Hughey v. Bell

Filing 21

ORDER Modifying Docket; denying 16 Motion ; denying 17 Motion for Summary Judgment; denying 18 Motion to Dismiss for Lack of Prosecution; Denying Petition Pursuant to 28 U.S.C. Section 2254 1 ; Denying Certificate of Appealability; Certifying Appeal Not Taken in Good Faith; Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Judge Jon Phipps McCalla on 9/30/13. (McCalla, Jon)

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

JERMAINE HUGHEY,
Petitioner,
v.
ROBERT E. COOPER, JR.,
Respondent.

)
(
(
)
)
(
(
)
)
(
(
)
)
(
(
)
)
(
(
)
)
(

No. 10-2552-JPM-cgc

ORDER TO MODIFY THE DOCKET
ORDER DENYING RESPONDENT’S MOTIONS
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2254
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
and
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the Petition Under 28 U.S.C.A. § 2254
for Writ of Habeas Corpus by a Person in State Custody (the
“Petition”) filed by Petitioner Jermaine Hughey (“Petitioner” or
“Hughey”), Tennessee Department of Correction (“TDOC”) prisoner
number 369284, who was formerly an inmate at the Riverbend
Maximum Security Institution (“RMSI”) in Nashville, Tennessee,
filed on July 29, 2010.1 (ECF No. 1.) Also before the Court are
Respondent’s Motion for Waiver of Local Rule 56.1(a) (ECF No.

1

According to the TDOC website, Petitioner has been released on
parole. He has not provided the Clerk with a forwarding address. The Clerk is
directed to substitute Tennessee Attorney General Robert E. Cooper, Jr., for
Ricky Bell as Respondent in this action. See Fed. R. Civ. P. 25(d).

16), Motion for Summary Judgment (ECF No. 17), and Motion to
Dismiss for Lack of Prosecution (ECF No. 18). For the reasons
stated herein, the Petition is DENIED and the Respondent’s
pending motions are also DENIED.
I.

BACKGROUND
A.

State-Court Procedural History

On January 16, 2003, a grand jury in Shelby County,
Tennessee, returned two indictments against Hughey. Case Number
03-00283 charged Hughey with eight counts arising from the events
of August 9, 2002.2 Counts One and Two charged Hughey with the
aggravated robbery of Maria Tirado; Counts Three and Four charged
Hughey with the aggravated robbery of Jose Savin; Counts Five and
Six charged Hughey with the aggravated robbery of Eldidio Savin;
and Count Seven charged Hughey with the attempted aggravated
robbery of Jose Cerda.3
Case Number 03-00284 charged Hughey and Deverance Bledsoe
with eight counts arising from the events of August 30, 2002.4
Counts One and Two charged both defendants with the aggravated
robbery of Carlos Villapando; Counts Three and Four charged both
defendants with the aggravated robbery of Jose Cerda; Counts Five
and Six charged both defendants with the aggravated robbery of
2

Indictment, State v. Hughey, No. 03-00283 (Shelby Cnty. Crim. Ct.),
ECF No. 14-1 at PageID 174-81.
3

Id.

4

Indictment, State v. Hughey, No. 03-000284 (Shelby Cnty. Crim. Ct.),
ECF No. 14-1 at PageID 182-90.

2

Jose Savin; and Counts Seven and Eight charged both defendants
with the aggravated robbery of Eldidio Savin.5
A jury trial on the charges against Hughey commenced in the
Shelby County Criminal Court on November 17, 2003. At the close
of proof, the trial judge reduced the charges in Counts One, Two,
Three, and Four of Case Number 03-00283, and Counts One and Two
of Case Number 03-00284, to attempted aggravated robbery.6 On
November 21, 2003, the jury returned a guilty verdict on each
count of the indictments.7
At a sentencing hearing on February 27, 2004, Hughey was
sentenced as a Range I Standard Offender to concurrent terms of
eleven (11) years on each of the aggravated robberies, and to
five (5) years on each of the attempted aggravated robberies.8 In
Case Number 03-00283, the trial judge ordered that the three
attempted robbery sentences be served concurrently to each other
and consecutively to the aggravated-robbery conviction, for a
total sentence of sixteen (16) years.9 In Case Number 03-00284,
the trial judge ordered that the three aggravated-robbery and one
attempted- aggravated-robbery sentences be served concurrently to

5

Id.

6

Trial Tr. at 587-90, State v. Hughey, No. 03-00283-84 (Shelby Cnty.
Crim. Ct.), ECF No. 14-2 at PageID 909-12.
7

Id. at 666-68, ECF No. 14-2 at PageID 996-98.

8

Sentencing Hr’g Tr. at 39, State v. Hughey, No. 03-00283-84 (Shelby
Cnty. Crim. Ct.), ECF No. 14-2 at PageID 1040.
9

Id. at 39-43, ECF No. 14-2 at PageID 1040-44.

3

each other, for a total sentence of eleven (11) years.10 Finally,
the trial judge ordered that the sentences for Case Numbers 0300283 and 03-00284 be served consecutively to each other, for a
total sentence on both indictments of twenty-seven (27) years.11
The Tennessee Court of Criminal Appeals affirmed. State v.
Hughey, No. W2004-01074-CCA-R3-CD, 2006 WL 2000734 (Tenn. Crim.
App. July 18, 2006), perm. app. denied (Tenn. Nov. 13, 2006).
On November 14, 2007, Hughey filed a pro se petition in the
Shelby County Criminal Court pursuant to the Tennessee
Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to
-122.12 After counsel was appointed to represent Hughey,13 an
Amended and Supplemental Petition was filed on or about September
24, 2008.14 Another amendment was filed on February 12, 2009.15
The post-conviction court held hearings on the Petition for Post-

10

Id.

11
Id.; Judgments, State v. Hughey, No. 03-00283 (Shelby Cnty. Crim.
Ct.), ECF No. 14-1 at PageID 212-15; Judgments, State v. Hughey, No. 03-00284
(Shelby Cnty. Crim. Ct.), ECF No. 14-1 at PageID 216-19.
12

Pet. for Post-Conviction Relief, Hughey v. State, Nos. 03-00283-84
(Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1083-1111.
13
Order Appointing Private Counsel to Represent Indigent Pet’r, Hughey
v. State, Nos. 03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1124.
14

Am. & Suppl. Pet. for Post-Conviction Relief, Hughey v. State, Nos.
03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1112-22.
15

Additional Grounds to Am. & Suppl. Pet. for Post-Conviction Relief,
Hughey v. State, Nos. 03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at
PageID 1125-27.

4

Conviction Relief on December 17, 2008,16 and March 30, 2009.17
The post-conviction court denied relief on May 8, 2009.18 The
Tennessee Court of Criminal Appeals affirmed. Hughey v. State,
No. W2009-01072-CCA-R3-PC, 2010 WL 1610581 (Tenn. Crim. App. Apr.
21, 2010).
In Hughey’s appeal of his conviction and sentence, the
Tennessee Court of Criminal Appeals summarized the evidence
introduced at trial:
Elpidio Aaron Savin Torres testified that he had
lived in Memphis for three years and was from Mexico but
was not an American citizen. He said that in August 2002,
he was the victim of two robberies at his brother’s
apartment. He said that on August 9, 2002, between 11:00
a.m. and noon, he went to his brother’s apartment to ask
him about finding work. He said that he was in the
bedroom with his brother, Jose Miguel Savin Torres, and
that his sister-in-law, Maria Conception Tirado, was in
the bathroom or kitchen. He said that his brother-in-law,
Jose Yahir Cerda Gutierrez, was at the apartment and that
Mr. Gutierrez told him he was going outside to smoke a
cigarette. He said he was standing up to go outside with
Mr. Gutierrez when he heard Mr. Gutierrez say, “We are
f------ up. They want our money.”
Elpidio Torres testified that a man with a small
black gun told them to go inside and told his sister-inlaw to come into the room. He said the man told them to
get on the ground because “I believe he didn’t want us to
see him.” He said that the man said, “Give me your
wallet,” and that he took out his wallet and showed the

16

December 17, 2008, Post-Conviction Relief Hr’g Tr. (“December 17,
2008, Hr’g Tr.”), Hughey v. State, Nos. 03-00283-84 (Shelby Cnty. Crim. Ct.), ECF
No. 14-3 at PageID 1153-94.
17

March 30, 2009, Post-Conviction Relief Hr’g Tr. (“March 30, 2009,
Hr’g Tr.”), Hughey v. State, Nos. 03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No.
14-3 at PageID 1195-1234.
18

Order Denying Pet. for Post-Conviction Relief, Hughey v. State, Nos.
03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1128-36.

5

man it contained no money before giving the man ten
dollars from his pocket. He said the man also took his
cell phone and was pointing the gun at him. He said his
sister-in-law spoke English and told the man they did not
have any money because they were not working at the time.
He said the man told them he was leaving and was going to
count to ten. He said that as the man was counting and
closing the door, his sister-in-law called the police. He
said he did not recognize the man who robbed him at the
time of the robbery. He said he was able to get a good
look at the man inside the apartment and could see the
man’s face. He said that the man touched the door handle
as he was leaving the apartment and that the police took
fingerprints from the door handle. He said his sister-inlaw translated for him when the police arrived.
Elpidio Torres testified that he again saw the man
who robbed him on August 30, 2002, around 5:30 to 6:30
p.m., when the man robbed him a second time. He said that
he and his brother were outside his brother’s apartment
talking to a neighbor about the previous robbery and that
his brother was washing his truck. He said that he saw
two black men and that he said, “Oh, oh, here they come
again. They’re either going to rob us or they’re after
us.” He said that he knew it was the same man who had
robbed him previously when he saw the man coming toward
him and that he had no doubt it was the same man. He said
that the man he recognized had a gun and that the other
man did not have a weapon. He said the two men approached
him, his brother, Mr. Gutierrez, and the neighbor who had
been asking about the previous robbery. He said the two
men frisked them and asked for their money. He said that
he threw his wallet and that the robbers took seven or
eight dollars. He said the man with the gun pointed it at
him while the other man went through his pockets. He said
he was fearful because “these things happen all the time.
Sometimes they take your money and they still kill you.”
He said his sister-in-law was inside the apartment, and
they told her to call the police. He identified the
defendant in the courtroom as the man who robbed him
twice.
Elpidio Torres testified that he saw the defendant
after the second robbery when he and Mr. Gutierrez were
in the parking lot of the apartment complex. He said that
he saw the defendant walk over to the park and that he
told his brother and sister-in-law that he had seen the
man who robbed him twice. He said that a friend, Nacho,
6

drove his brother and sister-in-law over to the park but
that he did not go with them. He said that he did not see
the police make an arrest and that he was not asked to
identify anyone at the time. He said he gave a statement
to the police and identified the defendant from two
photographs. He said an interpreter who worked at the
police department translated for him. He said he had no
doubt the man he identified in the photograph, the
defendant, was the man who robbed him.
On cross-examination, Elpidio Torres acknowledged he
had testified he “glanced” four times at the defendant
inside his brother’s apartment. He said he also watched
the defendant out of the corner of his eye. He said he
saw the robber face-to-face when the robber was coming in
but only saw a profile of the robber when he was picking
up their wallets. He acknowledged his sister-in-law
translated for him when the police asked him to describe
the robber after the first robbery. He acknowledged he
told his brother and sister-in-law the man who robbed
them was in the park with a cell phone and told them
where to look.
Elpidio Torres acknowledged he went with his brother
and sister-in-law to the police station to look at some
photographs on September 6, 2002. He said that he
identified the photograph of the defendant and that he
was not present when his sister-in-law viewed the
photographs and made an identification. He said his
sister-in-law had not gone over his statement with him.
He acknowledged that the day before he testified at the
trial, he told his brother and sister-in-law that the
defendant was “free” and not in jail because he had seen
the defendant walking in the hallway. He denied talking
to Mr. Gutierrez about identifying someone in court. He
acknowledged the defendant was the only black man sitting
in the courtroom where the accused normally would sit.
On re-direct examination, Elpidio Torres testified
that he met with the assistant district attorney and Ms.
Merediz, the interpreter, to discuss his testimony but
that no one else was in the room. He said he and Mr.
Gutierrez had seen the defendant in the hallway the day
before while there was a break in the trial. He said that
he recognized the defendant at the preliminary hearing
and that he identified the defendant because he
recognized the defendant as the man who robbed him and

7

not because he was the man in the photograph he was
shown.
Jose Yahir Cerda Gutierrez testified that he was
from Mexico and had lived in Memphis for three and onehalf years. He said that on August 9, 2002, he was living
in an apartment with Ms. Tirado and Jose Torres, and
Elpidio Torres was visiting. He said he went outside to
smoke and saw a black man come from behind a car. He said
that he first saw the man from about five to six meters
away and that the man told him, “Give me your money,” in
English. He said that he was bending down and that the
man pointed the gun at his head. He said he stood up, and
the man reached into his pockets and took one dollar. He
demonstrated how the man pushed him inside with the gun
pointed at him. He said the man threw him onto the floor
and asked for the other three victims’ wallets. He said
the man checked the other victims for money but only took
money and a cell phone from Elpidio Torres. He said that
he had never seen the robber before the robbery but that
he saw the robber’s face both inside and outside of the
apartment.
Mr. Gutierrez testified that he saw the robber again
when he was robbed a second time outside his apartment.
He said he, Jose Torres, Elpidio Torres, and a neighbor
were outside the apartment standing at the back of a
truck. He said that he saw the defendant and another man
come from the front of the truck and that the defendant
had a gun. He said he recognized the defendant as the
same man who had robbed him previously. He said the
defendant pointed the gun at them while the other man
checked their pockets. He said they took twenty dollars
from him and took money from two of the other victims. He
said that after they took the money, the two men walked
away behind the apartment complex.
Mr. Gutierrez testified that he saw the defendant
three or four days after the second robbery when the
defendant walked in front of the car in which Mr.
Gutierrez was riding. He said that the defendant was with
three other people and that he walked to the park near
the apartment complex. He said he was approximately five
to six meters away from the defendant and was surprised
to see him. He said that Elpidio Torres told Ms. Tirado
and Jose Torres about seeing the defendant and that he
remained at the apartment while they went to see if it
was the man who robbed them. He said he did not see the
8

police arrest the defendant and was not asked to identify
him at the apartment complex. He said that he gave a
statement to the police at the police station and that an
interpreter who worked at the office translated for him.
He said the police officers showed him a photograph
lineup with several pictures on one page and showed him
an individual photograph. He said he was able to identify
the man who robbed him because he would never forget him.
He identified the defendant at the trial as the man who
robbed him on both occasions. He said he was one “hundred
percent” sure the defendant was the man who robbed him
twice.
On cross-examination, Mr. Gutierrez testified that
he had never seen the defendant before the first robbery.
He said Elpidio Torres told Jose Torres and Ms. Tirado
that they had seen the black man who robbed them in the
park but did not say anything else to describe him. He
acknowledged he identified the defendant’s photograph on
September 6, 2002. He also acknowledged a police officer
showed him a six-photograph lineup on September 10, 2002,
at his apartment. He acknowledged he told the police
officer he was not sure if the picture he selected was
the second robber from the second robbery. He
acknowledged he identified the defendant at a previous
hearing but was unable to identify the other robber. He
said he was one-hundred percent sure the defendant was
the man who robbed him.
Memphis Police Officer Patricia Turnmire testified
that she worked for the crime-scene unit and that on
August 9, 2002, between 11:20 a.m. and noon, she went to
the Waterstone Landing Apartments to investigate a home
invasion. She said she took photographs of the scene and
fingerprinted the doorknob but found no fingerprints.
Memphis Police Sergeant Joseph Pearlman testified
that he investigated two robberies on August 9 and 30,
2002, occurring at the same location. He said Ms. Tirado
said she thought the robber lived in the apartment
complex because she thought she had seen him before. He
said he later received a telephone call from Ms. Tirado
who said she had seen the man who robbed them. He said
that he told her to watch the man until the police could
get there and that she called back to say the police had
arrested the man. He said they called the victims and
asked them to come into the robbery office to give
statements. He said that a clerk in the robbery office
9

spoke Spanish and translated for them and that the
victims were separated when they gave their statements
and made photograph identifications. He said they showed
the victims a single photograph because Ms. Tirado had
identified the defendant to the police as the man who had
robbed them. He said the photograph lineup shown to the
victims contained a photograph of Deverance Bledsoe, the
co-defendant, in the second robbery. He said the gun was
never recovered from either robbery.
On cross-examination, Sergeant Pearlman acknowledged
that he could have shown the victims a photograph lineup
with the defendant instead of a single photograph but did
not. He acknowledged he wrote in his report that Ms.
Tirado, Jose Torres, and Mr. Gutierrez identified the
defendant as the male who robbed them when the police
arrived at the park. He said that when he made the
report, he asked Ms. Tirado if the other three victims
had seen the person who was arrested and that Ms. Tirado
said they had. He acknowledged he relied on Officer
Cartwright’s report on the first robbery to make his
report. He acknowledged that he obtained a search warrant
to search the defendant’s apartment but that they did not
find any money or weapons.
Memphis Police Officer John Morris testified that on
September 2, 2002, around 4:00 p.m., he arrested the
defendant after one of the victims called the police and
reported seeing the man who robbed her. He said that he
went to the Waterstone Landing Apartments and that a park
was in the apartment complex. He said that he saw a black
male that matched the description he had received over
the radio and that he stopped the man and asked for his
identification. He said that he called Sergeant Pearlman
and that Sergeant Pearlman was talking to the victim. He
said that the victim said she could see them and that the
man they had was the person who robbed her. He said that
he arrested the man and that he did not take the man over
to the witness. He identified the defendant as the man he
arrested.
On
cross-examination,
Officer
Morris
acknowledged the defendant did not have a gun on him when
he was arrested.
Memphis Police Officer Timothy Reynolds testified
that he arrested the defendant for the second robbery at
the defendant’s apartment at Waterstone Apartments. He
said that Deverance Bledsoe was there when the defendant
was arrested but that he did not arrest Mr. Bledsoe until
10

a week or two later. Officer Reynolds acknowledged that
the defendant did not have a gun on his person and that
he did not see a gun in plain view in the defendant’s
apartment.
Jose Miguel Savin Torres testified that he was from
Baja, California, and southern Mexico and that he spoke
a little English. He said that he lived in Memphis for
approximately three and a half years and that he was
robbed twice. He said that the first robbery occurred at
his apartment on a Friday between 11:00 a.m. and noon and
that his wife, his brother, and Mr. Gutierrez were there.
He said he was in his bedroom when he saw Mr. Gutierrez
walk in with “his face of fear.” He said that a man with
a gun asked for their wallets and that he threw his
wallet on the floor. He said the robber picked it up, saw
there was no money in it, and said, “I want money.” He
said the robber took money and a cell phone from his
brother. He said he was looking at the robber the entire
time until the robber told him to lie on the floor. He
said that after the robber left, he called 9-1-1 and
said, “I need help.” He said he told the operator a man
with a gun was inside his house. He said he gave the
phone to his wife after the operator asked him a question
he did not understand.
Jose Torres testified that he saw the robber again
a week or two later when he was robbed a second time. He
said that the robbery occurred around 6:00 p.m., that he
was outside cleaning his truck, and that it was light
outside. He said he, his brother, Mr. Gutierrez, and Mr.
Villapando, were talking about the first robbery. He said
the man who robbed him came up to them carrying a gun and
told them to give him their money. He said that another
man was with the robber and that the other man checked
their pockets. He said he recognized the man with the gun
as the man who had robbed him previously. He said the
robbers took money from him.
Jose Torres testified that he again saw the man who
robbed them at the park in his apartment. He said that
his brother told him, “He’s at the park,” and that he
recognized the man from the two robberies when he saw him
in the park. He said his wife called the police on her
cell phone and gave them a description of the man. He
said he saw the police stop the man. He said that he went
to the police station with the other victims to give a
statement but that when he gave his statement only the
11

police officer and a translator were there. He said that
he spoke to the assistant district attorney the day
before he testified and that his wife translated for him
because Ms. Merediz was not there. He identified the
defendant in the courtroom as the man who robbed him
twice.
On cross-examination, Jose Torres acknowledged that
he did not see money taken from Mr. Gutierrez during the
first robbery. He said money was taken from his brother
during the first robbery. He acknowledged his brother
told him the man who robbed them was in the park and told
him how the man was dressed. He said that he saw the
police arrest the defendant and that he and his wife
drove past the defendant while he was being arrested.
Maria Conception Tirado testified that she spoke
both English and Spanish. She said that she had lived in
Memphis and that she was the victim of a robbery. She
said that Mr. Gutierrez walked into the apartment with
someone behind him and that she thought he needed someone
to translate for him. She said that when the black man
turned, she saw he had a gun pointed at Mr. Gutierrez’
ribs. She said the lighting in the apartment was clear,
the blinds were open, and the lamp was on. She said the
man told her to go into the kitchen, then called her into
the hall, pushed her into the bedroom, and told her to
lie on the floor. She said she told the man she could not
lie on the floor because she was eight and a half months
pregnant. She said that the man said, “Give me your f
money” and that he had the gun pointed at them. She said
the man took money and a cell phone from Elpidio Torres
but did not take anything from anyone else in the room.
She said the man may have taken something from Mr.
Gutierrez when they were outside. She said that before
leaving, the man said, “Count to ten, close your eyes,
and do not say anything.” She said that her husband
called 9-1-1 and that she grabbed the phone from him once
she heard the man leave the apartment. She said she was
able to see the robber when he first walked in and during
the robbery when she was two feet from him. She said that
she recognized the robber from the apartment complex and
that she told the police she had seen him around the
apartments before.
Ms. Tirado testified that two or three weeks after
the robbery, her husband, Jose Torres, ran into the
house, locked the door, and said, “They robbed us again.
12

Please call 9-1-1. It’s the same guy.” She said that two
days after her husband was robbed the second time,
Elpidio Torres told her, “The guy is in the park.” She
said her brother told her the man was wearing a brown
shirt. She said that she and her husband went to the park
in a friend’s car and that she saw a group of men. She
said that she looked at the man in the brown shirt and
that she recognized him from the first robbery. She said
she called 9-1-1 from a cell phone and gave the operator
the report number for the robbery. She said that the
police came and that she saw the police arrest the man.
She said that she also called Sergeant Pearlman and that
Sergeant Pearlman told her to give the police a sign that
they had the right man. She said she gave a sign to one
of the officers when they drove past the police car. She
said that Sergeant Pearlman asked if she was sure it was
the man and that she said she was.
Ms. Tirado testified that she gave a statement at
the police station and that she was not with the other
victims when she gave the statement. She said she did not
translate for the other victims at the police station.
She said she did translate during the week of the trial
for the assistant district attorney when he was going
over her husband’s statement with her husband. She
identified the defendant in the courtroom as the man who
robbed her. On cross-examination, Ms. Tirado testified
that she stared at the defendant for approximately five
minutes while he was in the park until she knew he was
the robber.
State v. Hughey, 2006 WL 2000734, at *1-7.
B.

Procedural History of Hughey’s § 2254 Petition

On July 29, 2010, Hughey filed his pro se Petition (ECF No.
1), accompanied by motions seeking leave to proceed in forma
pauperis (ECF No. 2), and appointment of counsel (ECF No. 3). In
an Order issued on August 16, 2010, then-United States District
Judge Bernice B. Donald granted leave to proceed in forma
pauperis. (ECF No. 4.) On October 6, 2010, Judge Donald denied
the Motion for Appointment of Counsel and directed Respondent to
13

file the state-court record and a response to the Petition. (ECF
No. 6.)19 On January 27, 2011, Respondent filed his Answer to
Petition (ECF No. 13) and the state-court record (ECF No. 14).
Petitioner did not file a Reply.
On April 29, 2013, Respondent filed a Motion for Waiver of
Local Rule 56.1(a) (ECF No. 16) and a Motion for Summary Judgment
(ECF No. 17). Petitioner has not responded to the motions. The
argument presented in the Motion for Summary Judgment is
substantially similar to that in the Answer. Respondent’s Motion,
however, does not adequately state why a summary-judgment motion
is appropriate in this case, how the Court is to apply the
summary-judgment standard if Respondent is excused from
submitting a statement of undisputed facts, nor how the summaryjudgment standard differs from the review conducted by the Court
under Rule 8(a) of the Rules Governing Section 2254 Cases in the
United States District Courts (“§ 2254 Rules”) upon receipt of
the Answer, Reply, and state-court record. Because these
procedural issues can be avoided by assessing Petitioner’s claims
under Rule 8(a), Respondent’s Motions (ECF No. 16; ECF No. 17)
are DENIED as unnecessary.
On May 24, 2013, Respondent filed a Motion to Dismiss for
Lack of Prosecution. (ECF No. 18.) Petitioner has not responded

19
The case was reassigned to United States District Judge S. Thomas
Anderson on December 29, 2011 (ECF No. 15), to United States District Judge John
T. Fowlkes, Jr. on August 3, 2012 (ECF No. 19), and to the undersigned judge on
July 23, 2013 (ECF No. 20).

14

to the Motion. The Motion states that Petitioner was released on
parole at an unspecified time and has failed to provide a
forwarding address. The TDOC website reflects that Hughey has
been released on parole, but does not provide the date of his
release. Respondent states that Petitioner’s copy of Respondent’s
Motion for Summary Judgment

was returned as undeliverable on May

1, 2013. (See ECF No. 18-1 at 1; ECF No. 18-2.)
Respondent also argues that “the petitioner has not
prosecuted his case in almost three years.” (ECF No. 18-1 at 2.)
The Section 2254 Rules do not require habeas petitioners to take
any actions beyond the filing of their petitions. The Federal
Rules of Civil Procedure and this Court’s Local Rules also do not
permit the Court to grant summary judgment because of a party’s
failure to respond. See LR 7.2(a)(2) (“Failure to respond timely
to any motion, other than one requesting dismissal of a claim or
action, may be deemed good grounds for granting the motion.”)
(emphasis added).
In the absence of any evidence that Petitioner has been
released for a lengthy period of time, the Court is unable to
conclude at this time that Petitioner has failed to prosecute the
action. Accordingly, Respondent’s Motion to Dismiss for Lack of
Prosecution (ECF No. 18) is DENIED.20

20

Notably, Respondent has not argued that the Petition is moot. A
habeas petition ordinarily is not rendered moot by the prisoner’s release. Sibron
v. New York, 392 U.S. 40, 51 (1968).

15

II.

PETITIONER’S FEDERAL HABEAS CLAIMS
In the instant Petition, Hughey raises the following issues:
1.

Whether his conviction was obtained by the
unconstitutional failure of the State to disclose
exculpatory evidence or by a “suggestive
investigation;”

2.

Whether his attorney rendered ineffective
assistance, in violation of the Sixth Amendment;

3.

Whether the prosecutor committed misconduct; and

4.

Whether his sentences are excessive.

(ECF No. 1 at 5-12, 19-29.)
III. THE LEGAL STANDARD
The statutory authority for federal courts to grant habeas
corpus relief for persons in state custody is provided by 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). A federal court may grant
habeas relief to a state prisoner “only on the ground that he is
in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
A.

Waiver and Procedural Default

Twenty-eight U.S.C. §§ 2254(b) and (c) provide that a
federal court may not grant a writ of habeas corpus on behalf of
a state prisoner unless, with certain exceptions, the prisoner
has exhausted available state remedies by presenting the same

16

claim sought to be redressed in a federal habeas court to the
state courts. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
The petitioner must “fairly present”21 each claim to all levels
of state-court review, up to and including the state’s highest
court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29
(2004), except where the state has explicitly disavowed state
supreme court review as an available state remedy, O’Sullivan v.
Boerckel, 526 U.S. 838, 847-48 (1999). Tennessee Supreme Court
Rule 39 eliminated the need to seek review in the Tennessee
Supreme Court in order to “be deemed to have exhausted all
available state remedies.” Adams v. Holland, 330 F.3d 398, 402
(6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39) (internal
quotation marks omitted); see Smith v. Morgan, 371 F. App’x 575,
579 (6th Cir. 2010) (per curiam) (stating the Adams holding
promotes comity by requiring that “state courts have the first
opportunity to review and evaluate claims that might undermine a
state criminal conviction, but also mandates that the federal
courts respect the duly-promulgated rule of the Tennessee Supreme
Court that recognizes the law and policy-making function of that
court and the court’s desire not to be entangled in the business
of simple error correction”).

21

For a claim to be exhausted, “[i]t is not enough that all
necessary to support the federal claim were before the state courts,
somewhat similar state-law claim was made.” Anderson v. Harless, 459
(1982) (per curiam) (citation omitted). Nor is it enough to make
appeal to a broad constitutional guarantee. Gray v. Netherland, 518
163 (1996).

17

the facts
or that a
U.S. 4, 6
a general
U.S. 152,

The procedural-default doctrine is ancillary to the
exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446,
452-53 (2000) (noting the interplay between the exhaustion rule
and the procedural-default doctrine). If the state court decides
a claim on an independent and adequate state ground, such as a
procedural rule prohibiting the state court from reaching the
merits of the constitutional claim, a petitioner ordinarily is
barred from seeking federal habeas review. Wainwright v. Sykes,
433 U.S. 72, 87-88 (1977); accord Coleman v. Thompson, 501 U.S.
722, 729-30 (1991) (stating a federal habeas court will not
review a claim rejected by a state court “if the decision of [the
state] court rests on a state law ground that is independent of
the federal question and adequate to support the judgment”). If a
claim has never been presented to the state courts, but a statecourt remedy is no longer available (e.g., when an applicable
statute of limitations bars a claim), the claim is technically
exhausted, but procedurally barred. Coleman, 501 U.S. at 732; see
Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004) (stating the
procedural-default doctrine prevents circumvention of the
exhaustion doctrine).
Under either scenario, a petitioner must show “cause” to
excuse his failure to present the claim fairly and “actual
prejudice” stemming from the constitutional violation or,
alternatively, that a failure to review the claim will result in

18

a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S.
298, 322 (1995); Coleman, 501 U.S. at 750. The latter showing
requires a petitioner to establish that a constitutional error
has probably resulted in the conviction of a person who is
actually innocent of the crime. Schlup, 513 U.S. at 321; see
House v. Bell, 547 U.S. 518, 536-39 (2006) (restating the ways to
overcome procedural default and further explaining the actual
innocence exception).
B.

Merits Review

Section 2254(d) establishes the standard for addressing
claims that have been adjudicated in state courts on the merits:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –
(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d)(1)-(2). The petitioner carries the burden of
proof for this “difficult to meet” and “highly deferential
[AEDPA] standard,” which “demands that state-court decisions be

19

given the benefit of the doubt.” Cullen, 131 S. Ct. at 1398
(internal quotation marks omitted).22
Review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.
Cullen, 131 S. Ct. at 1398-99. A state court’s decision is
“contrary” to federal law when it “arrives at a conclusion
opposite to that reached” by the Supreme Court on a question of
law or “decides a case differently than” the Supreme Court has
“on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000).23 An “unreasonable
application” of federal law occurs when the state court
“identifies the correct governing legal principle from” the
Supreme Court’s decisions “but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413. The
state court’s application of clearly established federal law must
be “objectively unreasonable.” Id. at 409. The writ may not issue
merely because the habeas court, in its independent judgment,
determines that the state-court decision applied clearly
established federal law erroneously or incorrectly. Renico v.
Lett, 559 U.S. 766, 773 (2010); Williams, 529 U.S. at 411.

22

The AEDPA standard creates “a substantially higher threshold” for
obtaining relief than a de novo review of whether the state court’s determination
was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
23

The “contrary to” standard does not require citation of Supreme Court
cases “so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam);
accord Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam); Treesh v.
Bagley, 612 F.3d 424, 429 (6th Cir. 2010).

20

There is little case law addressing the standard in
§ 2254(d)(2) that a decision was based on “an unreasonable
determination of facts.” However, in Wood v. Allen, 558 U.S. 290,
301 (2010), the Supreme Court stated that a state-court factual
determination is not “unreasonable” merely because the federal
habeas court would have reached a different conclusion. In Rice
v. Collins, 546 U.S. 333, 341-42 (2006), the Court explained that
“[r]easonable minds reviewing the record might disagree” about
the factual finding in question, “but on habeas review that does
not suffice to supersede the trial court’s . . .
determination.”24
“Notwithstanding the presumption of correctness, the Supreme
Court has explained that the standard of § 2254(d)(2) is
demanding but not insatiable. Accordingly, ‘[e]ven in the context
of federal habeas, deference does not imply abandonment or
abdication of judicial review.’” Harris v. Haeberlin, 526 F.3d
903, 910 (6th Cir. 2008) (quoting Miller-El v. Cockrell, 537 U.S.
322, 324, 340 (2003)) (internal quotations omitted). A statecourt adjudication on the merits and “based on a factual
determination will not be overturned on factual grounds unless

24

In Wood, the Supreme Court granted certiorari to resolve whether, to
satisfy § 2254(d)(2), a petitioner must establish only that the state-court
factual determination on which the decision was based was “unreasonable,” or
whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption
that the determination was correct with clear and convincing evidence. The Court
ultimately found it unnecessary to reach that issue. Wood, 558 U.S. at 300-03.
In Rice, the Court recognized that it is unsettled whether there are some factual
disputes where § 2254(e)(1) is inapplicable. Rice, 546 U.S. at 339.

21

objectively unreasonable in light of the evidence presented in
the state-court proceeding.” Ayers v. Hudson, 623 F.3d 301, 308
(6th Cir. 2010) (quoting Cockrell, 537 U.S. at 340) (internal
quotation marks omitted).
IV.

ANALYSIS OF PETITIONER’S CLAIMS
A.

The Alleged Brady Violation and “Suggestive
Investigation” (“Claim 1”)

In his first claim for relief, Hughey argues that his
conviction was caused by the State’s failure to disclose
exculpatory evidence or, alternatively, by a suggestive
investigation. (ECF No. 1 at 5-6, 19-21.) Specifically, Hughey
complained that the State withheld a police report about the
August 9, 2002, robbery in which the victims described their
assailant as “[d]ark complexioned, thin build, clean shaven, with
diamond stud earrings (plural).” (Id. at 19; see ECF No. 1-2 at
PageID 56.) Hughey states, “I happen to be a highly-light
complexioned African-American, stocky build, low college cut and
facial, and I’ve NEVER had a single piercing.” (ECF No. 1 at 19.)
Hughey discovered this report after he had been sentenced. (Id.)
Hughey also asserts that the victims’ identifications of him
were mistaken. He states that the victims were never required to
pick him out of a line-up and, instead, were shown only a
photograph of him. (Id.) Hughey contends that this procedure was
unduly suggestive. Hughey also asserts that the victims’ trial

22

testimony establishes that they had insufficient opportunity to
observe their assailant. (Id. at 19-20.)
In his initial post-conviction petition, Hughey raised a
Brady claim25 based on the State’s failure to produce the initial
police report.26 Hughey’s initial petition also argued that trial
counsel was ineffective in failing to investigate whether the
victims had given prior inconsistent statements.27 An amendment
to the petition filed by post-conviction counsel asserted that
trial counsel was ineffective by failing to notify Hughey of the
potentially exculpatory police report.28 After the postconviction hearings, the post-conviction court rejected the
ineffective-assistance claim on the merits.29 The post-conviction
court also summarily denied various other issues including the
Brady claim, stating that, “[a]lthough these issues were raised
in his written Petition, Mr. Hughey failed to prove any of the
issues by clear and convincing evidence.”30 Hughey’s brief to the

25

Brady v. Maryland, 373 U.S. 83 (1963).

26
Pet. for Post-Conviction Relief at 4, 11-13, Hughey v. State, Nos.
03-00283-94 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1086, 1093-95.
27

Id. at 21-23, ECF No. 14-3 at PageID 1103-05.

28

Additional Grounds to Am. & Suppl. Pet. for Post-Conviction Relief,
Hughey v. State, Nos. 03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at
PageID 1125-27.
29

Order Denying Pet. for Post-Conviction Relief at 7-8, Hughey v.
State, Nos. 03-00283-94 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1134-35.
30

Id. at 7, ECF No. 14-3 at PageID 1134.
The testimony at the post-conviction hearings does not establish that
(continued...)

23

Tennessee Court of Criminal Appeals on the post-conviction appeal
raised the issue as an ineffective-assistance claim.31 Hughey,
however, did not raise his challenge to the allegedly suggestive
police investigation before any state court.
Therefore, Hughey has failed to properly exhaust Claim 1 in
the state court and, because there is no longer any means to do
so, the issues are barred by procedural default.32 Accordingly,
the Court finds Claim 1 is without merit and is DISMISSED.

30
(...continued)
there was a Brady violation. Hughey’s trial counsel, Leslie Ballin, testified
that he had no independent recollection of whether the police report was produced
in discovery. March 30, 2009, Hr’g Tr. 8-9, Hughey v. State, Nos. 03-00283-94
(Shelby Cnty. Crim. Ct.), ECF No. 14-3 at PageID 1202-03. Ballin testified that
it was his practice to share the information obtained in discovery with the
defendants he represents. Id. Ballin concluded that “the exhibit that was just
handed to me, I have no independent recollection of. I can tell you that if it
was in the discovery pack, I had it. And if it was in the discovery pack, I would
have shared it with Mr. Hughey.” Id. at 11:15-19, ECF No. 14-3 at PageID 1205:1519. Hughey was represented by Mark Mesler at the sentencing hearing, and Hughey
testified that he obtained the police report from Mesler. Id. at 22, ECF No. 14-3
at PageID 1216. Hughey stated that he did not receive the report from Ballin. Id.
No evidence was offered regarding how Mesler obtained the report. Mesler
testified that he had access to Ballin’s file. December 17, 2008, Hr’g Tr. 35-36,
Hughey v. State, Nos. 03-00283-94 (Shelby Cnty. Crim. Ct.), ECF No. 14-3 at
PageID 1187-88.
31
See Br. of Appellant at 4, 14, Hughey v. State, C.C.A. No. W200901072-CCA-R3-PC (Tenn. Crim. App.), ECF No. 14-10 at PageID 1475, 1485.
32

The Court declines to address, sua sponte, whether Hughey might be
entitled to relief from his procedural default in light of the Supreme Court’s
decisions in Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012), and Trevino v.
Thaler, 133 S. Ct. 1911, 1921 (2013). The Court is not persuaded that Claim 1 is
a substantial claim. As previously noted, see supra n.26, there is no evidence
of a Brady violation. Moreover, in denying relief on the ineffective-assistance
claim, the Tennessee Court of Criminal Appeals adopted the post-conviction
court’s analysis that Hughey had failed to show prejudice “given the strong
identification proof that was introduced at the trial.” Hughey v. State, 2010 WL
1610581, at *5. The Tennessee Court of Criminal Appeals quoted the postconviction court’s finding that the “proof of identity was overwhelming. The
victims saw petitioner in the neighborhood on multiple occasions and called
police to the location where he was arrested.” Id. (internal quotation marks
omitted).

24

B.

Prosecutorial and Judicial Misconduct (“Claim 3”)33

In his third claim, Hughey complains of
“Prosecutorial/Magisterial Misconduct.” (ECF No. 1 at 8-10, 2327.) Specifically, Hughey complains that the prosecutor commented
on his right not to testify during voir dire (id. at 23-24),
vouched for the credibility of the victims during his closing
argument (id. at 24), and commented about other robberies of
Mexican nationals (id.).
Hughey also asserts that the trial judge exhibited bias by
allowing witnesses to testify about other robberies involving
Hispanic victims and allowed the victims to speculate about
Hughey’s state of mind. (Id. at 24-26.) Hughey also contends the
trial judge exhibited bias by refusing to let defense counsel
question the victims about their legal status in the country.
(Id. at 25-26.) Hughey contends the questions were relevant to
the victims’ prior bad acts and the answers were probative of the
victims’ truthfulness. (Id.) Finally, Hughey contends the trial
judge improperly allowed the prosecutor to comment on Hughey’s
right not to testify during voir dire and allowed the prosecutor
to make improper statements during closing arguments. (Id. at
26.)
On direct appeal, Hughey argued that the prosecutor
committed misconduct by commenting during voir dire on Hughey’s

33

In the interest of clarity, the Court will address Claims 3 and 4
before addressing Claim 2.

25

right not to testify34 and commenting during closing arguments
about other, unrelated crimes against Mexicans.35 The Tennessee
Court of Criminal Appeals denied relief on these issues, stating
as follows:
The defendant contends the trial court erred in
allowing the prosecutor to make improper comments during
voir dire and in closing arguments. The state responds
that the trial court did not err in allowing the state’s
comments during voir dire about the defendant’s right to
testify or in allowing the prosecutor’s statements in
closing argument.
A. Voir Dire
The defendant contends the trial court erred by
allowing the prosecutor to make improper comments during
the voir dire process about the defendant’s right not to
testify. He claims that any adverse comment made by the
prosecutor upon failure of the defendant to testify
constitutes a violation of the defendant’s rights. He
contends the violation is reversible error unless the
trial judge requires counsel to stop and properly
instructs the jury.
The state responds that the trial court properly
allowed the prosecutor to make comments during voir dire
that the defendant was not required to testify at the
trial. The state asserts that the defendant did not
contemporaneously object to the prosecutor’s comments and
did not ask the court for a curative instruction. The
state argues that the comment was harmless beyond a
reasonable doubt given the context in which it was made.
It asserts the prosecutor’s intent in making the
statement was to impress on the jury that if the
defendant chose to testify, his credibility should be
judged the same as any other witness. The state asserts
the defendant objected only after the prosecutor
mentioned the defendant’s right to testify three times.

34
See Br. of Def./Appellant Jermaine Hughey, at ii, 17-18, State v.
Hughey, C.C.A. No. W2004-01074-CCA-R3-CD (Tenn. Crim. App.), ECF No. 14-4 at
PageID 1237, 1260-61.
35

See id. at ii, 29-32, ECF No. 14-4 at PageID 1237, 1263-66.

26

The state asserts the trial court charged the jury before
deliberations about the defendant’s right not to testify.
During voir dire, the assistant district attorney
made the following statements regarding the defendant’s
right not to testify:
The defendant doesn’t have to prove anything.
Does everybody agree that’s fair.
. . . .
That the defendant shouldn’t have to prove
he’s innocent?
. . . .
Does that mean he can’t put on proof?
. . . .
No. He doesn’t have the burden of proof. He
doesn’t have to prove anything, but that doesn’t
mean he can’t put on proof.
. . . .
If the defense puts on proof — calls witnesses
to the stand — do you use different rules for
judging
the
witnesses’
—
their
witnesses’
credibility than you do for the State of
Tennessee’s witnesses? Do you use different rules?
No. You use the same rules for judging the
credibility of witnesses for both sides.
. . . .
The defense doesn’t have to put on any proof.
The defendant doesn’t have to testify. Judge Dailey
will tell you what you already know, I submit. Has
anybody ever heard that — the right to remain
silent?
. . . .
I submit the defendant does not have to
testify, and Judge Dailey will tell you what the
law is. If he doesn’t, you cannot hold that against
27

him because he doesn’t have the burden of proof.
That’s fair, right?
. . . .
Does that mean he can’t testify? No.
The defense attorney then asked the court for a
bench conference and objected to the “last few questions
about does it mean he doesn’t need — can’t testify —
doesn’t have to testify — tends to comment on the
shifting of the burden of proof.” The trial court told
the defense attorney, “You can certainly — if you feel as
though it’s been misstated, you can clarify when you get
up to address the jury.” The assistant district attorney
then continued in his voir dire stating that
The state has the burden of proof, and the defense
doesn’t have to put on any proof. The defendant
doesn’t have to testify. He doesn’t. You cannot
hold that against him. If he does choose to
testify, do you use different rules to judge his
credibility? No. Does he get bonus points for
taking the stand when he doesn’t have to? No. You
use the same rules for both sides.
Prosecutorial misconduct does not constitute
reversible error unless the outcome was affected to the
defendant’s prejudice. In Judge v. State, 539 S.W.2d 340,
344 (Tenn. Crim. App. 1976), this court set out the
following
considerations
for
determining
if
the
prosecutor’s conduct could have improperly prejudiced the
defendant and affected the verdict:
1. The conduct complained of viewed in context and
in light of the facts and circumstances of the
case.
2. The curative measures undertaken by the court
and the prosecution.
3. The intent of the prosecutor in making the
improper statement.
4. The cumulative effect of the improper conduct
and any other errors in the record.
5. The relative strength or weakness of the case.
28

The prosecutor’s comments during voir dire were not
improper. The prosecutor’s statements were made to
determine if the potential jurors could weigh the
credibility of the defendant’s testimony, if he
testified, in the same way it would weigh any other
witness’s credibility. Additionally, the trial court gave
the jury an instruction regarding the defendant’s right
not to testify in the jury charge. We conclude the trial
court did not err in allowing the prosecutor’s statements
during voir dire. The defendant is not entitled to relief
on this issue.
B. Closing Argument
The defendant also contends the trial court erred by
allowing the state to argue in closing that “this happens
to Mexicans all the time,” because the argument had no
legitimate purpose and could only serve to inflame the
jury. He asserts the state’s closing argument asked the
jury to consider helping Hispanic victims vindicate the
crimes committed against them. He claims that the intent
of the prosecutor was improper and that the cumulative
effect of the errors at the trial is undeniable.
The state argues that the trial court did not abuse
its discretion in overruling the defendant’s objection to
the prosecutor’s closing argument about the testimony of
Elpidio Torres. The state asserts the defendant did not
make a specific objection and did not seek a curative
instruction during the closing argument. The state
asserts the prosecutor’s sole intent in making the
statements was to remind the jury how serious Elpidio
Torres viewed the crimes committed against him and the
other victims. The state also asserts the case against
the defendant was very strong and argues that if the
prosecutor’s statements are determined to have been
improper, they did not affect the verdict to the
defendant’s detriment. The state asserts that its finding
the lesser included offenses in four of the charges
reflects that the jury was not “so inflamed” that it
spared the defendant no mercy.
During the state’s rebuttal in closing argument, the
prosecutor argued that
[The defendant’s attorney] asked, “Why are we
here?” He asked, “Why are you all here?” . . . why
29

are [the victims] here? They’re not making any
money being here either. They’re not able to work
and earn money while they’re sitting here out in
the witness room waiting day after day after day to
come in here. What do they have to gain from this?
[Elpidio Torres] told you — when [the
defendant’s attorney] asked him, “Don’t you think
this is serious?” He said, “Yes, this is serious.
This is serious because we’re seeking justice
because this happens to us all the time.”
The defendant’s attorney then said, “Object. Your
Honor.”
The
trial
court
immediately
responded,
“Overruled.” The prosecutor continued arguing that
“This happens to us Mexicans all the time.” And
they’re not just wanting to get anybody, because
they didn’t — to spite their chance. They’re
wanting to hold those responsible that are
responsible — the people — or the person in this
case — himthat [sic] they told you, without any
doubt in their mind, the guy with the gun from both
occasions.
Shortly after the defendant’s objection, the trial
court sent the jury out of the courtroom for a recess.
The trial court explained its reasoning in overruling the
defendant’s objection.
Just to elaborate a little bit on my ruling on
this last objection. I didn’t really want to
interrupt the argument as it was going on, but I
did see [the defendant’s attorney] —
So in the event [the defendant] is convicted
and this matter goes up, the reason why I thought
his argument was entirely appropriate is that in
rebuttal
or
response
what
[the
defendant’s
attorney] had argued; that “Use your common sense.
Why would anyone who lives in this apartment
complex rob someone not only once but why would
they rob them twice and then just hang out three
days later in the same apartment complex where the
victims were known to live. And I think it’s a
perfectly reasonable inference from the facts and
the testimony in the case that common sense would
suggest that the victims are Hispanic and may be
30

easy prey — whose employment status may not be
certain — who may be reluctant to report — who may
have
cash
on
Fridays;
that
under
these
circumstances, it may well make common sense. It’s
up to the jury to determine, but I think that’s an
appropriate response by the state to what was
argued by the defense.
The Tennessee Supreme Court has recognized that
“argument of counsel is a valuable privilege that should
not be unduly restricted.” Attorneys have great leeway in
arguing before a jury, and the trial court’s broad
discretion in controlling their arguments will be
reversed only upon an abuse of discretion. However,
closing argument must be “temperate, must be predicated
on evidence introduced during the trial of the case, and
must be pertinent to the issues being tried.”
The record reveals that the defense attorney argued
in his closing argument that the defendant would not have
committed a crime in the apartment complex where he lived
because he would be seen there on a regular basis. The
prosecutor repeated the testimony of Elpidio Torres that,
“This happens to us Mexicans all the time,” to rebut the
defense’s argument that common sense tells you the
defendant would not have committed the crime in his own
apartment complex. The trial court overruled the
defendant’s objection and did not give a curative
instruction during the closing argument. However, the
trial court did instruct the jury that “[s]tatements,
arguments, and remarks of counsel are intended to help
you in understanding the evidence and applying the law,
but they are not evidence. If any statements are made
that you believe are not supported by the evidence, you
should disregard them.” Additionally, taking the
statement in context with all of the proof and the
arguments, we cannot say that the statement affected the
verdict. The defendant is not entitled to relief on this
issue.
State v. Hughey, 2006 WL 2000734, at *14-17 (alterations in
original) (citations omitted).
Respondent argues that Hughey has not satisfied his burden
of demonstrating that the decisions of the Tennessee Court of

31

Criminal Appeals on these issues are contrary to, or an
unreasonable application of, clearly established federal law, or
that the decisions were based on an unreasonable factual
determination. (ECF No. 13 at 18.) Although Respondent has not
explained his position, his point is well-taken.
The legal standards applicable to a claim of prosecutorial
misconduct raised in a habeas petition are as follows:
Under the relevant Supreme Court precedent, prosecutorial
misconduct is grounds for reversal if that conduct “‘so
infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” [Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974))]. The
appropriate standard for review on a claim of
prosecutorial misconduct alleged in a petition for a writ
of habeas corpus is “the narrow one of due process, and
not the broad exercise of supervisory power.” Donnelly,
416 U.S. at 642. “We do not possess supervisory powers
over state court trials.” Byrd v. Collins, 209 F.3d 486,
529 (6th Cir. 2000) (citing Cook v. Bordenkircher, 602
F.2d 117, 119 n.5 (6th Cir. 1979), for the proposition
that “it is the responsibility of the [state courts] to
police their prosecutors; we have no such authority.”).
As we explained in Byrd:
In making this determination, we must bear in mind
that the touchstone of due process analysis . . .
is the fairness of the trial, not the culpability
of the prosecutor. Therefore, even if the
prosecutor’s conduct was undesirable or even
universally condemned, it does not constitute a due
process violation unless the conduct was ‘so
egregious so as to render the entire trial
fundamentally unfair.’ Indeed, our case law
demonstrates the extreme nature of prosecutorial
misconduct required for a federal court to issue
the writ.
[Byrd,] 209 F.3d at 529 (internal citations and quotation
marks omitted).

32

West v. Bell, 550 F.3d 542, 565 (6th Cir. 2008). In evaluating a
claim of prosecutorial misconduct, the United States Court of
Appeals for the Sixth Circuit considers the follows factors:
If this court finds improper conduct, we consider
four factors to determine whether the challenged conduct
is flagrant: (1) the likelihood that the remarks of the
prosecutor tended to mislead the jury or prejudice the
petitioner; (2) whether the remarks were isolated or
extensive; (3) whether the remarks were deliberately or
accidentally made; and (4) the total strength of the
evidence against the defendant. Finally, we assess the
prejudicial impact of constitutional error under the
“substantial and injurious effect” standard set forth in
Brecht v. Abrahamson, [507 U.S. 619 (1993)].
Moore v. Mitchell, 708 F.3d 760, 799 (6th Cir. 2013) (citation
omitted) (quoting Bates v. Bell, 402 F.3d 635, 641 (6th Cir.
2005)) (internal quotation marks omitted).
It is unclear whether Hughey contends that the decision of
the Tennessee Court of Criminal Appeals on these instances of
alleged prosecutorial misconduct was contrary to, or an
unreasonable application of, clearly established law as stated by
the Supreme Court, as required by 28 U.S.C. § 2254(d)(1), or was
based on an unreasonable factual determination, as required by 28
U.S.C. § 2254(d)(2). The decision of the Tennessee Court of
Criminal Appeals was issued on direct review and, therefore, the
standards applied therein differed from the due-process standard
articulated in Donnelly and Darden. Therefore, the decision is
properly analyzed under 28 U.S.C. § 2254(d)(2).

33

With respect to the prosecutor’s statements during voir dire
regarding a defendant’s right not to testify, Hughey has not
satisfied his burden. Hughey has not demonstrated that the
findings of the Tennessee Court of Criminal Appeals, namely that
the prosecutor’s statements were not improper and that there was
no prejudice in light of the jury instruction on a defendant’s
right not to testify, were objectively unreasonable. The comments
were made during voir dire in the context of determining whether
potential jurors “could weigh the credibility of [Hughey’s]
testimony, if he testified, in the same way it would weigh any
other witness’s credibility.” State v. Hughey, 2006 WL 2000734,
at *16. Hughey did not testify, and the prosecutor did not
comment on his decision to remain silent at trial or in closing
arguments.
Hughey also has not satisfied his burden of demonstrating
that the factual findings of the Tennessee Court of Criminal
Appeals, specifically the prosecutor’s passing statement that
“this happens to Mexicans all the time,” was objectively
unreasonable. As the Tennessee Court of Criminal Appeals noted,
it is important to consider the context in which this statement
was made. Hughey argued that it was illogical for an individual
to commit armed robberies in the apartment complex in which he
lived and where the victims were likely to recognize him. In
response, the prosecutor’s statement highlights the likelihood

34

that an armed robber might believe that Mexican immigrants were
easy targets because they were likely paid in cash and would be
reluctant to contact the police due to their legal status in the
community. State v. Hughey, 2006 WL 2000734, at *17. Viewed in
context, the prosecutor’s remark was not improper. Moreover, in
light of the strength of the prosecution’s case and the passing
nature of the remark, Hughey has not established that the
prosecutor’s remark had a substantial and injurious effect on the
jury’s verdict.
On direct appeal, Hughey raised his objections to the
testimony of a victim regarding Hughey’s state of mind during the
robbery and other robberies involving Hispanic victims;36 and
argued the trial court erred by refusing to allow the victims to
be questioned on their legal status in the country.37 The
Tennessee Court of Criminal Appeals denied relief on these
issues, stating as follows:
The defendant contends that the trial court erred in
allowing Elpidio Torres to testify about other robberies
involving Hispanic victims and to testify about the
defendant’s state of mind. The defendant also contends
the trial court erred by not allowing the defendant to
question witnesses about their status in this country.
The state asserts the trial court committed no error in
allowing the testimony of Elpidio Torres. It also asserts
the trial court properly sustained the state’s objection

36
See Br. of Def./Appellant Jermaine Hughey, at ii, 19-22, State v.
Hughey, C.C.A. No. W2004-01074-CCA-R3-CD (Tenn. Crim. App.), ECF No. 14-4 at
PageID 1237, 1262-65.
37

See id. at ii, 23-25, ECF No. 14-4 at PageID 1237, 1266-68.

35

to the defendant’s asking Elpidio Torres if he was in the
United States on a current work visa.
A. Testimony by Elpidio Torres
The defendant asserts the trial court erred in
allowing Elpidio Torres to testify that he “believe[d]
[the defendant] didn’t want us to see him” and that “I
didn’t want to look at him because I didn’t think he
wanted me to look at him,” because these statements
called for speculation. He also asserts the trial court
erred in allowing Elpidio Torres to testify that at the
time of the robbery, he was feeling “fear — what one
feels because these things happen all the time. Sometimes
they take your money and they still kill you.” He asserts
that the comments became increasingly prejudicial and
that the trial court’s allowing the statements led the
witness to believe that he was allowed to answer
questions inappropriately. He asserts that Elpidio Torres
answered in response to a question on cross-examination
that “it’s not wasting my time because this has happened
to a lot of us Mexicans/Hispanics,” and that this comment
was not appropriate or relevant and was made to inflame
the jury.
The state contends that the trial court did not err
concerning the testimony of Elpidio Torres. The state
asserts the witness testified about his own state of
mind, not the defendant’s, when he said he believed the
defendant did not want them to look at him. The state
also asserts the witness’s statement that robbers
sometimes kill victims was relevant because the witness’s
believing that made it more likely that he was placed in
fear. The state asserts that if the trial court erred in
allowing either of these two statements, the error was
harmless beyond a reasonable doubt given the weight of
the evidence. The state asserts the defendant waived the
issue regarding the statement by the witness that “this
happened to a lot of us Mexicans” for failing to object,
failing to ask for it to be stricken from the record,
failing to ask for a curative instruction, and failing to
request a mistrial.
According to Rule 401 of the Tennessee Rules of
Evidence, evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.” Relevant
36

evidence may still be excluded “if its probative value is
substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury.” Tenn. R. Evid. 403. The trial court has discretion
in determining if evidence meets the test for relevancy.
Assessing the probative value and danger of unfair
prejudice regarding the evidence also falls within the
trial court’s discretion. This court will only reverse a
trial court’s decision if the trial court abused that
discretion.
We first note that the defendant failed to take any
corrective action or to object to Elpidio Torres’
statement during cross-examination that “this happened to
a lot of us Mexicans.” Therefore, he has waived this
issue.
The defendant contests the evidence relating to
Elpidio Torres’ testimony regarding his belief that the
defendant did not want him or the other victims to look
at the defendant. The state asked Elpidio Torres how he
felt when he saw the robber with the gun, asked why he
gave the defendant his money, and asked about his ability
to see the defendant during the robbery. The victim
responded that “I believe he didn’t want us to see him”
and that “I didn’t want to look at him because I didn’t
think he wanted me to look at him.” The record reflects
the defendant’s attorney objected the first time “to what
he believes.” The trial court overruled the objection.
The record reflects the witness was explaining why he did
not want to look at the defendant and was not testifying
to the defendant’s state of mind. We conclude that the
testimony was relevant to the witness’s description of
the robbery and his ability to see the defendant and that
the trial court did not abuse its discretion in allowing
the testimony.
Next, the defendant contests the evidence relating
to Elpidio Torres’ testimony regarding robberies of other
Hispanics. In response to the prosecutor’s question,
“What were you feeling?” Elpidio Torres responded, “It
was fear — what one feels because these things happen all
the time. Sometimes they take your money and they still
kill you.” The defendant objected “to what they do other
times.” The trial court overruled the objection “to the
extent it satisfies one of the elements of the offense.”
Fear is one of the elements of aggravated robbery. Fear
may be presumed from facts indicating sufficient cause
37

for fear. The witness responded to the question by
stating he felt fear and explained why he felt the fear.
We conclude that this testimony was relevant to explain
the witness’s fear and that the trial court did not abuse
its discretion in allowing this testimony.
B. Immigrant Status of Witnesses
The defendant contends the trial court erred by not
allowing the defendant to question witnesses about their
status in this country because the question had a good
faith basis and was relevant to prior bad acts of the
witnesses. He argues that if a person is legally in the
country, it is probative of truthfulness, because if the
person is here illegally, he or she is “lying everyday.”
He asserts the trial court failed to conduct a hearing
outside the presence of the jury as required by the rule.
The state asserts that the defendant did not request
a jury-out hearing on this issue. The state argues the
witnesses’ work status in the United States was not
relevant under Rule 401 of the Tennessee Rules of
Evidence. The state asserts that because the defendant
failed to request a jury-out hearing, “neither the State
nor this Court knows” if Elpidio Torres was in the
country illegally. The state also argues that an
immigrant’s illegal work status is not probative of
truthfulness. The state compares an illegal work status
to criminal trespass, which this court has stated does
not involve dishonesty. The state asserts the defendant
failed to cite any authority in which a court has found
that a witness’s illegal status in the United States was
probative of the witness’s character for truthfulness.
The state contends that if the trial court did err, the
error was harmless beyond a reasonable doubt.
The record reflects that on cross-examination the
defendant’s attorney asked Elpidio Torres, “Are you here
on a current work visa?” The prosecutor asked to approach
the judge, and a bench conference was held.
[STATE]: Object to relevance.
[DEFENDANT]: It was made relevant by [the state]
asking if he was a citizen.

38

[STATE]: It goes to explain his language. The
purpose he’s here and whether or not he’s legal or
not is irrelevant.
[DEFENDANT]: He can explain language by asking the
question, “Do you speak English?”
[COURT]: I agree with that, and I agree that the
question regarding citizenship may not have been
relevant, but there was no objection to that, and I
don’t see any relevance to going any deeper into
it.
[DEFENDANT]: But I say it’s now become relevant
based on the direct examination —
[COURT]: Well, had there been an objection at the
time, I might have sustained it — in all likelihood
I would have sustained it; but at this point, I
just don't think it’s relevant, and I’ll sustain —
[DEFENDANT]: And I apologize if I didn’t make my
point clear. I didn’t object, and I’m not
suggesting that I’m objecting now; but because the
state put it into relevance, and that is the reason
I want to ask about his status here is because [the
state] asked, on direct, whether or not he was a
citizen of this country.
[COURT]: And he said he was not. There’s no need to
go any further.
“The propriety, scope, manner and control of the
cross-examination of witnesses . . . rests within the
sound discretion of the trial court.” State v. Dishman,
915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). Furthermore,
“a defendant’s right to confrontation does not preclude
a trial court from imposing limits upon cross-examination
which take into account such factors as harassment,
prejudice, issue confusion, witness safety, or merely
repetitive or marginally relevant interrogation.” State
v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994).
This court will not disturb the limits that a trial court
has placed upon cross-examination unless the court has
unreasonably restricted the right.
According to Rule 401 of the Tennessee Rules of
Evidence, evidence is relevant if it has “any tendency to
39

make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.” “All
relevant evidence is admissible. . . . Evidence which is
not relevant is not admissible.” See Tenn. R. Evid. 402.
Relevant evidence may still be excluded “if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury.” Tenn. R. Evid. 403. A trial court has the
discretion to determine if evidence meets the test for
relevancy.
Pursuant to Rule 608(b) of the Tennessee Rules of
Evidence, specific instances of conduct may be used to
impeach a witness during cross-examination if the conduct
is probative of the witness’s character for truthfulness
or untruthfulness. Before a witness can be questioned
about the specific instance of conduct, the trial court,
upon request, must hold a hearing to determine if “the
alleged conduct has probative value and that a reasonable
factual basis exists for the inquiry.” Tenn. R. Evid.
608(b)(1).
We first note that the defendant did not request
that the trial court conduct a hearing to determine the
probative value of Elpidio Torres’ immigration status and
that it was the defendant’s responsibility to request
such a hearing. Additionally, the defendant did not argue
that Elpidio Torres’ immigrant status was probative of
truthfulness but simply argued that it was relevant based
on the witness’s direct examination. The defendant now
argues on appeal that this evidence was relevant under
Rule 608 because it was probative of the witness’s
truthfulness. “As a general rule, a party may not
litigate an issue on one ground, abandon that ground
post-trial, and assert a new basis or ground on appeal.”
State v. Leach, 148 S.W.3d 42, 55 (Tenn. 2004). The trial
court concluded that the witness’s immigrant status in
this country was not relevant to the issues on trial. We
cannot conclude that the trial court abused its
discretion. The defendant is not entitled to relief on
this issue.
State v. Hughey, 2006 WL 2000734, at *11-14 (alterations in
original) (citations omitted).

40

Respondent argues that this aspect of Claim 3 is barred by
procedural default because “Hughey argued these claims as
violations of Tennessee state evidentiary law on appeal rather
than as issues of federal law.” (ECF No. 13 at 18.) A prisoner
exhausts a claim by “fairly present[ing]” it to the appropriate
trial and appellate courts. Baldwin, 541 U.S. at 29.
Whether a claim is fairly presented to a state court as
a federal constitutional issue is determined by the
claim’s: (1) reliance on federal cases employing
constitutional analysis; (2) reliance on state cases
employing federal constitutional analysis; (3) phrasing
in terms of constitutional law; or (4) allegations of
facts
that
are
well
within
the
mainstream
of
constitutional law.
Hruby v. Wilson, 494 F. App’x 514, 517 (6th Cir. 2012) (citing
Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003), abrogated
on other grounds by English v. Berghuis, No. 09-2632, 2013 WL
3455482 (6th Cir. July 10, 2013)). “General allegations of the
denial of rights to a ‘fair trial’ and ‘due process’ do not
‘fairly present’ claims that specific constitutional rights were
violated.” McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
In his brief to the Tennessee Court of Criminal Appeals on
direct appeal, Hughey presented his challenge to Elpidio Torres’s
testimony about other robberies involving Hispanic victims and
his state of mind as a state-law issue.38 Hughey relied on

38
See Br. of Def./Appellant Jermaine Hughey, at 19-22, State v. Hughey,
C.C.A. No. W2004-01074-CCA-R3-CD (Tenn. Crim. App.), ECF No. 14-4 at PageID 126265. Hughey’s brief erroneously refers to Elpidio Torres as “Eldido Aaron Savin.”
See id. at 19, ECF No. 14-4 at PageID 1262.

41

Tennessee Rules of Evidence 401, 402, and 403 and three Tennessee
cases interpreting those rules, namely, State v. Dulsworth, 781
S.W.2d 277, 287 (Tenn. Crim. App. 1989), perm. app. denied (Tenn.
Oct. 2, 1989); State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim.
App. 1994), perm. app. denied (Tenn. Sept. 12, 1994); and State
v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim. App. 1995), perm. app.
denied (Tenn. May 8, 1995). None of the cited state-court
decisions employed federal constitutional analysis or referred to
the denial of a specific constitutional right.
Similarly, Hughey’s direct-appeal brief relied on state
evidentiary law in support of his claim that the trial court
erred in refusing to allow him to question the victims about
their immigration status.39 Hughey cited Tennessee Rule of
Evidence 608 and State v. Morgan, 541 S.W.2d 385 (Tenn. 1976),
which addressed Rule 608, in support. Nothing in Hughey’s brief
to the Tennessee Court of Criminal Appeals would have alerted
that court that Hughey was presenting a claim of judicial
misconduct arising under the United States Constitution.
Because there is no longer any means of exhausting Hughey’s
judicial-misconduct claims in state court, the Court finds these
aspects of Claim 3 are barred by procedural default.

39

See Br. of Def./Appellant Jermaine Hughey, at 23-25, State v. Hughey,
C.C.A. No. W2004-01074-CCA-R3-CD (Tenn. Crim. App.), ECF No. 14-4 at PageID 126668.

42

For the foregoing reasons, the Court finds Claim 3 is
without merit and is, therefore, DISMISSED.
C.

Excessive Sentences (“Claim 4”)

In his fourth claim, Hughey argues that his sentences were
excessive. (ECF No. 1 at 27-29.) Hughey emphasizes that he had no
criminal history. (Id. at 27.) He also states that the imposition
of consecutive sentences violated his rights under the Sixth and
Fourteenth Amendments in light of the Supreme Court’s decisions
in Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), and the decision of the
Tennessee Supreme Court in State v. Gomez, 239 S.W.3d 733, 740
(Tenn. 2007). (ECF No. 1 at 27-28.) Hughey also challenges the
application of certain enhancement factors. (Id. at 28.) Finally,
Hughey asserts that his appellate counsel was ineffective in
failing to include the presentence report in the record on direct
appeal. (Id. at 28-29.)40
Hughey previously raised a challenge to his sentences on
direct appeal,41 and the Tennessee Court of Criminal Appeals
rejected it on the merits, stating as follows:
The defendant contends that the trial court erred in
applying enhancement factors and in ordering consecutive
sentencing. The state responds that the defendant waived
review of sentencing for failing to include in the record

40

This issue will be addressed in connection with Claim 2, infra.

41

Br. of Def./Appellant Jermaine Hughey at iii, 40-43, State v. Hughey,
C.C.A. No. W2004-01074-CCA-R3-CD (Tenn. Crim. App.), ECF No. 14-4 at PageID 1238,
1283-86.

43

a copy of the presentence report and copies of the
letters written on the defendant’s behalf. It asserts the
state made it clear it was relying on the presentence
report, referring to it five times during the sentencing
hearing. It asserts the defendant has the burden of
showing that sentencing is improper and must provide this
court with all the materials it must have to conduct a de
novo review. The state also argues the trial court
properly sentenced the defendant.
At the sentencing hearing, Memphis Police Detective
Miguel Aguila testified that in the last few years,
targeting Hispanics to be victims of crimes had become
common. He said that approximately eighty percent of the
home invasion robberies he had investigated involved
Hispanic victims. He said the language barrier created
special problems in catching and prosecuting the
suspects. He said Hispanic victims were reluctant to
report
crimes
because
they
had
difficulty
in
communicating. He said he had investigated some cases
where the victims were victimized two, three, or four
times. He said that there was “a percentage of illegal
residents” in Memphis and that they were hesitant to call
the police because they were afraid of deportation. He
said that the majority of Hispanic victims save the money
they get paid once a week and that at the end of the
month, they mail the money to their families in Mexico.
He said the members of the Hispanic community were being
targeted
because
of
their
racial
and
language
differences.
The state told the trial court it would rely on the
defendant’s presentence report and did not present any
further proof. The presentence report was not introduced
as an exhibit. The presentence report also has not been
included in the record. The defendant submitted thirteen
letters written on behalf of the defendant to the trial
court but did not enter those letters as exhibits. The
letters also have not been included in the record.
Appellate review of sentencing is de novo on the
record with a presumption that the trial court’s
determinations are correct. [Tenn. Code Ann.] § 40-35401(d) (2003).[42] As the Sentencing Commission Comments

42

The Court of Criminal Appeals stated, in a footnote, “We note that
on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections
(continued...)

44

to this section note, the burden is now on the appealing
party to show that the sentencing is improper. This means
that if the trial court followed the statutory sentencing
procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and
proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, we
may not disturb the sentence even if a different result
were preferred.
However, “the presumption of correctness which
accompanies the trial court’s action is conditioned upon
the affirmative showing in the record that the trial
court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). In this respect, for the
purpose of meaningful appellate review,
the trial court must place on the record its
reasons for arriving at the final sentencing
decision, identify the mitigating and enhancement
factors found, state the specific facts supporting
each enhancement factor found, and articulate how
the mitigating and enhancement factors have been
evaluated and balanced in determining the sentence.
[Tenn. Code Ann.] § 40-35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994). Also,
in conducting a de novo review, we must consider (1) the
evidence, if any, received at the trial and sentencing
hearing, (2) the presentence report, (3) the principles
of
sentencing
and
arguments
as
to
sentencing
alternatives, (4) the nature and characteristics of the
criminal conduct, (5) any mitigating or statutory
enhancement factors, (6) any statement that the defendant
made on his own behalf, and (7) the potential for
rehabilitation or treatment.
The sentence to be imposed by the trial court is
presumptively the minimum in the range for a Class B
felony or Class C felony unless there are enhancement
factors present. Procedurally, the trial court is to
increase the sentence within the range based upon the

42
(...continued)
40-35-102, -114, -210, and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6,
8. However, the amended code sections are inapplicable to the defendant’s
appeal.” State v. Hughey, 2006 WL 2000734, at *21 n.2.

45

existence of enhancement factors and, then, reduce the
sentence as appropriate for any mitigating factors. The
weight to be afforded an existing factor is left to the
trial court’s discretion as long as it complies with the
purposes and principles of the 1989 Sentencing Act and
its findings are adequately supported by the record.
Initially we note that the defendant has hampered
our de novo review by failing to include the presentence
report in the record on appeal. It is incumbent upon the
appellant to prepare a record that conveys a fair,
accurate, and complete account of what transpired
relative to the issues on appeal. This rule applies to
sentencing hearings. In the absence of an appropriate
record, we must presume that the trial court’s
determinations are correct.
A. Application of Enhancement and Mitigating Factors
The defendant asserts the trial court imposed an
excessive sentence because he had a minimal criminal
history. He acknowledges the trial court considered the
enhancement and mitigating factors submitted by the
parties but asserts the trial court did not apply the
sentencing principles. The defendant asserts that he had
only two prior simple possession of marijuana charges.
The defendant asserts the trial court erred in applying
enhancement factor (3), that the defendant was “a leader
in the commission of the offense involving two (2) or
more actors,” to both robberies. See [Tenn. Code Ann.]
§ 40-35-114(3). The state asserts the trial court
correctly applied the three enhancement factors.
The trial court found that the following enhancement
factors applied: (2) the defendant had a previous history
of criminal convictions or criminal behavior, (3) the
defendant was the leader in the commission of the
offense, and (23) the defendant intentionally selected
the victims in whole or in part because of the
defendant’s “belief or perception regarding the race
. . . national origin, ancestry or gender” of the
victims. See [Tenn. Code Ann.] § 40-35-114(2), (3), (23).
The trial court applied enhancement factor (2) based upon
proof that the defendant “does have a previous history of
criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range.” In
applying enhancement factor (3), the trial court found
the defendant was “obviously the one that set up the
46

robbery and targeted these victims because he was the one
who robbed them three or four weeks earlier.” In applying
enhancement factor (23), the trial court found this
factor to be the most important of all the enhancement
factors based on the testimony that had been presented at
the sentencing hearing.
The defendant presented three mitigating factors for
consideration by the trial court: (1) the defendant’s
conduct did not threaten or cause bodily injury; (6) the
defendant, because of his youth lacked substantial
judgment in committing the offense; and (13) the
defendant had a minimal criminal history. See [Tenn. Code
Ann.] § 40-35-113(1), (6), (13). The trial court rejected
all three mitigating factors. The trial court found the
defendant did not qualify as a youth because he was
twenty-one or twenty-two years old. It found that
although shots were not fired, shots were threatened, and
the victims’ lives were threatened. The trial court made
no specific finding on the minimal criminal history not
being a mitigating factor.
With regard to enhancement factor (2), that the
defendant had a history of criminal convictions or
criminal behavior, we must presume that the trial court’s
application was proper because of the absence of the
defendant’s presentence report from the record. With
regard to enhancement factor (23), that the defendant
selected the victims based on their race or national
origin, the defendant did not assert that this
enhancement factor was incorrectly applied. The state
presented evidence at the sentencing hearing about
Hispanics being the targets of robberies. The record
reflects the defendant lived in the same apartment
complex and targeted these particular victims on two
different occasions. The trial court stated that
But the obvious counter to that is he did go back
and rob the same people a second time because they
were Hispanic, because he knew or thought he knew,
he felt that they wouldn’t report it and he would
be home free because they were Hispanic.
We conclude that enhancement factor (23) was properly
applied by the trial court.
With regard to enhancement factor (3), that the
defendant was the leader in the commission of the
47

offense, the defendant contends the trial court should
not have applied this factor to the first robbery. We
agree with the defendant that this factor does not apply
to the first robbery. The trial court found that the
three enhancement factors applied and applied the three
factors to all convictions. The trial court did not
distinguish between the convictions for the first robbery
in Case No. 03-00283 and the convictions for the second
robbery in Case No. 03-00284. All four of the victims
testified that one man, the defendant, robbed them on the
first occasion. We conclude enhancement factor (3) does
not apply to Case No. 03-00283.
We conclude that the mitigating factors (1), (6),
and (13) do not apply in this case. The defendant did
threaten serious bodily injury by pointing a gun at the
victims and demanding the victims give them money,
therefore, mitigating factor (1) does not apply. With
regard to mitigating factor (6), that because of
defendant’s youth he lacked substantial judgment in
committing the offense, the record reflects the defendant
was twenty-four years old when he committed the
robberies. We have no other information regarding the
defendant’s education, experience, or mental health
because the presentence report was not included in the
record. Therefore, we must presume that the trial court’s
rejection of mitigating factor (6) was correct. With
regard to mitigating factor (13), that the defendant had
a minimal criminal history, we also must presume that the
trial court’s rejection of mitigating factor (13) was
proper because of the absence of the defendant’s
presentence report from the record.
We conclude that the trial court properly applied
the enhancement factors to the conviction arising from
the second robbery in Case No. 03-00284. However, we
conclude that the trial court improperly applied
enhancement factor (3) to the convictions arising from
the first robbery in Case No. 03-00283. We note that the
trial court stressed that enhancement factor (23) was the
most important of the three enhancement factors it
applied and that the trial court did not say how much
weight it gave to the other two factors. Because the
presentence report was not included in the record on
appeal, we are unable to conduct a full de novo review of
the sentences in Case No. 03-00283. In the absence of an
appropriate record, we must presume that the trial

48

court’s determinations are correct. The defendant is not
entitled to relief on this issue.
B. Consecutive Sentencing
The defendant acknowledges it is hard to argue that
the two cases should not run consecutively but asserts
the trial court erred in ordering the aggravated robbery
in Case No. 03-00283 of the first indictment to run
consecutively to all the other sentences. He contends
that the trial court erred in finding the defendant was
a dangerous offender whose actions indicated little or no
regard for human life and that the trial court did not
consider the fact that no shots were fired and no one was
injured. He argues that there was nothing extraordinary
about the crimes and that the defendant has no history to
lead the trial court to believe consecutive sentencing is
necessary to protect the public.
The state contends the trial court properly
sentenced the defendant. It argues that the trial court
properly found the defendant was a dangerous offender
whose behavior indicates little or no regard for human
life and that consecutive sentencing was reasonably
related to the severity of the offenses and necessary to
protect the public.
The trial court found that the two cases No. 0300283 and No. 03-00284 should be served consecutively
because the defendant was a dangerous criminal and from
a public policy standpoint the cases should be
consecutive. It stated that
[F]actoring in what I think is a clear and fair
conclusion from the facts of this case, factoring
in the fact that he targeted these people because
they were Hispanics and certainly targeted them the
second time for that reason, this makes him a
particularly dangerous offender.
. . . .
I think that makes him a particularly
dangerous offender to be of a mind-set to commit
this type of offense against these victims, same
place, same place where he lives, short period of
time. I think in my opinion makes this factor
apply.
49

And
then
the
remaining
two
factors,
consecutive sentences reasonably relate to the
severity of the offenses and are necessary in order
to protect the public from further serious conduct
by this defendant. I think they apply as well when
you read the transcript and review the facts of
this case and the unique circumstances of the
victims.
. . . If a person were allowed to commit an
aggravated robbery and then go commit another one
and commit another one and commit another one and
serve concurrent time for it all, then there would
be no deterrent at all from committing additional
offenses.
The trial court also found that the three attempted
aggravated
robbery
convictions
should
be
served
consecutively to the aggravated robbery conviction in
Case No. 03-00283. The trial court stated that
[T]he one instance in which I think should be
consecutive time is that first offense where he
confronted [the victim] on the outside smoking a
cigarette and forced him at gunpoint to go back
inside the apartment. He could have completed his
robbery then and there and left. But he elected to
force this man back into the apartment where these
many people were and continue the robbery. So I
think that that offense should be served for the
same reason as I indicated with regard to the two
sets of offenses consecutively.
The defendant acknowledges, “it is hard to argue
that separate incidents should not be sentenced in a
consecutive manner.” The defendant robbed four victims at
gunpoint and later robbed three of the same victims again
at gunpoint. During the first robbery, the defendant
forced Mr. Gutierrez inside the apartment. He told the
victims, including a pregnant woman, to lie down on the
floor and demanded their money. During the second
robbery, the defendant, along with an accomplice, walked
up to the four victims in the middle of the apartment
complex’s parking lot. The defendant pointed a gun at the
victims while his accomplice went through the victims’
pockets. The trial court noted the “brazenness” and
“arrogance” involved in robbing people living in his own
apartment complex where he knew the victims would see him
50

again. The trial court found that the defendant was a
dangerous
offender,
that
consecutive
sentencing
reasonably relates to the severity of this offense, and
that the defendant needs to be incarcerated to protect
society from his future criminal conduct. We agree. The
defendant is not entitled to relief on this issue.
State v. Hughey, 2006 WL 2000734, at *20-25

(footnote

omitted)(citations omitted).
In his brief response to the sentencing issue, Respondent
asserts that “[t]his claim is procedurally defaulted because
Hughey did not raise a Blakely challenge in either his direct or
post-conviction briefs to the Tennessee Court of Criminal
Appeals, which were both decided after Blakely was issued.” (ECF
No. 13 at 19.) Respondent is correct. Hughey’s brief to the
Tennessee Court of Criminal Appeals on direct appeal raised the
sentencing issues solely on state-law grounds. See supra p. 43
n.41. Hughey also did not raise a Sixth Amendment challenge to
his sentences in the post-conviction appeal.43 Because there is
no longer any means of exhausting this issue in state court, the
Court finds Claim 4 is barred by procedural default.
For the foregoing reasons, the Court finds Claim 4 is
without merit and is, therefore, DISMISSED.
D.

Ineffective Assistance of Counsel (Claim 2)

In his second claim, Hughey asserts that his attorneys
rendered ineffective assistance, in violation of the Sixth

43

See Br. of Appellant, Hughey v. State, C.C.A. No. W2009-01072-CCA-R3PC (Tenn. Crim. App.), ECF No. 14-10.

51

Amendment. (ECF No. 1 at 7-8, 21-23.) Specifically, Hughey
complains that Mark Mesler, the attorney who represented him at
the sentencing hearing and on direct appeal, failed to include
the presentence report in the appellate record. (Id. at 21-23.)
Hughey raised this issue in the post-conviction proceeding
and in the post-conviction appeal. The post-conviction court
denied relief, stating as follows:
An evidentiary hearing was held on December 17,
2008, and March 30, 2009. At the December 17 hearing, the
petitioner testified that he was represented by one
lawyer at trial and a different lawyer at the motion for
new trial, sentencing hearing, and on appeal because his
first lawyer was allowed to withdraw his representation.
He said that he and appellate counsel[44] got along and
that he had no concerns about how counsel handled the
sentencing hearing, except that he later wished counsel
had called some of his family members to testify on his
behalf.
On cross-examination, the petitioner acknowledged
that appellate counsel forcefully argued at the
sentencing hearing that he should receive a shorter
sentence based on the fact that no shots were fired and
his criminal history was minimal. He further acknowledged
that the trial court stated at the hearing that the most
important enhancement factor on which it was basing the
sentences was that the petitioner had intentionally
selected the victims because of their race.
Appellate counsel testified that he had been a
criminal defense attorney since August 1994 and had
handled “a great many” trials, as well as appeals, during
his career. He said that the petitioner’s family hired
him approximately two or three weeks before the
sentencing hearing because trial counsel was relieved

44

The Court of Criminal Appeals stated, in a footnote, that, “[f]or
simplicity’s sake, we have elected to refer to the lawyer who represented the
petitioner at trial as ‘trial counsel’ and to the lawyer who began his
representation with the motion for new trial as ‘appellate counsel.’” Hughey v.
State, 2010 WL 1610581, at *1 n.1.

52

from representation due to a conflict of interest that
developed after trial. Prior to the sentencing hearing,
appellate counsel reviewed the presentence report and
talked to the petitioner’s family, a number of whom
wanted to testify on the petitioner’s behalf at the
hearing. However, because he was of the opinion that none
of the family members had anything to say that would not
“have come across as angry and bitter about the verdict
in the trial,” appellate counsel advised them to write
letters of support instead.
Appellate counsel testified that he argued the
petitioner’s minimal criminal history at the sentencing
hearing, but the trial court, in sentencing, placed great
weight on the fact that the petitioner had allegedly
targeted the victims because of their race. Appellate
counsel explained that he did not have the presentence
report admitted as an exhibit to the hearing or included
in the record on appeal because he had never done so in
the forty-plus appeals he had handled prior to the
petitioner’s case, never seen it done in any other cases
he had reviewed or observed, and had always assumed that
the presentence report, which was routinely ordered by
the trial court prior to sentencing and placed in the
jacket, was automatically included in the technical
record on appeal. Consequently, he was “quite shocked”
when the direct appeal opinion was released stating that
he had failed to include the presentence report in the
record. In his opinion, the appellate court was “sort of
sidestepping the issue” because the trial court referred
exclusively to the report in its ruling and “all of the
pertinent parts of the Presentence Report were all there
in front of the [Court of Criminal Appeals] in the
transcript form.”
. . . .
On May 8, 2009, the post-conviction court entered a
detailed written order denying the petition for postconviction relief. . . . The court further found that the
petitioner had not shown that any prejudice resulted from
appellate counsel’s failure to have the presentence
report admitted as an exhibit to the sentencing hearing
or included in the record of the direct appeal.
. . . .

53

Post-conviction relief “shall be granted when the
conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.”
Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears
the burden of proving factual allegations by clear and
convincing evidence. When an evidentiary hearing is held
in the post-conviction setting, the findings of fact made
by the court are conclusive on appeal unless the evidence
preponderates against them. When reviewing factual
issues, the appellate court will not reweigh the evidence
and will instead defer to the trial court’s findings as
to the credibility of witnesses or the weight of their
testimony. However, review of a trial court’s application
of the law to the facts of the case is de novo, with no
presumption of correctness. The issue of ineffective
assistance of counsel, which presents mixed questions of
fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s
findings of fact.
To establish a claim of ineffective assistance of
counsel, the petitioner has the burden to show both that
trial counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the outcome of
the proceeding. [Strickland v. Washington, 466 U.S. 668,
687 (1984)]; see State v. Taylor, 968 S.W.2d 900, 905
(Tenn. Crim. App. 1997) (noting that same standard for
determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The
Strickland standard is a two-prong test:
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.
The deficient performance prong of the test is
satisfied by showing that “counsel’s acts or omissions
were so serious as to fall below an objective standard of
reasonableness under prevailing professional norms.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996)[]. The
54

reviewing court must indulge a strong presumption that
the conduct of counsel falls within the range of
reasonable professional assistance and may not secondguess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of
inadequate preparation. The prejudice prong of the test
is satisfied by showing a reasonable probability, i.e.,
a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
. . . .
The post-conviction court made the following
findings of fact and conclusions of law with respect to
the petitioner’s claim of ineffective assistance of
appellate counsel:
This Court finds that Petitioner has, again,
failed to show that he was prejudiced in any way by
appellate counsel’s failure to introduce into
evidence the presentence report. It is obvious that
the sentencing court and [appellate counsel]
discussed [the petitioner’s] criminal history
during the sentencing hearing. Actually, a review
of Petitioner’s criminal history contained in
Exhibit # 1 [presentence report] to this hearing
shows only one misdemeanor conviction. However, it
is clear to this Court, and [a]ppellate counsel
freely acknowledges, that the sentencing court
based its decision for the sentence on Enhancement
Factor # 23, that Petitioner targeted a certain
race of people in selecting his victims and
committing his crimes. Thus, Petitioner ha[s]
failed
to
prove
that
introduction
of
the
presentence report would have resulted in a lower
sentence. It is for this reason that this issue
must be denied.
As the post-conviction court noted, the record
establishes that the trial court based its enhanced
sentences primarily on the fact that the petitioner
targeted the victims because of their race. We,
therefore, agree with the post-conviction court that the
petitioner cannot establish that he was prejudiced by the
fact that the presentence report was not included as an

55

exhibit to the sentencing hearing or in the record of the
direct appeal.
Hughey v. State, 2010 WL 1610581, at *1-6 (footnote omitted)
(citations omitted).
A claim that ineffective assistance of counsel has deprived
a habeas petitioner of his Sixth Amendment right to counsel is
controlled by the standards stated in Strickland v. Washington,
466 U.S. 668 (1984). To demonstrate deficient performance by
counsel, a petitioner must demonstrate that “counsel’s
representation fell below an objective standard of
reasonableness.” Id. at 688. “A court considering a claim of
ineffective assistance must apply a ‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of
reasonable professional assistance. The challenger’s burden is to
show ‘that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’” Harrington v. Richter, 131 S. Ct. 770, 787
(2011) (citations omitted) (quoting Strickland, 466 U.S. at 687,
689).
To demonstrate prejudice, a prisoner must establish “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.45 “A reasonable probability is a

45

“[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant . . . .”
(continued...)

56

probability sufficient to undermine confidence in the outcome.”
Id. at 694. “It is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ Counsel’s
errors must be ‘so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.’” Richter, 131 S. Ct. at
787-88 (citations omitted) (quoting Strickland, 466 U.S. at 687,
693); see also id. at 791-72 (“In assessing prejudice under
Strickland, the question is not whether a court can be certain
counsel’s performance had no effect on the outcome or whether it
is possible a reasonable doubt might have been established if
counsel acted differently. . . . The likelihood of a different
result must be substantial, not just conceivable.” (citations
omitted)); Wong v. Belmontes, 558 U.S. at 15, 27 (2009) (per
curiam) (“But Strickland does not require the State to ‘rule out’
[a more favorable outcome] to prevail. Rather, Strickland places
the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different.”).
A criminal defendant is entitled to the effective assistance
of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396
(1985). The failure to raise a nonfrivolous issue on appeal does
not constitute per se ineffective assistance of counsel, as
“[t]his process of winnowing out weaker arguments on appeal and

45
(...continued)
Strickland, 466 U.S. at 697. If a reviewing court finds a lack of prejudice, it
need not determine whether, in fact, counsel’s performance was deficient. Id. at
697.

57

focusing on those more likely to prevail, far from being evidence
of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting
Jones v. Barnes, 463 U.S. 745, 751-52 (1983)) (internal quotation
marks omitted). Claims of ineffective assistance of appellate
counsel are evaluated using the Strickland standards. Smith v.
Robbins, 528 U.S. 259, 285-86 (2000) (applying Strickland to
claim that appellate counsel rendered ineffective assistance by
failing to file a merits brief). Thus, to establish that
appellate counsel was ineffective, a prisoner
must first show that his counsel was objectively
unreasonable in failing to find arguable issues to appeal
— that is, that counsel unreasonably failed to discover
nonfrivolous issues and to file a merits brief raising
them. If [the prisoner] succeeds in such a showing, he
then has the burden of demonstrating prejudice. That is,
he must show a reasonable probability that, but for his
counsel’s unreasonable failure to file a merits brief, he
would have prevailed on his appeal.
Smith v. Robbins, 528 U.S. at 285 (citations omitted).46
46
The Sixth Circuit has stated a nonexclusive list of factors to
consider when assessing claims of ineffective assistance of appellate counsel:

1.

Were the omitted issues “significant and obvious?”

2.

Was there arguably contrary authority on the omitted issues?

3.

Were the omitted issues clearly stronger than those presented?

4.

Were the omitted issues objected to at trial?

5.

Were the trial court’s rulings subject to deference on appeal?

6.

Did appellate counsel testify in a collateral proceeding as to
his appeal strategy and, if so, were the justifications
reasonable?

7.

What was the appellate counsel’s level of experience and
(continued...)

58

“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial, and so the Strickland standard
must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve.
Even under de novo review, the standard for judging
counsel’s representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to
“second-guess counsel’s assistance after conviction or
adverse sentence.” The question is whether an attorney’s
representation amounted to incompetence under “prevailing
professional norms,” not whether it deviated from best
practices or most common custom.
Richter, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at 68990).
When an ineffective-assistance claim is reviewed under
§ 2254(d), the review is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009).

46

(...continued)
expertise?

8.

Did the petitioner and appellate counsel meet and go over
possible issues?

9.

Is there evidence that counsel reviewed all the facts?

10.

Were the omitted issues dealt with in other assignments of
error?

11.

Was the decision to omit an issue an unreasonable one which
only an incompetent attorney would adopt?

Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir. 2006) (quoting Mapes v. Coyle,
171 F.3d 408, 427-28 (6th Cir. 1999)) (internal quotation marks omitted).

59

Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both “highly deferential,” and when the two
apply in tandem, review is “doubly” so. The Strickland
standard is a general one, so the range of reasonable
applications is substantial. 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.
Richter, 131 S. Ct. at 788 (citations omitted).
Hughey’s Petition does not state whether he contends that
the decision of the Tennessee Court of Criminal Appeals on this
issue was contrary to, or an unreasonable application of,
Strickland v. Washington, or whether it was based on an
unreasonable factual determination. The decision was a run-ofthe-mill case applying the correct legal standard from Strickland
to the facts of Hughey’s case and, therefore, the “contrary to”
clause is inapplicable.
Hughey also cannot satisfy his burden of demonstrating that
the state-court decision was an unreasonable application of
Strickland or was based on an objectively unreasonable factual
determination. A copy of the presentence report was included in
the record of the post-conviction appeal. (See ECF No. 14-3 at
PageID 1141-49.) The presentence report reflects that Hughey had
a previous conviction, obtained on September 12, 2001, for
marijuana possession, where he was sentenced to two days in jail

60

and received a $250 fine. (Id. at PageID 1145.) The presentence
report also indicates a previous adult charge for marijuana
possession was dismissed on May 21, 1988. (Id.) Hughey also had
two juvenile charges for theft of property and malicious
mischief, both of which were adjusted nonjudicially. (Id. at
1146.)
At the sentencing hearing, defense counsel made the
sentencing judge aware of the nature of Hughey’s prior record.47
The State also spent little time on Hughey’s prior record,
referring generally to the presentence report and stating that
Hughey also admitted using marijuana in the past.48 The State
accurately stated that Hughey “does have numerous run-ins with
the law, whether they were adjudicated nonjudically, whether he
successfully completed a diversion program, or whether as Mr.
Mesler put it he only paid a fine.”49 The prosecutor admitted
that Hughey was a Range I offender “because of the offenses Mr.
Mesler said were minimal. That’s why they’re enhancement factors.
He does have a criminal history in addition to that necessary to
make him a Range One offender.”50

47

February 24, 2004, Sentencing Hr’g Tr. at 27, State v. Hughey, No.
03-00283-84 (Shelby Cnty. Crim. Ct.), ECF No. 14-2 at PageID 1028.
48

Id. at 20-21, ECF No. 14-2 at PageID 1021-22.

49

Id. at 34:10-13, ECF No. 14-2 at PageID 1035:10-13.

50

Id. at 34:14-17, ECF No. 14-2 at PageID 1035:14-17.

61

The sentencing court’s findings make clear that, in finding
that Hughey had a criminal record or a record of criminal
behavior, it was aware of the nature and seriousness of that
record:
Well, to address the enhancement factors, first, he
does have a previous history of criminal convictions or
criminal behavior in addition to those necessary to
establish the appropriate range. If he were one of these
multiple offenders, major violators that Mr. Mesler
alluded to in his argument that are tried often in this
court, he wouldn’t be in Range One. I mean, that’s why
you have the different ranges. And so if he had a lengthy
record, then he would be Range Two, Range Three, Career
Criminal or whatever. The fact that he is Range One is
what it is. You don’t have to have any prior felony
convictions to be Range One. Therefore, any criminal
convictions or behavior would satisfy this factor. And so
it is satisfied.
And these four offenses for which he has been found
guilty, adjudicated twice as a juvenile and then twice as
an adult, it’s not four felony offenses but then again he
is Range One. If they had been four felony offenses, he
would have been a different range. So within the context
of Range One this is satisfied. I’m satisfied.51
The trial court then went on to discuss the other enhancement
factors and stated that the most important factor was that Hughey
selected his victims on the basis of their ethnicity.52 The trial
court also concluded that Hughey was a “particularly dangerous
offender” because he targeted his victim on the basis of their
ethnicity and because of the “brazenness” and “arrogance” of the

51

Id. at 35:15-36:8, ECF No. 14-2 at PageID 1036:15-1037:8.

52

Id. at 36-38, ECF No. 14-2 at PageID 1037-39.

62

manner in which he committed the crimes in the apartment complex
where he lived.53
These facts were in the record before the Court of Criminal
Appeals, which stated only that it must presume that the trial
court’s application of the enhancement factor was correct. State
v. Hughey, 2006 WL 2000734, at *22. Hughey has not satisfied his
burden of establishing that, if only the presentence report were
in the record on direct appeal, there is a reasonable probability
that the outcome of his direct appeal would have been different.
The sentencing judge does not appear to have made a factual
mistake, and Hughey has identified no legal error in his
application of this sentencing factor. Therefore, the Court finds
Hughey has not demonstrated that the opinion of the Tennessee
Court of Criminal Appeals on the post-conviction appeal was an
unreasonable application of Strickland or that it was based on an
unreasonable factual determination.
Accordingly, the Court finds the second issue is without
merit and is, therefore, DISMISSED.
Because every claim asserted by Petitioner is without merit,
the Court DENIES the petition pursuant to 28 U.S.C. § 2254. The
petition is, therefore, DISMISSED WITH PREJUDICE. Judgment shall
be entered for Respondent.

53

Id. at 40, ECF No. 14-2 at PageID 1041.

63

V.

APPEAL ISSUES
There is no absolute entitlement to appeal a district

court’s denial of a § 2254 petition. Miller-El v. Cockrell, 537
U.S. 322, 335 (2003); accord Bradley v. Birkett, 156 F. App’x
771, 772 (6th Cir. 2005) (per curiam). The Court must issue or
deny a certificate of appealability (“COA”) when it enters a
final order adverse to a § 2254 petitioner. Rule 11, Rules
Governing Section 2254 Cases in the U.S. District Courts (Ҥ 2254
Rules”). A petitioner may not take an appeal unless a circuit or
district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App.
P. 22(b)(1).
A COA may issue only if the petitioner has made a
substantial showing of the denial of a constitutional right, and
the COA must indicate the specific issue or issues that satisfy
the required showing. 28 U.S.C. § 2253(c)(2)-(3). A “substantial
showing” is made when the petitioner demonstrates that
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (internal
quotation marks omitted). A COA does not require a showing that
the appeal will succeed. Id. at 337; Caldwell v. Lewis, 414 F.

64

App’x 809, 814-15 (6th Cir. 2011). Courts should not issue a COA
as a matter of course. Bradley, 156 F. App’x at 773.
In the instant case, there can be no question that
Petitioner’s claims are meritless for the reasons previously
stated. Because any appeal by Petitioner on the issues raised in
this Petition does not deserve attention, the Court DENIES a
certificate of appealability.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure
provides that a party seeking pauper status on appeal must first
file a motion in the district court, along with a supporting
affidavit. However, if the district court certifies that an
appeal would not be taken in good faith, or otherwise denies
leave to appeal in forma pauperis, the prisoner must file his
motion to proceed in forma pauperis in the appellate court. See
Fed. R. App. P. 24(a)(4)-(5). In the instant case, for the same
reasons the Court denies a certificate of appealability, the
Court determines that any appeal would not be taken in good
faith.

65

It is therefore CERTIFIED, pursuant to Federal Rule of
Appellate Procedure 24(a), that any appeal in this matter would
not be taken in good faith. Leave to appeal in forma pauperis is,
therefore, DENIED.54
IT IS SO ORDERED, this 30th day of September, 2013.

/s/ Jon P. McCalla
UNITED STATES DISTRICT JUDGE

54

If Petitioner files a notice of appeal, he must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the United States Court of Appeals for the Sixth Circuit within
thirty (30) days of the date of entry of this Order. See Fed. R. App. P.
24(a)(5).

66