Warlick v. Lebo

Filing 18

ORDER DENYING § 2254 PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 4/5/2021. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CHARLES WARLICK,
Petitioner,
v.

No. 1:18-cv-01078-JDB-jay

JOHNNY FITZ,
Respondent.
ORDER DENYING § 2254 PETITION,
DENYING A CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, Charles Warlick, has filed a pro se habeas corpus petition (the “Petition”)
pursuant to 28 U.S.C. § 2254. (Docket Entry (“D.E.”) 1.) For the following reasons, the Petition
is DENIED.
BACKGROUND
In November 2015, Petitioner entered a best-interest guilty plea to second degree murder,
with an agreed sentence of twenty years’ incarceration. (D.E. 12-3 at PageID 187-88.) According
to the factual basis provided by the prosecution at the change of plea hearing, Warlick strangled
his long-time girlfriend, Bernice Boykin, after both had been “drinking alcohol and potentially
using illicit drugs.” (Id. at PageID 182.) Soon after the murder, Warlick called a friend and told
him “I think I killed someone.” (Id. at PageID 184.) He also “made multiple spontaneous
utterances to law enforcement on the scene saying, ‘I did it. I did it. I did it.’” (Id. at PageID
185.) 1 The State conceded that “the victim . . . had recently been released from prison following

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At the change of plea hearing, Petitioner’s attorney told the court that Warlick’s “version
of what happened that night” was not entirely the same as the events recited by the prosecution.
(D.E. 12-3 at PageID 185-86.)

her service of a sentence imposed for a conviction of aggravated assault,” and “could . . . have
violent tendencies[.]” Warlick v. State, No. W2017-00703-CCA-R3-PC, 2018 WL 672593, at *1
(Tenn. Crim. App. Jan. 31, 2018) (second alteration in original). Petitioner was sentenced to
twenty years’ incarceration. (D.E. 12-3 at PageID 188.) He did not take a direct appeal.
The inmate filed a timely pro se petition for post-conviction relief (D.E. 12-1 at PageID
57-59), which was amended by appointed counsel (id. at PageID 64-66). The post-conviction trial
court conducted an evidentiary hearing (D.E. 12-2) and denied relief (id. at PageID 159-60; D.E.
12-1 at PageID 69-70). The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the lower
court’s rulings. Warlick, 2018 WL 672593, at *1.
DISCUSSION
Warlick filed the Petition on April 27, 2018. He asserts that counsel rendered ineffective
assistance and that counsel’s ineffectiveness rendered his guilty plea involuntary. On October 16,
2018, Respondent, Johnny Fitz, 2 filed the state court record (D.E. 12) and his response to the
Petition (D.E. 14). He argues that the claims are procedurally defaulted. Petitioner did not file a
reply, although he was allowed to do so.
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 the statute, habeas relief is available only if the prisoner

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The Clerk is DIRECTED to modify the docket to reflect Johnny Fitz as Respondent. See
Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004); Fed. R. Civ. P. 25(d).

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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 United States 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)) (internal citations omitted).
A state court’s decision is contrary to federal law when it “arrives at a conclusion opposite
to that reached by [the United States 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
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

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evidence and do not have support in the record.’” Moritz v. Woods, 692 F. App’x 249, 254 (6th
Cir.) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (some internal quotation
marks omitted), cert. denied, 138 S. Ct. 518 (2017).
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 hand in hand 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
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 if he demonstrates “cause for the default and actual prejudice as a result of

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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, 9-11 (2012)).
A petitioner may also overcome his procedural default 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). 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 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).

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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.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).
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).
Strickland’s two-part test applies to a claim that counsel was ineffective at the plea stage
of the criminal proceedings. Rodriguez-Penton v. United States, 905 F.3d 481, 486 (6th Cir. 2018).
“Where . . . a defendant is represented by counsel during the plea process and enters his plea upon
the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was
within the range of competence demanded of attorneys in criminal cases.’” Hill v. Lockhart, 474
U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). A petitioner
demonstrates prejudice in the plea context by establishing “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
at 59. A petitioner may also establish prejudice by showing that, had he been properly advised by
counsel during the plea negotiations, he “would have bargained for a more favorable plea.”
Rodriguez-Penton, 905 F.3d at 488.
The deference to be accorded a state-court decision under § 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.

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Richter, 562 U.S. at 105.
II.

Petitioner’s Claims.
As indicated above, the movant asserts that counsel rendered ineffective assistance at the

pretrial stage and that the ineffectiveness produced an involuntary guilty plea. In support, he
alleges that counsel “failed to fully pursue and exploit the defense of self-defense or involuntary
manslaughter due to the intoxication level[] of the victim.” (D.E. 1-1 at PageID 16.) He maintains
that “counsel knew in advance that: (1) The victim Bernice Boykin was severely intoxicated and
had cocaine in her system; (2) that the victim had just been released from a prison for aggravated
assault of a person who ultimately died from the assault. and (3) that in light of the victim’s
intoxication, an expert medical opinion [was] necessary to provide a credible explanation for the
defense[’]s theory.” (Id. at PageID 17 (internal record citation omitted).)
Respondent argues that the claims are procedurally defaulted. Specifically, he posits that,
although the legal theories presented here are the same as those advanced before the TCCA, the
factual basis for Warlick’s federal habeas claims was not presented to the state courts. The Court
agrees.
As discussed supra, a claim is procedurally defaulted when the petitioner fails to “fairly
present[]” it to the state courts. Boerckel, 526 U.S. at 848. A claim is fairly presented “where the
petitioner present[s] both the factual and legal basis for his claim to the state courts[.]” Ambrose
v. Romanowski, 621 F. App'x 808, 814 (6th Cir. 2015) (quoting Hanna v. Ishee, 694 F.3d 596, 606
(6th Cir. 2012)).
Warlick did not fairly present his claims to the state courts. A review of his post-conviction
appellate brief shows that he grounded his ineffective-assistance and involuntary-plea claims on
allegations that the trial court “threatened” him with a sixty-year sentence and that trial counsel

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failed to adequately communicate with him and “review and explain [the] evidence[.]” (D.E. 124 at PageID 202.) In contrast, his claims in the present matter are, as discussed above, based on
his allegation that counsel “failed to fully pursue and exploit the defense of self-defense or
involuntary manslaughter due to the intoxication level[] of the victim.” (D.E. 1-1 at PageID 16.)
Petitioner, thus, did not present the factual basis for his federal habeas claims to the state courts.
Because the time for doing so has passed, see Tenn. Code Ann. §§ 40-30-102(a), (c), the claims
are procedurally defaulted.
Warlick has not asserted cause and prejudice to excuse the defaults. Nor has he argued
that he has new evidence of his actual innocence. His claims are therefore barred from review in
this federal habeas proceeding and are DISMISSED.
For these reasons, the Petition is DENIED. 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, 537 U.S. at 336 (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

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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 COA.
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. 3
IT IS SO ORDERED this 5th day of April 2021.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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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.
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