ALETA A. TRAUGER, District Judge.
The petitioner, Oscar Franklin "Frank" Smith, was convicted and sentenced to death for the murder of his estranged wife and two stepsons, based on evidence including the following:
Smith v. Bell, 381 F. App'x 547, 548 (6th Cir. 2010), cert. granted, judgment vacated sub nom. Smith v. Colson, 566 U.S. 901 (2012). The petitioner originally sought habeas corpus relief pursuant to 28 U.S.C. § 2254 on August 5, 1999. (DE #1.) The court held an evidentiary hearing on November 24, 2003, on the petitioner's claims that trial counsel was ineffective at the guilt phase of trial in connection with their investigation of the victims' time of death, the bloody hand print on the sheet, and a knife found under the victims' home.
The court will deny petitioner's request for an evidentiary hearing and dismiss this matter for the reasons set forth below. It is unnecessary at this stage for the court to repeat its lengthy description of the evidence and legal analysis set forth in its previous memorandum opinion (DE #201), but it does reference and rely on that analysis as necessary below.
Ordinarily, when a habeas petitioner has failed to fully exhaust a claim in state court and is now unable to do so because of a statute of limitations or other state procedural rule, the claim is considered to be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). Except in cases where the petitioner can establish that he is actually innocent, federal habeas review of the merits of defaulted claims is prohibited unless the petitioner demonstrates cause for, and prejudice from, his default. Alley v. Bell, 307 F.3d 380, 386 (6th Cir. 2002). At the time the court denied this petition in 2005, "the law [was] firmly settled that ineffective assistance of counsel in state post-conviction proceedings can never establish cause, because there is no constitutional right to effective assistance of counsel in such collateral proceedings in the first place." (DE #201, at 41-42 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), Coleman, 501 U.S. at 742-53, and Ritchie v. Eberhart, 11 F.3d 587, 590 (6th Cir. 1993)).) This court applied that rule in holding that several of the petitioner's claims were procedurally defaulted and not subject to review on habeas corpus. (DE #201.)
Several years after that decision, the Supreme Court held in Martinez that, in certain circumstances, "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial," and the Sixth Circuit has held that this Martinez exception applies in Tennessee. Martinez, 566 U.S. at 9; Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014). To overcome default under Martinez, a petitioner must show that post-conviction counsel was ineffective during the "initial-review collateral proceeding," Martinez, 566 U.S. at 16, and that the underlying ineffective-assistance-of-trial-counsel [IATC] claim is a "substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 14.
The Sixth Circuit has provided the following framework to evaluate claims under Martinez:
Atkins v. Holloway, 792 F.3d 654, 660 (6th Cir. 2015) (some internal citations omitted).
Whether post-conviction counsel was constitutionally ineffective is necessarily connected to the strength of the claim he failed to raise, so "in many habeas cases seeking to overcome procedural default under Martinez, it will be more efficient for the reviewing court to consider in the first instance whether the alleged underlying ineffective assistance of counsel was `substantial' enough to satisfy the `actual prejudice' prong of Coleman." Thorne v. Hollway, No. 3:14-CV-0695, 2014 WL 4411680, at *23 (M.D. Tenn. Sept. 8, 2014), aff'd sub nom. Thorne v. Lester, 641 F. App'x 541 (6th Cir. 2016).
All federal ineffective-assistance claims are subject to the highly deferential two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether counsel was deficient in representing the defendant; and (2) whether counsel's alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To satisfy the first prong, a petitioner must establish that his attorney's representation "fell below an objective standard of reasonableness," and must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action `might be considered sound trial strategy.'" Id. at 688, 689. The "prejudice" component of the claim "focuses on the question of whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The prejudice prong, under Strickland, requires showing that "there is 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
The respondent insists that the restrictions on the presentation of new evidence during federal habeas proceedings in § 2254(e)(2)
For Martinez to have any meaning at all, a petitioner seeking to pursue a defaulted IATC claim must be able to present a federal court with evidence of his post-conviction counsel's ineffectiveness and of the substantial nature of his underlying claim — evidence that, by the very nature of the circumstances, was never presented in state court. Such new evidence goes to the issue of cause and prejudice to overcome the default, and "[w]hen a petitioner asks for an evidentiary hearing on cause and prejudice, neither section 2254(e)(2) nor the standard of cause and prejudice that it replaced apply." Henry v. Warden, Georgia Diagnostic Prison, 750 F.3d 1226, 1231-32 (11th Cir. 2014); accord, e.g., Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir. 2002) ("We conclude that the plain meaning of § 2254(e)(2)'s introductory language does not preclude federal hearings on excuses for procedural default at the state level, and therefore the District Court did not err in conducting such a hearing in Cristin's case."); Mitchell v. Hill, No. CIV 06-844-BR, 2009 WL 2949330, at *3 (D. Or. Sept. 9, 2009) ("Generally, 28 U.S.C. § 2254(e)(2) limits a habeas petitioner's ability to expand the record to the same extent that it limits the availability of an evidentiary hearing. Holland v. Jackson, 542 U.S. 649, 652 (2004). However, § 2254(e)(2) does not apply to expansion of the record to overcome a procedural default. Buckman v. Hall, 2009 WL 204403 *1 (D.Or. 2009) (citations omitted). In such a case, Rule 7 grants the district court discretion to expand the record. Vasquez v. Hillery, 474 U.S. 254, 258 (1986)."). The petitioner's assertion that he can overcome default pursuant to Martinez is simply not a "claim" to which § 2254(e)(2) would apply. Rather, it is a procedural matter in which the court has the discretion to determine whether and to what extent to hear new evidence. See Segundo v. Davis, 831 F.3d 345, 351 (2016) (holding that the district court did not abuse its discretion in denying a hearing to determine whether claim satisfied Martinez because the record contained sufficient facts to make that determination).
None of the cases on which the respondent relies convinces the court otherwise. The Fifth Circuit in Newbury v. Stephens, 756 F.3d 850 (5th Cir. 2014), observed that the respondent in that case raised § 2254(e)(2) as a bar to the petitioner's new evidence, but it did not reach that issue. Instead, the Fifth Circuit found that the district court had properly rejected the petitioner's claim even after thorough review of the petitioner's newly presented evidence. Id. at 874 ("Because the district court addressed the merits of Newbury's IATC claim, including the evidence presented for the first time in federal court, it is not arguable but that Newbury has already received all of the relief available to him under the authority of Martinez and Trevino. Considering all of Newbury's evidence, including that presented for the first time in federal court, reasonable jurists would not debate the district court's decision that Newbury's IATC claim lacks merit."). The Tenth Circuit did not even mention § 2254(e) in Carter v. Bigelow, 787 F.3d 1269 (10th Cir. 2015). It held that Cullen v. Pinholster, 563 U.S. 170 (2011), prevented it from considering new evidence on the petitioner's claim that counsel was ineffective with regard to mitigation evidence and noted that Martinez did not apply, because the claim was not defaulted but had been rejected on its merits in state court. Carter, 787 F.3d at 1290 n.19. Similarly, in an unreported case on which the respondent relies, the District Court for the Northern District of Ohio held that Martinez did not entitle the petitioner to further develop the record in a case where the underlying claim was exhausted and rejected on the merits in state court and was not an IATC claim. Hill v. Anderson, No. 4:96 CV 00795, 2012 WL 2826973 (N.D. Ohio July 10, 2012). Thus none of these cases supports the respondent's argument that § 2254(e) prohibits new evidence in support of an asserted right to review of a defaulted claim pursuant to Martinez.
Of the four cases the respondent cites, only the unreported decision by the District of South Carolina in Fielder v. Stevenson, No. 2:12-cv-00412, 2013 WL 593657 (D. S.C. Feb. 14, 2013), actually held that § 2254(e) limits the admission of new evidence in the context of a Martinez analysis. But even Fielder said that the bar on new evidence applies only to evidence about the underlying claim, and not to evidence that would establish cause and prejudice under Martinez. Fielder at *3 ("[C]ourts have held that § 2254(e)(2) does not similarly constrain the court's discretion to expand the record to establish cause and prejudice to excuse a petitioner's procedural defaults. In such cases, the court retains its discretion to expand the record to allow a petitioner to establish cause and prejudice to excuse a petitioner's procedural defaults.") (citations omitted). But some evidence about the merit of the underlying IATC claim is necessarily relevant to the Martinez analysis itself, which requires a petitioner to demonstrate that the claim is substantial, "which is to say that the prisoner must demonstrate that the claim has some merit," Martinez, 566 U.S. at 14; Carpenter v. Davis, No. 3:02-CV-1145-B-BK, 2017 WL 2021415, at *3 (N.D. Tex. May 12, 2017) ("The evidence required to show . . . that the claim of ineffective assistance of trial counsel is substantial and, therefore, comes within the exception to procedural bar created in Martinez, will likely be much of the same evidence needed to prove the merits of the underlying claim."). And again, because the very nature of a claim subject to Martinez analysis is that it was never presented in state court, the Martinez exception would be a farce if a petitioner could succeed in establishing cause and prejudice to overcome the default of a substantial claim but then be barred from proving the claim. Accordingly, to the extent that the petitioner offers new evidence in connection with his never-before-raised IATC claims, the court properly considers that evidence.
The respondent is correct, however, with regard to claims that were raised in state court, which petitioner essentially seeks to have this court rehear with new evidence. When the court authorized the petitioner to conduct discovery in this case more than two years ago, it commented on a lack of clarity in the case law about whether the Martinez exception is limited to claims that were never heard at all in state court, as was the case in Martinez, or is broad enough to encompass claims that were raised but then (allegedly) ineffectively prosecuted by post-conviction counsel. (DE #250, at 4-7.) Accordingly, it withheld judgment on that issue and permitted the petitioner to conduct the requested discovery but cautioned that "the court may ultimately agree with the respondent that [such claims] are not subject to reconsideration on the basis of Martinez." (Id. at 7.) Today it does so agree, after review of the parties' briefs and of the current state of the pertinent case law. A federal habeas court's review of "any claim that was adjudicated on the merits in State court proceedings" is limited to the evidence presented in the state proceeding, 28 U.S.C. § 2254(d); Pinholster, 563 U.S. at 181-82, and the Martinez exception to enable review of procedurally defaulted claims simply does not apply in such circumstances.
There are decisions still standing even within this circuit to the contrary, see Haight v. White, No. 3:02-CV-P206-S, 2013 WL 5146200, at *8 (W.D. Ky. Sept. 12, 2013) ("Martinez is clear that errors by post-conviction attorneys in collateral proceedings that rise to the level of ineffective assistance of counsel may be sufficient to establish cause for a procedural default of an ineffective assistance of trial counsel claim. That is so whether the post-conviction attorney entirely failed to raise the claim or raised the claim, but did so in a manner that was insufficient to meet prevailing professional standards."), but the court is convinced that the weight of authority, particularly in the Sixth Circuit, is that Martinez does not apply to claims that were raised and reviewed on their merits in state court. To his credit, the petitioner concedes that Martinez review of such claims is foreclosed in this circuit, citing Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013), but asserts that Moore was wrongly decided and that the court should nevertheless apply Martinez to allow new evidence and further consideration of the IATC claims he alleges post-conviction counsel presented ineffectively. (DE #297, at 30-31.) The relevant portions of Moore are as follows:
Id. at 778, 779, 785 (citations omitted). As a case in which the petitioner's IATC claim was heard on direct appeal and a post-conviction hearing was denied, Moore presented a slightly different circumstance than this case, but it still stands for the proposition that, once a state court has heard a claim, no matter how undeveloped it was, Martinez does not apply.
The Sixth Circuit's more recent decision in West v. Carpenter, 790 F.3d 693 (6th Cir. 2015), is more similar to the facts of this case. Stephen Michael West, another Tennessee death row inmate, sought reconsideration of a previously rejected IATC claim pursuant to Martinez and asserted that his post-conviction counsel had been ineffective in handling the claim:
Id. at 698-99. West does not cite or discuss Moore, but it reaches the same conclusion — that Martinez does not apply where a claim was raised in state court — this time in a case where the claim was raised at post-conviction.
In West, the allegedly deficient performance by post-conviction counsel concerned his legal argument, but this court is persuaded that the prohibition against using Martinez to simply relitigate or reinforce a claim that was rejected in state court applies equally where post-conviction counsel failed to submit evidence. In Escamilla v. Stephens, 749 F.3d 380 (5th Cir. 2014), a capital habeas petitioner argued that the federal court should consider his new evidence in support of a claim that trial counsel failed to investigate and present mitigating evidence pursuant to Martinez, because "evidentiary shortcomings" in the state court record were caused by ineffective assistance by his state habeas counsel. Id. at 394. State habeas counsel had presented evidence, which the sentencing jury never heard, of the petitioner's troubled and abusive childhood, the negative role models in his family, and his substance abuse problems, but the state court held that he had not established deficient performance or prejudice and rejected the claim on its merits. Id. at 385-86, 391. At federal habeas, the petitioner submitted additional evidence of abuse within his family, his extended family's criminal history, and affidavits from two of the jurors who sentenced him and "argued that under Martinez, he [was] entitled to present and have a court consider the evidence submitted to the federal habeas court which was not before the state habeas court due to state habeas counsel's failures." Id. at 385. The Fifth Circuit rejected that argument:
Id. at 394-95 (internal citations omitted). More recently, the District Court of South Dakota reached the same conclusion under similar circumstances:
Rhines v. Young, No. 5:00-CV-05020-KES, 2016 WL 614665, at *8 (D.S.D. Feb. 16, 2016); see also Henderson v. Carpenter, 21 F.Supp.3d 927, 933 (W.D. Tenn. 2014) (holding that "Martinez does not allow Petitioner to circumvent Pinholster and allow consideration of evidence that was not developed and presented in the state courts," despite the petitioner's argument that it was "`irrational' to distinguish failing to properly assert a federal claim and failing to properly develop the claim in state court").
Accordingly, the court will not reconsider pursuant to Martinez any claims that were adjudicated on the merits in state court or consider any new evidence offered in support of them.
The petitioner groups his claims for Martinez relief into four categories of related claims from his Amended Petition, which is how the court will address them.
In Claim 8b4b of his Amended Petition, the petitioner claimed that trial counsel were ineffective for failing to investigate and present evidence that there were lights on at the victims' home when police arrived around 11:30 p.m. after the 911 call, but the lights were off when the bodies were found the next afternoon, which he said proves that the victims were still alive after the police were there. (DE #18, at 5.) In Claims 8b4c and 8c11, the petitioner alleged that trial counsel were ineffective for failing to investigate and present proof that the police heard no noise from the house shortly after the 911 call, but a hair dryer was running in the house when the bodies were discovered the next afternoon, which he said also proves that the victims were still alive the morning after the 911 call. (DE #18, at 5, 7-11.) The petitioner raised these same claims at post-conviction, and this court previously addressed their merits as exhausted claims and found that the state court's rejection of them was not unreasonable. (DE #14, Add. 12, Vol. 1, Verified Amended Petition For Post Conviction Relief at 7-8; DE #201, at 23 n.8, 24 n.10, 76-80.) Martinez does not provide any basis to reconsider these exhausted claims, for the reasons explained in section II.B, above.
In Claims 8b4a and 8c10, the petitioner asserted that an alarm clock that was set for 5 a.m. but was not ringing when the bodies were found indicates that the victims were killed sometime after 5 that morning, rather than the previous night, and that trial counsel were ineffective for failing to investigate and present that evidence. (DE #18, at 5.) The court previously determined that these claims were defaulted by not being raised in state court. (DE #201, at 23, 24, 77 n.37.) However, these claims go to the petitioner's overarching argument that counsel should have challenged the prosecution's theory of the time of the victims' death, which was litigated at post-conviction in the context of the claims about the lights and the hair dryer discussed above, and about which this court has already held a full evidentiary hearing. As the court previously held, the petitioner cannot establish that he was prejudiced by counsel's failure to challenge the time of death, because his own expert medical examiner agreed with the trial testimony of the prosecution's medical examiner to the effect that the condition of the bodies was consistent with death occurring at 11:30 the night of October 1. (DE #201, at 77-78.) Moreover, defense counsel testified at this court's hearing to the effect that he made a strategic decision not to contest the time of death because the defense team believed they could not overcome the persuasiveness of the 911 tape on that point and thought pursuing an alibi defense was the better course. (See DE #201, at 112-113.) This court determined that no prejudice arose from that concession: "[G]iven the impact of the 911 tape, the court concludes that most reasonable jurors would have perceived a challenge to the time of death . . . unpersuasive. . . . From the foregoing, and the record as a whole, the court concludes that, although the defense might have investigated/challenged the prosecution's theory as to the time of death, the petitioner has not demonstrated that he was prejudiced by defense counsels' tactical decision not to do so." (DE #201, at 114.) That conclusion applies equally to the alarm clock claim. Accordingly, the petitioner's underlying claim is without merit and does not warrant further analysis pursuant to Martinez.
The petitioner alleged in Claim 8b4d that trial counsel were ineffective for failing to investigate and present evidence that the victims' back door was closed when the police were at the house at 11:30 the night of the 911 call but ajar when the bodies were found the next day, which he said indicates that they were not killed until the morning after the 911 call. (DE #18, at 5-6.) The court has previously determined that this claim was defaulted by never being raised in state court (DE #201, at 23, 24, 77 n.37), but it is subject to the same analysis and conclusion set forth above regarding the alarm clock claim. The claim does not merit further review pursuant to Martinez.
In Claim 8c1, the petitioner alleged that counsel was ineffective for failing to investigate and present evidence of fingerprints not identified as his own that were found at the crime scene. (DE #18, at 6.) The court found in its 2005 ruling that this claim had not been raised in state court and was procedurally defaulted. (DE #201, at 23-24, 79 n.38.) The petitioner now argues that, if counsel had conducted a thorough investigation of the latent print evidence at the crime scene, they could have demonstrated that the prosecution's fingerprint witness, Johnny Hunter, was unreliable and could have shown that the presence of prints that were not his own "show[ed] someone else's guilt." (DE #297, at 12-17.) The court has reviewed the petitioner's new evidence — the fingerprint analysis report of Kathleen Bright-Birnbaum — and disagrees with the petitioner's conclusions.
Sergeant Johnny Hunter testified at trial that only one print found at the crime scene was identified as the petitioner's: the bloody handprint on the sheet near Judy Smith's body. (DE #12, Add. 1, Bk. 6 of 9, Vol. XIV, pp. 2009-2010, 2023.) He explained that the print bore 15 points of identification, compared to the minimum 8 points required by the FBI, and that there was "no doubt" that the print belonged to the petitioner. (Id., pp. 2016-2018.) Hunter said that all the other prints found in the home either matched the victims (which he testified would be expected, "because anytime you have a crime scene you're going to have fingerprints on that crime scene of the victim"), were insufficient for comparison, or did not match any known individual. (Id., pp. 1993, 2021-2024.) Bright-Birnbaum disagrees with Hunter's conclusions about several of those prints. She says that two prints identified as those of one resident victim were actually made by another resident victim and that several of the prints Hunter found insufficient for comparison were actually identifiable but did not match any known individual. (DE #297-1.) She also identified two additional prints left by resident victims and several prints of the officers who investigated the crime scene. (Id.) But establishing that the victims and others were in their own home at some point does nothing to show someone else's guilt, as the petitioner suggests, so none of the disagreements between Bright-Birnbaum and Hunter about the latent fingerprint evidence would have had any impact on the outcome of the petitioner's case. Carter v. City of Detroit, No. 11-15322, 2016 WL 319514, at *4 (E.D. Mich. Jan. 27, 2016), aff'd, 678 F. App'x 290 (6th Cir. 2017) (because unidentified prints do not preclude a defendant's presence at the same location, such evidence "is not exculpatory because it cannot be said that such evidence is inconsistent with the prosecution's case or [that it] tends to support the defendant's case").
The only print that was material to the petitioner's conviction was his bloody handprint on the sheet,
The petitioner alleged in Claim 8c5 that trial counsel were ineffective for failing to investigate and present evidence about unidentified foot prints and shoe prints on the ground outside the victims' house. (DE #18, at 7.) The court previously found this claim was not raised in state court and was therefore procedurally defaulted. (DE #201, at 23-24, 79 n.38.) Although the petitioner lists Claim 8c5 several times among the claims for which he seeks Martinez review (DE #297, at 10, 24, 25), he does not discuss the foot/shoe prints anywhere in his brief or submit any evidence that would establish that the underlying claim is substantial or that post-conviction counsel performed deficiently by not raising it. The petitioner has failed to establish that this claim warrants further review.
In Claim 8c6, the petitioner alleged that a broken knife found under the house after the murders would have created reasonable doubt about his guilt and that counsel was ineffective for failing to investigate and present evidence about the knife at trial. (DE #18, at 7.) This claim was exhausted and rejected by the TCCA in post-conviction proceedings in state court. Smith v. State, No. 01C01-9702-CR-00048, 1998 WL 345353, at *21-22 (Tenn. Crim. App. June 30, 1998.) Moreover, the court has already held a hearing and permitted the petitioner to offer new evidence pertaining to this claim, reached its own conclusion based on all of the evidence that the claim failed on its merits, and ruled that the TCCA's rejection of the claim was not unreasonable. (DE #201, at 80, 118-20.) Martinez does not authorize any reconsideration of this claim.
The petitioner alleged in Claim 8e3 that counsel were ineffective for failing to secure the services of a criminologist to develop evidence for use in cross-examining Sergeant Johnny Hunter about the omission from a crime scene drawing of a telephone that was off the hook in the victims' house.
The petitioner alleged in Claims 8a2 and 8a3 that trial counsel was ineffective for failing to investigate and present evidence that "a Black male was the perpetrator" and that "the murders were drug-related and/or motivated by robbery." (DE #18, at 3-4.) He relies on two pieces of evidence in support of these claims. First, he cites a police report indicating that a witness reported seeing a black male run from the victims' front yard to a nearby corner, where he stopped as if he was waiting for a bus, and that the same witness had seen the same man catch the bus at that corner about two weeks earlier. (DE #297-16.) Second, he cites a second police report about a statement from a confidential informant that Judy Smith had recently stolen a car from a black male known as "Dead Leg," with whom Smith allegedly "had some type drug dealings or association" and who had been looking for her home, but that the informant did not know whether Dead Leg had ever found her home. (DE #297-17.)
The petitioner has not submitted any proof that further investigation of either of these facts would have led to additional exculpatory facts that could have been admitted at either trial or post-conviction, or any evidence about whether trial counsel or post-conviction counsel conducted that investigation, or why they omitted these facts from their presentations in state court. The petitioner has the burden of demonstrating that his counsels' actions were not the product of informed strategy. Strickland, 466 U.S. at 688-89. He has not carried that burden, nor has he submitted anything to indicate that he would be able to do so at a hearing.
Moreover, even if the court assumed deficient performance by counsel, neither of these new facts themselves would make a different outcome a reasonable likelihood in the petitioner's case. A victim's alleged dispute with another man, her alleged association with drugs, and a man's apparent dash to catch a bus simply do not compare to the enormous weight of the evidence against the petitioner, including: his threats to kill the victims and attempt to hire their murder; his bloody palm print next to one of the bodies; the 911 call in which a victim is heard in the background pleading with the petitioner by name; and strong circumstantial evidence that a leatherworking awl found at the scene and likely used in the murders belonged to him. See State v. Smith, 868 S.W.2d 561, 565-67 (Tenn. 1993). The petitioner cannot demonstrate any prejudice arising from his counsel's alleged ineffectiveness in Claims 8a2 and 8a3, so these claims do not merit further review pursuant to Martinez.
In Claims 8k1-4 of his Amended Petition, the petitioner alleged that trial counsel was ineffective for failing to object to the trial court's guilt-phase jury instructions regarding the credibility of witnesses (8k1), the definitions of premeditation and deliberation (8k2), the evaluation of expert witnesses (8k3), and reasonable doubt (8k4). In claim 12c, he alleged that trial counsel was ineffective for failing to object to the sentencing-phase jury instructions regarding the "heinous, atrocious, or cruel" aggravating circumstance (12c1), the effect of mitigating evidence (12c2), the felony-murder aggravating circumstance (12c3), reasonable doubt (12c4), expert witnesses (12c5), the credibility of witnesses (12c6), the burden of proof to show mitigating circumstances (12c7), and the requirement of a unanimous verdict (12c8). (DE #18, at 11, 21.)
The court is perplexed by the petitioner's blanket assertion that "[t]hese particular ineffectiveness claims now raised in these proceedings are subject to Martinez, as they were never raised by post-conviction counsel." (DE #297, at 26.) With the apparent exception of Claim 12c2, the court's 2005 memorandum opinion found most of these claims to be exhausted and addressed and rejected the merits, even of those it found to be defaulted. (DE #201, at 89-107.) Those determinations, therefore, do not require reconsideration pursuant to Martinez.
The court did previously conclude that Claim 12c2, that counsel failed to object to an erroneous instruction about the effect of mitigation evidence, had not been raised in state court and was therefore procedurally defaulted. (DE #201, at 28.) The petitioner did not expressly include that instruction on his list of instructions to which he claimed at post-conviction that trial counsel was ineffective for failing to object. (DE #14, Add. 12, Vol. 1, Verified Amended Petition at 9-10.) But he did allege that the trial court violated his federal constitutional rights by giving the instruction at issue (id., Verified Amended Petition at 13), and the TCCA expressly considered counsel's effectiveness in connection with this instruction as well as others:
Smith v. State, No. 01C01-9702-CR-00048, 1998 WL 345353, at *26 (Tenn. Crim. App. June 30, 1998) (emphasis added; internal citations omitted).
Moreover, the petitioner's claim fails even under a de novo review. By the time of the court's previous ruling, it was clear that the petitioner's position was that the instruction in question was objectionable because it only allowed consideration of mental or emotional disturbance as a mitigating factor if it was "extreme." (DE #201, at 28.) The trial court instructions to the jury prior to its sentencing deliberations included the following:
(DE #14, Add. 13, Ex. 13, Tr. at 3266, 3279-80.)
The United States Supreme Court has rejected the claim that reference to a statutory mitigating factor for extreme mental or emotion disturbance precludes consideration of lesser degrees of disturbance:
Blystone v. Pennsylvania, 494 U.S. 299, 308 (1990). As in Blystone, the instructions in this case made clear that the statutory mitigating factor of extreme disturbance was just one of a non-exclusive list of potential factors and that the jury was free to consider any other mitigating fact that appeared from the record. Because this claim clearly fails on its merits, no further consideration of the Martinez factors is required.
Petitioner asserted in Claim 12a of his Amended Petition that trial counsel were ineffective at sentencing "[f]or failing to fully investigate and present evidence of Oscar Smith's mental health, including full exposition of available mitigating evidence and mental health problems in his family," including five specific examples of actual or potential mental health problems experienced by the petitioner, his father, his brother and his son. (DE #18, at 20-21.)
In his Verified Amended Petition for Post Conviction Relief filed through counsel on May 1, 1996, in the Criminal Court for Davidson County, the petitioner asserted that counsel had been ineffective at sentencing for failing to "seek a mitigation specialist. . . to present to the jury all necessary mitigation evidence" (Claim II.C), failing to "properly investigate [his] background in order to find all appropriate mitigation evidence" (Claim II.D), and failing to "introduce all appropriate mitigating evidence necessary for the jury in rendering its decision in this case" (Claim II.E). (DE #14, Add. 12, Vol. 1, Verified Amended Petition at 10.) After a lengthy evidentiary hearing, the post-conviction trial court denied relief on the merits of that claim:
(DE #14, Add. 12, Vol. 1, Order at 11.) The petitioner appealed the denial of post-conviction relief but did not challenge the ruling on the IATC-mitigation claim. (DE #14, Add. 14, Vol. 2, Brief and Argument of Appellant). Accordingly, this court dismissed Claim 12a as procedurally defaulted. (DE #201, at 28, 37, 42-43.)
Because this claim was defaulted on post-conviction appeal, rather than as the result of ineffective assistance at the initial-review stage of post-conviction proceedings, Martinez does not authorize any reconsideration of it. West v. Carpenter, 790 F.3d 693, 698-99 (6th Cir. 2015.) Relying on Ninth Circuit precedent, the petitioner argues that Claim 12a is actually a new claim that was never raised in state court "[a]s [it] is currently presented." (DE #297, at 29-30.) But it is in fact the same claim litigated at the post-conviction hearing — that trial counsel ineffectively failed to investigate and present available mitigation evidence — with new facts raised in support of it. Like Pinholster, West, Escamilla and Rhines — and unlike Martinez — the petitioner had his day in court on this claim. As the Sixth Circuit instructed in West, even if the failure to assert these particular facts on that day resulted in the rejection of a potentially meritorious claim for reasons "traceable directly to counsel's deficient advocacy," that deficiency did not cause the default of the claim in order to trigger Martinez's application. West, 790 F.3d at 698-99. The default occurred when the petitioner failed to appeal the rejection of his claim, which is a stage of proceedings to which Martinez does not apply: "The holding in this case does not concern attorney errors in other kinds of proceedings,
As discussed above, it is clear from the evidence in the record that all of the claims raised in the petitioner's brief (DE #297) are either too lacking in merit to warrant relief pursuant to Martinez or are not subject to Martinez review at all. The petitioner clearly felt free to submit new evidence in the form of exhibits to his brief (DE ## 297-1-297-29), which the court has considered except as otherwise noted above. Because the petitioner has not identified any additional evidence that could only be developed at a hearing, the court finds that no such hearing is required to resolve this matter. See Segundo v. Davis, 831 F.3d 345, 351 (2016) (holding that the district court did not abuse its discretion in denying a hearing to determine whether claim satisfied Martinez because the record contained sufficient facts to make that determination). The court will deny the requested relief and dismiss this action.
