Matthews v. Liebach et al
Filing
54
ORDER DIRECTING CLERK TO MODIFY DOCKET, DENYING SECOND AMENDED § 2254 PETITION, DENYING PENDING 52 , 53 MOTIONS AS MOOT, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 8/24/22. (mbm)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GEORGE W. MATTHEWS,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
MARTIN FRINK,
Respondent.
No. 1:17-cv-01199-STA-jay
ORDER DIRECTING CLERK TO MODIFY DOCKET,
DENYING SECOND AMENDED § 2254 PETITION,
DENYING PENDING MOTIONS AS MOOT,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner George W. Matthews has filed a pro se second amended habeas corpus petition
(the “Second Amended Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 25.) He also has
submitted a motion for an expedited ruling on the Second Amended Petition (ECF No. 52) and a
motion for a writ of mandamus (ECF No. 53). For the following reasons, the Second Amended
Petition and the motions are DENIED.
BACKGROUND
In 2013, a Lake County, Tennessee, grand jury charged Matthews and co-defendant Rikki
Rudd with one count of possession with intent to sell or distribute over one-half ounce of
marijuana; one count of attempting to introduce contraband, specifically marijuana, into a penal
facility; and one count of attempting to introduce contraband, specifically cellular telephones, into
a penal facility. (ECF No. 30-1 at 15-16.)
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At Matthews’s jury trial, Lake County Deputy Thomas Hollowell testified that, “[j]ust after
midnight in the early morning hours of February 17, 2013, [he] was patrolling Proctor City Road
on the eastern boundary of the Northwest Correctional Center . . . in Lake County, Tennessee.”
State v. Matthews, No. W2015-02500-CCA-R3-CD, 2017 WL 347796, at *1 (Tenn. Crim. App.
Jan. 24, 2017), perm. app. denied (Tenn. April 13, 2017). Hollowell observed Matthews and Rudd
“lying in a ditch alongside Proctor City Road.” Id. The officer explained that the ditch leads to
the prison firing range and greenhouse. Id. “According to Deputy Hollowell, this road and a nearby
field are known avenues for smuggling contraband into the prison. Due to the contraband problem,
Deputy Hollowell frequently patrolled the area.” Id. After “exit[ing] his vehicle,” the deputy
“noticed two large duffel bags lying in the ditch approximately one to two feet from the defendant.”
Id. The officer detained Matthews and Rudd and “discovered [that the bags] contained forty-four
individually packaged one-pound bags of tobacco; twenty-three cell phones with batteries and
chargers; and . . . marijuana in thirteen individual packages.” Id.
Hollowell further testified that he “did not see the defendant or his co-defendant carrying
or handling the duffel bags.” Id. He also indicated that “there were no fingerprints or other
physical evidence on the bags or their contents” and “no receipts linking the defendants to the cell
phones found inside the two duffel bags.” Id.
A forensic scientist from the Tennessee Bureau of Investigation testified that the plant
material contained in the packages found in the duffle bags was marijuana. Id. “The total weight
of the packages was approximately 390 grams, or fourteen ounces.” Id.
“Lieutenant David Ables, an investigator at the prison, testified” that “the Proctor City
Road area, where the defendant was found, is a well-known drop site for smuggling illegal
2
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contraband into the prison,” as are “the prison greenhouse and firing range.” Id. at *2. He further
explained that “an area about 200 yards from where the defendant was found . . . is . . . accessible
to inmates.” Id. “Finally, Lieutenant Ables stated the defendant had been an inmate of the prison
and was released approximately two weeks prior to this incident.” Id.
Lieutenant Joseph Vernon of the Lake County Sheriff's Office testified that “thirteen to
fourteen ounces of marijuana, depending on the quality, would be worth at least between $1300
and $1400 on the street” and “would be worth at least $20,000 or more inside a prison.” Id. He
explained that “he knew of instances where inmates paid more than $500 dollars to have a cell
phone smuggled into prison.” Id.
The State rested its case and “the defense rested without presenting any proof.” Id. The
jury returned guilty verdicts on all three counts. Id. Matthews was sentenced to an effective
sentenced of twelve years’ incarceration. Id. He took an unsuccessful direct appeal, id. at *10,
and the Tennessee Supreme Court denied discretionary review (ECF No. 30-16).
Petitioner then “filed a petition for writ of habeas corpus, challenging the sufficiency of
two counts of the indictment charging him with attempting to introduce contraband into a penal
facility.” Id. at *2 (citing Matthews v. State, No. M2016-01011-CCA-R3-HC, 2017 WL 2472368,
at *1 (Tenn. Crim. App. June 8, 2017), perm. app. denied (Tenn. Sept. 21, 2017)). The petition
was denied. See Matthews, 2017 WL 2472368, at *2.
Matthews thereafter “filed a pro se petition for post-conviction relief, alleging, in pertinent
part, that trial counsel was ineffective in failing to strike prison correctional officers from the jury.”
Matthews v. State, No. W2018-09966-CCA-R3-PC, 2019 WL 1110101, at *2 (Tenn. Crim. App.
Mar. 11, 2019). “Following the appointment of counsel, the Petitioner filed an amended petition,
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wherein he made the additional claim that trial counsel was ineffective in failing to advise him of
a three-year settlement offer shortly before trial.” Id. The post-conviction trial judge held an
evidentiary hearing and denied relief from the bench and in a later-issued written order. (ECF No.
30-27 at 57-62; ECF No. 30-26 at 27-28.)
DISCUSSION
Matthews filed a pro se § 2254 petition on October 16, 2017, in the Middle District of
Tennessee. (ECF No. 1.) The case was subsequently transferred to this district. (ECF No. 5.) By
order dated October 27, 2017, the Court directed Petitioner to refile his claims on the Court’s
official § 2254 form. (ECF No. 7.) Matthews complied by filing an amended petition within the
time prescribed. (ECF No. 8.) On December 11, 2017, Respondent, Martin Frink,1 filed a motion
to dismiss the pleading for Petitioner’s failure to exhaust state remedies.
(ECF No. 13.)
Respondent represented that Petitioner’s post-conviction proceedings were still pending in the
state court. This Court denied the motion and held the case in abeyance pending the conclusion
of the state case. (ECF No. 14.) )
On September 27, 2019, the Court found that the state post-conviction proceedings had
terminated, and it directed the Clerk to reopen the case. (ECF No. 23.) By that same order,
Petitioner was given time to amend his pleading. He filed the Second Amended Petition on
October 15, 2019. In that pleading, Petitioner asserts that the indictment was defective as to Counts
2 and 3 (Claim 1) (ECF No. 25 at 5); the trial court erred by constructively amending the indictment
1
The Clerk is DIRECTED to modify the docket to reflect Martin Frink as Respondent. See
Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004); Fed. R. Civ. P. 25(d).
4
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(Claim 2) (id.); Petitioner was prejudiced because a prison officer was a member of the jury (Claim
3) (id. at 10); the trial court erred by admitting evidence of Petitioner’s prior criminal history
(Claim 4) (id. at 5); the verdicts were inconsistent (Claim 5) (id.); and trial counsel was ineffective
by failing to object to the admission of evidence of Petitioner’s prior incarceration (Claim 6) (id.
at 6), failing to convey to Petitioner the State’s plea offer of concurrent sentences (Claim 7) (id. at
5, 8), and failing to convey the State’s three-year plea offer (Claim 8) (id.).2
After two extensions of time, Respondent filed the state court record and a responsive
pleading (the “Answer”) (ECF No. 30 & 31.) Respondent argues that the claims are, variously,
inadequately pleaded, non-cognizable, procedurally defaulted, and without merit.
Petitioner thereafter filed six motions for extensions of time to respond to the Answer (ECF
No. 32, 34, 36, 38, 40, 42), which the Court granted (ECF No. 33, 35, 37, 39, 41, 43). On
September 22, 2020, Matthews filed his Reply.3 (ECF No. 44.) He submitted his motion for
expedited ruling on December 14, 2021, and his motion for a writ of mandamus on April 11, 2022.
I. Legal Standards
A. Federal Habeas Review
2
The Court has renumbered the claims for ease of discussion.
3
In the Reply, Petitioner posits, among other things, that counsel was ineffective for “[f]ail[ing]
to object under Remmer [v. United States, 347 U.S. 227 (1954)], when the trail [sic] court refused
to individually voir dire selected jurors about the influential impact of knowing or recognizing
states [sic] witness.” (ECF No. 44 at 5.) Matthews did not raise the claim in the state courts and
he presented it for the first time in the instant case in his Reply. Petitioner has forfeited the claim.
See United States v. Pineda-Parada, No. 5:13-cv-07309-JMH-HAI, 2014 WL 7405700, at *4
(E.D. Ky. Dec. 30, 2014) (petitioner’s arguments were waived because they were first asserted in
his reply) (citing Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010)).
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The statutory authority for federal courts to issue habeas corpus relief for persons in state
custody is provided by § 2254, as amended by the Antiterrorism and Effective Death Penalty Act
(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).
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, the
federal court may not grant relief unless the state-court decision “‘was contrary to’ federal law
then clearly established in the holdings of [the Supreme] Court; or . . . ‘involved an unreasonable
application of’ such law; or . . . ‘was based on an unreasonable determination of the facts’ in light
of the record before the state court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28
U.S.C. § 2254(d)(1)-(2)) (citations omitted)).
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 when “the state court confronts
facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at”
an “opposite” result. Williams v. Taylor, 529 U.S. 362, 405 (2000). An unreasonable application
of federal law occurs when the state court, having invoked the correct governing legal principle,
“unreasonably applies the . . . [principle] to the facts of a prisoner's case.” Id. at 409.
For purposes of § 2254(d)(2), a state court’s “factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Sixth Circuit construes § 2254(d)(2) in
tandem with § 2254(e)(1) to require a presumption that the state court’s factual determination is
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correct in the absence of clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d
301, 308 (6th Cir. 2010) (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). A state court’s
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, 692 F. App’x 249, 254 (6th
Cir. 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). To be properly exhausted, a claim must be “fairly presented” through “one
complete round of the State's established appellate review process.” O’Sullivan v. Boerckel, 526
U.S. 838, 848 (1999).
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. 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
closed-off 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). Procedural default also occurs where the state
court “actually . . . relied 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
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and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citing
Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Klinger v. Missouri, 80 U.S. 257, 263 (1871)).
A petitioner will be entitled to federal court review of the merits of a claim that was
procedurally defaulted is he demonstrates “cause for the default and actual prejudice as a result of
the alleged violation of federal law[.]” Id. at 750. The ineffectiveness of post-conviction trial
counsel may be cause to excuse the default of an ineffective-assistance-of-trial-counsel claim.
Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 14, 16-17
(2012)).
A petitioner may also overcome his procedural defaults by establishing a “gateway” claim
of actual innocence. Schlup v. Delo, 513 U.S. 298, 315 (1995). To open the gateway, a prisoner
must “support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Id. at 324. He must also show that, in light of the new evidence,
“it is more likely than not that no reasonable juror would have convicted him.” Id. at 327.
B. Ineffective Assistance of Counsel
A claim that an attorney’s ineffective assistance has deprived a criminal defendant of his
Sixth Amendment right to counsel is controlled by the standards stated in Strickland v.
Washington, 466 U.S. 668 (1984). Pollini v. Robey, 981 F.3d 486, 493 (6th Cir. 2020), cert.
denied, No. 20-7918, 2021 WL 2519379 (U.S. June 21, 2021). To succeed on such a claim, a
petitioner must demonstrate two elements: (1) “that counsel’s performance was deficient”; and (2)
“that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
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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 petitioner “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 the attorney’s representation was
“within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (internal quotation marks omitted).
An attorney’s “strategic choices” are “virtually unchallengeable” if based on a “thorough
investigation of law and facts relevant to plausible options . . . .” Id. at 690-91. “[S]trategic
choices made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Id.
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.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “It is not enough ‘to show that the errors had some conceivable effect on the
outcome of the proceeding.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland,
466 U.S. at 693) (citations omitted). Instead, “[c]ounsel’s errors must be ‘so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at
687).
The deference to be accorded a state-court decision under 28 U.S.C. § 2254(d) is
magnified when a federal court reviews an ineffective assistance claim:
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Federal habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Id. at 105.
II.
Claim 1
Petitioner asserts that the indictment was defective as to the charges for attempt to
introduce contraband into a penal institution. He posits, specifically, that although Counts 2 and
3 cited to the statute criminalizing the introduction of contraband into a penal institution, they did
not refer to the Tennessee statute defining criminal attempt. The counts read as follows:
COUNT TWO
The GRAND JURORS of LAKE COUNTY, TENNESSEE, duly empaneled and
sworn upon their oath, present that GEORGE WASHINGTON MATTHEWS ... on
or about February 17, 2013, in LAKE County, Tennessee, and before the finding
of this indictment, unlawfully and knowingly, with unlawful intent, did attempt to
take a controlled substance, to-wit: Marijuana, a Schedule VI drug, into the
Northwest Correctional Complex where prisoners are quartered in violation
of TCA § 39–16–201. This is a Class D Felony and is against the peace and dignity
of the State of Tennessee.
COUNT THREE
THE GRAND JURORS of LAKE COUNTY, TENNESSEE, duly empaneled and
sworn upon their oath, present that GEORGE WASHINGTON MATTHEWS ... on
or about February 17, 2013, in LAKE County, Tennessee, and before the finding
of this indictment, unlawfully and knowingly, with unlawful intent, did attempt to
take contraband, to-wit: cell phones, into the Northwest Correctional Complex
where prisoners are quartered, in violation of TCA § 39–16–201. This is a Class A
Misdemeanor and is against the peace and dignity of the State of Tennessee.
Matthews, 2017 WL 347796, at *9.
Petitioner presented the claim on direct appeal, but the TCCA found that no relief was
warranted. Id. Respondent argues that the appellate court’s decision easily meets the AEDPA’s
deferential standards. The Court agrees.
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In rejecting the claim, the appellate court determined that, [w]hile Count Two and Count
Three do not reference the attempt statute, the indictment satisfies the requirements of the United
States Constitution, the Tennessee Constitution, and Tennessee Code Annotated section 40–13–
202.” Id. The court reasoned that the indictment put Matthews “on notice that he was charged
with the knowing attempt to introduce illegal contraband into Northwest Correctional Complex,”
provide notice to the trial court “that a judgment and sentence for attempted introduction of
contraband into a penal facility would be proper upon conviction,” and protected the defendant
“from double jeopardy by expressly stating the date and location of the offenses with particularity.”
Id.
The TCCA’s decision is not contrary to clearly established Supreme Court law. More to
the point, the state court identified and applied a “fair notice” test to Counts 2 and 3 of the
indictment. In Cole v. Arkansas, 333 U.S. 196 (1948), the Supreme Court recognized that “[n]o
principle of procedural due process is more clearly established than that notice of the specific
charge, and chance to be heard in trial of the issues raised by that charge, if desired, are among the
constitutional rights of every accused in a criminal proceeding in all courts, state, or federal[.]”
Cole, 333 U.S. at 201. The due process guarantee “mandates that whatever charging method the
state employs must give the criminal defendant fair notice of the charges against him to permit
adequate preparation of his defense.” Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984) (citing
In Re Ruffalo, 390 U.S. 544 (1968); Blake v. Morford, 563 F.2d 248 (6th Cir. 1977); Watson v.
Jago, 558 F.2d 330, 338 (6th Cir. 1977)). The TCCA’s “run-of-the-mill state-court decision
applying the correct legal rule from [Supreme Court] cases to the facts of [Matthews’s] case [does]
not fit comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Williams, 529 U.S. at 406.
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The opinion is also not based on unreasonable factual determinations or an unreasonable
application of the governing law to the facts. Petitioner does not dispute the court’s factual finding
as to the actual text of Counts 2 and 3. A plain reading of that text amply supports the state appeals
court’s conclusion that Petitioner was put “on notice that he was charged with the knowing attempt
to introduce illegal contraband into Northwest Correctional Complex.” Matthews, 2017 WL
347796, at *9. The offense was, in short, described with sufficient precision and certainty.
In sum, the TCCA’s decision rejecting Claim 1 is not contrary to clearly established
Supreme Court law, based on unreasonable factual determinations, or the result of an unreasonable
application of the law to the facts. The claim is therefore without merit and is DENIED.
III. Claim 2
Petitioner insists that the trial court erred by “constructively amend[ing] the indictment on
page 272 and 273 of the trial transcript.” (ECF No. 25 at 5.) Those pages contain the trial court’s
instructions to the jury on the elements of the crime of introduction of contraband into a penal
institution. (ECF No. 30-5 at 126-27.) Respondent argues that the claim should be dismissed as
inadequately pleaded and procedurally defaulted. The Court finds that the first of those assertions
is without merit, but the second is dispositive of the claim.
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts
provides that the Petitioner must state the nature of his claims and present supporting facts.
“Dismissal under Habeas Rule 2(c) is appropriate in cases where it is impossible to determine from
the petitioner’s pleadings the exact errors of fact or law raised for adjudication.” Malone v. Lee,
No. 2:17-cv-02913-MSN-tmp, ECF No. 31 at 27 n.7 (W.D. Tenn. May 4, 2020) (citing Rice v.
Warden, No. 1: 14-cv-732, 2015 WL 5299421, at *4 (S.D. Ohio Sept. 9, 2015) (dismissal under
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Rule 2(c) appropriate where pleadings contain unintelligible and conclusory allegations and
statements) (citations omitted)); Acord v. Warden, Lebanon Corr. Inst., No. 2:12-CV-355, 2013
WL 228027, at *1 (S.D. Ohio Jan. 22, 2013), report and recommendation adopted sub nom. Acord
v. Warden, Ross Corr. Inst., No. 2:12-CV-355, 2013 WL 1324323 (S.D. Ohio Mar. 28, 2013) (a
habeas court is not required to “conjure allegations” on petitioner’s behalf).
Respondent’s argument that the claim is not well-pleaded is belied by the fact that, as
Respondent has acknowledged, Petitioner raised the issue in his brief on appeal from the summary
dismissal of his state habeas corpus petition. Citing to pages 272 and 273 of the trial transcript,
Matthews’s brief clearly asserted that the trial judge had constructively amended the indictment’s
introduction-of-contraband charges by “instruct[ing] the jury on an additional liability ‘or under
custodial supervision’ . . . but the appellant was not charged in the indictment with that liability.”
(ECF No. 30-18 at 11 (bolding omitted).) Liberally construed, Claim 2, as set forth in the Petition,
has been adequately pleaded.
Nevertheless, the claim is procedurally defaulted. In Petitioner’s state habeas appeal, the
TCCA found that Matthews “did not present this issue to the trial court in his habeas corpus
petition.” Matthews, 2017 WL 2472368, at *2. The court therefore held that the claim was waived
as having been “raised for the first time on appeal[.]” Id. (quoting State v. Alvarado, 961 S.W.2d
136, 153 (Tenn. Crim. App. 1996.). Tennessee’s waiver rule is an independent and adequate state
procedural ground that will bar federal habeas review. See Jones v. State, No. M2019-01935CCA-R3-HC, 2020 WL 4208425, at *2 n. 1 (Tenn. Crim. App. July 22, 2020) (“Because
[petitioner’s] argument was not presented to the habeas corpus court, it is waived.”); Collier v.
Lindamood, No. M2010-01167-CCA-R3-HC, 2010 WL 4970906, at *3 (Tenn. Crim. App. Nov.
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29, 2010) (state habeas corpus petitioner’s claim was “waived because it [was] raised for
the first time on appeal”); Phillips v. Johnson, No. 3:15-CV-1039, 2017 WL 4278519, at *13
(M.D. Tenn. Sept. 27, 2017), report and recommendation adopted, No. 3:15-CV-01039, 2017 WL
5900114 (M.D. Tenn. Nov. 30, 2017) (Tennessee prisoner’s § 2254 claim was procedurally
defaulted where he waived the issue in state court by raising it for the first time in his state habeas
corpus appeal); see also generally Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Matthews concedes that he procedurally defaulted Claim 2, but he insists that the cause for
the default was appellate counsel’s failure to raise the claim on direct appeal. (ECF No. 25 at 5.)
As Respondent correctly points out, however, “appellate counsel’s failure to raise this claim in the
direct appeal did not cause the default.” (ECF No. 31 at 20.) Rather, it was Petitioner’s failure to
present the issue to the state habeas trial court that resulted in the waiver. But even assuming that
direct-appeal counsel’s conduct caused the default, Petitioner did not pursue in the state courts a
claim that appellate counsel was ineffective in that regard, and he has not asserted cause for his
failure to do so. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (“[T]he exhaustion doctrine
. . . generally requires that a claim of ineffective assistance [must] be presented to the state courts
as an independent claim before it may be used to establish cause for a procedural default.”);
Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (emphasis in original) (where an independent
claim “itself [has been] procedurally defaulted,” the petitioner must “satisfy the cause-andprejudice standard with respect to that claim.”). The procedural default of Claim 2 is therefore
unexcused. The claim is DISMISSED.
IV. Claim 3
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Petitioner maintains that he was “prejudiced by [a] prison officer on the jury.” (ECF No.
25 at 5.) Specifically, he challenges the seating of Natasha Miller on the jury because she was a
correctional officer at the Northwest Correctional Complex during the time he was an inmate at
that facility. Respondent contends that the claim is procedurally defaulted. In his Reply, Petitioner
concedes that he procedurally defaulted the claim, but he argues that his “post-conviction counsel’s
ineffectiveness in not preserving and protecting the substance of this constitutional claim in the
post-conviction hearing is cause necessary to excuse any procedural bar argument.” (ECF No. 44
at 9.)
The argument is misplaced. As discussed above, Martinez holds that post-conviction
counsel’s ineffective assistance in failing to raise an ineffective-assistance-of-trial-counsel claim
may excuse the default of such a claim. See Martinez, 566 U.S. at 14. Post-conviction counsel's
ineffective
assistance
cannot,
however,
excuse
the
default
of
a trial-error claim.
See Abdur'Rahman v. Carpenter, 805 F.3d 710, 716 (6th Cir. 2015). Claim 3 alleges an error at
trial. Therefore, the procedural default of the claim is not excused by post-conviction counsel’s
alleged ineffective assistance in failing to present the issue during the post-conviction proceedings.
If Petitioner means to assert that counsel rendered ineffective assistance by failing to
exercise a preemptive strike against the juror, that claim was exhausted in the state courts. See
Matthews, 2019 WL 1110101, at *1, 7-8. Respondent argues, however, that the TCCA’s decision
rejecting the claim passes muster under the AEDPA. The Court agrees.
In assessing the claim, the TCCA identified Strickland’s standards and those relating to
juror-bias claims as governing its analysis. Regarding the latter, the court recognized that “[b]oth
the state and federal constitution[s] guarantee an accused the right to trial by an impartial jury.”
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Id. at *7 (citing U.S. Const. amend. VI; Tenn. Const. art. I, § 9). It noted that “the burden is on
the defendant to show that a juror is in some way biased or prejudiced.” Id. (citing State v.
Caughron, 855 S.W.2d 526, 539 (Tenn. 1993)). Relying on the Sixth Circuit case of Holder v.
Palmer, 588 F.3d 328, 339 (6th Cir. 2009), the court further determined that a petitioner alleging
the ineffective assistance of counsel premised on “counsel's failure to strike the allegedly biased
jurors . . . must show that the jurors were actually biased against him.” Id. (quoting Holder, 588
F.3d at 339).
Examining the record in Matthews’s criminal case, the TCCA found that “[d]uring voir
dire,
the counsel for both parties and the trial court recognized that the prison was a “very
large employer” in the area. The court stated that while individuals who were
merely employed at the prison would not be automatically excused for cause, the
court would “voir dire” them. Juror Miller, in response to questions from the trial
court, stated that she was employed at the prison and that she did not know anything
about the Petitioner's case. Later, Juror Miller said that she worked as a correctional
officer for the prison and that she did not know the Petitioner. At different points
during voir dire, the court and trial counsel asked the venire if they could decide
the issue of guilt or innocence based solely upon the evidence, and the venire
always responded affirmatively.
Id.
Turning to the post-conviction record, the appellate court noted that Petitioner testified
“that Juror Miller was biased against him because she knew him from his time in prison and often
came to his prison pod to ‘rant and rave’ about tobacco and marijuana,” but he did not call Miller
as a witness at the hearing. Id. And although Matthews testified that “he asked trial counsel to
use a peremptory strike to remove Juror Miller [but] trial counsel refused,” trial counsel “did not
recall Petitioner asking him to remove Juror Miller.” Id. at *7, 8. Counsel further testified “that
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he intentionally kept Juror Miller because she did not seem to know the Petitioner and because he
believed she would be interested in the Petitioner's case and would carefully listen to the facts.”
Id. at *8. Counsel “asserted that Juror Miller's job did not necessarily bias her against the Petitioner
because her employment at the prison did not ‘necessarily mean that [she was] always on the
prison's side.’” Id. He explained “that he had already struck Ms. Horton, an African American,
because he had sued her and did not want to ‘los[e] even more diversity’ by striking Juror Miller,
who was also African American.”4 Id. He was also aware that the State “had not used any of its
sixteen peremptory challenges at that point during jury selection [and] was concerned that if the
Petitioner and his codefendant ‘ran out of strikes,’ the State would have ‘the ability just to
completely remake the jury.’” Id. Counsel also testified that “there were several individuals
behind Juror Miller that he did not want to sit on the Petitioner's jury and that neither he nor
codefendant's counsel chose to remove Juror Miller from the jury even though they had peremptory
challenges remaining.” Id.
Refusing to disturb the lower court’s decision to “accredit[] trial counsel’s testimony at the
post-conviction hearing,” the TCCA determined that “counsel made a strategic decision not to
remove Juror Miller.” Id. Counsel “believed Juror Miller would listen carefully to the facts, and
he was justifiably concerned that the State would use all of its peremptory challenges to remake
the jury.” Id. The appellate court also found that “Petitioner failed to present Juror Miller at the
post-conviction hearing and failed to present any evidence, other than his bald assertions, to show
that she was actually biased against him.” Id. The court therefore “[c]onclude[d] that the Petitioner
4
Petitioner is African American. Matthews, 2019 WL 1110101, at *2.
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. . . failed to show that trial counsel's decision not to remove Juror Miller was deficient or
prejudicial.” Id.
The state court’s decision is not contrary to clearly established Supreme Court law. The
Sixth Amendment “right to jury trial guarantees to the criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Smith v.
Phillips, 455 U.S. 209, 217 (1982) (“Due process means a jury capable and willing to decide the
case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial
occurrences and to determine the effect of such occurrences when they happen.”). A juror is
impartial if she can "render a verdict based on the evidence presented in court." Irvin, 366 U.S. at
723. Although citing to Tennessee and Sixth Circuit cases, the TCCA correctly articulated these
standards. The court also identified Strickland’s precepts as governing its analysis.
The court’s decision is also not based on unreasonable factual determinations or an
unreasonable application of governing standards to those facts. The post-conviction trial court
credited counsel’s explanation for his decision not to exercise a preemptory strike as to Miller and
the TCCA refused to disrupt that credibility determination.5
Based on counsel’s credited
testimony, it is patently clear that he made a strategic decision, which is presumed to fall within
the wide range of reasonable professional conduct. See Strickland, 466 U.S. at 689 (a petitioner
“must overcome the presumption that, under the circumstances, the challenged action might be
5
Credibility determinations are findings of fact. See McMullan v. Booker, 761 F.3d 662, 671 (6th
Cir. 2014) (“fact-based determination[s] subject to scrutiny under § 2254(d)(2)” include “facts in
the sense of a recital of external events and the credibility of their narrators”) (quoting Thompson
v. Keohane, 516 U.S. 99, 110 (1995)).
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considered sound trial strategy”) (internal quotation marks omitted). Petitioner did not present
credible evidence to overcome the presumption. Additionally, there is no evidence that Miller was
not impartial. As the TCCA noted, Petitioner put forth no evidence of bias other than his bald
allegations, and Miller indicated during jury selection that she could decide the case impartially.
In light of these facts, the court reasonably concluded that counsel did not perform deficiently
when he chose not to use a peremptory strike against Miller and that counsel’s conduct did not
prejudice Petitioner. For the above-stated reasons, Claim 3, as a stand-alone trial-error claim, is
procedurally defaulted. To the extent the claim challenges counsel’s effectiveness, it is without
merit because the TCCA’s decision rejecting the claim is unassailable under the AEDPA’s
deferential standards. Claim 3 is therefore DISMISSED.
V.
Claim 4
Petitioner posits that the trial court erred by admitting evidence of his prior incarceration
at the Northwest Correctional Complex. Specifically, he contends that the trial court should not
have allowed Lt. Ables to testify that Petitioner had been released from that prison two weeks prior
to his arrest. Respondent argues that the claim is a non-cognizable state law claim, procedurally
defaulted if construed as a federal claim, and without merit.
Petitioner did not address
Respondent’s arguments in his Reply.
On direct appeal, Petitioner argued that the trial court erred in allowing Lt. Ables to testify
“regarding [his] release from the prison merely fifteen days prior to” the events at issue in his case.
Matthews, 2017 WL 347796, at *8. Applying state evidentiary rules, the TCCA rejected the claim
and upheld the lower court’s admission of the witness’s testimony. Id.
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To the extent Petitioner is now asserting that the TCCA’s decision is unreasonable, the
claim cannot be brought in this § 2254 proceeding. It is well-established that federal habeas corpus
relief is not available “for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting
Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). The state appellate court’s decision rejecting Claim
4 was grounded only on Tennessee evidentiary rules and state cases interpreting those rules. The
claim is there non-cognizable.
Insofar as Petitioner may mean to assert that Claim 4 invokes a federal constitutional
provision, such as the due process clause,6 the claim is procedurally defaulted. As indicated above,
a habeas petitioner must “fairly present[]” his federal claim to the state courts. Boerckel, 526 U.S.
at 848. “To ‘fairly present’ a federal claim, the petitioner must plead both a factual and legal basis
for the claim.” Katt v. Lafler, 271 F. App'x 479, 481–82 (6th Cir. 2008) (quoting McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). In assessing whether a petitioner has done so, a court
must scrutinize the petitioner’s state court filings for
(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the claim in
terms of constitutional law or in terms sufficiently particular to allege a denial of a
specific constitutional right; or (4) alleging facts well within the mainstream of
constitutional law.
McMeans, 228 F.3d at 681.
Petitioner’s direct appeal brief did not present a federal constitutional claim regarding the
admission of the prior-incarceration evidence. Although the brief referenced “due process” in the
6
“Generally, state-court evidentiary rulings cannot rise to the level of due process violations
unless they ‘offend[ ] some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)
(quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).
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title of the argument section, the body of the argument relied exclusively on state law.
Specifically, the presentation was premised only on Tennessee Rule of Evidence 404(b) and the
case of State v. Rickman, 876 S.W.2d 824 (Tenn. 1994). (ECF No. 30-10 at 20-22.) The brief
referred to Rickman for the proposition that “[t]he general rule excluding evidence of other crimes
is based on the recognition that such evidence easily results in a jury improperly convicting a
defendant for his or her bad character or apparent propensity or disposition to commit a crime.”
(Id. at 22 (quoting Rickman, 876 S.W.2d at 828).) The gist of Petitioner’s argument was that the
trial “court erred in determining that the probative value of the defendant’s recent incarceration at
the Northwest Correctional Complex was outweighed by its unfair prejudicial effect.” (Id.) No
argument based upon the Due Process Clause of the United States Constitution was presented. A
claim based on federal law was therefore not fairly presented to the TCCA. See Katt, 271 F. App'x
479, 482 (6th Cir. 2008) (petitioner’s “isolated allusion to ‘constitutional rights to due process and
a fair trial,’” while relying only on state evidentiary law in the body of his argument, “fail[ed] to
afford the [state] courts adequate notice that [he] intended to invoke the Due Process Clause”).
As a federal law claim, Claim 4 is therefore procedurally defaulted for Petitioner’s failure
to fairly present it to the TCCA. Petitioner has not asserted cause and prejudice to excuse the
procedural default. The claim is DISMISSED.7
VI. Claim 5
In Claim 5, Petitioner simply asserts “inconsistent verdicts.”
(ECF No. 25 at 5.)
Respondent argues that the claim should be dismissed because it is not well-pleaded, noncognizable, and procedurally defaulted. Matthews did not address those arguments in his Reply.
7
The Court declines Respondent’s invitation to rule on the merits of the claim.
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Claim 5 fails to meet the minimum pleading standards of Rule 2(c). The assertion of
“inconsistent verdicts” is not accompanied by supporting facts and is thus conclusory.
Wogenstahl v. Mitchell, 668 F.3d 307, 343 (6th Cir. 2012). (“Merely conclusory allegations . . .
are insufficient to state a constitutional claim.”). Accordingly, the claim is subject to dismissal as
inadequately pleaded.
In addition to failing to satisfy the habeas pleading standards, Petitioner also does not state
a cognizable claim. More to the point, it is clear under federal law that inconsistent verdicts are
permitted. See Dowling v. United States, 493 U.S. 342, 353–54 (1990) (citing Standefer v. United
States, 447 U.S. 10, 25 (1980)) (“[I]nconsistent verdicts are constitutionally tolerable.”). The
claim therefore does not plead a ground for federal habeas relief.
Finally, the claim is barred from review for the additional reason that it is procedurally
defaulted. Petitioner did not raise an inconsistent-verdicts claim in his direct appeal, and the time
for presenting it to the state courts has passed. He also has not offered reasons why the default
should be excused. Claim 5 is therefore DISMISSED.
VII.
Claim 6
Petitioner claims that trial counsel was ineffective by failing to object to the admission of
Lt. Ables’s testimony that Petitioner was previously a prisoner at the Northwest Correctional
Complex. Respondent acknowledges that Matthews exhausted the issue by presenting it on appeal
from the denial of post-conviction relief, but he maintains that the claim is without merit.
Petitioner insists in the Reply that he is entitled to relief.
As indicated supra, the trial court allowed Ables to testify about Petitioner’s previous
incarceration at the prison. Counsel initially had been successful in moving “to preclude any
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reference to the Petitioner's prior incarceration[.]” Matthews, 2019 WL 1110101, at *9. However,
the trial “court later reconsidered [its] ruling and allowed the State to introduce proof of the
Petitioner's prior incarceration at the prison just two weeks prior to his arrest.” Id. Counsel did
not object to the court’s second ruling. Id.
At the post-conviction hearing, “counsel explained that the reason he did not object to
Officer Ables' testimony about the Petitioner's recent incarceration was because the trial court had
already ruled that this evidence was admissible.” Id. He acknowledged that his decision not to
object to preserve the record was “a mistake.” (ECF No. 30-27 at 51.)
Counsel represented Petitioner on direct appeal and raised the issue before the TCCA in
that proceeding. Matthews, 2017 WL 347796, at *6-8. The appellate court did not conclude that
Petitioner had waived the issue by failing to lodge an objection to Ables’s testimony in the court
below, but instead reviewed the trial court’s decision for an abuse of discretion. Id. at *8. The
TCCA upheld the lower court’s ruling. Id. The court also held that, even if the trial court erred in
admitting the testimony, the error was harmless in light of the overwhelming evidence of
Petitioner’s guilt. Id.
On post-conviction appeal, the TCCA concluded that counsel had not rendered ineffective
assistance by failing to object to Ables’s testimony. Matthews, 2019 WL 1110101, at *8-9. The
court credited counsel’s testimony “that the reason he did not object to Officer Ables' testimony
about the Petitioner's recent incarceration was because the trial court had already ruled that this
evidence was admissible.” Matthews, 2019 WL 1110101, at *9.
The TCCA’s decision rejecting the ineffective assistance claim was not contrary to clearly
established Supreme Court law or based on unreasonable factual determinations. As noted, the
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appellate court identified and applied Strickland’s standards to the record before it. What is more,
Petitioner has not identified any clear and convincing evidence to undermine the court’s findings
of fact.
That leaves the question of whether the TCCA unreasonably concluded that counsel was
not ineffective. It is true that the court’s reasoning supporting that conclusion was somewhat
summary in nature. Nevertheless, this Court will not disturb the state court’s decision unless
Petitioner demonstrates that “there was no reasonable basis for the state court to deny relief.”
Harrington, 562 U.S. at 98. He cannot meet that burden.
As discussed above, counsel challenged on direct appeal the admission of Ables’s
testimony. The appellate court did not consider the issue waived, addressed the merits of the
argument, and affirmed the lower court’s decision. Therefore, although counsel himself labeled
his failure to object at trial “a mistake,” his conduct was without effect. As no prejudice resulted
from counsel’s conduct, the TCCA’s rejection of the ineffective assistance claim was not
unreasonable. Claim 6 is DENIED.
VIII. Claim 7
In Claim 7, Petitioner maintains that trial counsel provided ineffective assistance by failing
to communicate to him a plea offer for concurrent sentences. Respondent argues that the claim is
procedurally defaulted. Matthews did not address the claim in his Reply.
Respondent’s position is well-taken. At the post-conviction hearing, “Petitioner claimed
that trial counsel never informed him of any offer from the State involving a concurrent sentence.”
Matthews, 2019 WL 1110101, at *3. Counsel testified that there were several offers but “almost
all of them were always going to be consecutive.” (ECF No. 30-27 at 38.) Matthews did not raise
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the issue to the TCCA on appeal from the denial of post-conviction relief. Instead, his appellate
brief focused on counsel’s alleged failure to convey a three-year offer. (See ECF No. 30-28 at 68, 13.) Because Petitioner has not provided any reason why the procedural default should be
excused, the claim is barred from federal habeas review. Claim 7 is DISMISSED.
IX. Claim 8
Petitioner asserts that counsel was ineffective for failing to communicate to him the State’s
final plea offer of three years. Respondent acknowledges that Matthews exhausted the claim in
state courts but argues that the TCCA’s decision rejecting the claim was reasonable under the
AEDPA’s standards. Petitioner maintains in the Reply that the claim is meritorious.
On appeal, the TCCA invoked Strickland’s standards, including as they apply in the context
of plea offers. Matthews, 2019 WL 1110101, at *6, 9-10. Although relying, in part, on Tennessee
cases, the court recited legal standards clearly established by the United States Supreme Court, to
wit:
[C]ounsel's failure to communicate a plea offer to a defendant renders counsel's
representation deficient. Regarding whether such deficient representation results
in prejudice, we recognize that [i]n the context of a petitioner who seeks to
reinstate (rather than withdraw) a plea offer, the petitioner must show that there is
a reasonable probability that he or she would have accepted the plea had it been
properly communicated to him or her. Such a reasonable probability is defined as
a probability sufficient to undermine confidence in the outcome of the
proceedings.
Id. at *9 (citations and internal quotation marks omitted). See Missouri v. Frye, 566 U.S. 134, 145
(2012) (trial counsel performs deficiently by failing to convey a plea offer to his client) and Lafler
v. Cooper, 566 U.S. 156, 164 (2012) (to establish prejudice, defendants must demonstrate a
reasonable probability they would have accepted the earlier plea offer).
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The TCCA recounted the evidence adduced at the post-conviction hearing. Petitioner in
that proceeding testified “that following his conviction, he learned that the State had
communicated an offer of three years to trial counsel.” Matthews, 2019 WL 1110101, at *2. “He
said that although he had been informed of an eight-year and a six-year offer, trial counsel never
gave him the opportunity to accept an offer of three years.” Id. Matthews explained that he asked
counsel on the morning of the trial to discuss a plea deal below six years, but that “counsel refused,
claiming the court would not allow it because it was ‘too late.’” Id. He insisted “that had he been
informed of a three-year offer, he would have accepted it.” Id.
Trial counsel testified as to his practice regarding plea offers. He explained that, “whenever
he receives an offer, he immediately notifies the client ‘because it stops [him] from spending more
time on a case that just suddenly gets settled.’” Id. at *4. He confirmed that he told Matthews
about six- and eight-year offers, and also a final offer received “approximately two weeks prior to
trial that was ‘substantially less’ than any of the earlier offers.” Id. Counsel could not, however,
remember specifically whether the final offer was for three years. (ECF No. 30-27 at 39.) Counsel
recalled that Petitioner “refused [the last offer] and immediately began discussing his defense
strategy at trial.” Matthews, 2019 WL 1110101, at *10. Counsel explained that “Petitioner
mistakenly believed that because there were no receipts, fingerprints, or DNA evidence linking
him to the duffle bags of contraband, the State would be unable to convict him.” Id. “[A]ny offer
involving a consecutive sentence was a ‘nonstarter’ for the Petitioner and . . . each time [counsel]
mentioned an offer with a consecutive sentence, the Petitioner would ‘become agitated’ and would
basically say that [counsel] was ‘not trying hard enough.’” Id. at *4.
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Based on the record, the TCCA found that counsel had relayed the three-year plea offer to
his client. Id. at *10. Counsel’s credited testimony was that “whenever he receives an offer, he
immediately notifies the client ‘because it stops [him] from spending more time on a case that just
suddenly gets settled.’” Id. The appellate court also “agree[d] with the post-conviction court's
finding that the Petitioner was ‘never interested in settling the case’ because he mistakenly
believed that he ‘could beat the charge.’” Id. The court therefore held that “Petitioner . . . failed
to establish that trial counsel was deficient in not informing him of the three-year offer” and did
not carry his burden of demonstrating “that there [was] a reasonable probability he would have
accepted the offer had it been properly communicated to him.” Id.
The TCCA’s decision is not contrary to clearly established Supreme Court law. The court
correctly identified Strickland’s two-part test as governing its analysis. In addition, as noted above,
the appellate court’s view of how that test applies in the plea context is consistent with Supreme
Court pronouncements.
The decision was also not based on unreasonable factual findings. The post-conviction
trial court credited counsel’s testimony regarding his recollections of the State’s final offer, his
practice of immediately informing his clients of any plea offers, Petitioner’s persistent rejection of
all offers, and Petitioner’s belief that the State could not prove its case. The TCCA implicitly
refused to disturb that credibility finding. This Court, sitting in federal habeas, will not disrupt the
TCCA’s own refusal to reject the lower court’s credibility determinations. See Rice v. Collins,
546 U.S. 333, 334-35 (2006) (“Reasonable minds reviewing the record might disagree about [a
witness’s] credibility, but on habeas review that does not suffice to supersede the trial court’s
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credibility determination.”). Petitioner also has not identified clear and convincing evidence to
undermine any other factual determination.
Finally, the TCCA’s conclusion that counsel did not render ineffective assistance was not
based on an unreasonable application of the precepts set forth in Strickland, Frye, and Lafler. In
light of a record demonstrating that counsel communicated the three-year offer to Petitioner and
that Petitioner was not interested in settling, the court’s conclusion that counsel did not perform
deficiently and that Petitioner was not prejudiced were patently reasonable. Claim 8 is DENIED
as meritless.
For all of these reasons, the Second Amended Petition is DENIED. The motion for
expedited ruling and motion for writ of mandamus are DENIED as moot. Judgment shall be
entered for Respondent.
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, 336 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied on procedural grounds,
the petitioner must show, ‘at least, that jurists of reason would find it debatable whether the petition
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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.’” Dufresne v. Palmer,
876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
deny the Second Amended Petition. 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 reason 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.8
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: August 24, 2022.
8
If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee
or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court
of Appeals within thirty days.
29
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