ALGENON L. MARBLEY, District Judge.
Petitioner Leon Robins was convicted of first-degree, premeditated murder in state trial court. After the state appellate court affirmed, Robins filed a habeas corpus petition in which he contends his trial counsel was ineffective for various reasons. The state trial court found that counsel's representation was not deficient or prejudicial, and the state appellate court affirmed. Robins filed a pro se habeas corpus petition in the district court, which was amended and then dismissed by the district court. Because Robins fails to demonstrate that the state appellate court's decision was unreasonable or improper under Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") deference, we AFFIRM.
The following facts are taken from the state appellate court's decision affirming the state trial court's conviction of Robins and his co-defendant, Tabatha White, for first-degree, premeditated murder:
Tennessee v. Robins, No. M2001-01862-CCA-R3-CD, 2003 WL 1386835, at *1-4 (Tenn.Crim.App. Mar. 20, 2003) (footnotes omitted).
Robins then filed a habeas corpus petition for post-conviction relief, which was dismissed by the state trial court, and the dismissal was affirmed by the state appellate court. See Robins v. Tennessee, No. M2005-01204-CCA-R3-PC, 2006 WL 1816361, at *1 (Tenn.Crim.App. June 27, 2006). The following facts are recited in the state appellate court's decision:
Id. at *5-9 (footnotes omitted). The state supreme court denied Petitioner's application to appeal. Robins filed a pro se habeas corpus petition in the district court, and the district court dismissed the petition on August 19, 2010. A certificate of appealability was issued, and a timely notice of appeal was filed on August 27, 2010.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a), which provides that a final order by a district judge in a habeas corpus proceeding "shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held."
We review de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir.2009) (citing Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir.2006)). The provisions of the AEDPA apply here because Robins filed his initial habeas corpus petition after its enactment. See id.
Under the AEDPA, a federal court may grant a writ of habeas corpus on a "claim that was adjudicated on the merits in state court proceedings" if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case," id. at 407-08, 120 S.Ct. 1495, or if it "either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context," Seymour v. Walker, 224 F.3d 542, 549 (6th Cir.2000). Relief may only be awarded if a state court's application of federal law is objectively unreasonable. Goodell v. Williams, 643 F.3d 490, 495 (6th Cir.2011). Alternatively, a habeas corpus petition may be granted under the AEDPA if the state court's decision "was
The Supreme Court summarized the federal court's responsibility under the AEDPA in Williams:
529 U.S. at 389, 120 S.Ct. 1495.
The relevant, clearly established federal law in this case was established in the Supreme Court's decision in Strickland v. Washington, which provides the standard for ineffective assistance of counsel under the Sixth Amendment. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must establish that his or her counsel was deficient and that he or she was prejudiced by the deficiency. Id. at 687, 104 S.Ct. 2052. To demonstrate deficient performance, a defendant challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. The court must apply "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential" because it is "all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and 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." Id.
A defendant must also show he or she was prejudiced by counsel's deficient performance, and it is not enough to "show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. Instead, the challenger must show that the errors were "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). "An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011).
The "pivotal question" for us on appeal, however, is "whether the state court's application of the Strickland standard was unreasonable," which is different from asking "whether defense counsel's performance fell below Strickland's standard." Id. at 785-86. "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult," and when both Strickland and § 2254(d) apply, the review is "doubly" highly deferential. Id. at 788. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable." but "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Robins advanced twelve reasons why his trial counsel was ineffective. We will examine whether the state court's application
Robins argues that his trial counsel was ineffective because, though he hired a private investigator to assist in the preparation of the defense, he did not utilize the investigator's report. Robins contends trial counsel's follow-up was deficient for three reasons: (1) he failed to call Christine McHenry as an alibi witness; (2) he failed to present witnesses who could have testified about the other suspect in the shooting, "Twenty"; and (3) he failed to present witnesses who could testify about Petitioner's short hair at the time of the murder.
Robins argues that his trial counsel was ineffective because he failed to present testimony from Christine McHenry. Robins contends she was a crucial witness because she was the only non-family member witness subpoenaed who could have testified in support of his alibi.
Trial counsel testified at the post-conviction hearing that Petitioner's main defense was alibi. Robins, 2006 WL 1816361, at *5. The amended notice of alibi listed four witnesses, one of whom was McHenry. Id. Trial counsel stated that he had intended to call McHenry, but did not because she became ill and was unavailable during trial. Id. At the post-conviction hearing, McHenry testified that at the time of the murder, she lived with Petitioner's mother and that the Petitioner was home when the shooting occurred. Id. at *8. She could not remember, though, how she knew he was home. Id. After reading a summary of her statement to the investigator, she remembered that Robins had been sick, was lying on the couch when she went to bed, and was still there when she awoke. Id. She also remembered, after her prior statement, that Robins had cut his hair prior to moving home in mid-February, 2000. Id. McHenry admitted, however, that she did not have a specific memory of the day. Id. She also testified that she was 81 years old when the case went to trial, and 86 years old at the time of the post-conviction hearing. Id.
The state appellate court found that the "record [did] not preponderate against the trial court's finding that the petitioner failed to prove prejudice by clear and convincing evidence"
While McHenry's testimony may have strengthened Robins's alibi defense — a point which itself is debatable given McHenry's ill and elderly state — it was cumulative to the testimony given by Petitioner's mother and sister. The state appellate court's conclusion that Robins had failed to show prejudice was not unreasonable. Moreover, reasonable trial counsel could have decided that putting McHenry on the stand would be against Petitioner's interests because of her seemingly confused state. See Jackson v. Bradshaw, 681 F.3d 753, 761-62 (6th Cir.2012) (finding petitioner's argument that his trial counsel failed to represent him zealously when he did not call a witness unpersuasive
Petitioner contends trial counsel failed to present crucial witnesses who could have testified that "Twenty" fit the description of the shooter, had a violent reputation, carried a weapon, and, like the suspect, wore his hair in braids and drove a white car at the time of the shooting. Robins also asserts these witnesses could have testified that "Twenty" is Kenneth Frazier Taylor.
The police report contained references to a shooter with the nickname "Twenty." Robins, 2006 WL 1816361, at *9. Roger Clemons, the private investigator retained by counsel, testified at the post-conviction hearing that he had been able to identify "Twenty" as Taylor, that he interviewed Taylor, and that he learned from his investigation that Taylor had fathered a child by Robins's sister. Id. at *6. Nothing in the record, however, linked Taylor to the scene of the crime or associated Taylor with anyone involved in the crime. Id. at *14.
The state appellate court rejected Petitioner's "Twenty" argument, reasoning that trial counsel did not "pursue the avenue of defense regarding `Twenty' more vigorously because he was focusing on presenting the petitioner's alibi as the main defense." Id. The court also noted that Robins did not present any evidence at the post-conviction hearing that actually linked "Twenty" to the murder, and therefore, he failed to prove prejudice by clear and convincing evidence. Id.
The state appellate court's decision does not contradict or unreasonably apply clearly established federal law, nor is it based on an unreasonable determination of facts. As the Supreme Court stated in Strickland, courts must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689, 104 S.Ct. 2052. A reasonable attorney could have decided that time preparing for trial was best spent on improving Robins's alibi defense, rather than searching for evidence to implicate another suspect. See Flick v. Warren, 465 Fed.Appx. 461, 465 (6th Cir. 2012) (holding that trial counsel's choice to focus on aspects of the petitioner's defense other than finding a expert to challenge the science underlying shaken-baby syndrome, specifically the absence of eyewitness testimony and the petitioner's benign predisposition, was not unreasonable). There was also nothing in the record linking Taylor to the scene of the crime, and Petitioner did not offer any evidence to the contrary at the post-conviction hearing, which supports the state appellate court's conclusion that Petitioner did not show prejudice.
Petitioner argues that although several witnesses — his mother, sisters, and McHenry — were prepared to testify that his hair was cut short two weeks prior to the shooting, his trial counsel failed to ask
It is possible that the jury could have found testimony given by Petitioner's mother and sisters, and McHenry, regarding the length of his hair at the time of the shooting persuasive. Given, however, that the jury found testimony by Petitioner's mother and sisters regarding his alibi unconvincing, the state appellate court's decision that the jury would have rejected their testimony about his hair as well was not unreasonable. There was mug shot evidence introduced, which is discussed further infra Part IV.H., that indicated the Petitioner sometimes wore his hair short, and the jury found that evidence unconvincing. Robins presented no evidence at the post-conviction hearing regarding his hair that would suggest the absence of the testimony deprived him of a fair trial. Thus, the state appellate court did not err in finding that Robins failed to prove prejudice.
Robins maintains that the result of his trial may have been different had his counsel filed a motion to ascertain the nature of a pretrial agreement between the State and witness Pamela Johnson, which Robins argues would have related directly to the credibility of Pamela Johnson's testimony. While the state appellate court held correctly that a quid pro quo existed for Pamela Johnson's testimony, Robins contends, the court erred when it held that the result of trial would not have changed had trial counsel discovered the agreement and presented it to the jury.
On direct-examination at trial, Pamela Johnson testified that she saw the shooting and knew the defendants. 2003 WL 1386835, at *2. She also testified about the victim's failure to produce drug money and about conspiring with White to detain the victim until the defendants arrived. Id. She denied knowing anyone had a gun, and explained that she thought that the victim would only be beaten. Id. She admitted lying to the police initially and at White's bond hearing because she was scared of getting hurt or having her children taken from her. Id. She testified that she ultimately told the police the truth and properly identified the defendants. Id. Pamela Johnson's credibility was attacked again on cross-examination, when trial counsel asked her about White's bond hearing, and she confirmed she had been coerced and only a portion of her testimony had been true.
Assistant District Attorney General Brett Gunn testified at the post-conviction hearing that he promised to take Pamela Johnson's testimony into consideration when proceeding with the State's case against her. Robins, 2006 WL 1816361, at *14. He also admitted that though Pamela Johnson was indicted originally for felony murder, she pled guilty to a lesser offense after Petitioner and White were convicted, and was sentenced to four years of probation only. Id. at *9.
The state appellate court determined that the trial court erred when it found no deal existed between Pamela Johnson and Gunn. Id. Gunn's quid pro quo, the state appellate court explained, operated as an effective agreement. Id. Robins, however, failed to show that the result of his trial would have changed as a result of his
Pamela Johnson's credibility was attacked, rehabilitated, and attacked again during trial on direct- and cross-examination. Trial counsel's failure to ask Pamela Johnson about additional impeaching material — the effective agreement between the State and Pamela Johnson — did not deprive Robins of a fair trial. The jury had heard sufficient testimony already to call into question Pamela Johnson's credibility as a witness. It was not unreasonable for the state appellate court to conclude that Robins failed to prove he was prejudiced by his attorney's failure to introduce yet another piece of impeachment evidence.
Robins next argues that trial counsel's performance was deficient because he failed to file a motion to suppress the photographic line-up until the eve of trial, and the motion filed was not prepared adequately or effectively.
The state trial court heard witnesses and argument on the motion to suppress filed by counsel and overruled the motion. The state trial court found that Petitioner suffered no prejudice from the untimely filing because it ruled on each issue raised in the motion, and ultimately denied the motion. The state appellate court agreed.
Robins lists the factors the Supreme Court has identified as relevant to an analysis assessing the reliability of an identification, but fails to analyze these factors in the context of the facts of this case or explain why trial counsel's motion to suppress was not prepared adequately or effectively. The sole reason Robins provides as to why the motion was inadequate or ineffective is that it was untimely. Despite the untimeliness of the motion, however, the state trial court heard witnesses and argument, and ruled on the motion.
As this Circuit observed in Tankesly v. Mills, in "cases in which we have found an attorney's performance deficient for failing to raise a particular Fourth Amendment issue, trial counsel entirely failed to lodge a Fourth Amendment challenge to the admission of evidence, and the merit of the defendant's underlying Fourth Amendment argument was obvious." No. 11-5516, ___ Fed.Appx. ___, ___, 2012 WL 3195778, at *7 (6th Cir. Aug. 8, 2012) (citing Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir.2003) (finding counsel's performance was deficient when he moved to suppress evidence obtained from a Terry stop but failed to cite on-point Supreme Court precedent with "unique factual similarities"); Northrop v. Trippett, 265 F.3d 372, 382 (6th Cir.2001) (finding counsel's performance was deficient where he failed to file a motion challenging a seizure when the defendant was detained by officers based on an unverified anonymous tip and the officers had no other basis for stopping the defendant)).
Robins must show both deficiency and prejudice under Strickland. He has failed to advance any persuasive arguments as to why his counsel's performance was deficient, and has also failed to show prejudice because the trial court ruled on his motion. Unlike in Joshua, Petitioner has pointed to no persuasive precedent with facts similar to the facts of this case, and unlike in Northrop, counsel filed a motion to suppress that was ruled on by the trial court. Thus, the state appellate court's application of federal law was not unreasonable.
Petitioner's next argument is that trial counsel was ineffective because he failed to
The state trial court found that Robins failed to prove prejudice because "he failed to introduce any evidence showing how the identity of the caller would have helped his defense." Robins, 2006 WL 1816361, at *15. The state appellate court found that the record supported the trial court's finding and that Robins was not entitled to relief. Id.
Under Tennessee law, the identity of a confidential informant is generally privileged. Tennessee v. Vanderford, 980 S.W.2d 390, 395 (Tenn.Crim.App.1997). The privilege is predicated upon public policy concerns, and "seeks to encourage citizens to assist in crime detection and prevention by giving information to law enforcement officials without unduly exposing themselves to the danger inherent in such laudable activity." Id. (citing Roberts v. Tennessee, 489 S.W.2d 263, 263 (Tenn.Crim.App.1972)). The privilege is not absolute, though, and the State is required to divulge the identity of a confidential informant to the defendant when: (1) disclosure would be relevant and helpful to the defendant in presenting his defense and is essential to a fair trial; (2) the informant was a participant in the crime; (3) the informant was a witness to the crime; and (4) the informant has knowledge which is favorable to the defendant. Id. at 397 (citations omitted). The defendant, as the movant for the disclosure, "has the burden of establishing by a preponderance of the evidence that the identity of the confidential informant is material to his defense because the informant was a witness to the crime, participated in the crime, or possesses facts favorable or relevant to the defendant." Id. (citations omitted).
Robins failed to present any evidence indicating that a motion to ascertain the identity of the confidential informant would have been granted under Tennessee law. Rather, he urges us to infer that the confidential informant was either a participant in or a witness to the crime because "[t]here is no other logical reason to name a suspect." Petitioner Br. at 39. If the Court were to make the requested jump in logic, Tennessee precedent requiring the movant to establish, by the preponderance of the evidence, that materiality of the identity of the confidential informant would be rendered meaningless. Without providing any evidence indicating that a motion to ascertain the confidential informant's identity would have been granted, Robins has failed to show prejudice. The state appellate court's decision was not unreasonable.
Robins argues trial counsel was deficient because he failed to object to what Robins contends was prejudicial hearsay testimony given by Harold Overton. Robins also argues that trial counsel failed to object when the prosecution "misquoted Mr. Overton, saying that Mr. Overton heard the person saying that the police were looking for Leon [Robins]" during closing argument.
Tennessee Rule of Evidence 803(1.2) mirrors Federal Rule of Evidence 801(d)(2) and provides that "[a] statement offered against a party that is (A) the party's own statement in either an individual or a representative capacity" is not excluded by the hearsay rule. The statement made by Robins in response to the comment made by one of the men outside of the apartment building that someone was looking for him could, indeed, qualify as a party-opponent admission. The statement alerting Robins to the fact that someone was looking for him, however, was not a party-opponent admission because the person who offered it is not a party. The state courts erred when they failed to parse Overton's testimony in this manner. Yet, even if they had parsed Overton's testimony, and an objection to the statement made by the third-party had been sustained, the testimony about Robins's reply could have been admitted as a statement by a party-opponent. This admission by Robins was the harmful portion of Overton's testimony. Even without the context of the question to which Robins was responding, Robins's statement implied some culpability because he indicated he was confident he would not be discovered.
The state trial court's inquiry was whether the deficiencies at trial were "so serious that counsel was not functioning as the `counsel' guaranteed ... by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. While trial counsel could have been more cautious when Overton was testifying and made a hearsay objection, or objected to the prosecution's mischaracterization of Overton's testimony during closing argument, counsel's performance was not deficient. See Meadows v. Doom, 450 Fed.Appx. 518, 523 (6th Cir. 2011) ("While trial counsel could undeniably have been more vigilant in objecting to statements made by Dr. Compton and could have done a more thorough investigation of witnesses prior to trial, our review of the trial in its entirety convinces us that these shortcomings were not `so serious that counsel was not functioning as the `counsel' guaranteed ... by the Sixth Amendment.'") (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052); see also Jackson, 681 F.3d at 763 (finding that petitioner failed to demonstrate that he was denied a fundamentally fair proceeding because his trial counsel failed to object to the prosecution's use of leading questions during direct-examination). Moreover, Robins makes no argument as to how
Robins filed a complaint against his trial counsel with the Board of Professional Responsibility. He argues counsel acted deficiently by failing to bring the complaint to the court's attention prior to trial and by failing to address the concerns set forth in the complaint.
The state appellate court concluded that Robins failed to prove prejudice because he "fail[ed] to allege in his brief how his attorney's failure to bring this matter to the attention of the court prejudiced his defense." Robins, 2006 WL 1816361, at *16. This conclusion was not unreasonable because Petitioner does not elaborate on how his defense was prejudiced by counsel's failure to advise of the complaint. Robins does not provide any information about the content of his complaint. We can reach no conclusion other than that the state appellate court did not err.
Robins argues trial counsel failed to cross-examine Amelia Patterson and Pamela Johnson adequately and effectively. With respect to Amelia Patterson, Robins argues counsel was deficient because he failed to ask Patterson about Detective Satterfield coaching her on the description of the shooter in the case prior to the preliminary hearing. Robins contends trial counsel's cross-examination of Pamela Johnson was deficient because he did not ask her about "her motive to lie." Petitioner Br. at 42. Robins asserts Pamela Johnson had this motive because she was charged with first-degree murder in the same case.
With respect to trial counsel's cross-examination of Patterson, the state appellate court found that Robins failed to prove that Detective Satterfield coached Patterson because Robins's counsel failed to call Patterson to testify at the post-conviction hearing, and Detective Satterfield testified that he did not coach Patterson. Robins, 2006 WL 1816361, at *16. The trial court credited Detective Satterfield's testimony. It was not unreasonable for the state appellate court to conclude that trial counsel's performance was not deficient where Robins failed to prove Patterson had been coached.
With respect to Pamela Johnson's motive to lie, the state trial court found that while the Petitioner's trial counsel's cross-examination could have been more explicit, the jury was aware of Pamela Johnson's indictment for murder, and trial counsel gave the jury appropriate instructions about her credibility. Id. The state appellate court concluded, in light of this reasoning, that Petitioner failed to show prejudice. Id.
"When deciding whether counsel's errors prejudiced a defendant, we must consider the totality of the evidence before the.... jury." Jackson, 681 F.3d at 760 (citing Strickland, 466 U.S. at 695, 104 S.Ct. 2052). Because the jury was aware that Pamela Johnson was under indictment for the murder, Robins failed to show how "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, 104 S.Ct. 2052. While explicitly questioning Pamela Johnson about her indictment on cross-examination may have helped
Robins next contends that trial counsel was ineffective because he requested that numerous mug shots of Robins be admitted into evidence during trial, and then failed to request curative instructions. Robins claims that although he demanded that the mug shots be introduced to contest evidence offered by the prosecution, the decision was ultimately at the exclusive prerogative of trial counsel, and the pictures "clearly painted a picture of Petitioner as a dangerous criminal with a lengthy arrest history." Petitioner Br. at 46. "Without curative instructions from the court as to the limited way in which the jury was to use these photographs, it is clear that the jury could and did, conclude that the Petitioner was the type of person who would commit this horrible act." Id.
The State introduced three mug shots during trial to demonstrate that Petitioner wore his hair long in the past. Robins, 2006 WL 1816361, at *17. In response, trial counsel sought to introduce nine other mug shots of the Petitioner with short hair. Id. A bench conference ensued where trial counsel informed the court that his client demanded he submit the pictures into evidence. Id. The court advised counsel that he did not have to adhere to his client's demand if he did not think it was a good idea, to which counsel replied: "Well, it's a good idea." Id.
The state appellate court denied Petitioner post-conviction relief, reasoning:
Id.
In addition, the trial court, on the record, explained the various considerations that go into providing curative jury instructions:
3:07-cv-00429, Dkt. 58-3 at 197.
While trial counsel's decision
Petitioner contends trial counsel was deficient because he failed to present an offer of proof or other evidence on the issue of other suspects, specifically, "Twenty," whose real name is Kenneth Frazier Taylor. When considering this argument at the post-conviction hearing, the state trial court noted that Robins had failed to produce any admissible evidence indicating that "Twenty" was the killer, and that there was no evidentiary support for Petitioner's speculation. While the Petitioner was able to put witnesses on the stand who testified that Taylor was sometimes seen driving a white car, and that a white car was seen leaving the scene of the shooting, Petitioner could not produce proof that there was any relationship between White and Taylor. Nor could Robins produce a single witness that identified Taylor as the killer, or that put Taylor at the scene of the crime.
The state appellate court agreed with the trial court, finding that "the record is devoid of any substantive evidence linking `Twenty' to the killing," and therefore, Petitioner "failed to prove by clear and convincing evidence that he was prejudiced by his attorney's failure to put forth an offer of proof that `Twenty' was the killer." Robins, 2006 WL 1816361, at *17.
Without proof that Taylor was the killer, Robins cannot argue that he was deprived of a fair trial because of trial counsel's failure to present an offer of proof or other evidence related to Taylor. The prosecution presented witnesses who identified Robins as the shooter. There was not one witness who could testify that Taylor was the shooter; rather, Petitioner merely pointed to witness testimony that Taylor sometimes drove a white car and had a violent reputation. The state appellate court's finding that Petitioner was not prejudiced by trial counsel's failure to offer proof or other evidence related to "Twenty" was not unreasonable.
Petitioner contends trial counsel was ineffective when he failed to introduce evidence of Detective Satterfield's coaching Patterson, even though the coaching issue was brought to trial counsel's attention before the preliminary hearing in this case. The record indicates that at the post-conviction hearing, Clemons testified that as a part of his investigation, he learned that Detective Satterfield coached Patterson before she testified. Robins, 2006 WL 1816361, at *7. Detective Satterfield testified that he did not recall coaching Patterson as to what description to give the shooter, and that he did not tell anyone what to say during the preliminary hearing. Id. One of Robins's sisters, Nicole
As noted supra Part IV.G., Petitioner did not call Patterson to testify at the post-conviction hearing. Given this lack of testimony, and Detective Satterfield's testimony that he did not coach Patterson, which the state trial court found persuasive, the state appellate court concluded that Petitioner had failed to prove coaching. Robins, 2006 WL 1816361, at * 18. It follows that if Robins failed to prove witness coaching, then he also failed to prove his counsel's performance was deficient for failing to prove witness coaching, or that he was prejudiced as a result. Id. For reasons similar to those already articulated in Part IV.G, the state appellate Court's finding was not unreasonable.
Petitioner argues trial counsel acted deficiently when he failed to advise Petitioner of his right to testify and of the advantages and disadvantages of testifying. Petitioner argues that his testimony was "crucial to his case" because, inter alia, "[n]o other witness had testified about [his] hair length at the time of the shooting" and he "would have testified to his alibi and could have testified about the alternative suspect, `Twenty.'" Petitioner Br. at 52-53. To support his argument, Petitioner relies on a Tennessee Supreme Court case, Momon v. Tennessee, which discusses a criminal defendant's right to testify, and once it has been established the right has been violated, the factors for courts to consider when determining whether denial of the right was harmless beyond a reasonable doubt.
At the post-conviction hearing, trial counsel testified that he could not specifically remember discussing with Robins his right to testify and the advantages and disadvantages of testifying, but that he discusses those issues with all of his clients as a matter of course. When asked about the advantages and disadvantages of putting Robins on the stand, trial counsel explained that "the disadvantage would be that he would be subjecting himself to cross-examination," and the "statements that Harold Overton testified to that he could be asked about." 3:07-cv-00429, Dkt. 58-5 at 73. He also noted that Robins's "general demeanor was not advantageous to an extent where testifying in front of a jury would be something that I considered in his best interest." Id.
In denying Robins relief on this ground, the state appellate court reasoned:
Robins, 2006 WL 1816361, at *18.
Evidence was presented at the post-conviction hearing that trial counsel did in fact advise Petitioner of his right to testify. The state trial court found that evidence more persuasive than Robins's contention that he was not advised of his rights. The state appellate court's decision was not based on an "unreasonable determination of the facts in light of the evidence presented." See 28 U.S.C. § 2254(d)(2). It was unnecessary for the state appellate court even to consider the Momon factors because no constitutional violation was found.
Robins contends that trial counsel was deficient because he failed to object to an improper and unconstitutional jury instruction regarding alibi. Relying on Christian v. Tennessee, 555 S.W.2d 863, 865 (Tenn.1977), Petitioner argues that the last line of the jury instruction on the defense of alibi was unconstitutional, which read as follows: "The weight to be given to alibi evidence is a question for the jury to decide considering all the facts and circumstances of the case." Petitioner Br. at 56.
The state appellant court addressed this argument:
Robins, 2006 WL 1816361, at *19.
We agree with the state appellate court that it was unnecessary for trial counsel to object to the alibi jury instruction, as it instructed the jury "generally on alibi" rather than "as to any special method of weighing or receiving alibi evidence."
Petitioner's final argument is that "the cumulative effect of trial counsel's deficient performance prejudiced Petitioner and warrants a new trial on these charges." Petitioner Br. at 56. This argument is meritless in light of our findings above that the state appellate court did not unreasonably apply Strickland.
For the foregoing reasons, we AFFIRM the district court's decision denying Petitioner's habeas corpus petition.
