PAMELA L. REEVES, District Judge.
Tray Turner ("Petitioner"), an inmate at the Turney Center Industrial Complex, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement pursuant to a 2010 judgment issued by the Knox County Criminal Court [Doc. 1]. Respondent filed a response in opposition thereto [Doc. 8], as well as a copy of the state record. Petitioner then filed a reply to Respondent's response [Doc. 15]. Petitioner has also filed a motion for hearing [Doc. 31]. For the reasons set forth below, the Court determines that no evidentiary hearing is warranted in this case, Petitioner's § 2254 petition [Doc. 1] will be
In 2010, after a jury trial, Petitioner was convicted of one count of aggravated robbery and one count of resisting arrest, and was sentenced to 14 years in prison [State Court Record, Attachment 1 p. 31-32]. The judgment was affirmed on direct appeal by the Tennessee Court of Criminal Appeals ("TCCA"), and the Tennessee Supreme Court ("TSC") denied permission to appeal. State v. Tray Turner, No. E2010-2540-CCA-R3-CD, 2012 WL 1077153 (Tenn. Crim. App. Mar. 30, 2012), perm. app. denied (Tenn. Aug. 16, 2012).
On August 16, 2013, Petitioner filed his pro se petition for post-conviction relief, pursuant to Tennessee Code Annotated § 40-30-101, et seq., in the Knox County Criminal Court [State Court Record, Attachment 10 p. 416-75]. He was thereafter appointed counsel, and the petition was amended [Id. at 485]. The Knox County Criminal Court denied the amended petition on March 10, 2014 [Id. at 495]. The TCCA subsequently affirmed this denial on November 24, 2014. Tray D. Turner v. State, No. E2014-00666-CCA-R3-PC, 2014 WL 665766 (Tenn. Crim. App. Nov. 24, 2014), perm. app. denied (Tenn. Feb. 12, 2015).
However, on November 3, 2014, Petitioner filed a motion to remove counsel and to withdraw the brief submitted by his counsel [Doc. 15-2 p. 1-3]. On December 8, 2014, Petitioner filed a pro se petition to rehear, after the TCCA affirmed the denial of post-conviction relief [See Doc. 33-1]. Then, on December 30, 2014, the TCCA reviewed Petitioner's "petition to rehear, which . . . include[d] a request for leave to file a pro se appellant's brief in lieu of the brief previously filed by counsel," and ordered that "the court will further consider the petition to rehear" upon Petitioner's filing of a pro se appellate brief within 25 days [Doc. 15-2 p. 7]. But, on February 19, 2015, the TCCA vacated its previous order and denied the petition to rehear, as the TCCA was previously unaware that on December 3, 2014, "[P]etitioner's counsel had filed a Tennessee Rule of Appellate Procedure 11 application for discretionary appeal with the [TSC]" [Doc. 33-1]. The TCCA held that "[t]he previous filing of the Rule 11 application terminates this court's role in the case" [Id.]. Then, the TSC denied Petitioner's Rule 11 application on February 12, 2015. Tray D. Turner v. State, No. E2014-00666-CCA-R3-PC, 2014 WL 665766 (Tenn. Crim. App. Nov. 24, 2014), perm. app. denied (Tenn. Feb. 12, 2015).
On March 6, 2015, Petitioner filed the instant petition for a writ of habeas corpus in this Court [Doc. 1]. Respondent—Warden Debra Johnson—thereafter filed an answer to the petition, arguing that Petitioner's claims were all procedurally defaulted or without merit [Doc. 8]. Petitioner then filed a reply to Respondent's response [Doc. 15]. This matter is now ripe for the Court's review.
The following factual background is taken from the TCCA's opinion on Petitioner's appeal of the denial of his petition for post-conviction relief:
Turner, 2014 WL 6657566, at *2-5.
The Court must review Petitioner's request for habeas corpus relief pursuant to the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which allows state prisoners to seek federal habeas corpus relief on the ground that they are being held in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254; Reed v. Farley, 512 U.S. 339, 347 (1994).
For any claims that have been adjudicated on the merits by the state court, however, federal courts must utilize a "highly deferential" standard of review. See, e.g., Harrington v. Richter, 562 U.S. 86, 88-89 (2011). Under the AEDPA, a court considering a habeas claim must defer to any decision by a state court concerning the claim, unless the state court's judgment "(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).
"Clearly established federal law," for the purposes of § 2254(d)(1), refers to rulings of the United States Supreme Court in place at the time of "the last state-court adjudication on the merits." Greene v. Fisher, 565 U.S. 34, 40 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (defining clearly established federal law as "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision"). A decision is "contrary to" clearly established federal law if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state-court decision unreasonably applies clearly established federal law if "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.
The standards set forth in the AEDPA are "intentionally difficult to meet." Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)); see also Harrington, 562 U.S. at 102 ("If [§ 2254(d)] is difficult to meet, that is because it was meant to be."). Further, where findings of fact are supported by the record, they are entitled to a presumption of correctness which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ultimately, the AEDPA's highly deferential standard requires this Court to give the rulings of the state courts "the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
In his § 2254 habeas petition, Petitioner generally alleges that he received ineffective assistance of counsel, without setting forth specific claims for relief [Doc. 1]. Respondent has correctly detailed Petitioner's argument into specific claims for relief, claiming some of which Petitioner has procedurally defaulted [Doc. 8 p. 10-11]. The Court has also reviewed Petitioner's habeas petition, and did not uncover any additional claims. Also, in his reply to Respondent's response, Petitioner failed to challenge Respondent's depiction of his claims [Doc. 15]. Therefore, the Court will address the procedurally defaulted claims before addressing the remaining claims in turn.
First, Respondent argues that many of Petitioner's claims are procedurally defaulted [Doc. 8 p. 20-29]. Specifically, Respondent asserts that Petitioner has procedurally defaulted the following claims by not raising them in his appeal of the denial of his petition for post-conviction relief:
[Doc. 8 p. 20-29]. In response, Petitioner asserts that he "supplanted his post [conviction] attorney's [brief] with that of his own," due to his trial attorney's ineffectiveness, and therefore he can establish cause for the procedural default of these ineffective assistance of counsel claims [Doc. 15 p. 6]. Additionally, Petitioner claims that Martinez v. Ryan, 566 U.S. 1 (2012) applies to constitute cause, due to the alleged failures of his trial counsel and post-conviction attorney [Id. at 6-7].
A federal district court generally cannot entertain a petition for writ of habeas corpus unless the petitioner has first exhausted all available state court remedies for each claim in his petition. 28 U.S.C. § 2254(b)(1). Once the petitioner's federal claims have been raised in the highest state court available, the exhaustion requirement is satisfied, even if that court refused to consider the claims. Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990).
Petitioner failed to raise the above-listed claims on appeal to the TCCA from the denial of his post-conviction petition [See State Court Record, Attachment 12]. Respondent asserts that these claims are procedurally defaulted, that Petitioner cannot establish cause for the default, and, further, that Petitioner cannot establish actual prejudice as a result of the alleged violations [Doc. 8 p. 20-29]. As a result of Petitioner not raising the above-listed claims on direct appeal of the denial of his post-conviction relief, Respondent argues that these claims are now barred from presentation to the state courts by the statute of limitations under Tennessee Code Annotated § 40-30-102(a) and the "one petition" limitation of § 40-30-102(c) [Id.]. However, Petitioner claims that the ineffectiveness of post-conviction counsel resulted in the procedural default of his claims [Doc. 1 p. 36]; [Doc. 15 p. 6].
If a § 2254 petitioner failed to raise a claim on appeal, and thereby violated a state procedural rule, "that claim is subject to procedural default and will not be reviewed by federal courts unless the petitioner demonstrates cause and prejudice for the default." West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015). Because Petitioner is barred from returning to the state court on these claims, they have been procedurally defaulted and are not reviewable on habeas unless Petitioner can show cause to excuse his failure to comply with the state procedural rules, as well as actual prejudice.
Petitioner claims that he "supplanted his post [conviction] attorney's [brief] with that of his own," due to his trial attorney's ineffectiveness, and therefore he can establish cause for the procedural default of these ineffective assistance of counsel claims [Doc. 15 p. 6]. However, Petitioner was not permitted to proceed pro se, as the TCCA treated his motion to remove counsel and file a pro se brief as being included in his petition to rehear [See Doc. 15-2 p. 7]. As stated in its later opinion, the TCCA "essentially stay[ed] a ruling on the petition to rehear pending the petitioner's pro se lodging of a brief that he claimed would set forth issues that counsel should have raised in his appeal" [Doc. 33-1]. But, the TCCA later vacated its previous order, and did not consider Petitioner's petition to rehear, as Petitioner's counsel had already filed a Rule 11 application [Id.]. Thus, Petitioner "was not permitted to proceed pro se and his claims were never substantively addressed by the [TCCA] . . . [and the] issues have been exhausted through [Petitioner's] procedural default. . . ." See Dance v. Parker, No. 1:10-1179, 2013 WL 392464, at *5 (W.D. Tenn. Jan. 31, 2013) (holding petitioner's claims were procedurally defaulted after the petitioner was not permitted to file a pro se brief, as "[t]his procedural default operates as a complete and independent procedural bar to federal habeas review").
Additionally, a criminal defendant has no federal constitutional right to self-representation on direct appeal from a criminal conviction. Martinez v. Court of Appeal of Cal., 528 U.S. 152, 163 (2000). The rights protected by the Sixth Amendment, including the right to self-representation, are rights that are available to prepare for trial and at the trial itself. However, the Sixth Amendment does not include any right to appeal. Id. at 160. Accordingly, there is no "constitutional entitlement to submit a pro se appellate brief on direct appeal in addition to the brief submitted by appointed counsel." McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000). By accepting the assistance of counsel, the criminal appellant waives his right to present pro se briefs on direct appeal. See Henderson v. Collins, 101 F.Supp.2d 866, 881 (S.D. Ohio 1999), aff'd in part, vacated in part on other grounds, 262 F.3d 615 (6th Cir. 2001) (holding defendant who was represented by counsel and also sought to submit pro se brief upon appeal did not have right to such hybrid representation).
Therefore, the fact that the TCCA failed to consider Petitioner's post-conviction pro se brief does not excuse Petitioner's default for failing to raise these claims on direct appeal. See, e.g., Wallace v. Sexton, 570 F. App'x 443, 451 (6th Cir. 2014) ("We conclude that [Petitioner's] . . . claims were not fairly presented to the appropriate state court because a Tennessee procedural rule barred consideration of his supplemental pro se brief."); McMeans, 228 F.3d at 684 (holding decision of state appellate court to strike petitioner's pro se brief did not constitute cause to excuse his procedural default of issues raised in the pro se brief but not in brief filed by appellate counsel).
Petitioner argues that the Martinez exception applies to excuse his procedural default, as he claims that his post-conviction counsel failed to present an adequate argument [Doc. 1 p. 36]; [Doc. 15 p. 6]. While Petitioner raised the above-listed claims in his petition and amended petition for post-conviction relief [State Court Record-Attachment 10], he failed to present the procedurally defaulted ineffective assistance of counsel claims on post-conviction appeal [State Court Record-Attachment 12].
Ordinarily, "attorney error in state post-conviction proceedings `cannot constitute cause to excuse [a] default in federal habeas'" because there is no constitutional right to an attorney in those proceedings. West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015) (quoting Coleman v. Thompson, 501 U.S. 722, 757(1991)). However, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court established a narrow exception to the Coleman rule, holding that:
566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 423 (2013) (extending the Martinez exception to states whose procedural requirements make it "virtually impossible" to present an ineffective assistance claim on direct appeal, even if no outright prohibition exists). The Sixth Circuit subsequently held that the Martinez-Trevino exception is applicable in Tennessee because Tennessee's procedural framework directs defendants to file ineffective assistance claims in post-conviction proceedings, rather than on direct appeal. Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014).
However, a petitioner cannot use the ineffective assistance of counsel at the post-conviction appellate stage to excuse a procedural default, because it is not an initial-review collateral proceeding. Wallace v. Sexton, 570 F. App'x 443, 453 (6th Cir. 2014). The Martinez Court explicitly held that the narrow exception it carved out "does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial." Martinez, 566 U.S. at 16 (stating Coleman "held that an attorney's negligence in a postconviction proceeding does not establish cause, and this remains true except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial"). Specifically, the Martinez exception does not apply to claims that were raised at the post-conviction initial-review proceeding but not preserved on post-conviction appeal. See, e.g., West v. Carpenter, 790 F.3d 693, 698-99 (6th Cir. 2015) (holding that "attorney error at state post-conviction appellate proceedings cannot excuse procedural default under the Martinez-Trevino framework").
As set forth above, Petitioner did not properly raise these claims in his appeal of the denial of his post-conviction petition. Due to this failure, the above-listed claims have been procedurally defaulted. Additionally, Petitioner cannot establish cause, as the Martinez exception does not apply to excuse Petitioner's default of these claims, and the decision of the TCCA to strike Petitioner's pro se brief does not constitute cause. See Wallace, 570 F. App'x at 453; McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000). Accordingly, because these claims have been procedurally defaulted, and Petitioner cannot establish cause, the above-listed claims will be
Petitioner also asserts three remaining ineffective assistance of counsel claims:
[Doc. 8 p. 13-20].
The Sixth Amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:
Id. at 687. Petitioner has the burden of showing both deficient performance and prejudice. Smith v. Robbins, 528 U.S. 259, 285-86 (2000).
Under the first prong of the test, the appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. A defendant asserting a claim of ineffective assistance must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
In assessing counsel's performance, a court must presume that counsel's questioned actions might have been sound strategic decisions and must evaluate the alleged errors or omissions from counsel's perspective at the time the conduct occurred and under the circumstances of the particular case. Strickland, 466 U.S. at 689; see also Vasquez v. Jones, 496 F.3d 564, 578 (6th Cir. 2007) ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]") (quoting Strickland, 466 U.S. at 690). Only when the challenged actions are "outside the range of professionally competent assistance" will counsel's performance be considered constitutionally deficient. Strickland, 466 U.S. at 690.
The second prong requires the petitioner to show that counsel's deficient performance prejudiced the defense. Smith, 528 U.S. at 285-86. Thus, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. In order to prevail on a claim of prejudice, a petitioner must show "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. On balance, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Id. at 686. While both prongs must be established to meet a petitioner's burden, if "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697.
When a petitioner raises an ineffective assistance of counsel claim in his § 2254 petition, the Court must review the state court's ruling on that claim under the highly deferential standard of the AEDPA. Thus, in order to succeed on a federal claim of ineffective assistance of counsel, a habeas petitioner must demonstrate that the state court's ruling on his ineffective assistance of counsel claim was an unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685, 693-94 (2002). "Surmounting Strickland's high bar is never an easy task," and "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington v. Richter, 562 U.S. 86, 88 (2011) (citing Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court will address Petitioner's remaining ineffective assistance of counsel claims in turn, applying the above standard.
Petitioner claims that his trial counsel was ineffective by failing to adequately convey the state's original plea offer of ten years for the lesser charge of aggravated assault [Doc. 1 p. 15]. Petitioner alleges that he made the decision to reject the plea deal "under the inadequate and ill-advised guidance of his trial counsel," specifically "trial counsel's own misapplication of the law to the facts within Petitioner's case
Respondent maintains that the state court reasonably applied the Strickland standard in concluding that Petitioner was not entitled to relief on this claim of ineffective assistance of his trial counsel [Doc. 8 p. 15]. However, Petitioner alleges that "the record does not show that trial counsel discussed this particular issue with Petitioner in contrast to what Petitioner would receive if [he] agreed to accept the State's plea offer" [Doc. 1 p. 15]. Further, Petitioner states that "it was trial counsel's belief and legal advice to him that he could beat aggravated assault at trial on matters of law, and [this] was ultimately the only reason Petitioner rejected the State's plea offer" [Id. at 16].
Petitioner raised this ground of ineffective assistance of counsel in his post-conviction proceedings in state court, but the TCCA denied relief as to his claim under the proper legal standard set forth in Strickland, holding:
Turner, 2014 WL 6657566, at *6-7 (internal citations omitted).
The Court finds that Petitioner has not shown that he is entitled to relief under the AEDPA on this claim. First, the TCCA's determination was not "contrary to" Strickland because the TCCA applied its two-part test to the facts. Second, the TCCA's ineffective assistance determination was not based on an unreasonable determination of the facts or an unreasonable application of Strickland's standards to those facts. See 28 U.S.C. §§ 2254(d). Further, the state court's determinations are entitled to a presumption of correctness in the absence of clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1), which Petitioner has not submitted.
Therefore, because the Court finds that the TCCA reasonably concluded that counsel was not deficient in evaluating or advising Petitioner about the state's plea offer, Petitioner is not entitled to relief on this claim, and it will be
Petitioner also claims that trial counsel was ineffective by "developing an unreasonable theory [for trial] that did not concede an aggravated assault defense and conviction as a lesser included offense to the charge of aggravated robbery" [Doc. 1 p. 18]. Petitioner alleges that trial counsel improperly argued that Petitioner was not guilty of aggravated robbery because he "had clandestinely obtained possession of the merchandise and demonstrated a completed theft before any allege[d] use of violence [or] putting in fear had occurred; and the alleged use of violence . . . was to retain possession of the merchandise he had already acquired. . . ." [Id.]. Additionally, Petitioner claims that trial counsel "argued to the jury that Petitioner was also not guilty of aggravated assault . . . based upon . . . trial counsel's personal assumption that the store employee was not afraid of Petitioner" [Id.]. However, Petitioner states that because he "was on trial for aggravated robbery," it was "professionally incompetent" of trial counsel to "not argue exclusively on the charged offense . . . and further concede that the alleged use of violence . . . against the store employee was an aggravated assault subsequent to a shoplifting incident, rather than aggravated robbery" [Id.].
Respondent asserts that the TCCA's rejection of this claim was "neither contrary to nor an unreasonable application of clearly established federal law, nor is it based on an unreasonable determination of facts" [Doc. 8 p. 17]. Further, Respondent claims that the trial court gave an instruction on aggravated assault as a lesser included offense of aggravated robbery [Id.]. However, in his reply to Respondent's response, Petitioner asserts that the TCCA's conclusion "was not reasonable in light of the evidence before it," and also was "not in accord with Strickland" [Doc. 15 p. 2].
Petitioner raised this ground of ineffective assistance of counsel in his post-conviction proceedings in state court, but the TCCA denied relief as to this claim, holding:
Turner, 2014 WL 6657566, at *6-7 (internal citations omitted).
Based upon the foregoing, the Court concludes that the state courts' determinations that petitioner received the effective assistance of counsel were neither contrary to, nor did they involve an unreasonable application of, federal law as established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) When a claim of ineffective assistance of counsel is raised in a federal habeas petition, the question to be resolved is not whether the petitioner's counsel was ineffective. Rather, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 562 U.S. 86, 101 (2011).
The TCCA properly identified the applicable standard from Strickland and rejected Petitioner's ineffective-assistance claim, stating that Petitioner had "failed to prove by clear and convincing evidence that trial counsel's representation was deficient or prejudicial." Turner, 2014 WL 6657566, at *7. The state court's failure to spell out every step of its Strickland analysis does not affect the validity of its ruling under AEDPA. See Harris v. Stovall, 212 F.3d 940, 945 (6th Cir. 2000) ("Where a state court decides a constitutional issue . . . without extended discussion, a habeas court should then focus on the result of the state court's decision."). The TCCA found credible counsel's testimony that these decisions were made strategically for the purposes of Petitioner's defense, and Petitioner has not demonstrated that these tactical decisions were outside the scope of professionally competent assistance. Under Strickland, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Ultimately, Petitioner has failed to demonstrate that the state court's adjudication of this claim involved an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts in light of the evidence before the state court. Therefore, Petitioner is not entitled to habeas relief on the basis of this claim, and it will be
Lastly, Petitioner claims that his trial counsel was ineffective because he did not "object to the trial court's failure to ensure that Petitioner wanted to exercise his right to testify in his defense[,] or whether [Petitioner] personally, knowingly, voluntarily, and intelligently waive[d] his right to testify. . . ." [Doc. 1 p. 23]. Petitioner alleges that he was prejudiced by this failure, as he would have chosen to testify regarding his "intent and actions, and the sequence of events" of the alleged robbery [Id.]. Respondent claims that Petitioner has failed to demonstrate that the TCCA's rejection of Petitioner's ineffective assistance of counsel claim was contrary to or an unreasonable application of clearly established federal law, or that it was based on an unreasonable determination of the facts of Petitioner's case [Doc. 8 p. 18].
In his reply to Respondent's response, Petitioner directs the Court's attention to his arguments made in his "pro se appellate brief that he submitted in place of his post-conviction attorney[`]s brief" [Doc. 15 p. 3]. He states that he testified during the post-conviction hearing that he wished to testify because "the version of events presented by the store employee [was] `completely inaccurate'" [Doc. 15 p. 3]. Petitioner claims that "the trial court initially address[ed] him regarding his right to testify," after which the court ordered a recess for Petitioner and his counsel to discuss whether he would testify [Id.]. Further, Petitioner states that he testified in his post-conviction hearing "that when the recess was over he expected the court to at some point . . . address him again so that he could inform the court that he had decided to testify" [Id. at 4]. In conclusion, Petitioner claims that "after the recess[,] the trial court should have addressed him in open court and on the record if he in fact wanted to testify on his own behalf, which the trial court failed to do" [Id. at 6].
The trial court conducted a Momon colloquy
The post-conviction trial court denied relief as to this claim, stating that:
[State Court Record, Attachment 11 p. 599-601].
After Petitioner's appeal of the denial of his petition for post-conviction relief, the TCCA stated that "[P]etitioner makes very brief arguments that `he never formally waived his right to testify'. . . ." Turner, 2014 WL 6657566, at *7. The TCCA held that because Petitioner "made cursory arguments with no citation to authority," Petitioner waived consideration of this claim. Id. However, the TCCA further stated that "the post-conviction court specifically found that the petitioner `was fully aware of his right to testify' following a Momon colloquy, and the record supports that finding." Id. To the extent that Petitioner is asserting a claim that trial counsel was ineffective by failing to present Petitioner's testimony at trial, the Court has already held that this claim was procedurally defaulted.
Although the right to testify is a fundamental right subject only to knowing and intelligent waiver, "waiver of certain fundamental rights can be presumed from a defendant's conduct alone, absent circumstances giving rise to a contrary inference." United States v. Stover, 474 F.3d 904, 908 (6th Cir. 2007). The Sixth Circuit repeatedly has recognized that "`[a]lthough the ultimate decision whether to testify rests with the defendant, when a tactical decision is made not to have the defendant testify, the defendant's assent is presumed.'" Hodge v. Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009) (quoting United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000)). "Barring any statements or actions from the defendant indicating disagreement with counsel or the desire to testify, the trial court is neither required to sua sponte address a silent defendant and inquire whether the defendant knowingly and intentionally waived the right to testify, nor ensure that the defendant has waived the right on the record." Webber, 208 F.3d at 551 (citing United States v. Joelson, 7 F.3d 174, 177 (6th Cir. 1993) (other internal citations omitted)). "A defendant who wants to testify can reject defense counsel's advice to the contrary by insisting on testifying, communicating with the trial court, or discharging counsel." Stover, 474 F.3d at 909 (citing Joelson, 7 F.3d at 177). "When a defendant does not alert the trial court of a disagreement, waiver of the right to testify may be inferred from the defendant's conduct." Id.
Petitioner states that trial counsel was ineffective by failing to object to the trial court's failure to ensure that Petitioner "knowingly, voluntarily, and intelligently waive[d] his right to testify" [Doc. 1 p. 23]. However, Petitioner has failed to establish that the trial court failed to ensure that Petitioner waived his right to testify. "The Momon opinion makes clear . . . that the newly announced `procedures are prophylactic measures which are not themselves constitutionally required'. . . ." Quintero v. Carpenter, No. 3:09-cv-00106, 2014 WL 7139987, at *72 (M.D. Tenn. Dec. 12, 2014). Federal law permitted the trial court to presume from his silence that he waived his right to testify. See Stover, 474 F.3d at 909; see, e.g., Webber, 208 F.3d at 551. Petitioner has failed to set forth clear and convincing evidence to overcome the presumption of correctness accorded to the TCCA's determination that Petitioner was aware of his right to testify, and therefore counsel was not ineffective. Again, the state court's failure to spell out every step of its Strickland analysis does not affect the validity of its ruling under AEDPA. See Harris v. Stovall, 212 F.3d 940, 945 (6th Cir. 2000) ("Where a state court decides a constitutional issue . . . without extended discussion, a habeas court should then focus on the result of the state court's decision."). Although Petitioner claims that his trial counsel was ineffective by failing to demonstrate on the record that his waiver of his right to testify was intelligent and voluntary, the TCCA affirmed the post-conviction court's finding that "the [Petitioner] was fully advised of his right to testify, and just did not testify" [State Court Record, Attachment 11 p. 601]. See Turner, 2014 WL 6657566, at *7.
Therefore, Petitioner has failed to demonstrate that the decision of the TCCA was contrary to, or an unreasonable application of, clearly established federal law, as required by 28 U.S.C. § 2254(d)(1), or was based on an unreasonable determination of the facts in light of the evidence presented at the state-court hearing, as required by 28 U.S.C. § 2254(d)(2). Accordingly, Petitioner is not entitled to habeas relief on this claim and it will be
Petitioner has also filed a motion docketed as a motion for hearing, in which Petitioner requests for his case to be "place[d] . . . on the next available docket to be heard" [Doc. 31 p. 1]. District courts retain wide discretion as to whether to conduct an evidentiary hearing in habeas cases. See Abdur'Rahman v. Bell, 226 F.3d 696, 706 (6th Cir. 2000). Nevertheless, an evidentiary hearing is mandatory only if factual allegations are made which, if proven, would entitle the petitioner to relief. Vroman v. Brigano, 346 F.3d 598, 606 (6th Cir. 2003). In this case, Petitioner has not made sufficient factual allegations warranting a hearing on this or any other ground.
For the reasons set forth above, the Court finds that none of Petitioner's claims warrant issuance of a writ. Therefore, Petitioner's petition for a writ of habeas corpus [Doc. 1] will be
The Court must consider whether to issue a COA, should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may appeal a final order in a habeas proceeding only if he is issued a COA, and a COA may only be issued where a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a procedural basis without reaching the underlying claim, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the court dismissed a claim on the merits, but reasonable jurists could conclude the issues raised are adequate to deserve further review, the petitioner has made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484.
After reviewing each of Petitioner's claims, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right as to any claims. Specifically, as to the procedurally defaulted claims, jurists of reason would not debate the Court's finding that Petitioner did not fairly present these claims to the TCCA in a manner that rendered consideration of their merits likely and that the claims are therefore procedurally defaulted. Further, as to the claims that Petitioner did not procedurally default, Petitioner has not made a substantial showing of the ineffective assistance of counsel. Accordingly, a COA
