 2254 PETITION,
DENYING MOTION FOR SUBPOENA,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKIN IN GOOD FAITH,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Samuel Winkfield, a Tennessee state prisoner, has filed a petition under 28 U.S.C. § 2254
seeking habeas corpus relief (“petition”). (Am. Pet., ECF Nos. 9 & 9-1.) For the reasons that
follow, the petition is DENIED.
BACKGROUND
A. State Court Proceedins
On January 2, 2007, a grand jury in Madison County, Tennessee, returned an indictment
charging Winkfield with first degree murder; murder in perpetration of a felony, namely,
aggravated robbery; especially aggravated kidnapping; tampering with evidence; and conspiring
to tamper with evidence. State v. Winkfield, No. W2008-01347-CCA-R3-CD, 2010 WL 796917,
at *1 (Tenn. Crim. App. Mar. 9, 2010), app. den. (Tenn. Aug. 25, 2010).
Petitioner’s first trial in July of 2007 resulted in a mistrial. A second jury trial on the
charges commenced in the Circuit Court for Madison County, Tennessee, on January 22,

1

2008. The jury heard evidence that on October 19, 2006, the defendant, who lived in a house
with James Charles Haney and Terrance McGee, shot Haney over a dispute about drugs.
McGee did not see the shooting, but testified as to Winkfield’s conduct and demeanor
following Haney’s death. Larry Futrell, a fellow inmate of Winkfield’s at the county jail,
testified that Winkfield confessed to shooting Haney. Winkfield, 2010 WL 796917, at *1-4.
On January 25, 2008, the jury announced that it was deadlocked on the kidnapping
charge, but convicted Winkfield of second degree murder and tampering with evidence. Id. at
*4. The trial judge sentenced him to a term of imprisonment of twenty-five years at 100% for
the second degree murder and to a concurrent term of six years as a Range I offender for
tampering with evidence. Id. at *5. The TCCA affirmed the convictions and sentence, and
the Tennessee Supreme Court denied permission to appeal. Id. at *1.
On August 15, 2011, Winkfield filed a pro se post-conviction petition in the Madison
County Circuit Court. The post-conviction court held an evidentiary hearing on the petition,
as amended, and denied relief. The TCCA affirmed, and the Tennessee Supreme Court
denied permission to appeal. Winkfield v. State, No. W2012-02413-CCA-R3-PC, 2013 WL
6001929 (Tenn. Crim. App. Nov. 8, 2013), app. den. (Tenn. Apr. 11, 2014).
B. First and Second Habeas Petitions
On May 5, 2014, Winkfield filed his first pro se § 2254 petition, which was docketed
as the case-initiating pleading in Case No. 14-cv-01102 (“first petition” or “May 2014
petition”). (Pet., Winkfield v. Donahue, No. 1:14-cv-01102-JDB-egb (W.D. Tenn. May. 5,
2014), ECF No. 1.) On May 8, 2014, the Court ordered Petitioner to either file an in forma
pauperis application or pay the $5.00 habeas filing fee within thirty days. (Order, id., ECF
No. 3.) Because Winkfield failed to comply with the order, the Court dismissed the petition

2

for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
(Order, id., ECF No. 4.) The Court later clarified that the dismissal was without prejudice.
(Order, id., ECF No. 7.) Winkfield mounted an unsuccessful challenge to the dismissal of his
first petition, asking for reconsideration of the dismissal order and filing an appeal. (See Mo.
Reconsider, id., ECF No. 9; Winkfield v Lindamood, No. 16-5662 (6th Cir. Nov. 10, 2016)).
On August 1, 2014, Winkfield commenced the present case with the filing of a second
pro se §2254 petition (“second petition” or “August 2014 petition”). (Pet., ECF No. 1.) 1 On
December 9, 2014, Winkfield submitted his amended petition. (Am. Pet., ECF Nos. 9 and 9-1.)
The amended petition restates Claims 1 through 5 of the August 2014 petition, and raises two
new issues (Claims 6 and 7):
Claim 1: The TCCA’s determination that the evidence was sufficient to
sustain Petitioner’s convictions is contrary to Jackson v. Virginia, 443
U.S. 307 (1979). (Am. Pet., ECF No. 9 at 5);
Claim 2: The TCCA’s determination that the trial court did not err in
allowing the prosecution to introduce the defendant’s prior testimony is
contrary to Brady v. Maryland, 373 U.S. 83 (1963). (Id. at 7);
Claim 3: The TCCA’s affirmance of the trial court’s exclusion of a
witnesses’ MySpace page was contrary to the Sixth Amendment’s
Confrontation Clause and Brady v. Maryland, 373 U.S. at 87. (Id. at 8);
Claim 4: The TCCA’s affirmance of the sentence is contrary to Apprendi
v. New Jersey, 530 U.S. 66 (2000) and Blakely v. Washington, 542 U.S.
296 (2004). (Id. at 9);
Claim 5: The TCCA’s determination that Petitioner’s trial attorneys were
1

The second petition, which is now before the Court, is not “second or successive” for
purposes of 28 U.S.C. § 2244(b), since the first petition was denied without prejudice for
Petitioner’s failure to pay the filing fee or submit an in forma pauperis application. See Melvin
v. Hudson, No. 1:07 CV 1324, 2008 WL 3166182, at *1 (N.D. Ohio Aug. 4, 2008) (petition,
which was filed after first petition was dismissed for failure to pay filing fee, was “not a second
or successive petition under § 2244(b)”) (citing Stewart v. Martinez-Villareal, 523 U.S. 637, 645
(1998) (dicta)).
3

not ineffective in numerous respects was contrary to clearly established
Supreme Court precedent (Id. at 11);
Claim 6: Post-conviction counsel rendered ineffective assistance by
defaulting Petitioner’s prosecutorial misconduct claim (Am. Pet., ECF No.
9-1 at 1);
Claim 7: Trial counsel was ineffective for failing to object to the
prosecutor’s misconduct. (Id. at 5.)
C. Court’s Denial of Motion to Dismiss Claims as Untimely
On January 29, 2015, Respondent filed a motion to dismiss the amended petition as
untimely. (Mot. to Dismiss, ECF No. 14.) The motion was brought pursuant to Federal Rule
of Civil Procedure 12(b)(6), and alternatively, Rule 56. Respondent argued that the August
2014 petition, as supplemented with additional claims in December of 2014, was time barred.
Winkfield opposed the motion, arguing that he was not able to file the petition in a timely
manner because his prison was on lockdown from July 10, 2014 until July 29, 2014. (Resp.,
ECF No. 18.) He insisted that he was entitled to equitable tolling. (Id. at 3-5.)
The Court thereafter directed the State to file a reply addressing the issue of equitable
tolling. (Order, ECF No. 19.)

Respondent was instructed that the reply should be

accompanied by a factual affidavit responding to Petitioner’s allegations about a lockdown.
(Id. at 5.) Petitioner was advised that he could respond to any proof offered by
Respondent within twenty-one days of service. (Id.)
On August 11, 2015, Respondent filed a reply, which was accompanied by the
affidavit of Byron Ponds, the Chief of Security at the Hardeman County Correctional Facility,
where Winkfield was confined when he submitted his petition. (Reply, ECF No. 20; Pond
Aff., ECF No. 20-1.) The affidavit stated that Petitioner’s unit was not on lockdown between
the dates of July 10, 2014 and July 29, 2014. (Ponds Aff., ECF No. 20-1 at 1.)

4

Winkfield filed a sur-reply, accompanied by a letter addressed to the Court. (Surreply, ECF No. 22; Ltr., ECF No. 22-2.) The inmate conceded that, contrary to his earlier
allegation, his prison had not been on lockdown the last two weeks of July. (Ltr., ECF No.
22-2 at 1.) He explained that the reply, which had been filed by an inmate legal advisor, had
not been reviewed by the Petitioner before the filing deadline due to time constraints. (Id.)
He nevertheless maintained that he is entitled to equitable tolling.

He alleged that he

submitted his in forma pauperis application to a prison staff member named “Ms. Smith,”
who was to provide a copy of his trust fund statement. (Sur-reply, ECF No. 22 at 1.)
According to Petitioner, Ms. Smith did not return the completed application to him “in a
timely manner,” which caused him to miss the Court’s deadline. (Id.)
The Court denied the motion to dismiss, without prejudice, on the ground that the
issue of equitable tolling was not resolvable on the pleadings and record submitted. (Order,
ECF No. 23.)

The Court held that, “[i]f Winkfield’s first § 2254 Petition, which was

presented in Case Number 14-1102, was dismissed because prison officials unreasonably
delayed in processing his in forma pauperis materials or mailing the habeas filing fee, he
would be entitled to equitable tolling.” (Id. at 12.)
DISCUSSION
On October 15, 2015, Respondent filed its answer to the amended petition, arguing
that all of the claims should be dismissed as untimely. (Ans., ECF No. 24 at 3-5.) In the
alternative, the State contends that some of the claims are procedurally defaulted and all are
without merit. (Id. at 15-31.)
By order of Court, Winkfield was allowed twenty-eight days to respond to the answer.
(Order, ECF No. 23 at 12.) He did not do so, and did not seek an extension of time. Two
months after the answer was filed, he filed a motion for a subpoena to secure certain prison
5

mail records. (Mo. Subpoena, ECF No. 26.)

Respondent filed a brief in opposition to the

motion. (Br. Opp., ECF No. 27.)
For the following reasons, the Court holds that the claims are untimely and that Petitioner
is not entitled to equitable tolling. The Court also finds that Winkfield procedurally defaulted
some of the claims and that others are without merit.
A. Statute of Limitations and Equitable Tolling
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a § 2254
petition is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The limitations
period begins to run from the latest of four possible dates:
(A)
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B)
the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State
action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D)
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
Id.
In this case, § 2244(d)(1)(A) applies, which means that Winkfield had one-year from the
date on which his judgment of conviction became final to file his habeas petition. Taking into
account statutory tolling under 28 U.S.C. § 2244(d)(2), the last day Winkfield could timely file
his § 2254 petition was July 21, 2014. The date is arrived at as follows.

6

First, Petitioner’s judgment of conviction became final on November 23, 2010.
Winkfield appealed his conviction to the Tennessee Supreme Court, but did not appeal to the
United States Supreme Court. His judgment of conviction thus became final when the time for
appealing to the United States Supreme Court expired, which was ninety days after the
Tennessee Supreme Court denied permission to appeal. See Bronaugh v. Ohio, 235 F.3d 280,
283 (6th Cir. 2000). Permission to appeal was denied on August 25, 2010, and ninety days from
that date was November 23, 2010.
Second, the limitations period for Petitioner’s federal habeas claim began to run on
November 24, 2010, the day after his conviction became final, see id. at 285-86, and ran for twohundred and sixty-five days before being tolled during the pendency of his state post-conviction
proceedings.

The one-year limitations period is tolled during the time “a properly filed

application for State post-conviction or other collateral review . . . is pending . . . .” 28 U.S.C. §
2244(d)(2). Here, Winkfield’s post-conviction proceedings ran from August 15, 2011, the date
he signed his petition and placed it into the prison mail system (P-C Pet., ECF No. 16-21 at 24)2,
to April 11, 2014, the date the Tennessee Supreme Court denied permission to appeal.
Finally, the last day of the limitations period was July 21, 2014. When the limitations
“clock” resumed after Petitioner’s state post-convictions proceedings concluded, one-hundred
days remained in the limitations period. One-hundred days after April 11, 2014, was Sunday
July 20, 2014. Under Fed. R. Civ. P. 6(a), if a deadline for filing in the district court falls on a
“Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that
is not a Saturday, Sunday, or legal holiday,” which in this case was Monday July 21, 2014.

2

Goins v. Sanders, 206 F. App’x 497, n.1 (6th Cir. 2006) (per curiam) (courts are to treat
pro se prisoner complaints “as filed on the date [the prisoner] signed it.”)
7

Giving Petitioner the benefit of the prison mailbox rule, the petition was filed on July 30,
2014.3 Winkfield therefore filed his petition nine days after the limitations period expired on
July 21, 2014. His December 2014 amendment to the petition, in which he asserts two additional
claims, was filed more than four months after the limitations period expired.
The one-year statute of limitations in 28 U.S.C. § 2244(d) is not a jurisdictional bar and is
subject to equitable tolling under extraordinary circumstances. McClendon v. Sherman, 329 F.3d
490, 492 (6th Cir. 2003). “Traditional” equitable tolling requires the petitioner to show that (1)
“he has been pursuing his rights diligently;” and (2) “some extraordinary circumstance stood in
his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 646, 649 (internal
quotation marks omitted). A causation requirement is included in the extraordinary circumstance
element, as the circumstance must have “caused [the] litigant's delay.” Menominee Indian Tribe
of Wisconsin v. United States, 136 S. Ct. 750, 755 (2016); see also United States v. Garcia-Guia,
No. 3:07-cr-81, 2013 WL 5329232, at *2 (S.D. Ohio Sept. 20, 2013) (“A defendant must prove a
causal connection between the alleged lockdowns and his inability to timely file his motion.”).
The party seeking equitable tolling bears the burden of establishing the elements of
diligence and extraordinary circumstance. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). In determining whether the burden has
been met, a court must be mindful of the Sixth Circuit’s “repeated[] caution[] that equitable
tolling should be granted ‘sparingly.’” McSwain v. Davis, 287 F. App'x 450, 456 (6th Cir. 2008)
(quoting Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006)).

3

Petitioner did not sign his petition, but did sign a certificate of service on July 30, 2014,
which was received by the Clerk of Court the same day and in the same envelope as the petition.
For present purposes, the Court will give Petitioner the benefit of the July 30 date.
8

As noted, the Court has already held that the limitations period should be equitably tolled
if Winkfield can demonstrate that his first petition “was dismissed because prison officials
unreasonably delayed in processing his in forma pauperis materials or mailing the habeas filing
fee.” (Order, ECF No. 23 at 12.)4 See e.g., Melvin v. Hudson, No. 1:07 CV 1324, 2008 WL
3166182, at *1 (N.D. Ohio Aug. 4, 2008) (addressing whether equitable tolling as to late filing of
second petition was warranted where prison officials failed to mail filing fee for first petition,
which resulted in dismissal). In assessing whether Petitioner is entitled to equitable tolling, the
Court must first address his motion for a subpoena to secure prison mail records.

(Mo.

Subpoena, ECF No. 26.)
Petitioner requests that the Court issue a subpoena to the prison for “his log-book mailroom record of outgoing legal mail in July and August of 2014.” (Id. at 1.) He asserts that “such
subpoena is necessary and will show the materiality for this record to aid in his defense . . . .
[and] the . . . mailroom record will relieve the Petitioner of any burden or deficiency so that
further hearings can proceed in this matter.” (Id. at 1-2.)
The motion is not well taken. First, Petitioner was dilatory in seeking the records and
has not explained his delay. In its order of September 15, 2015, the Court identified for the
parties the central factual issue in the equitable tolling inquiry: the conduct of the prison staff
in handling Petitioner’s IFP application or filing fee. Nevertheless, Petitioner did not file his
request for the mail records until two months after Respondent filed its answer. Petitioner
was given twenty-eight days to respond to the answer, and was warned that any motion for
4

In addition to asserting that he is entitled to equitable tolling, Petitioner alleges in his
amended petition that his “actual innocence” overcomes his late filing. (Am. Pet., ECF No. 9 at
14.) However, he does not develop the argument. In particular, he has not pointed to any new
evidence that would render it more likely than not that no reasonable juror would have found him
guilty of his crimes beyond a reasonable doubt. See McQuiggin v. Perkins, 133 S.Ct. 1924,
1930–31 (2013).
9

extension of time must be filed within that twenty-eight-day window. (Order, ECF No. 23 at
12.) Winkfield did not file a motion for extension of time and has not explained his lack of
diligence in seeking the records.
Second, as Respondent points out, Petitioner has not established good cause for the
discovery. “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled
to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts
(“Habeas R.”) provides, in pertinent part, that “[a] judge may, for good cause, authorize a
party to conduct discovery . . . .” Habeas R. 6(a). Rule 6(b) requires that the “party
requesting discovery . . . provide reasons for the request.” Habeas R. 6(b).
Petitioner has not explained how the mail records would help him establish that he
submitted an IFP application to Ms. Smith, that she failed to return the completed application
to him, and that he was diligent in trying to get the form back from her. He also does not
explain how the mail records for July and August would show that he placed the filing fee
into the prison mail system by the Court’s June 8 deadline. 5 (See Order, No. 14-cv-1102,
ECF No. 3) (directing Petitioner to file the fee or an IFP application within thirty days of May
8, 2014). Had Petitioner filed a reply to the State’s brief in opposition to his motion, he
perhaps could have provided a more specific explanation for why he believes the mail records
are relevant, but he did not do so. Because Winkfield has failed to give sufficient reasons for
the request, as required by Rule 6(b), the Court does not find good cause for the discovery.
The motion for a subpoena is therefore DENIED.
5

Petitioner does not assert in his motion, or in any earlier submission, that he tried
mailing the $5 fee any time before mid-July of 2014, well beyond the Court’s June 8 deadline.
(See e.g., Opp. to Mo. Dismiss Ex. 1, ECF No. 22-1) (receipt dated July 18, 2014, for $5 filing
fee).
10

Even without mail records, however, Petitioner could have filed an affidavit, signed
under penalty of perjury, attesting to the date he submitted his IFP application to Ms. Smith
and his efforts to secure the application from her once it became apparent to him that he might
not meet the Court’s filing deadline. He has not done so. Moreover, in his only submission
on the issue in the present case—his sur-reply in opposition to the motion dismiss—dates
relating to Ms. Smith are conspicuously absent among his detailed recitation of dates relating
to other events.

He also mentions nothing about his diligence in trying to secure the

completed application from Ms. Smith. (See Sur-reply, ECF No. 22 at 1-2.) Petitioner’s
motion for reconsideration, filed in his first case, suffers from the same lack of detail. (See
Mo. Reconsid., No. 14-cv-1102, ECF No. 9 at 1) (“The Petitioner submitted a[n] in forma
pauperis form to the Hardeman County Inmate Trust Fund to [s]taff employee Ms. Smith for
a six month Transaction Statement. Through no fault of his own, Petitioner never received
the six month transaction statement from Inmate Trust Fund.”). Moreover, as the Court’s
deadline approached, Petitioner did not notify the Court that he needed more time, such as
through a motion for an extension of time. See e.g., Solomon, 467 F.3d 928 at 933-34
(petitioner was entitled to equitable tolling where he established that he exercised reasonable
diligence, including by informing the district court that prison restrictions would cause him to
file late).
Because there is no evidence before the Court regarding the timeframe of Petitioner’s
interactions with Ms. Smith or his diligence in trying to meet the Court’s deadline despite her
alleged delay, he has failed to establish that he is entitled to equitable tolling of the AEDPA’s

11

one-year limitations period. His claims must therefore be DISMISSED.6
B. Merits Review and Procedural Default
Even if Petitioner were entitled to equitable tolling of the limitations period, none of
his claims would warrant relief.
1. Legal Standards
The statutory authority for federal courts to issue habeas corpus relief for persons in state
custody is provided by § 2254, as amended by the AEDPA. See 28 U.S.C. § 2254. Under §
2254, habeas relief is available only if the prisoner is “in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A § 2254 claim challenging the
petitioner’s custody or sentence on state-law grounds thus fails to state a federal habeas claim.
Moreland v. Bradshaw, 699 F.3d 908, 926 (6th Cir. 2012) (writ of habeas corpus may not issue
“on the basis of a perceived error of state law”) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)).
The availability of federal habeas relief is further restricted where the petitioner’s claim
was “adjudicated on the merits” in the state courts. 28 U.S.C. § 2254(d). In that circumstance,
federal habeas relief “may not be granted” unless:
the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of [the Supreme] Court, [28 U.S.C.] § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 412 (2000); or . . . “involved an unreasonable
application of” such law, § 2254(d)(1); or . . . “was based on an unreasonable
determination of the facts” in light of the record before the state court, §
2254(d)(2).
Harrington v. Richter, 562 U.S. 86, 100 (2011).
6

Even if Petitioner were entitled to equitable tolling, only the late filing of the claims
contained in the August 2014 petition would be excused; the untimely filing of Claims 6 and 7 in
December of 2014 would not be. Claims 6 and 7 are different in “time and type” from the claims
asserted in the August 2014 petition, and thus do not relate back to that petition. Watkins v.
Deangelo-Kipp, 854 F.3d 846, 849-50 (6th Cir. 2017) (supplemental claim that trial counsel was
ineffective in failing to secure psychiatric evaluation did not relate back to petition which alleged
that counsel was ineffective in failing to investigate and raise a defense).
12

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, 529 U.S. at 412-13. 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 413.
A state court’s factual determination is not “unreasonable” for purposes of § 2254(d)(2)
merely because the federal habeas court would have reached a different conclusion. Wood v.
Allen, 558 U.S. 290, 301 (2010). Although the Sixth Circuit has described the standard as
“demanding but not insatiable,” it construes the standard in tandem with § 2254(e)(1) to require a
presumption that the state court’s factual determination is correct in the absence of clear and
convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010)
(quotation marks and citation omitted).

State-court factual findings are therefore “only

unreasonable where they are ‘rebutted by clear and convincing evidence’ and do not have
support in the record.” Moritz v. Woods, No. 16-1504, 2017 WL 2241814, at *5 (6th Cir. May
22, 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation
marks omitted).
Before a federal court will review the merits of a claim brought under § 2254, the
petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). The exhaustion provision is “designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to the
federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

13

In light of this purpose, the Supreme Court has interpreted the exhaustion provision as
requiring not mere “technical” exhaustion, Coleman v. Thompson, 501 U.S. 722, 732 (1991), but
“proper[]” exhaustion. Boerckel, 526 U.S. at 848. A claim is properly exhausted when it is
“fairly presented” through “one complete round of the State's established appellate review
process.” Id.
The exhaustion requirement works in tandem with the procedural default rule, which
generally bars federal habeas review of claims that were procedurally defaulted in the state
courts. Id. at 848. Broadly speaking, procedural default happens in two ways. A petitioner
procedurally defaults his claim where he fails to properly exhaust available remedies (that is,
fails to “fairly present” the claim through “one complete round” of the state's appellate review
process), and he can no longer exhaust because a state procedural rule or set of rules have closedoff any “remaining state court avenue” for review of the claim on the merits. Harris v. Booker,
251 F. App'x 319, 322 (6th Cir. 2007). See also Boerckel, 526 U.S. at 846, 848. Procedural
default also occurs where the state court “actually . . . relie[s] on [a state] procedural bar as an
independent basis for its disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327
(1985). To cause a procedural default, the state court’s ruling must “rest[] on a state law ground
that is independent of the federal question and adequate to support the judgment.” Coleman, 501
U.S. at 729.
It is only when the petitioner shows “cause for the default and actual prejudice as a result
of the alleged violation of federal law,” or demonstrates that “the court’s failure to consider the
claim[] will result in a fundamental miscarriage of justice,” that a federal court will review the
merits of a claim that was procedurally defaulted. Coleman, 501 U.S. at 748 (citing Murray v.
Carrier, 477 U.S. 478, 496 (1986)). The ineffectiveness of post-conviction counsel may be

14

cause to excuse the default of an ineffective-assistance-of-trial-counsel claim. Martinez v. Ryan,
566 U.S. 1, 7 (2012); Trevino v. Thaler, --U.S.--, 133 S. Ct. 1911, 1918 (2013); Hodges v.
Colson, 727 F.3d 517, 531 (6th Cir. 2013). A fundamental miscarriage of justice involves “a
prisoner[‘s] assert[ion of] a claim of actual innocence based upon new reliable evidence.”
Bechtol v. Prelesnik, 568 F. App'x 441, 448 (6th Cir. 2014).
2. Claim 1: Sufficiency of the Evidence
Winkfield alleges that the TCCA’s determination that the evidence was sufficient to
convict him of second decree murder and tampering with evidence was objectively unreasonable.
(Am. Pet., ECF No. 9 at 5.) Specifically, he argues that “the shooting occurred during daylight,
and no witness for the state gave testimonial evidence that the Petitioner was seen in the area
immediately following the shooting of the victim.” (Pet. Br., ECF No. 9-2 at 10.) Winkfield
also points out that there was not “any type of physical evidence recovered from the crime scene
or DNA profile found at the crime scene that matched the Petitioner’s DNA profile that
identified the Petitioner as being the perpetrator in this case.” (Id.) With regard to his conviction
for tampering with evidence, Petitioner argues that there was no evidence “that [he] knew that an
investigation [was] in progress.” (Id.)
The Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979),
provides the federal due process standard for evidentiary sufficiency in criminal cases and
therefore governs Winkfield’s claim. See Coleman v. Johnson, -- U.S.--, 132 S.Ct. 2060, 2062
(2012) (per curiam) (Jackson applies to sufficiency-of-the-evidence claims on habeas review
under § 2254(d)); Appanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006) (same). In Jackson,
the Supreme Court announced that “the relevant question” “on review of the sufficiency of the
evidence to support a criminal conviction,” is whether, “after viewing the evidence in the light
15

most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in
original).
The AEDPA adds a layer of deference to Jackson’s already deferential standard. By
virtue of the AEDPA’s command that federal habeas relief may issue only if the state court’s
decision is “contrary to,” or “an unreasonable application” of the controlling federal law, 28
U.S.C. § 2254 (d)(1), or “based on an unreasonable determination of the facts,” 28 U.S.C. §
2254(d)(2), a state court determination that the evidence satisfied the deferential Jackson
standard is itself “entitled to considerable deference” by the federal habeas court. Coleman, 132
S. Ct. at 2065.
Winkfield is not entitled to relief under the AEDPA on his evidence-sufficiency claim.
First, the TCCA’s determination was not “contrary to” Jackson.

28 U.S.C. § 2254(d)(1).

Although citing to state cases, the TCCA correctly identified the evidence-sufficiency standards
set forth in Jackson and applied them to the facts. See Winkfield, 2010 WL 796917, at *9-10.
A “state-court decision applying the correct legal rule from [Supreme Court] 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.
Second, the TCCA’s evidence-sufficiency determination was not based on an
unreasonable determination of the facts or an unreasonable application of Jackson’s standards to
those facts. See 28 U.S.C. §§ 2254(d)(1) and (2). Although there was no physical evidence or
eyewitness placing Winkfield at the crime scene, evidence that he was the perpetrator included
McGee’s testimony regarding his statements and demeanor immediately following the murder
and Futrell’s testimony that he confessed to the crime. As to the tampering charge, the jury

16

could easily infer the defendant’s knowledge of the investigation and subsequent disposal or
destruction of the pistol from evidence that he had been in possession of the gun and it was never
recovered during the course of the investigation. Because Jackson reserves for the jury the tasks
of “weigh[ing] the evidence . . . and . . . draw[ing] reasonable inferences from the basic facts to
the ultimate facts,” Jackson, 433 U.S. at 319, the TCCA reasonably refused to disturb the jury’s
factual determinations.

In addition, the determinations are entitled to a presumption of

correctness in the absence of clear and convincing evidence to the contrary, see 28 U.S.C. §
2254(e)(1), which Petitioner has not submitted.
Because Claim 1 is untimely, and is otherwise without merit, it is DENIED.
3. Claim 2: Prior Testimony
Petitioner alleges that the prosecution failed to disclose exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. at 87. (Am. Pet., ECF No. 9 at 7.) Specifically, he complains
that the prosecution at his second trial failed to disclose, prior to trial, its intention to introduce
testimony he gave at his first trial. (Id.; Pet. Br., ECF No. 9-2 at 11-13.) The judge in the second
trial allowed the government to introduce the testimony over the objection of Winkfield’s
counsel. (Tr. Trans., ECF No. 16-7 at 5-42.)
Petitioner did not raise a Brady claim on direct or post-conviction appeal. The time
allowed under state law to present the claim has passed. See TENN. R. APP. P. 3(e); Tenn Code
Ann. §§ 40-30-102(a), (c) (setting one-year limitations period for post-conviction relief and
setting forth “one-petition rule”). Winkfield thus procedurally defaulted the claim, see Boerckel,
526 U.S. at 848, and he does not argue cause and prejudice to excuse the default.
In any event, the claim is without merit.

Under Brady, “due process requires the

prosecution to turn over evidence favorable to the accused and material to his guilt or

17

punishment.” Connick v. Thompson 563 U.S. 51, 79 (2011) (Ginsburg, J., dissenting) (citing
Brady, 373 U.S. at 87). To establish a Brady violation, a petitioner must show “(1) the evidence
at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching;
(2) the State suppressed the evidence, either willfully or inadvertently; and (3) prejudice ...
ensued.” Skinner v. Switzer, 562 U.S. 521, 536 (2011) (internal quotation marks omitted). Here,
the evidence was not suppressed by the prosecution; the government’s failure to disclose, prior to
trial, its intent to use evidence already known to the defense is not the same as suppression of
evidence. See generally Hall v. Russell, 339 F. App'x 576, 578 (6th Cir. 2009) (“There is no
Brady violation where the defense knew . . . of the exculpatory information . . . .”) (citing Coe v.
Bell, 161 F.3d 320, 344 (6th Cir. 1998)).
Although not clear from his submissions, Petitioner may mean to assert that the TCCA’s
decision to uphold the admission of the prior testimony into evidence was contrary to or an
unreasonable application of clearly established Supreme Court law regarding a defendant’s
constitutional right against compulsory self-incrimination. That claim, too, would be without
merit.
The Fifth Amendment’s “Self-incrimination Clause provides that ‘[n]o person ... shall be
compelled in any criminal case to be a witness against himself.’” United States v. Balsys, 524
U.S. 666, 671 (1998) (quoting U.S. Const., amend. 5). The privilege generally does not disturb
“the evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence
against him in later proceedings.” Harrison v. United States, 392 U.S. 219, 222 (1968). The
constitutional privilege and the evidentiary rule are usually compatible because “[a] defendant
who chooses to testify waives his privilege against compulsory self-incrimination with respect to
the testimony he gives . . . .” Id. The evidentiary rule must yield, however, to a criminal

18

defendant’s right against the prosecution’s use of “wrongfully obtained” evidence.

Id. In

Harrison, the defendant’s prior testimony was compelled by the prosecution’s introduction of an
illegal confession, and was therefore inadmissible notwithstanding the evidentiary rule allowing
the use of prior testimony. Id. at 222-23.
On direct appeal, the TCCA rejected Winkfield’s argument that the admission of his prior
testimony at the second trial violated both the state’s evidentiary rule allowing the introduction
of prior testimony and his constitutional right against self-incrimination. See Winkfield, 2010
WL 796917, at *5–7. The TCCA’s constitutional determination was not “contrary to” Harrison
because the court correctly identified the principles announced in that case and applied them to
the facts of Winkfield’s case. See Winkfield, 2010 WL 796917, at *5–7.
Moreover, the TCCA’s decision was not based on an unreasonable determination of the
facts or an unreasonable application of Harrison to those facts. See 28 U.S.C. §§ 2254(d)(1) and
(2). The lower court’s finding that Petitioner voluntarily took the stand at his first trial is entitled
to a presumption of correctness in the absence of clear and convincing evidence to the contrary,
see 28 U.S.C. § 2254(e)(1), which Winkfield has not submitted. The TCCA credited the lower
court’s finding and determined that, in light of the absence of “illegally obtained incriminating
evidence” in Petitioner’s case, the defendant’s circumstances did not fit into Harrison’s narrow
exception to the use of prior testimony. Winkfield, 2010 WL 796917, at *7. That determination
was not objectively unreasonable. See generally Gardner v. Foltz, 857 F.2d 1474 (6th Cir. 1988)
(per curiam) (habeas relief not warranted on petitioner’s claim that trial court improperly
introduced at his second trial the testimony he gave at his first trial, where, unlike in Harrison,
prior testimony was “not induced as a result of a defect of reversible proportion,” but was
motivated by desire to present a defense).

19

Claim 2 is DENIED as untimely and otherwise without merit.
4. Claim 3: Exclusion of Evidence
Petitioner challenges “the TCCA’s decision that the trial court did not err[] by excluding
from evidence Terrence McGee’s MySpace picture,” which contained the caption “Armed and
Dangerous.” (Am. Pet., ECF No. 9 at 8.) Defense counsel had sought to introduce the evidence
for the purpose of impeaching the witness’s truthfulness. (See Mo. Introduce, ECF No. 16-1 at
66-68.) See also Winkfield, 2010 WL 796917, at *8. Petitioner argues that exclusion of the
evidence denied him his right to due process under the Fourteenth Amendment and his right to
confront the witness “in violation of the Confrontation Clause of the Sixth Amendment.” (Pet.
Br., ECF No. 9-2 at 16.) 7
Under the Sixth Amendment’s Confrontation Clause, “the accused shall enjoy the right ...
to be confronted with the witnesses against him.” U.S. Const. amend. VI. The right to confront
witnesses “includes the right to cross-examine those witnesses.” Pointer v. Texas, 380 U.S. 400,
404 (1965). The “denial or significant diminution” of a defendant's right of cross-examination
“calls into question the ultimate ‘integrity of the fact-finding process' and requires that the
competing interest be closely examined.” Chambers v. Mississippi, 410 U.S. 284, 295 (1973)
(quoting Berger v. California, 393 U.S. 314, 315 (1969)). Accordingly, “[t]he rights to confront
and cross-examine witnesses and to call witnesses in one's own behalf have long been
recognized as essential to due process.” Id. at 294.

7

The amended petition and supporting brief also reference the Supreme Court‘s decision
in Brady v. Maryland. (See Am. Pet., ECF No. 9 at 8; Pet. Br., ECF No. 9-2 at 14-15.) Because
the MySpace page was defense evidence, and not information suppressed by the government, the
Court does not construe Claim 3 as a traditional Brady claim. The thrust of Claim 3, as well as
Petitioner’s argument in support of the claim, is that the trial court’s evidentiary ruling, affirmed
by the TCCA, violated Winkfield’s due process and Confrontation Clause rights by depriving
him of the use of favorable impeachment evidence.
20

The right to cross-examine witnesses, however, “is not absolute.” Id. at 295. As the
Supreme Court has explained, “trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986).
Petitioner’s claim is procedurally defaulted. As noted, a petitioner procedurally defaults
a claim if he did not “fairly present” it to the highest available state court, and the time for doing
do has passed.

Baldwin, 541 U.S. at 32-33; Boerckel, 526 U.S. at 848. Petitioner did not fairly

present an argument on direct appeal to the TCCA that the trial court’s exclusion of the MySpace
page violated his constitutional rights. His argument, instead, was that the exclusion of the
evidence violated Tennessee Rule of Evidence 608. Specifically, he argued the application of
Rule 608 to the facts; asserted only generally that the trial court’s decision “was an unreasonable
restriction on [his] right to cross-examine one of the State’s main witnesses”; did not point to a
specific constitutional provision; and did not otherwise argue that the trial court committed an
error of constitutional magnitude. (See Dir. Appeal Br., ECF No. 16-16 at 6, 32-34.) He thus
did not fairly present the claim to the state appellate court. See McMeans v. Brigano, 228 F. 3d
674, 681 (6th Cir. 2000). Because the time for doing so has passed, see Tenn. Code Ann. § 4030-106(g), and because Winkfield has not asserted cause for the default, the claim is not
reviewable in this habeas proceeding.
Claim 3, which is untimely and procedurally defaulted, is DENIED.
5. Claim 4: Sentencing
Petitioner contends in Claim 4 that his twenty-five year sentence for first degree
murder violates his constitutional rights as annunciated under Apprendi v. New Jersey, 530
21

U.S. 66 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). (Am. Pet., ECF No. 9 at
10.) Specifically, he argues that enhancement factors used by the trial court to sentence him
“to the statutory maximum,” were “never submitted to a jury and proven beyond a reasonable
doubt.” (Id.)
Petitioner did not present this constitutional issue to the state appellate court, but only
challenged his sentence under the Tennessee sentencing statute. (Dir. App. Br., ECF No. 1110 at 15-23.) The claim is thus procedurally defaulted. Because Winkfield has not asserted
cause to excuse the default, Claim 4 is DENIED.
Even if Petitioner had not defaulted the claim, he would not prevail. Winkfield was
sentenced under Tennessee’s 2005 amended sentencing act, Tenn. Code Ann. § 40-35-2010(c)
(2005 Suppl.), which “encounters no Sixth Amendment shoal” under Apprendi/Blakely.
Cunningham v. California, 549 U.S. 270, 294 & n. 18 (2007) (internal quotation marks omitted).
Claim 4 is DENIED as untimely, procedurally defaulted, and without merit.
6. Claim 5: Ineffective Assistance of Counsel Regarding Factual Investigation
and Development
In Claim 5 Winkfield challenges the TCCA’s determination that his attorneys were not
ineffective by failing to present proof concerning the distance between the college and the
victim’s house and DNA analysis of McGee’s clothing and a knife found at the scene. (Am.
Pet., ECF No. 9 at 11.) In his supporting brief, however, he seems to broaden his challenge to
the whole of the TCCA’s determination that his trial counsels had not been ineffective in
numerous respects. (See Pet. Br., ECF No. 9-2 at 19-21.) Petitioner also asserts that the TCCA’s
decision was based on an unreasonable factual determination by the trial court “that trial
counsels investigated the facts and witnesses relevant to the case.” (Id.) (quoting Winkfield,
2013 WL 6001929, at *9.) To support his challenge to that factual finding, Winkfield points to
22

evidence in the post-conviction record that he insists proves his trial attorneys were unprepared:
one counsel’s admission that “[h]e had not anticipated that the Petitioner’s testimony from his
first trial would be introduced at his second trial.” (Id. at 19-20.)
A claim that the 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, 687 (1984). 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.
Petitioner has not shown that he is entitled to relief under the AEDPA on Claim 5. First,
the TCCA’s determination was not “contrary to” Strickland, 28 U.S.C. § 2254(d)(1), because the
TCCA expressly invoked Strickland and applied its two-part test to the facts. See Winkfield,
2013 WL 6001929, at *7–8.
Second, the TCCA’s ineffective-assistance determination was not based on an
unreasonable determination of the facts. See 28 U.S.C. §§ 2254(d)(2). Crediting the testimonies
of Petitioner’s trial attorneys, the post-conviction court found that the attorneys had investigated
facts and witnesses. Winkfield, 2013 WL 6001929, at *6, 8. Petitioner argues that the factual
finding is undermined by the admission by one of his trial attorneys that he did not anticipate the
prosecution’s use of the defendant’s prior testimony. (See Atty. Googe Test., P-C Trans., ECF
No. 16-22 at 119). The state court’s factual determination is entitled to a presumption of
correctness in the absence of clear and convincing evidence to the contrary. See 28 U.S.C. §
2254(e)(1). In light of the entirety of the testimonies of Petitioner’s trial attorneys, counsel’s

23

acknowledgment that he failed to anticipate the state’s use of the prior testimony is not clear and
convincing proof that he had not adequately prepared the case. The TCCA’s determination that
the record supported the lower court’s factual finding is therefore not objectively unreasonable. 8
Finally, the TCCA’s determination was not based on an unreasonable application of
Strickland’s standards to the facts adduced at the post-conviction hearing. See 28 U.S.C. §
2254(d)(1). Because Petitioner’s trial attorneys were found to have investigated the facts and
potential witnesses, the TCCA’s determination that their performances were not deficient is not
objectively unreasonable.
Claim 5 is untimely, and is otherwise without merit. The claim is therefore DENIED.
7. Claims 6 and 7: Ineffective Assistance of Post-Conviction and Trial Counsel
Relating to Prosecutorial Misconduct
Winkfield insists that the prosecutor at his second trial engaged in misconduct by giving
his opinion at closing argument that Winkfield shot “the victim in his leg because the victim tried
to run before being killed.” (Am. Pet., ECF No. 9-1 at 3.) Claim 6 alleges that Petitioner’s
“post-conviction [a]ttorney . . . rendered ineffective assistance of counsel during the postconviction proceeding when [he] intentionally defaulted [the] . . . [p]rosecutorial [m]isconduct
claim.” (Id. at 1.) The Court construes Petitioner’s amended petition as also alleging, as Claim
7, that trial counsel was ineffective for failing to object to the prosecutor’s comment. (See id. at
5.)
Even if the claims were timely, Winkfield would not be entitled to relief. First, Claim 6
is not cognizable. There is no constitutional right to post-conviction counsel. Coleman, 501
8

The post-conviction judge, who was the same judge who presided over the trials, found
that counsel’s failure to anticipate the prosecution’s use of Winkfield’s prior testimony was not
deficient performance and did not prejudice him. Petitioner’s attorneys “did everything they
could possibly do to convince this Court that I should not allow that former testimony to be
admitted and I overruled their objections.” (P-C Trans., ECF No. 16-22 at 125.)
24

U.S. at 752. “[A] petitioner,” therefore, “cannot claim constitutionally ineffective assistance of
counsel in such proceedings.” Id.
Second, although cognizable, Claim 7 is procedurally defaulted. Petitioner acknowledges
he defaulted the claim, but argues that the ineffectiveness of his post-conviction counsel is cause
to excuse the default. (Am. Pet., ECF No. 9-1 at 1-2.) The argument is without merit because
Winkfield’s ineffective-assistance-of-trial-counsel claim is not “substantial,” as required to
overcome the default. Martinez, 132 S. Ct. at 1313; Trevino v. Thaler, --U.S.--, 133 S. Ct. 1911,
1918 (2013). Under Strickland, deficient performance that does not prejudice the defendant is
not ineffective-assistance. Strickland, 466 U.S. at 694. As the post-conviction trial court noted,
the evidence against Winkfield was strong. (See P-C Trans., ECF No. 16-22 at 132.) Petitioner
has not made even a colorable argument that, had trial counsel objected to the prosecution’s
statement, “he probably would not have been convicted . . . .” Erkins v. Chuvalas, No. 15-3942,
2017 WL 1162927, at *5–6 (6th Cir. Mar. 28, 2017) (citing Strickland, 466 U.S. at 694).
Claim 6 is DENIED as untimely and non-cognizable. Claim 7 is DENIED as untimely
and procedurally defaulted.
APPEAL ISSUES
A § 2254 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253 (c) (2) & (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 v. Cockrell, 537 U.S. 322,

25

336 (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). If the district court rejects a claim on a
procedural ground, the petitioner must show “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 478.
In this case, reasonable jurists would not debate the correctness of the Court’s procedural
rulings or whether the petition should have been resolved in a different manner. Because any
appeal by Petitioner does not deserve attention, the Court DENIES a certificate of appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. FED. R.
APP. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal
would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reasons it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: July 24, 2017.

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