KEVIN H. SHARP, Chief District Judge.
Petitioner Perry Singo, a state prisoner serving an effective sentence of 49 years for several counts involving the sexual abuse of a child, has filed a pro se petition and, through appointed counsel, an amended petition under 28 U.S.C. § 2254 for the writ of habeas corpus. (ECF Nos. 1, 17.) The respondent has filed an answer, along with a copy of portions of the state court record (ECF Nos. 48, 24), and the petitioner has filed a reply (ECF No. 53) and a motion to expand the record, which the respondent opposes. (ECF Nos. 52, 55.)
This case is now fully briefed and ripe for review. For the reasons set forth below, the motion to expand the record (ECF No. 52) will be granted, and the petition for the writ of habeas corpus will be denied.
A Dickson County jury convicted Petitioner on March 16, 2000, of four counts of rape of a child and four counts of aggravated sexual battery. The trial court sentenced Petitioner to 25 years for each of the rape counts and 12 years for each battery count, but ordered that all sentences run concurrently except for one count of rape. (ECF No. 24-1, at 2, 20-35, 58-65.) Petitioner's original effective sentence was therefore 50 years.
On direct appeal, Petitioner raised the following 12 issues:
(ECF No. 24-10.)
The Tennessee Court of Criminal Appeals ("TCCA") found that the proof was insufficient to support three of the rape counts, and reversed and dismissed those counts. State v. Singo, No. M2001-00919-CCA-R3-CD, 2002 WL 1838142, at *5 (Tenn. Ct. Crim. App. Aug. 9, 2002) (ECF No. 24-13, at 5-6) (hereinafter "Singo I"). The court otherwise affirmed Petitioner's convictions and sentences, but "remand[ed] to the trial court for a determination of whether any of the aggravated sexual battery convictions should run consecutively to the child rape conviction." Id. at *11 (ECF No. 24-13, at 11).
On remand, the trial court ordered that two of the 12-year sentences for aggravated sexual battery be served consecutive to each other and to the 25-year rape sentence, for an effective sentence of 49 years. (ECF No. 24-14, at 136-140.) Petitioner again appealed, raising the sole issue of whether the trial court had erred in making two counts consecutive on re-sentencing. (ECF No. 24-16.) The TCCA affirmed, and the Tennessee Supreme Court denied permission to appeal. State v. Singo, No. M2003-01230-CCA-R3-CD, 2004 WL 343968 (Tenn. Ct. Crim. App. Feb. 24, 2004), perm. app. denied (Tenn. Aug. 30, 2004) (ECF No. 24-19) (hereinafter "Singo II").
On May 26, 2005, Petitioner filed a pro se petition for post-conviction relief, which was followed by the appointment of counsel and the filing of an amended petition. (ECF No. 24-20, at 6-36.) The amended petition raised three grounds for relief:
(ECF No. 24-20, at 29-31.) The trial court held a hearing on May 8, 2006, and denied relief on June 16, 2006. (ECF 24-20, at 39-62, 66.) The Petitioner appealed and raised two issues to the TCCA:
(ECF No. 24-22, at 5.) The TCCA affirmed the denial of relief, and the Tennessee Supreme Court denied permission to appeal on October 15, 2007. Singo v. State, No. M2006-01986-CCA-R3-PC, 2007 WL 1836050 (Tenn. Ct. Crim. App. June 27, 2007), perm. app. denied (Tenn. Oct. 15, 2007) (ECF No. 24-26) (hereinafter Singo III).
Petitioner filed his pro se habeas corpus petition in this Court by delivering it to the prison mail room on January 7, 2008. (ECF No. 1-1.) Respondent does not dispute that the petition was timely. (ECF No. 48, at 2.) The Court appointed counsel, who filed an amended petition on October 28, 2008. (ECF Nos. 8, 17.) Respondent filed a motion to dismiss on February 24, 2009, followed by a copy of the state court record. (ECF Nos. 22, 24.) Respondent's motion was administratively terminated when the Court granted Petitioner's motion to stay this case pending the conclusion of additional state court litigation related to one of his claims. (ECF Nos. 29, 30.) The case was reopened on April 26, 2011, after the state court denied Petitioner relief. (ECF No. 33.) On May 26, 2011, Petitioner filed a notice that he was withdrawing his claim that his consecutive sentences were imposed in violation of Blakely v. Washington, 542 U.S. 296 (2004), but continuing to rely on his amended petition as the operative petition in all other respects. (ECF No. 35.) Respondent filed an answer to the amended petition on March 9, 2016, to which Petitioner has replied. (ECF Nos. 48, 53.) Petitioner has also filed a motion to expand the record with several additional pieces of evidence. (ECF Nos. 49-52.)
This action is fully briefed and ripe for review.
The TCCA on direct appeal in Singo I summarized the facts of the case as follows:
In the third letter, the defendant wrote:
Detective Fleanor also read aloud notes which Fleanor said were in the defendant's handwriting. The notes stated:
Detective Fleanor testified the notes were initialed "PLS," which are the defendant's initials.
Singo I, 2002 WL 1838142, at *1-3.
In his Amended Petition, Petitioner asserts the following claims for relief:
The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S .C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a federal court may only grant relief if it finds that the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v. Warren, 311 F. App'x 798, 803-04 (6th Cir. 2009).
AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases . . . and `to further the principles of comity, finality, and federalism.'" Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). The requirements of AEDPA "create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained, AEDPA's requirements reflect "the view 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 v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes "a substantially higher threshold" for obtaining relief than a de novo review of whether the state court's determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits in state court unless the state decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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) and (d)(2). A state court's legal decision is "contrary to" clearly established federal law under § 2254(d)(1) "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 has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An "unreasonable application" occurs when "the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A state court decision is not unreasonable under this standard simply because the federal court concludes that the decision is erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court's decision applies federal law in an objectively unreasonable manner. Id. at 410-12.
Similarly, a district court on habeas review may not find a state court factual determination to be unreasonable under § 2254(d)(2) simply because it disagrees with the determination; rather, the determination must be "`objectively unreasonable' in light of the evidence presented in the state court proceedings.'" Young v. Hofbauer, 52 F. App'x 234, 236 (6th Cir. 2002). "A state court decision involves `an unreasonable determination of the facts in light of the evidence presented in the State court proceeding' only if it is shown that the state court's presumptively correct factual findings are rebutted by `clear and convincing evidence' and do not have support in the record." Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting § 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 and n.3 (6th Cir. 2014) (observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did not read Matthews to take a clear position on a circuit split about whether clear and convincing rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under § 2254(d)(2), "it is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was `based on' that unreasonable determination." Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the merits by a state court "is a `difficult to meet' and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner carries the burden of proof. Pinholster, 563 U.S. at 181.
By its express terms, Section 2254(d)'s constrained standard of review only applies to claims that were "adjudicated on the merits" in the state court proceeding, including instances where the state court rules against the petitioner in a summary opinion that rejects all claims without discussion, or an opinion that addresses some claims but does not expressly address all the federal claims presented. Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013); Harrington v. Richter, 562 U.S. at 98-99; Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004). Where a claim has not been adjudicated on the merits in state court but is still subject to federal review despite the bars of exhaustion and default, "federal habeas review is not subject to the deferential standard that applies under AEDPA. . . . Instead, the claim is reviewed de novo." Moritz v. Lafler, 525 F. App'x 277, 282 (6th Cir. 2013) (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)); accord Bies v. Sheldon, 775 F.3d 386, 395-96 (6th Cir. 2014) ("Because Bies' Brady claim was never `adjudicated on the merits in State court proceedings,' the limitations imposed by § 2254(d) do not apply, and we review the claim de novo.").
28 U.S.C. §§ 2254(b) and (c) provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has presented the same claim sought to be redressed in a federal habeas court to the state courts. Cullen v. Pinholster, 563 U.S. at 182. The petitioner must "fairly present"
This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (exhaustion "generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review"). Moreover, the substance of the claim must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Fair presentation requires that the state courts be given the opportunity to see both the factual and legal basis for each claim. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). For the claim to be exhausted, it must be presented to the state courts as a federal constitutional issue, not merely as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). Specifically, in determining whether a petitioner "fairly presented" a federal constitutional claim to the state courts, federal courts should consider whether the petitioner: (1) phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; (2) relied upon federal cases employing the constitutional analysis in question; 3) relied upon state cases employing the federal constitutional analysis in question; or (4) alleged "facts well within the mainstream of [the pertinent] constitutional law." Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Moreover, the claim must be presented to the state courts under the same legal theory in which it is later presented in federal court. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). It cannot rest on a legal theory that is separate and distinct from the one previously considered and rejected in state court. Id. This does not mean that the applicant must recite "chapter and verse" of constitutional law, but the applicant is required to make a specific showing of the alleged claim. Wagner, 581 F.3d at 414.
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an independent and adequate state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977); see also Walker v. Martin, 562 U.S. 307, 315 (2011) ("A federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment"); Coleman v. Thompson, 501 U.S. 722 (1991) (same).
If a claim is procedurally defaulted, "federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The burden of showing cause and prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754).
A petitioner seeking to overcome procedural default must establish prejudice as well as cause. To establish prejudice, a petitioner must demonstrate that the constitutional error "worked to his actual and substantial disadvantage." Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that "having shown cause, petitioners must show actual prejudice to excuse their default"). "When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice." Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot establish prejudice, the question of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing Murray, 477 U.S. at 495-96); accord Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
As recounted above, the trial court originally imposed an effective 50 year sentence, with all of the aggravated sexual battery sentences to run concurrent with the first rape sentence. On remand after the TCCA vacated Petitioner's convictions on three of the rape counts, the trial court ordered two of the aggravated sexual battery sentences to run consecutive to the remaining rape sentence, for an effective total sentence of 49 years. Petitioner asserts that this constitutes a vindictive increase in the sentence for his remaining convictions, in violation of his right to due process as set forth in North Carolina v. Pearce, 395 U.S. 711, 725 (1969). (ECF No. 17, at 12-15.)
Petitioner raised this claim in his post-conviction action in state court, and on appeal from the denial of post-conviction relief. The TCCA concluded the claim was without merit:
Singo III, 2007 WL 1836050, at *2-3.
The TCCA thus fairly summarized the presumption of vindictiveness created by Pearce, including the fact that it applies where a defendant receives a "harsher sentence" on remand. Specifically, Pearce applies when a trial court imposes a "more severe sentence" on remand, and requires a judge who imposes such a sentence to affirmatively connect the new sentence to "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Pearce, 395 U.S. at 726. The TCCA rejected Petitioner's Pearce claim primarily because his second effective sentence was a year shorter than his first effective sentence, "so the revised sentence was not greater than the first one." Singo III, 2007 WL 1836050, at *3.
Petitioner asserts that his sentence "was unquestionably `more severe'" on remand, and that "[i]t would be an unreasonable application of Pearce to characterize the sentence any other way." (ECF No. 53, at 14.) Case law does not support that position. To the contrary, although neither party raises this fact in his brief, the United States Court of Appeals for the Sixth Circuit has repeatedly rejected the argument that Pearce applies where a petitioner's total effective sentence after remand is the same or less than his original sentence:
Craycraft v. Cook, ___ F. App'x ____, 2015 WL 8479554, at *4 (6th Cir. Dec. 10, 2015). Accordingly, the TCCA's conclusion that Petitioner's second sentence was "not greater than" his first one for Pearce purposes is consistent with the view of the majority of federal courts of appeal. Craycraft at *4 (collecting cases and observing that "the majority of circuits follow the aggregate approach").
It is impossible, therefore, for this Court to find that the TCCA's holding "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement," as required to grant relief under AEDPA's unreasonable-application prong. White v. Woodall, 134 S.Ct. 1697, 1706 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Because Petitioner's claim fails at the initial threshold of Pearce — whether the sentence on remand was "more severe" — it is unnecessary to reach the question of whether the trial court's justifications for the second sentence would satisfy Pearce. This claim will be dismissed.
Petitioner asserts that the trial court enhanced his punishment from the presumptive sentences for his offenses to the maximum, based on facts found by the judge rather than the jury, in violation of his Sixth Amendment right to a jury trial as set forth in Blakely v. Washington, 542 U.S. 296 (2004).
Petitioner alleges that his trial counsel was ineffective at sentencing in two ways. First, in his Amended Petition he alleges that counsel was ineffective for failing to present evidence from a psychologist's report that Petitioner had been sexually abused as a child and suffered from a personality disorder as mitigation evidence at sentencing. (ECF No. 17, at 18-19.) In his Reply, Petitioner adds that mitigation evidence from the report that counsel was ineffective for failing to argue included a psychological test result indicating that Petitioner was at "low risk" to reoffend. (ECF No. 53, at 18-19.) Second, he alleges that counsel was ineffective for failing to oppose the use of his victim's age as an enhancing factor when it was already a factor in the level of the offense for which he was convicted (Class A felony rather than Class B). (ECF No. 17, at 19.)
Petitioner raised these claims on post-conviction, but the TCCA affirmed denial of relief:
In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), our supreme court decided that attorneys should be held to the general standard of whether the services rendered were within the range of competence demanded of attorneys in criminal cases. Further, the court stated that the range of competence was to be measured by the duties and criteria set forth in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C.Cir.1973). Also, in reviewing counsel's conduct, a "fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time." Strickland, 466 U.S. at 689. Thus, the fact that a particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy or tactical choices if they are informed ones based upon adequate preparation. See DeCoster, 487 F.2d at 1201.
The petitioner claims that his attorney provided ineffective assistance of counsel by failing to object to the state's mentioning of the victim's age during the resentencing hearing. Had the attorney done so, the petitioner claims that the enhancement factor of "particular vulnerability because of age or physical or mental disability" would not have applied. See Tenn. Code Ann. § 40-35-114(5) (2006). However, we cannot grant relief to the petitioner on this claim. We initially note that the petitioner did not submit the transcript from the original (2000) sentencing hearing, and that the resentencing hearing transcript only addresses the issue of concurrent or consecutive sentencing. Without the transcript of the original sentencing hearing, this court is unable to determine if the petitioner's trial counsel failed to challenge the enhancement factors at the sentencing hearing as alleged.
Singo III, 2007 WL 1836050, at *4-5.
Claims of ineffective assistance of counsel 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 meet the first prong, a petitioner must establish that his attorney's representation "fell below an objective standard of reasonableness." Id. at 688. Mere attorney ignorance or inadvertence will not constitute "cause" unless the error rises to the level of a constitutional violation. See Coleman, 501 U.S. at 752-55. 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).
In assessing counsel's performance, a reviewing court must be highly deferential and avoid the "second-guess[ing of] counsel's assistance . . ., [as] it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. The court must determine whether, under the circumstances, counsel's allegedly unreasonable acts or omissions "were outside the wide range of professionally competent assistance." Id. at 690. In order to avoid "the distorting effects of hindsight," a reviewing "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 . . . the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted).
Prejudice, 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 Supreme Court has further explained the Strickland prejudice requirement as follows:
Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal citations omitted). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697.
As discussed above, however, federal habeas relief may not be granted under 28 U.S.C. § 2254 unless the petitioner shows that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of the United States Supreme Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2).
Thus, 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). As the Supreme Court clarified in Harrington,
Id. (internal quotation marks and citation omitted).
In this case, the TCCA correctly identified the proper standard for review of Petitioner's ineffective-assistance claims and applied it reasonably. First, it found that even assuming that counsel had not argued against reliance on the victim's age at sentencing, no prejudice arose from that omission because the circumstances of the case would still have allowed the trial court to apply the "vulnerable" victim enhancement and/or other enhancements appropriate to the case. Petitioner has not cited any case law establishing that that conclusion was unreasonable. Moreover, consideration of a sex abuse victim's age in determining the level of offense as well as enhancing the sentence for that offense does not amount to "impermissible double counting" that offends the constitution. U.S. v. Hochschild, 442 F.3d 974, 979 (6th Cir. 2006).
With regard to the alleged failure to present mitigation evidence, the state court essentially concluded that Petitioner had failed to establish deficient performance or prejudice by failing to offer the mitigation evidence that he faulted trial counsel for not using. According to Petitioner, that evidence includes information from a psychological evaluation of Petitioner establishing that he "had suffered sexual abuse as a child, that he suffered from a personality disorder, and that he fell in the `low risk category' to reoffend." (ECF No. 17, at 18.) Although that psychological evaluation was not offered as an exhibit during the post-conviction hearing, trial counsel testified at the hearing from memory about why he did not try to use the psychologist's report about Petitioner's personality disorder and history as a sex abuse victim at trial: "I recall that was not a favorable report; and I don't think I even chose to introduce that or argue anything in that because I think overall it was detrimental." (ECF No. 24-21, at 8.) Counsel was correct.
Petitioner has located the psychological report in the trial court's file and submitted it under seal in this action, with a motion to expand the record to include the report.
The report, however, does not aid Petitioner's cause. While Petitioner myopically focuses on the potential mitigating effect of his personality disorder diagnosis, history of having been sexually abused and the fact that his results on one actuarial-based test placed him in a low risk category for recidivism, the impact of the entire report is overwhelmingly negative. The psychologist repeatedly pointed to the fact that throughout his interview with her, Petitioner demonstrated a total lack of empathy for his victim or remorse for his behavior. She observed that he tended to justify and be dishonest about his "deviant sexual behavior," and to blame the victim's mother for his abuse of the victim. He acknowledged being sexually attracted to the victim, who was a young child, but was not interested in treatment for his sexual deviance. His questionnaire responses demonstrated "deviant sexual attitudes," including a belief that "[w]hen young children walk around with little or no clothes on, it is kind of sexy," and a disagreement with the statement that "[a] 13 year old cannot really consent to sex with an adult." The psychologist's ultimate conclusion was that Petitioner was a risk to reoffend:
(ECF No. 51-1, at 41 (emphasis added).) Thus, one of the very facts that Petitioner faults trial counsel for failing to offer — his own history as a victim of sex abuse — actually
Petitioner alleges that his confession was coerced, and therefore admitted in violation of the Due Process Clause, because his questioners "effectively promised him that the sooner he confessed, the sooner he could [be] reunited with his family." (ECF No. 17, at 19-20.)
Respondent asserts that Petitioner defaulted this claim on direct appeal by failing to cite any authority in support of it as required by state procedural rules. (ECF No. 48, at 15-16.) Petitioner's brief on direct appeal included the following argument regarding this claim:
(ECF No. 24-10, at 17.)
The TCCA found the claim was waived, and alternatively found that it was without merit:
Singo I, 2002 WL 1838142, at *3-4.
Rule 10(b) of the Rules of the Tennessee Court of Criminal Appeals provides that "[i]ssues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court." The Sixth Circuit has confirmed that this rule is "an independent and adequate state ground for denying [a] claim." Middlebrooks v. Bell, 619 F.3d 526, 538 (6th Cir. 2010), vacated on other grounds sub nom. Middlebrooks v. Colson, 132 S.Ct. 1791 (2012). Because the state court found Petitioner's claim waived pursuant to this procedural bar, it is procedurally defaulted for the purpose of federal habeas review despite the fact that the state court conducted an alternative analysis of the merits. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (State courts "[n]eed not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); accord Scott v. Mitchell, 209 F.3d 854, 865-66 (6th Cir.2000) ("Harris does not preclude a finding that the state procedural rule was actually enforced where the state court decision also relies on an alternative ground."); Coe v. Bell, 161 F.3d 320, 330 (6th Cir.1998) ("Coe claims that the court of appeals's alternative holding that he would lose on the merits anyway means that he is not procedurally barred, because the state courts in fact reached the merits. This argument fails due to the Supreme Court's decision in Harris. . . .").
In the alternative, the Court finds that the state court's conclusion that Petitioner's confession was not coerced is not contrary to or an unreasonable application of clearly established federal law. As the state court observed, Petitioner was advised of his rights and signed an admonition and waiver form despite not being in custody at the time of his confession. (ECF No. 24-9, at 4.) That is a significant distinction between his case and the one on which he relies, Lynum v. Illinois, 372 U.S. 529 (1963). Loza v. Mitchell, 766 F.3d 466, 480 (6th Cir. 2014) ("Unlike the defendants in [Lynum], Loza was read his Miranda rights and voluntarily waived them, making it very difficult for him to demonstrate that his confession was nonetheless involuntary.") And in this case, the detective questioning Petitioner explicitly told him that "I can't make you any promises about anything" because "I don't have that authority to make you a promise." (ECF No. 24-4, at 80.) When Petitioner asked if he was going to lose his family, the detective's response was "Hey, I'm not going to lie to you, you may for awhile." (ECF No. 24-4, at 81.) When Petitioner asked the children's services worker who participated in his questioning, "Well what would happen if I admit to something like this? What would — I'm still not going to go to my home," she responded "Well, no." (Id.) It was not unreasonable, therefore, for the state court to find that the totality of the circumstances established that Petitioner's statement was voluntary and not the result of any coercion or promise to return him to his family if he confessed.
Petitioner claims that his right to Due Process was violated by the trial court's admission of three separate categories of evidence: (1) photographs depicting his sexual abuse of the victim; (2) letters by Petitioner about his sexual abuse of the victim; and (3) expert opinion testimony by fact witness Stacey Loveless. (ECF No. 17, at 20.) Respondent asserts that all of these subclaims are procedurally defaulted (ECF No. 48, at 19-20), and, in the alternative, that the state court's rejection of the claims was not contrary to or an unreasonable application of federal law. (ECF No. 48, at 20-23.)
Petitioner's subclaim concerning the testimony of Stacey Loveless is procedurally defaulted and appears to have been waived in this proceeding as well. Although Petitioner complained on direct appeal about the latitude the trial court granted in Ms. Loveless's testimony (ECF No. 24-10, at 25), the TCCA found the claim waived: "This issue is waived as the defendant has failed to cite authority to support his argument. Tenn. Ct. Crim. App. R. 10(b)." Singo I, 2002 WL 1838142, at *9 (additional citation omitted). As discussed above, TCCA Rule 10(b) is an adequate and independent ground for denial of relief. Moreover, in this Court, the Amended Petition provides nothing more than an unsupported conclusion that the testimony was "improperly allow[ed]" (ECF No. 17, at 20), and Petitioner fails to address either the default or the merits of this claim in his Reply. (ECF No. 53, at 7, 21-23 (discussions of "evidentiary errors" not including reference to Loveless testimony).)
Similarly, the TCCA appears to have found any objection to the admission of Petitioner's letters and notes, aside from the need to authenticate them, to have been waived at trial:
Singo I, 2002 WL 1838142, at *8-9.
And again, Petitioner has failed to address either the apparent state court waiver or the merits of this subclaim in this Court, beyond the Amended Petition's conclusory allegation that the letters were "improperly admitt[ed]." (ECF No. 20, at 17.) In reply to Respondent's assertion that all of Petitioner's evidentiary claims were defaulted because they were presented in state court solely as a matter of state law, Petitioner argues that "the issue should be deemed fairly presented and exhausted" because the TCCA's harmless error determination was achieved through a standard identical to the applicable federal standard. (ECF No. 53, at 7.) But the TCCA's harmless error finding was limited to the admission of the photographs, as discussed below, and did not relate to the letters. And Petitioner's argument of the merits of his claims in his Reply is limited to the issue of the photographs. (ECF No. 53, at 21-23.) Like the Loveless testimony subclaim, this subclaim is both defaulted and waived.
Respondent correctly observes, and Petitioner concedes (ECF No. 53, at 7), that his direct appeal challenge to the admission of the photographs was based solely on state law. (ECF No. 24-10, at 17-18.) The TCCA rejected the claim on its merits, also relying solely on state law:
Singo I, 2002 WL 1838142, at *7-8 (Tenn. Crim. App. Aug. 9, 2002).
Regardless of whether Petitioner "fairly presented" this claim in state court, he has failed to establish that he is entitled to relief under AEDPA. In his Reply, Petitioner devotes the majority of his argument on this subclaim to establishing that the photographs were prejudicial and improperly admitted, a point already conceded by both the state and the TCCA.
Petitioner claims that the trial court violated his right to Due Process by failing to instruct the jury on the lesser-included offense of simple assault. (ECF No. 17, at 20.) This claim was presented and resolved on direct appeal purely as a matter of state law:
Singo I, 2002 WL 1838142, at *10 (Tenn. Crim. App. Aug. 9, 2002).
Again, even assuming that this claim was "fairly presented" to the state courts, Petitioner has not established that the state court's harmless error finding was contrary to or an unreasonable application of clearly established federal law. His treatment of this claim consists of the same three sentences repeated in the Amended Petition and the Reply, and the only case he cites is Estelle v. McGuire, 502 U.S. 62, 72 (1991), for the general standard for violations of due process. (ECF No. 17 at 20; ECF No. 53, at 23.) Presenting his claim at that level of generality fails to satisfy the "clearly established" requirement of § 2254(d)(1). See Nevada v. Jackson, 133 S.Ct. 1990, 1994 (2013) (disapproving lower court's reliance on "a broad right" to present evidence and stating that "[b]y framing our precedents at such a high level of generality, a lower federal court could transform even the most imaginative extension of existing case law into `clearly established Federal law, as determined by the Supreme Court.'").
Petitioner concedes that this claim is procedurally defaulted and offers no argument to excuse the default. (ECF No. 53, at 23.) This claim will be dismissed.
Petitioner claims that his right to due process was violated because the prosecution's failure to elect offenses allowed the jury to convict him of four counts of battery without specifying the time or means of the offenses beyond time-frames of 5-10 days for each count. (ECF No. 17, at 21.) The TCCA rejected this claim on its merits:
Singo I, 2002 WL 1838142, at *9.
Petitioner does not address the substance of this state court ruling in either his Amended Petition or his Reply, and does not assert that it is contrary to or an unreasonable application of any Supreme Court precedent. The only case he cites in support of his claim is Schad v. Arizona, 501 U.S. 624, 636-37 (1991), which held that the constitution did not require Arizona to make an election between theories of premeditation and felony murder to justify a first-degree murder conviction. Even assuming that Schad's analysis would apply to this case, Petitioner has failed to demonstrate that the state court committed "an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement," as required to grant relief under AEDPA's unreasonable-application prong. White v. Woodall, 134 S.Ct. 1697, 1706 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
For the reasons set forth above, all of Petitioner's claims are either defaulted or fail on their merits under AEDPA. Accordingly, the Court will deny the requested relief and dismiss the petition.
An appropriate order shall enter.
