Baxter v. Washburn
Filing
47
ORDER DENYING § 2254 PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 5/19/2021. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMOTHY AARON BAXTER,
Petitioner,
v.
GRADY PERRY,
Respondent.
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No. 1:18-cv-01007-STA-jay
ORDER DENYING § 2254 PETITION,
DENYING A CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Timothy Aaron Baxter has filed a pro se habeas corpus petition (the
“Petition”), pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the following reasons, the Petition
is DENIED.
BACKGROUND
In December 2011, the Madison County, Tennessee, grand jury charged Baxter with
failure to appear for a June 13, 2011, court appearance in his aggravated assault case, in violation
of Tenn. Code Ann. 39-16-609. 1 (ECF No. 26-1 at 4-6.) At the jury trial, the “evidence showed
that the defendant was charged with aggravated assault, that at [his] [May 9, 2011] arraignment
he had been appointed counsel, and that he was on bond prior to the scheduled June 13, 2011
court appearance.” State v. Baxter, No. W2012-02555-CCA-R3CD, 2014 WL 29102, at *1
1
Petitioner was also charged with the same offense relating to his case involving simple
possession of marijuana, but that charge was dismissed. See Baxter v. State, No. W2016-00563CCA-R3-PC, 2017 WL 3822903, at *2 (Tenn. Crim. App. Aug. 31, 2017)
1
(Tenn. Crim. App. Jan. 3, 2014). Circuit Court Judge Roy Morgan presided over both the
arraignment on May 9 and the June 13 appearance. Id.
Judge Morgan’s administrative assistant and his court reporter, as well as the assistant
district attorney general, testified that they were present at both court proceedings.
Id.
“Generally, the witnesses remembered the defendant and recognized him at trial.” Id. They
recounted “that [he] appeared on May 9 but did not appear on June 13, and that after counsel was
appointed on May 9 [Judge Morgan] instructed [him] to return to court on June 13, 2011.” Id.
It was established that, at the arraignment, “[t]he circuit court clerk made court calendars
available to the public by placing a supply at the front desk of the clerk's office.” Id.
A transcript of the arraignment was introduced into evidence. Id. “The transcript, as read
in court by the reporter, showed that the defendant was sworn, that the court appointed the public
defender to represent him, that counsel entered a not guilty plea for the defendant, and that
counsel suggested June 13, 2011, as the next court date.” Id. The transcript further revealed that
Judge Morgan “instructed the defendant to ‘[b]e back here then and keep in contact with your
attorney.’” Id. (alteration in original).
The transcript of the June 13 proceeding was “admitted . . . into evidence over the
defendant's objection that it contained hearsay statements.” Id. at *2. The transcript reflected
that, consistent with his practice, Judge Morgan began the proceeding at 8:00 a.m. Id. The judge
called Baxter’s case, “and when the defendant did not answer, the judge said, ‘I'm going to hold
that one aside, then.’” Id. “After conducting some other court business, the judge called the
defendant's case again, and when he did not respond, the judge said, ‘[C]apias issued.... It's ninefifteen. No show. Bond forfeiture commence. That concludes the arraignment list.’”
Id.
(alteration in original). Defense counsel requested that she be allowed “the opportunity to call
2
the defendant, stating, ‘I expected him to be here today.’” Id. Judge Morgan responded “‘I don't
mind you trying to call him. He needs to get here. We'll note a capias. He's dealt with us before.
He knows the timing.’” Id.
Baxter testified that he was present on May 9 at the arraignment before Judge Morgan.
Id. He stated “that, after the court appointed the public defender to represent him, the judge told
him to step aside.” Id. Appointed counsel then “‘pulled [him] aside and [sat him] down’ and
elicited ‘a couple minutes worth’ of contact information from him.” Id. He insisted that “he had
no further communication from the judge” and that he did not hear the judge set a return court
date. Id. He testified that he met with his attorney at her office on June 10, 2011. Id. He
“maintained that he had never before missed a court date and that he intended to contest the
aggravated assault charge.” Id. “On cross-examination, [he] testified that he did not know he
was obliged to appear in court on June 13 because he was ‘sitting at a table, talking with the lady
from the public defender's office.’” Id. “He denied that he was standing at the podium when the
judge communicated the next court date, opining that the judge ‘might have given the court date
to the public defender but it wasn't to me.’” Id. “He stated that he believed his counsel would
inform him of his next appearance date.” Id.
On August 9, 2012, the jury returned a guilty verdict. (ECF No. 26-1 at 65.) Baxter was
sentenced to six years’ imprisonment at sixty percent. (Id.) “On appeal, [he] challenge[d] the
sufficiency of the evidence, the admission of hearsay evidence, the use of prior convictions to
impeach [him] as a witness, and the failure to suppress his pretrial statements recorded in a
transcript of an earlier court appearance.” Baxter, 2014 WL 29102, at *1. The Tennessee Court
of Criminal Appeals (“TCCA”) affirmed. Id.
3
On September 2, 2014, Petitioner filed a state habeas corpus petition. (ECF No. 26-14 at
3-43.) On appeal from the trial court’s denial of the petition, the TCCA remanded the case to be
heard as a post-conviction petition. See Baxter v. State, No. W2014-02325-CCA-R3-HC, 2015
WL 5813374, at *2 (Tenn. Crim. App. Oct. 5, 2015).
On January 15, 2015, Petitioner filed a pro se petition for post-conviction relief. (ECF
No. 26-20 at 3-50.) The post-conviction trial court “consolidated” the post-conviction petition
with Baxter’s habeas corpus petition. (ECF No. 26-21 at 17.) Following an evidentiary hearing,
the court denied relief. (Id. at 15-20.) The TCCA affirmed the judgement of the post-conviction
trial court on August 31, 2017. Baxter, 2017 WL 3822903, at *1, 7.
DISCUSSION
Baxter filed the Petition on October 23, 2017.
He asserts that the evidence was
insufficient to support his conviction (Claim 1), there was “pervasive government misconduct,
secretive, selective, vindictive,” and that he was denied a preliminary hearing (Claim 2), the trial
court “abused its discretion by allowing admission of hearsay evidence violating Crawford v.
Washington (Claim 3), and trial counsel rendered ineffective assistance by “fail[ing] to subpoena
witnesses and evidence for trial” (Claim 4A), exercise peremptory strikes (Claim 4B), object to
the prosecution’s case (Claim 4C), object to discriminatory enforcement (Claim 4D), and
“contest the false narrative portrayed by the prosecution” (Claim 4E). (ECF No. 1 at 5-10.)
Respondent, Grady Perry, filed the state-court record (ECF No. 26) and his Response to
the Petition (ECF No. 27). He argues that the claims are, variously, without merit, not wellpleaded, or procedurally defaulted. Petitioner filed a Reply, in which he insists that he is entitled
to relief. (ECF No. 29.) The parties also submitted supplemental briefs as to Claim 3. (ECF No.
43, 45, 46.)
4
I.
Legal Standards
A. Federal Habeas Review
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
(“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
5
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
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, 845, 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
6
of the federal question 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. Sufficiency of the Evidence
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. See
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (holding Jackson applies to
sufficiency-of-the-evidence claims on habeas review under § 2254(d)). 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 most
7
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 318-19 (emphasis in original).
The Jackson standard “gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
the basic facts to ultimate facts.” Id. at 319. See also Cavazos v. Smith, 565 U.S. 1, 2 (2011)
(per curiam) (holding that, under Jackson, “it is the responsibility of the jury—not the court—to
decide what conclusions should be drawn from evidence admitted at trial.”).
Jackson’s
evidence-sufficiency standard may be met with circumstantial evidence. See Desert Palace, Inc.,
v. Costa, 539 U.S. 9, 100 (2003) (“[W]e have never questioned the sufficiency of circumstantial
evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is
required.”); see also United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010) (“Circumstantial
evidence alone is sufficient to sustain a conviction and such evidence need not remove every
reasonable hypothesis except that of guilt.”).
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” controlling federal law or “based on an unreasonable application” of the
controlling federal law, 28 U.S.C. § 2254(d)(1)-(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, 566 U.S. at 656.
C. 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). To succeed on such a claim, a petitioner must demonstrate
8
two elements: (1) “that counsel’s performance was deficient”; and (2) “that the deficient
performance prejudiced the defense.” Id. at 687. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.
To establish deficient performance, a 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 and citation omitted).
An attorney’s “strategic choices” are “virtually unchallengeable” if based on a “thorough
investigation of law and facts relevant to plausible options[.]” Strickland, 466 U.S. at 690.
“[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. at
690-91.
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.’”
Strickland, 466 U.S. at 687).
9
Id. (quoting
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:
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.
A claim of attorney-ineffective-assistance must be supported with specific factual
allegations.
Wogenstahl v. Mitchell,
668
F.3d
307,
343
(6th
Cir.
2012).
“Merely conclusory allegations . . . are insufficient to state a constitutional claim.” Id.; see also
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts (a §
2254 petition must “state the facts supporting each ground”).
II.
Claim 1
Petitioner asserts that the evidence was insufficient to convict him of felony failure to
appear. He exhausted the issue in the state courts by litigating it—albeit unsuccessfully—on
direct appeal. See Baxter, 2014 WL 29102, at *1. Respondent maintains that the TCCA’s
rejection of the claim meets AEDPA’s deferential standards. The argument is well-taken.
As relevant here, Baxter “was charged with a violation of Tennessee Code Annotated
section 39–16–609, which in pertinent part provides that ‘[i]t is unlawful for any person to
knowingly fail to appear as directed by a lawful authority if the person . . . [h]as been lawfully
released from custody, with or without bail, on condition of subsequent appearance at an official
proceeding or penal institution at a specified time or place[.]’” Baxter, 2014 WL 29102, at *3
(quoting Tenn. Code Ann. § 39-16-609(a)). The statute further provides that “[i]t is a defense to
10
prosecution under this section that . . . [t]he person had a reasonable excuse for failure to appear
at the specified time and place.” Tenn. Code Ann. § 39-16-609(b).
Under Tennessee case law, “the requisite mental element expressed in the proscriptive
statute is knowing.” Baxter, 204 WL 29102 at *3. “Establishing the mental state of knowing
‘will usually depend on inference and circumstantial evidence.’”
Id. (quoting State v.
Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995)).
On direct appeal, Petitioner argued the evidence was insufficient because “[t]he State
failed to present any evidence regarding the ‘knowingly’ element of the statute.” (Id. at 14.) The
TCCA denied the claim. Baxter, 2014 WL 29102, at *3. In rejecting the argument, the TCCA
articulated and applied Jackson’s evidence-sufficiency standards. Baxter, 2014 WL 29102, at
*3. Upon review of the proofs submitted at trial, the court determined that the evidence, when
viewed in the light most favorable to the State, showed that
the defendant was in court on May 9, 2011, that he appeared before the judge at
the podium, that he was appointed counsel, that he at some point provided contact
information to the assistant public defender, that his counsel requested that the
case be set for June 13, 2011, and that the court set the case on that date at 8:00
a.m. The factual issue presented is whether the defendant was occupied by the
“lady” from the public defender's office when the announcement was made so
that he did not hear the trial judge. Although the defendant testified that he was so
occupied and that he did not hear the date announcement, the jury was free to
reject this testimony. Witnesses testified to the practice of having an arraigned
defendant stand at the podium with counsel when the instruction to reappear is
made, but we note that no witness recalled actually seeing the defendant at the
podium during this time. That aside, the transcript of the May 9 arraignment
includes Judge Morgan's agreement to counsel's suggestion of June 13 as the next
court date, followed by the judge's statement to “[b]e back here then and keep in
contact with your attorney.” This comment was necessarily directed to the
defendant. In our view, the jury had a basis for inferring that the defendant knew
to return to court on June 13, 2011.
11
Id. The TCCA therefore concluded that the evidence was sufficient to support the conviction.
Id.
As indicated above, the TCCA correctly identified Jackson’s standards and applied them
to the facts adduced at trial. Therefore, the decision is not contrary to clearly established
Supreme Court law. See Williams, 529 U.S. at 406 (“[A] run-of-the-mill 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.”).
Petitioner has also failed to establish that the appellate court’s conclusion, and the factual
determinations on which it is based, are unreasonable. To begin with, he does not identify any
clear and convincing evidence to undermine the factual findings, including the jury’s implicit
determination that his testimony was not credible. See McMullan v. Booker, 761 F.3d 662, 671
(6th Cir. 2014) (credibility determinations are factual findings for purposes of AEDPA review)
(citing Thompson v. Keohane, 516 U.S. 99, 110 (1995)). Secondly, the evidence, when viewed
in the light most favorable to the State, gives rise to the reasonable inference that Petitioner knew
he was to return to court on June 13. The jury was tasked with assessing the credibility of the
witnesses and resolving all competing inferences arising from the evidence. Consistent with
Jackson’s commands, the TCCA gave “full play” to the jury’s role. Jackson, 443 U.S. at 319.
The court’s conclusion that the evidence was sufficient to sustain the convictions is, therefore,
not an unreasonable application of Jackson’s standards. Claim 1 is DENIED.
III.
Claim 2
Petitioner asserts that there was “pervasive government misconduct” at his trial and that
he was denied a preliminary hearing in violation of the Fourteenth Amendment. (ECF No. 1 at
6.) Respondent argues that the claim is procedurally defaulted. The Court agrees.
12
Baxter litigated the government’s alleged misconduct and lack of a preliminary hearing at
the post-conviction evidentiary hearing. (ECF No. 26-20 at 5; ECF No. 26-23 at 32, 50, 90.) He
did not, however, pursue the issues on appeal (ECF No. 26-24 at 13), and the time for presenting
them to the state courts has passed. The claim is therefore procedurally defaulted.
Baxter asserts that the default should be excused because his post-conviction “counsel
was ineffective in his representation on PC appeal to the TCCA[.]” (ECF No. 1 at 7.) As
discussed earlier, Martinez holds that post-conviction counsel’s ineffective assistance in failing
to raise a “substantial” trial-counsel-ineffective-assistance claim may excuse the procedural
default. See Martinez, 566 U.S. at 14. However, Martinez does not apply to excuse a procedural
default that occurs on post-conviction appeal. Young v. Westbrooks, 702 F. App'x 255, 267 (6th
Cir. 2017) (citing Coleman, 501 U.S. at 754).
In addition, a post-conviction attorney’s
ineffective assistance will only excuse the procedural default of a trial-counsel-ineffectiveassistance claim. Abdur'Rahman v. Carpenter, 805 F.3d 710, 716 (6th Cir. 2015). Claim 2,
which alleges prosecutorial misconduct and failure to afford Petitioner a preliminary hearing, is
not such a claim.
Because Claim 2 is procedurally defaulted and Petitioner has not shown cause and
prejudice to excuse the default, the claim is DISMISSED.
IV.
Claim 3
Petitioner asserts that his Sixth Amendment right to confront witnesses was violated
when the trial court admitted into evidence Judge Morgan’s and defense counsel’s transcribed
statements from the June 13 hearing. 2 The statements are the judge’s remark “He’s dealt with us
before. He knows the timing,” and defense counsel’s representation to the judge that she
2
As will be discussed infra, the scope of Claim 3 is somewhat unclear. Nevertheless, the Court
has liberally and broadly construed the claim.
13
“expected him to be here today.” In support of the claim he invokes Crawford v. Washington,
541 U.S. 36 (2004), which sets the standard for the admission of prior testimony from an
unavailable witness, and Chapman v. California, 386 U.S. 18 (1967), which requires a harmlesserror analysis for constitutional errors. 3 In its supplemental brief, Respondent argues that Claim
3 is procedurally defaulted because Baxter did not present the federal constitutional issue to the
TCCA on direct appeal. Petitioner posits that he raised the constitutional issue in his direct
appeal brief.
He further asserts that Respondent waived the procedural-default affirmative
defense by not raising it in the Response. Upon review of the submissions in the present case
and the relevant portions of the state-court record, the Court concludes that Petitioner is not
entitled to relief on Claim 3.
A. Procedural Background
As it appeared in the Petition, Claim 3 asserted the following:
GROUND THREE: State Trial Court abused its discretion by allowing
admission of hearsay evidence violating Crawford v. Washington.
(a) Supporting facts[:]
The TCCA held this claim to be harmless error. The TCCA dodged the
federal/constitutional harm analysis under Chapman v. California. The TCCA’s
opinion omits any federal harm analysis under Chapman error.”
(ECF No. 1 at 8.)
3
“The Sixth Amendment's Confrontation Clause provides that, ‘[i]n all criminal prosecutions,
the accused shall enjoy the right ... to be confronted with the witnesses against him.’” Crawford
v. Washington, 541 U.S. 36, 42 (2004) (quoting U.S. Const. amend. VI). The “guarantee applies
to both federal and state prosecutions.” Id. (citing Pointer v. Texas, 380 U.S. 400, 406 (1965)).
In Crawford, the Supreme Court held that, “[w]here testimonial evidence is at issue, . . . the
Sixth Amendment demands what the common law required: unavailability [of the witness] and a
prior opportunity for cross-examination.” Id. at 68. A violation of the defendant’s right to
confront witnesses is subject to harmless error review on direct appeal. England v. Hart, 970
F.3d 698, 713 (6th Cir. 2020) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). In
Chapman, the Supreme Court held that, “before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” Id. The Chapman standard is “defendant-friendly.”
England, 970 F.3d at 713.
14
By order dated February 2, 2021, the Court determined that Baxter’s presentation of
Claim 3 was “somewhat confusing,” rendering the scope of the claim uncertain. (ECF No. 41 at
2.)
The Court found that, on the one hand, “it appears from the Petition that Baxter is
challenging the court’s ruling only as to the judge’s statement” because “the TCCA conducted a
harmless-error analysis only with respect to [that] statement[.]” (Id.)
On the other hand,
“Petitioner’s memorandum in support of the Petition, which references numerous theories not set
forth in the Petition, includes a challenge to the TCCA’s ruling regarding the admission of
defense counsel’s statement and also presents arguments based on state evidentiary law.” (Id.)
The Court noted that the confusion generated by Petitioner’s submissions might have affected
Respondent’s response to the claim. (Id.) The Court further determined that “it appear[ed] that
Petitioner might not have ‘fairly presented’ to the TCCA the federal contours of Claim 3.” (Id.)
For all of these reasons, Petitioner was directed to file a supplemental brief clarifying the
scope of Claim 3, and he was given the opportunity to address the probable procedural default.
The Court ordered Respondent to file a supplemental response to Petitioner’s supplemental brief,
directing that, “[if] Respondent concludes that the issues were exhausted or chooses to waive that
affirmative defense, his supplemental brief should address the merits of Claim 3.”
(Id.)
Petitioner was allowed to file a supplemental reply.
The Clerk received Petitioner’s supplemental brief on February 25, 2021. (ECF No. 43.)
In the document, Petitioner insists that Claim 3 is not procedurally defaulted because he fairly
presented the constitutional issue to the TCCA. 4 He maintains that the Court should, therefore,
4
Petitioner’s supplemental briefs have done little, if anything, to clarify Claim 3. Baxter does
not expressly state that the claim includes a challenge to defense counsel’s statement. Although
he references both Judge Morgan’s and defense counsel’s statements, he still limits his argument
to the assertion that “[t]he TCCA applied harmless-error review” in contravention of “clearly
established federal law[.]” (ECF No. 43 at 5-6.) As the Court noted in its February 2, 2021
15
address his argument that “the TCCA[’s] harmless-error decision was contrary to and an
unreasonable application of clearly established federal law, as determined by the Supreme
Court’s decision in Chapman; and, resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court[.]” (Id. at 5-6.) In
his supplemental response, Respondent argues that Claim 3 is procedurally defaulted because
there was nothing in Petitioner’s direct appeal brief to alert the TCCA to the confrontation clause
issue. (ECF No. 45.) Petitioner filed a supplemental reply, asserting that Respondent waived the
procedural-default affirmative defense by failing to present it in his original Response. (ECF No.
46.)
B. Procedural Default
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.
order, the TCCA applied harmless-error analysis only as to the trial court’s admission of the
judge’s statement. Therefore, the scope of Claim 3 remains unclear. However, the Court will
assume that Petitioner means to assert that the trial court violated his right to confront witnesses
when it admitted into evidence both Judge Morgan’s and defense counsel’s transcribed
comments from the June 13 hearing, and that neither error was harmless under Chapman.
16
Baxter insists that he fairly presented his confrontation clause issue to the TCCA in his
direct appeal brief. He points out that he cited State v. Forbes, 918 S.W. 2d 431 (Tenn. Crim.
App. 1995), which recognized that “[a] denial of the right to an effective cross examination is
‘constitutional error of the first magnitude’ and amounts to a violation of the basic right to a fair
trial.” Forbes, 918 S.W.2d at 450 (quoting State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim.
App.1 980) (quoting, Davis v. Alaska, 415 U.S. 308, 318 (1978)).
Respondent argues that
Petitioner’s appellate brief cited to page 449 of Forbes, not page 450, and it did so only for the
applicable standard of review.
A review of the direct appeal brief shows that Baxter did not fairly present to the TCCA a
challenge to the admission of Judge Morgan’s and defense counsel’s statements on the grounds
that his federal constitutional right to confront the witnesses was violated. Instead, he presented
the issue only as one arising under state evidentiary law. His “STATEMENT OF ISSUES
PRESENTED FOR REVIEW” framed the issue thusly: “Whether the Trial Court committed
reversible error when it allowed into evidence a hearsay statement by the judge and by the public
defender from a prior hearing?” (ECF No. 26-9 at 4.) His argument, set forth below, related
only to the application of Tenn. R. Evid. 801 and 802 and the proper standard of review under
state law, as set forth in Forbes:
Rule 801 of the Tennessee Rules of Evidence defines hearsay as, “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802
of the Tennessee Rules of Evidence states that, “Hearsay is not admissible except
as provided by these rules or otherwise by law.”
The decision to admit evidence is in the discretion of the trial court, and
only an abuse of that discretion will warrant a reversal. State v. Forbes, 918 S.W.
2d 431, 449 (Tenn. Crim. App. 1995). A court abuses its discretion when it
applies an incorrect legal standard or reaches a decision that is illogical or
unreasonable and causes an injustice to the complaining party. Howell v. State,
185 S.W. 3d 319, 337 (Tenn. 2006).
17
Even analyzing the Trial Court’s determination on an abuse of discretion
standard, the Trial Court erred. The Trial Court’s only statement as to the
admissibility of these lines was that [they were] “part of the overall record.” (Vol.
5 pp. 55) The Trial Court used the incorrect legal standard. The Trial Court did
not state whether the statements were or were not out of court statements used to
prove the truth of the matter asserted. Further, it did not state any exception to
hearsay found.
The inclusion of [the statements] was highly prejudicial to the Defendant.
This transcript described some supposed knowledge the Defendant had regarding
the timing of the court, which is at the heart of a Failure to Appear charge.
Equally harmful is a statement by the Defendant’s own attorney that she was
expecting him to be there, thus transmuting some kind of knowledge to the
Defendant.
(ECF No. 26-9 at 9-10.)
Baxter, thus, did not cite Forbes for that decision’s federal constitutional analysis. He
also did not rely upon federal cases employing constitutional analysis, and it did not allege facts
well within the mainstream of constitutional law. Moreover, the issue presented was not phrased
in terms of constitutional law and it did not employ terms that would be sufficient to allege a
violation of a constitutional right. Notably, the TCCA analyzed and resolved Baxter’s challenge
to Judge Morgan’s and defense counsel’s statements only on the basis of state evidentiary law.
See Baxter, 2014 WL 29102, at *4-6.
Because Claim 3 was not fairly presented to the TCCA and the time for doing so has
passed, it is procedurally defaulted. Petitioner has not asserted cause and prejudice to excuse the
default or that he has new evidence of his actual innocence.
C. Waiver and Merits
“[P]rocedural default ‘is not a jurisdictional matter[.]’” Maslonka v. Hoffner, 900 F.3d
269, 277 (6th Cir. 2018) (quoting Trest v. Cain, 522 U.S. 87, 89 (1997) (internal quotation
marks, citation, and alteration omitted)). Therefore, the State is “normally ‘obligated to raise and
18
preserve’ any procedural-default defense ‘if it is not to lose the right to assert the defense
thereafter.’” Id. (quoting Trest, 522 U.S. at 89). In the present case, Respondent did not assert in
his Response that Claim 3, as originally presented in the Petition, was procedurally defaulted.
Nevertheless, Petitioner is not entitled to relief on the claim.
With regard to Petitioner’s challenge to defense counsel’s statement, Respondent did not
waive the affirmative defense. As indicated above, the Petition itself gave Respondent no reason
to believe that Claim 3 presented that particular challenge. And although Petitioner’s discussion
of Claim 3 in his memorandum included a Crawford challenge to the admission of defense
counsel’s statement, the Court found in its February 2, 2021, order that the scope of the claim
was uncertain enough to warrant supplemental briefing. Therefore, Respondent cannot be said to
have waived an affirmative defense to an issue that was not clearly before the Court.
Second, even assuming the Response operated as a waiver of the affirmative defense as it
relates to Judge Morgan’s remarks, and further assuming that the remarks violated Baxter’s right
to confront the witness, Petitioner would not be entitled to relief even under de novo review. See
Jackson v. Smith, 745 F.3d 206, 209 (6th Cir. 2014) (“[C]laims not ‘adjudicated on the merits’
by the state court are given plenary review by a federal habeas court[.]”) Although Chapman’s
“reasonable doubt” standard applies on direct appeal, federal habeas relief cannot issue unless
the alleged error was not harmless under the standard announced in Brecht v. Abrahamson, 507
U.S. 619, 638 (1993). Brecht, 507 U.S. at 638 (rejecting application of Chapman’s harmlesserror standard on habeas review of “constitutional error[s] of the trial type”). 5 Brecht requires
“actual prejudice” resulting from the constitutional error. Id. at 637 (quoting United States v.
Lane, 474 U.S. 438, 449 (1986)). Actual prejudice is found where “the error had substantial and
5
The Brecht standard applies in federal habeas “whether or not the state court reache[d]
the Chapman question[.]” Fry v. Pliler, 551 U.S. 112, 117 (2007).
19
injurious effect or influence in determining the jury’s verdict.” (Id. at 637 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). The Brecht standard is not met in the present case for
two reasons.
First, the full context of Judge Morgan’s statement suggests that the judge was referring
to Baxter’s knowledge of the 8:00 a.m. start time, not his knowledge that he was required to
appear in court on that day. It is undisputed on the trial record that Judge Morgan’s court days
commenced at 8:00 a.m., that on June 13 the judge called Baxter’s case once and then set it aside
pending Baxter’s arrival, and that the judge noted the time as “9:15” at the time he ordered the
issuance of a capias. (ECF No. 26-8 at 4.) His comment that Baxter “knows the timing”
followed his remark that it was 9:15 a.m. and also defense counsel’s entreaty that she be allowed
to call her client during the recess. (Id.)
Second, other evidence submitted to the jury suggested that Petitioner knew he was to
return to court on June 13. The judge’s assistant and the assistant attorney general testified at
trial that it was the judge’s practice during arraignments to give each defendant their next court
date as they stood at the podium and that they remembered Baxter standing at the podium at his
May 9 arraignment. Moreover, the transcript of the arraignment shows that, although the judge
directed Baxter to “[s]tep aside and let [the assistant public defender] sign you up,” he then
directed his comments regarding the next court date expressly to the defendant: “We’ll put it for
June 13th at 8:00, Mr. Baxter. Be back here then and keep in contact with your attorney, Mr.
Baxter, and keep your appointments.” (ECF No. 26-7 at 6.) And although Petitioner testified
that he did not hear the judge announce the June 13 court date, the jury implicitly found his
testimony to be not credible.
20
At bottom, the alleged error was harmless as the record does not show that Judge
Morgan’s comments “had substantial and injurious effect or influence in determining the jury’s
verdict.” Claim 3 is DENIED.
V.
Claim 4A
Petitioner asserts that trial counsel was ineffective by “fail[ing] to subpoena witnesses
and evidence for trial.” (ECF No. 1 at 10.) Respondent argues that the claim should be
dismissed as inadequately pleaded because Petitioner does not identify the individuals he
believes counsel should have called at trial or the evidence counsel should have submitted. In
his Reply, Baxter does not provide the missing information, although he insists that “both the
state habeas petition and post-conviction petitions clearly identify ‘exactly who and what
evidence counsel failed to produce.’” (ECF No. 29 at 20.)
As discussed earlier, a claim of attorney-ineffective-assistance must be supported with
specific factual allegations. Baxter, however, has failed to provide facts in support of Claim 4A.
What is more, his general reference in his Reply to his state habeas corpus and post-conviction
petitions is inadequate to supply the necessary factual details. Those pleadings are over forty
pages each and are, at times, rambling. Petitioner makes no effort to identify for the Court the
page or paragraph numbers where the specific factual allegations can be found. It is not the
Court’s job to ferret-out the necessary factual details from Petitioner’s state pleadings.
Therefore, Baxter’s failure to identify putative witnesses or evidence in support of Claim 4A
subjects the claim to dismissal on the ground that it is not well-pleaded.
It may be that Petitioner means to assert that the TCCA unreasonably rejected his claim
that counsel was ineffective for failing to call witnesses and to present evidence that no criminal
summons was issued. The argument, however, is without merit.
21
In his post-conviction appeal, Baxter argued that counsel was ineffective by failing to
“subpoena witnesses [and] present evidence that the Clerk’s Office failed to issue a criminal
summons after [Petitioner’s] failure to appear.” (ECF No. 26-24 at 13.) In rejecting the claim,
the TCCA first identified Strickland’s standards as governing its analysis of the issue. Baxter,
2017 WL 3822903, at *6. Regarding Baxter’s assertion about counsel’s failure to call witnesses,
the court determined that Petitioner did “not specify in his argument who trial counsel should
have called as a witness or what any alleged witnesses would have testified to,” and “did not
present any . . . witnesses at the post-conviction hearing.” Id. at *7. Finding that Petitioner had
failed to carry his burden of showing that counsel performed deficiently and that he was
prejudiced by counsel’s conduct, the TCCA concluded that “Petitioner [was] not entitled to any
relief on this issue.” Id.
Regarding the claim that counsel should have submitted evidence that no criminal
summons was issued on the failure to appear, the TCCA noted that “Petitioner [had] not cited to
any authority that requires the circuit court clerk’s office to use a criminal summons when a
defendant fails to appear in court.” Id. Based on the post-conviction hearing testimony of
counsel and “Circuit Court Clerk Kathy Blount,” the court found that “the circuit judges ‘never’
issue a criminal summons for a defendant who fails to appear in court.” Id. Instead, “when a
defendant in Madison County Circuit Court fails to appear in court on a specific date, the judge
orders a capias to be issued by the clerk’s office.” Id. The TCCA concluded that Petitioner
therefore did not establish that counsel provided ineffective assistance by failing to submit
evidence that a criminal summons had not issued. Id.
22
Because the TCCA correctly identified Strickland’s standards and applied them to the
facts of Petitioner’s case, its ruling is not “contrary to” controlling Supreme Court law. See
Williams, 529 U.S. at 406.
The state appellate court’s decision is also not based on an unreasonable determination of
the facts or an unreasonable application of Strickland's standards to the facts. Petitioner does not
identify any clear and convincing evidence to undermine the state court’s factual findings.
Indeed, a review of the post-conviction hearing transcript shows that, as the TCCA found, Baxter
did not call any individuals to testify at the hearing. (ECF No. 26-23.) He therefore failed to
establish that the testimonies of the unidentified putative witnesses would have
been material to the defense. The transcript also supports the TCCA’s finding that it is not the
practice of the circuit court to issue criminal summonses for failures to appear. (Id. at 10, 19-20,
32.) Therefore, Counsel’s failure to submit evidence that no such summons was issued cannot
amount to deficient performance and cannot be said to have resulted in prejudice to his client.
Based on this record, the state appellate court’s conclusion that counsel did not provide
ineffective assistance was not an unreasonable application of Strickland’s precepts.
For these reasons, Claim 4A is DISMISSED as inadequately pleaded, and is otherwise
without merit.
VI.
Claims 4B, 4C, 4D, and 4E
Petitioner asserts that counsel was ineffective in failing to exercise peremptory strikes
(Claim 4B), object to the prosecution’s case (Claim 4C), object to discriminatory enforcement
(Claim 4D), and contest the prosecution’s false narrative at trial (Claim 4E).
Respondent
maintains that the claims are inadequately pleaded and procedurally defaulted. Petitioner posits
that post-conviction counsel’s alleged ineffective assistance is cause to excuse the defaults.
23
As Respondent correctly points out, the claims are subject to dismissal because they are
not well-pleaded. Baxter does not support his general allegations with factual details that, if
assumed to be true, would show that counsel performed deficiently and that his conduct
prejudiced Petitioner. It is worth noting that, at the time he filed his Reply, he was on notice of
the pleading deficiency but did not offer more detailed allegations. The claims are therefore
subject to dismissal on this ground.
The claims are also procedurally defaulted. With regard to Claims 4B, 4C, and 4E,
Petitioner did not raise them at any level of his post-conviction proceedings, and the time for
doing so has passed. His assertion that post-conviction counsel’s alleged ineffective assistance is
cause to excuse the default is unavailing. To lift the procedural bar pursuant to Martinez, Baxter
must demonstrate that the ineffective assistance claims are “substantial.” Martinez, 566 U.S. at
14. A claim is “substantial” if it has “some merit.” Id. Petitioner cannot meet that threshold in
the absence of specific factual allegations to support the claims.
With regard to Claim 4D, Petitioner litigated the issue in the post-conviction trial court
(see ECF No. 26-23 at 29-30, 64-65), but he abandoned it on appeal (see ECF No. 26-24 at 13).
He now argues that post-conviction appellate counsel’s alleged ineffective assistance is cause to
excuse the default. The argument is unavailing because, as discussed earlier, Martinez does not
apply to excuse a procedural default that occurs on post-conviction appeal.
Because Petitioner procedurally defaulted Claims 4B, 4C, 4D, and 4E, and has not shown
cause and prejudice to excuse the defaults, the claims are DISMISSED.
For all of these reasons, the Petition is DENIED. Judgment shall be entered for
Respondent.
24
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 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 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.
25
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. 6
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 19, 2021.
6
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.
26
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