ALETA A. TRAUGER, District Judge.
The petitioner, an inmate at Trousdale Turner Correctional Center in Hartsville, Tennessee, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) The respondent has filed the transcript of the state court record (Doc. No. 10) and an answer to the petition, in which he argues that the petition should be denied. (Doc. No. 11.) The petitioner has filed a motion to proceed on claims (Doc. No. 12), which the court construes as a motion to amend the petition. He has also filed a motion for a hearing and to appoint counsel for that hearing (Doc. No. 13), as well as a reply to the respondent's answer. (Doc. No. 14).
For the reasons given below, and by order entered contemporaneously with this memorandum, the court will grant the motion to amend the petition, deny the petition as amended, and deny as moot the motion for hearing.
The respondent's answer contains the following summary of the procedural history leading to the timely filing of the habeas petition in this court:
(Doc. No. 11 at 2-3.)
The respondent asserts that the petitioner "did not file a second post-conviction petition upon conclusion of the direct appeal" from the dismissal of his premature July 8, 2016 petition. However, in his reply to the respondent's answer, the petitioner asserts that he did file "a second post-conviction that was denied on June 23, 2017," and that he attempted to notice an appeal from that denial, "to no avail." (Doc. No. 14 at 2.) He attaches to his reply the June 23, 2017 order of the Davidson County Criminal Court. (Id. at 4-13.) This order bears the case number corresponding to the petitioner's conviction for tampering with evidence (2012-B-1770), is denominated "Second Post-Conviction" (id. at 4), and disposes of the second petition on grounds that "[t]he Post-Conviction Procedure Act authorizes only one post-conviction petition per judgment." (Id. at 9.) The Davidson County Criminal Court nonetheless considered the three claims of the petition (id. at 8), all of which relate to the petitioner's conviction for selling cocaine in a drug-free school zone, and are repeated in his habeas corpus petition before this court. While neither this order nor the petitioner's second post-conviction petition was included in the respondent's production of the record of state court proceedings, it appears to this court that the second petition was either mislabeled by the petitioner as corresponding to case number 2012-B-1770, or misconstrued as such by the state court.
The respondent acknowledges that the habeas petition was timely filed in this court, that it is the first federal habeas petition pertaining to these convictions, and that it does not contain any unexhausted claims. (Doc. No. 11 at 2, 4.)
The following summary of the facts is taken from the TCCA's opinion affirming the petitioner's conviction on retrial of the drug charges, State v. Johnson, No. M2015-01160-CCA-R3-CD, 2016 WL 3435589 (Tenn. Crim. App. June 15, 2016), app. denied (Tenn. Oct. 19, 2016).
State v. Johnson, 2016 WL 3435589, at *1-3.
The petition in this case (Doc. No. 1), as amended (Doc. No. 12), presents the following three grounds for relief from the judgment of conviction in case number 2014-B-1187,
(1) Trial counsel was constitutionally ineffective for failing to file a motion to dismiss the indictment, which (a) was defective under Blockburger v. United States, 284 U.S. 299 (1932), because it charged the petitioner with a single offense that violated two state statutes which have different elements and/or prescribe different punishments, and (b) failed to give adequate notice of the charges against the petitioner under Hamling v. United States, 418 U.S. 87 (1974);
(2) Trial counsel was ineffective for failing to ensure that the petitioner understood Tenn. Code Ann. § 39-17-432 (which enhanced his sentence based on proximity of the drug sale to a school), and for failing to object to that statute being introduced to the jury, including by improper jury instruction; and
(3) Trial counsel was ineffective for failing to challenge the use in case number 2014-B-1187 of the evidence (cocaine) which had earlier been introduced as evidence in case number 2012-B-1770.
The petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. "AEDPA requires heightened respect for state court factual and legal determinations." Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). Under its "highly deferential standard . . . state-court decisions [must] be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005); see also Hardy v. Cross, 565 U.S. 65, 66 (2011); Felkner v. Jackson, 562 U.S. 594, 597 (2011). The AEDPA standard is difficult to meet "because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102 (2011); see, e.g., Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The statute enforces the principle that "habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington, 563 U.S. at 102-03.
AEDPA also imposes a total exhaustion requirement, contained in 28 U.S.C. § 2254(b) and (c), which directs that "[a]n application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State" or such remedies are no longer available. Rhines v. Weber, 544 U.S. 269, 274 (2005). With certain limited exceptions, to properly exhaust a claim under AEDPA, the petitioner must have raised the same claim on the same grounds before the state courts. Pinholster, 563 U.S. at 182; Kelly v. Lazaroff, 846 F.3d 819, 828 (6th Cir. 2017) (quoting Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009)) (petitioner must present the "same claim under the same theory" to the state court). "Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Lyons v. Stovall, 188 F.3d 327, 331 (6th Cir. 1999). In Tennessee courts, a petitioner has exhausted all available state remedies when the TCCA has denied a claim of error. Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003) (citing Tenn. Sup. Ct. R. 39).
"[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman v. Thompson, 501 U.S. 722, 732 (1991). If the claims can no longer be considered by the state court because they are procedurally barred under state law, they are considered defaulted for purposes of federal review. A petitioner must "demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim." Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
The respondent argues that the petitioner has exhausted his state court remedies only by procedural default, as he failed to file a second post-conviction petition after his direct appeal concluded. The petitioner has rebutted that argument with proof that he filed a second post-conviction petition on June 7, 2017, which was either misidentified or misconstrued as a second petition in the case which had already been determined at the post-conviction trial and appellate levels. The record before the court (which does not include the second post-conviction petition) does not definitively establish that this second filing was an attempt to properly exhaust the petitioner's state post-conviction remedies related to case number 2014-B-1187, but the court finds it reasonable to conclude that it was.
With the case in this procedural posture, the court will examine the merits of the petition before it. If the claims of the habeas petition lack merit, the court can adjudicate them on that basis regardless of whether they were procedurally defaulted. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). "The U.S. Supreme Court has held that federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits." Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).
As further explained below, the court finds no merit in the petitioner's claims that his trial counsel was ineffective.
The petitioner claims that his trial counsel was ineffective in failing to challenge the indictment in case number 2014-B-1187, his drug conviction. Citing Blockburger v. United States, 284 U.S. 299 (1932), and Hamling v. United States, 418 U.S. 87 (1974), the petitioner claims that the indictment was defective because it charged him with violating two state statutes, Tenn. Code Ann. §§ 39-17-417 and 39-17-432, which have different elements and/or prescribe different punishments, and because it failed to give adequate notice of the charges against him. (Doc. No. 1 at 5; Doc. No. 12 at 2.)
The U.S. Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test to evaluate whether counsel has been constitutionally ineffective. A petitioner must prove (1) that counsel's performance fell below an objective standard of reasonableness and (2) that, but for counsel's deficient representation, "the result of the proceeding would have been different." Strickland, 466 U.S. at 688-89, 694. The Strickland standard sets a high bar that is not easily surmounted by habeas petitioners. Padilla v. Kentucky, 559 U.S. 356, 371 (2010). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (quoting Strickland, 466 U.S. at 690). Ultimately, "[t]he determinative issue is not whether petitioner's counsel was ineffective but whether he was so thoroughly ineffective that defeat was `snatched from the jaws of victory.'" West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (quoting U.S. v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992)).
Here, the petitioner cannot establish his trial counsel's deficiency in failing to challenge the indictment or prejudice resulting therefrom, because he has not identified any grounds for finding the indictment defective. The language of an indictment must give adequate notice of the charges against the criminal defendant. Hamling, 418 U.S. at 117. However, "[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself," as long as those words unambiguously "set forth all the elements necessary to constitute the offence intended to be punished." Id. (quoting United States v. Carll, 105 U.S. 611, 612 (1882)). The indictment in the petitioner's case charged that,
(Doc. No. 10-12 at 4.) This language tracks the language of § 39-17-417(a)(3) and (c)(2)(A), which makes it a crime to "sell a controlled substance . . . including cocaine . . . in an amount of less than point five (0.5) grams," and of § 39-17-432(b)(1), which enhances the penalty for any such sale "that occurs on the grounds or facilities of any school or within one thousand feet (1,000#) of the real property that comprises a public or private elementary school, middle school, secondary school" or other drug-free zones. The court finds that the petitioner's indictment provided adequate notice of his charges under Hamling. See also State v. Braxton, No. M2010-01998-CCA-R3-CD, 2011 WL 5573357, at *4 (Tenn. Crim. App. Nov. 15, 2011), perm. app. denied (Tenn. Apr. 12, 2012), a case involving an indictment nearly identical to the one at issue here, where the court found that the criminal defendant "was given clear notice that he was charged with committing drug offenses within a school zone," and that "[t]he failure to reference [§] 39-17-432 does not render the indictment invalid[.]"
The failure of the indictment to reference § 39-17-432 also does not invalidate it under the U.S. Supreme Court's decision in Blockburger. That case enforced the principle that if the law prohibits two individual acts, "then each act is punishable separately" and separate indictments lie; but, if the law prohibits "the course of action which [the individual acts] constitute . . . there can be but one penalty" imposed. Blockburger, 284 U.S. at 301. Despite the petitioner's claim that his indictment charged "two different punishment[s]" and that the statutes have different elements (Doc. No. 1 at 5), Tennessee courts have held that
State v. Tate, No. E2014-01191-CCA-R3-CD, 2015 WL 2400718, at *6 (Tenn. Crim. App. May 20, 2015).
Selling drugs in a drug-free school zone is thus a single offense under Tennessee law, and Blockburger does not require separate indictments in such cases. Even if this court were to determine that the state courts interpreted and applied these state statutes improperly, the writ of habeas corpus may not issue where the underlying claim is based on such issues of state law. King v. Raney, No. 3:03-0572, 2007 WL 2471678, at *8 (M.D. Tenn. Aug. 27, 2007); see also Washington v. State of Tenn., No. 3:17-cv-00263, 2017 WL 6554890, at *16 (M.D. Tenn. Dec. 22, 2017) ("An indictment which fairly but imperfectly informs the accused of the offense for which he is to be tried does not give rise to a constitutional issue cognizable in habeas proceedings.") (quoting Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986)).
Accordingly, the petitioner's trial counsel was not ineffective in failing to seek dismissal of the indictment on these grounds.
The petitioner claims in his original petition that his trial counsel was ineffective in failing to ensure that he understood the application of § 39-17-432 to his case. (Doc. No. 1 at 6.) His amended petition does not include this claim, but focuses on the allegedly improper mention of the statutory enhancement before the jury. (Doc. No. 12 at 2-3.)
Even if, in the course of mounting two defenses to this drug charge, the petitioner was not made to understand the consequences of the drug transaction occurring within a drug-free school zone, the statute itself "provides ample notice to would-be offenders of their potential criminal liabilities." Osborne v. Brandon, No. 3:05-0500, 2005 WL 3263360, at *6 (M.D. Tenn. Dec. 1, 2005). In any event, the petitioner does not allege grounds for believing that the outcome of the trial would have been different had he fully understood the sentence enhancement he faced. Strickland, 466 U.S. at 694. He does not allege that he rejected a plea offer based on this misunderstanding, see Sawaf v. U.S., 570 F. App'x 544, 547 (6th Cir. 2014), or that he would have testified in his own defense
In his original and amended petitions, the petitioner claims that trial counsel was ineffective in failing to object to the language of § 39-17-432 being introduced before the jury, asserting that the jury was "contaminated by the use of T.C.A. § 39-17-432 in violation of the 6th and 14th Amendment to the United States Constitution." (Doc. No. 12 at 2-3.) Alternatively, he claims that counsel was ineffective in failing to question the jurors regarding whether they could fairly determine his innocence or guilt in light of that statute's application. (Id.)
"The Sixth and Fourteenth Amendments guarantee a criminal defendant's right to a fair and impartial jury." Hanna v. Ishee, 694 F.3d 596, 616 (6th Cir. 2012) (citing Morgan v. Illinois, 504 U.S. 719, 729 (1992)). However, the petitioner cannot demonstrate that the jury's impartiality was threatened by the references to the statutory enhancement at issue here. Indeed, the location of the drug offense within a drug-free school zone was charged in the indictment (Doc. No. 10-12 at 4), and was therefore necessarily presented in the jury charge (id. at 16-17), the verdict form (id. at 50-51), and otherwise before the jury. Cf. State v. Fields, 40 S.W.3d 435, 439-40 (Tenn. 2001) (finding enhancement not properly applied at sentencing where indictment did not contain reference to drug sale occurring in drug-free school zone). While the petitioner is correct that the enhancement only applies if there is a conviction for the sale of drugs, there is no support for his inference that the sale must be determined without mention of the enhancement. Because the jury instruction correctly followed the language of the indictment, the petitioner "cannot prove that his counsel was deficient for failing to ask for a different one, or that he was prejudiced." Davidson v. Lindamood, No. 1:14-cv-00161, 2018 WL 2192110, at *2 (M.D. Tenn. May 14, 2018) (overruling petitioner's objection to jury instruction that only required finding that drug sale occurred within 1,000 feet of daycare facility, without specific mens rea) (citing Strickland, 466 U.S. at 694). No right to habeas relief can be claimed from counsel's failure to object to the presentation of this enhancement factor to the jury.
Finally, the petitioner's claim that counsel was ineffective in failing to question the jurors (presumably in voir dire) about their ability to fairly decide the case in view of the enhancement falls short of the standard for claiming entitlement to habeas relief. It is only when "counsel perform[ed] so deficiently during the jury selection process . . . as to deny [the petitioner] his Sixth Amendment right to an impartial jury" that habeas relief may be warranted on the basis of ineffective assistance of counsel during voir dire. Hanna, 694 F.3d at 616 (citing Holder v. Palmer, 588 F.3d 328, 338 (6th Cir. 2009)). "An attorney's actions during voir dire are considered to be matters of trial strategy. . . . A strategic decision cannot be the basis for a claim of ineffective assistance unless counsel's decision is shown to be so ill-chosen that it permeates the entire trial with obvious unfairness." Holder, 588 F.3d at 338 (quoting Hughes v. U.S., 258 F.3d 453, 457 (6th Cir. 2001)). Although the transcript of the selection of the petitioner's jury does not appear to be included in the record of proceedings produced by the respondent, the petitioner's allegation concerning counsel's questioning of the jury does not come close to meeting this standard. Even if he had sufficiently alleged counsel's deficient performance, he has not alleged grounds for finding that any or all of his jurors were therefore prejudiced against him. Hanna, 694 F.3d at 617 (finding no prejudice resulting from ineffective voir dire because "Petitioner cannot show . . . that the juror harbored any actual bias"). No habeas relief is warranted on this claim.
Lastly, the petitioner claims that his trial counsel was ineffective for failing to challenge the use in case number 2014-B-1187 of the physical evidence (cocaine) that had earlier been introduced as proof of tampering in case number 2012-B-1770 (Doc. No. 1 at 8), which subjected him to "multiple punishment for the same offense." (Doc. No. 12 at 3.)
In light of the foregoing, the court finds that the instant petition for writ of habeas corpus (Doc. No. 1), as amended (Doc. No. 12), lacks merit. The court will therefore
An appropriate order will enter.
