THOMAS A. VARLAN, Chief District Judge.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by pro se prisoner Torrey L. Frazier ("Petitioner"), challenging the constitutionality of his confinement under a state court judgment of conviction of second-degree murder [Doc. 1]. On March 23, 2015, Petitioner filed an amended petition [Doc. 8]. In compliance with the Court's order, Respondent filed a response to Petitioner's amended pleading on September 1, 2016, as well as a copy of the state record [Docs. 12, 13]. Petitioner replied on November 14, 2016 [Doc. 14]. For the reasons set forth below, Petitioner's § 2254 petition [Doc. 8] will be
Petitioner was convicted of second-degree murder and sentenced to twenty-two years' imprisonment. State v. Frazier, No. E2000-01364-CCA-R3CD, 2001 WL 1627601, at *1 (Tenn. Crim. App. Dec. 19, 2001). Petitioner appealed his conviction. Id. Discerning no reversible error, on December 19, 2001, the Tennessee Court of Criminal Appeals ("TCCA") affirmed the trial court's judgment. Id. at *9. Petitioner did not file an application for permission to appeal to the Tennessee Supreme Court ("TSC").
On July 21, 2004, Petitioner, through counsel, filed an untimely petition for post-conviction relief. Frazier v. State, 303 S.W.3d 674, 678 (Tenn. 2010). Despite the statute of limitations issue, the State conceded that Petitioner was entitled to a delayed application for permission to appeal to the Supreme Court. Id. The trial court granted the delayed appeal and stayed consideration of the remaining claims in the petition. Id. While Petitioner was given the opportunity to file an application for permission to appeal to the TSC, the application was denied on February 21, 2006. Id. Following an evidentiary hearing on the remaining issues, the trial court denied relief. Id.
Petitioner appealed, and on March 25, 2009, the TCCA affirmed the denial of post-conviction relief. Frazier v. State, No. E2007-02518-CCA-R3-PC, 2009 WL 774482, at *1, *7 (Tenn. Crim. App. Mar. 25, 2009) rev'd and remanded, 303 S.W.3d 674 (Tenn. 2010). Afterward, Petitioner filed a pro se application for permission to appeal, arguing for the first time that the trial court had committed error by failing to sua sponte address a conflict of interest issue. Frazier, 303 S.W.3d 674, 678. Petitioner claimed that the attorney that represented him in the delayed appeal should have been disqualified in the subsequent post-conviction proceeding and appeal. Id. Petitioner contended that he should have been advised of the potential conflict of interest in advance of the evidentiary hearing and given the opportunity to either waive the issue or insist upon substitution of counsel. Id. Upon learning of Petitioner's allegations, the attorney sought and received permission to withdraw. Id. TSC granted permission to appeal in order to address the conflict of interest issue. Id.
On remand, the trial court held an evidentiary hearing, determined that the Petitioner did not knowingly and voluntarily waive retained counsel's conflict of interest, and scheduled a new post-conviction hearing. Frazier v. State, No. E2012-01751-CCA-R3PC, 2013 WL 5964011, at *2 (Tenn. Crim. App. Nov. 6, 2013). Following a new evidentiary hearing held on July 19, 2012, the post-conviction court denied relief and the TCCA affirmed the denial on November 6, 2013. Id. The TSC denied discretionary review on May 14, 2014. Id.
Petitioner then filed a writ of habeas corpus on January 16, 2015 [Doc. 1]. On March 23, 2016, Petitioner filed an amended writ of habeas corpus [Doc. 8]. This matter is now ripe for the Court's review.
The facts of this case have been previously summarized by the TSC as follows:
Frazier, 303 S.W.3d 674, 677 (Tenn. 2010).
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). Congress has mandated that federal courts review state court adjudications on the merits of such claims using a "highly deferential" standard of review. See, e.g., Harrington v. Richter, 562 U.S. 86, 105 (2011). Under this deferential standard, this Court is bound to accept the state court's findings of fact as true unless a petitioner presents "clear and convincing evidence" to the contrary. 28 U.S.C. § 2254(e)(1) (providing that "a determination of a factual issue by a State court shall be presumed to be correct" unless the petitioner rebuts that presumption with clear and convincing evidence); see Seymour v. Walker, 224 F.3d 542, 551-52 (6th Cir. 2000). Additionally, this Court may not grant habeas relief to a state prisoner unless the state court's decision on the merits of his claims "(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).
"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, 132 S.Ct. 38, 44 (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)). 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)).
Petitioner's § 2254 habeas corpus petition raises six claims of ineffective assistance of counsel, one Brady
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. Under the Sixth Amendment, a defendant has a constitutional right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the Strickland standard for proving ineffective assistance of counsel, a defendant must meet a two-pronged test: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Id.
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 reasonableness of counsel's performance must be evaluated "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) (quoting Strickland, 466 U.S. at 689). A court considering counsel's performance "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.
The second prong requires the petitioner to show that counsel's deficient performance prejudiced the defense. 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. 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.
Any § 2254(d) claim reviewed under Strickland is "doubly deferential," affording both the state court and the defense attorney the benefit of the doubt. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Further, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable," but instead "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.
In his amended habeas petition, Petitioner asserts that his trial counsel was ineffective for: (1) failing to "properly address the issue of the biased juror"; (2) failing to offer Petitioner a meaningful defense; (3) failing to adequately represent Petitioner regarding plea offers; (4) eliciting testimony regarding Petitioner's prior felony convictions; (5) failing to object to medical examiner's trial testimony; and (6) failing to object to the re-enactment and use of a tech-9 handgun at trial [Doc. 8]. Respondent argues that the state court's rejection of Petitioner's ineffective assistance of counsel claims was not contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of fact in light of the evidence before the state court [Doc. 12 p. 11].
Petitioner contends that trial counsel was ineffective for "failing to raise the issue of the impropriety of allowing a juror, Juror Samples, to remain with the jury despite the fact that one of Petitioner's witnesses, Terrell Gordon, was charged with assaulting that juror's son" [Doc. 8].
The TCCA addressed the issue on appeal from the denial of the post-conviction relief and rejected Petitioner's argument. The TCCA found as follows:
Frazier, 2013 WL 5964011, at *7.
In its response, Respondent argues that the TCCA's adjudication on this issue "was not contrary to or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence before the state court" [Doc. 12 p. 8]. Respondent reasoned that Petitioner failed to provide any statements by Samples demonstrating prejudice or showing that the jury was tainted by Samples' presence [Id.].
After a review of the record, this Court finds the following conversation took place regarding Samples' dismissal as a juror during trial.
Frazier, 2009 WL 774482, at *6-7.
Later, after the closing arguments of the parties and the trial court's instructions to the jury, the following occurred:
Id.
Then, out of the presence of the jury, the trial court informed Juror Samples:
Id.
This Court finds that the record supports TCCA's finding that the evidence does not undermine the post-conviction court's finding that trial counsel was not ineffective in this regard. The TCCA properly applied the legal standard set forth in Strickland, finding that Petitioner failed to meet his burden of showing that trial counsel's actions rose to the level of deficient, nor did he present any specific evidence to show that he was prejudice by the juror's presence during trial. The TCCA found no showing that the juror had any real bias against the witness, and, in the alternative, even if the juror was biased, the trial court removed the juror prior to deliberations. As such, Petitioner is not entitled to relief on this claim.
Petitioner contends that he "was not given sufficient opportunity after consultation with [trial] counsel to consider whether he wished to testify, or to give meaningful input as to the preparation of his defense" [Doc. 8 p. 13]. "Petitioner generally argues that his attorneys' visits and meetings were limited and, therefore, inadequate to be considered effective representation" [Doc. 12 p. 12].
At his post-conviction hearing, Petitioner testified that he met with lead counsel one time at the Petitioner's home the night before trial. Frazier, 2013 WL 5964011, at *5. The meeting lasted thirty to forty minutes, and witnesses Terrell Gordon and Christopher Williams were also present. Id. During the meeting, lead counsel talked with Gordon and Williams and told Petitioner that "we was going for self defense." Id. Petitioner did not meet with lead counsel again, never met with an investigator, and did not meet co-counsel until the morning of trial. Id. Petitioner reasons that if he had been able to consult with trial counsel regarding trial strategy "well before the trial," he would not have testified, and thus, the jury would not have discovered his prior felony convictions that trial counsel elicited on direct examination [Doc. 8 p. 13].
The post-conviction court discredited Petitioner's claim during the evidentiary hearing that he did not want to testify at trial [State Court Record, Attachment 27 p. 116]. The state court found no evidence that he ever voiced his desire not to testify during the trial phase to his attorneys, the trial court, or anyone else [Id.]. The court found this claim to be "self-serving" and "unsupported by any corroborative evidence" [Id.].
After review of the post-conviction evidentiary hearing on the matter, the TCCA determined that there was nothing in the record to support Petitioner's statements that he was denied opportunities to consult with his trial counsel or that the trial counsel failed to develop a strategy or defense for Petitioner's trial. Frazier, 2013 WL 5964011, at *5. In fact, trial counsel testified that he met with Petitioner on at least two occasions and notified Petitioner of his strategy to argue that Petitioner acted out of self-defense [State Court Record, Attachment 28 p. 7]. Petitioner's testimony at trial was consistent with that defense strategy. As such, the TCCA affirmed the post-conviction court's ruling on this issue.
Respondent argues that the TCCA's adjudication on this issue "was not contrary to or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence before the state court" [Doc. 12 p. 12].
This Court finds that the TCCA properly applied the Strickland standard in its conclusion that no evidence presented in the state court record supports a finding that trial counsel acted deficiently. "[T]he mere fact that counsel spent little time with [Petitioner] is not enough under Strickland, without evidence of prejudice or other defects." Bowling v. Parker, 344 F.3d 487, 506 (6th Cir. 2003). Petitioner failed to show that he was unable to communicate with trial counsel prior to trial. In fact, the record shows that trial counsel and Petitioner met on at least two occasions prior to trial to discuss trial strategy. Thus, this Court agrees with the TCCA's finding that Petitioner's arguments in support of this claim fell far below the required standard of clear and convincing evidence. Based on the TCCA's proper application of the relevant law, Petitioner is not entitled to relief on this claim.
Next, Petitioner claims that trial counsel was ineffective for failing to apprise Petitioner of the terms of a settlement offer made by the State [Doc. 8 p. 17]. He asserts that the evidentiary hearing record shows that a plea offer may have been made, yet none was conveyed to Petitioner [Id. at 20].
At the post-conviction evidentiary hearing, lead counsel testified regarding plea negotiations stating that "it seems like we talked about some pleading to a second degree . . . and I, I think were trying to get them to offer some manslaughter charge." Frazier, 2013 WL 5964011, at *4. However, lead counsel could not remember if the State made a plea offer. Id. The post-conviction court denied this issue noting that lead counsel and co-counsel both testified that they would have been open to plea offers by the State but that they did not remember the State making an offer. Id. The TCCA addressed the issue, agreeing with the post-conviction court's finding that nothing in the record indicates that the State made a plea offer to the defense or was even willing to negotiate with trial counsel. Id. at *8. In any event, lead counsel testified that there may have been some discussions about a guilty plea to second degree murder or manslaughter, and the jury convicted the Petitioner of the former. Id. Thus, the Petitioner has failed to show that he was prejudiced by trial counsels' failure to enter into plea negotiations. Id.
Respondent argues that the TCCA's rejection of this argument "was not contrary to or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence before the state court" [Doc. 12 p. 14]. Respondent notes trial counsel's testimony at the post-conviction evidentiary hearing that "it is his usual practice to try to negotiate a plea for a client, and he would have done so in the Petitioner's case, although he did not have independent recollection of doing so or being approached with an offer" [Doc. 12 p. 15 (citing State Court Record Attachment 28 p. 23-24)].
Based on the evidence at hand, and taking into consideration trial counsels' testimony at the post-conviction evidentiary hearing, this Court finds that the TCCA properly applied the standard articulated in Stickland in determining its conclusion. Petitioner provided no specific evidence of a plea offer by the State, but merely argues that a plea offer "may have been made" [Doc. 8 p. 17]. Neither Petitioner nor trial counsel recalled any specific plea offer made by the State. The Court thus finds that the TCCA was not unreasonable in determining that Petitioner failed to prove ineffective assistance on this issue. Accordingly, Petitioner is not entitled to relief on this claim.
Petitioner contends that trial counsel was ineffective "in that counsel extracted testimony from Petitioner (at trial) about his felony conviction of selling and delivering cocaine" [Doc. 8 p. 21]. Petitioner argues that trial counsel's actions "opened the door" for the State to question Petitioner about his prior drug convictions, damaging his reputation before the jury and hurting his defense [Id.]. Respondent argues that Petitioner's claim is procedurally defaulted because it was not previously presented to the state courts for consideration [Doc. 12 p. 16].
Before a federal court may review a federal claim raised in a habeas petition, it must first determine whether the petitioner has exhausted the remedies available to him in state court. See 28 U.S.C. § 2254(b)(1). If a federal habeas claim has not been presented to a state court for adjudication, then it is unexhausted and may not properly serve as the basis of a federal habeas petition. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Here, Petitioner's claim of ineffective assistance based on trial counsel's inappropriate direct examination of Petitioner regarding past convictions was never properly raised in state court. Because Petitioner never presented this claim on direct appeal from his judgment of conviction, this claim is unexhausted and not reviewable by the Court under § 2254. Moreover, Petitioner is now precluded from raising this claims in a state post-conviction proceeding as the time for seeking such relief has long since has passed. Tenn. Code Ann. § 40-30-102(a), (b); Seals v. State, 23 S.W.3d 272, 276 (Tenn. 2000).
A procedural default forecloses federal habeas review, unless the petitioner can show cause to excuse the failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Liberally construing Petitioner's pleading, Petitioner asserts as cause for not including the above-mentioned claim on direct appeal that his post-conviction counsel was ineffective for failing to raise this ineffective assistance of trial counsel issue [Doc. 8 p. 22]. The Court interprets this excuse for the procedural default as a claim of ineffective assistance of post-conviction counsel. Ineffective assistance of state post-conviction counsel can establish cause to excuse a Tennessee prisoner's procedural default of a substantial federal habeas claim that his trial counsel was constitutionally ineffective. Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014).
The Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012) effected a change in decisional law in that it created a "narrow exception" to the general rule of Coleman v. Thompson, 501 U.S. 722 (1991). The general rule from Coleman states that a habeas petitioner cannot use ineffective assistance of collateral review counsel as cause to excuse a procedural default. Coleman, 501 U.S. at 756-57. The Martinez exception, however, provides that where a state's procedural law requires claims of ineffective assistance of counsel to be raised in an initial-review collateral proceeding, a procedural default will not bar a habeas court from hearing a substantial claim of ineffective assistance of counsel, if in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez, 566 U.S. at 17. A year later, the Supreme Court expanded the Martinez exception to cases where a "state['s] procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of counsel on direct appeal. . . ." Trevino v. Thaler, 569 U.S. 413, 428 (2013). The Sixth Circuit subsequently ruled that this exception is applicable to Tennessee. See Sutton, 745 F.3d at 795-96.
To successfully establish cause and prejudice under Martinez and Trevino, a petitioner must show a substantial underlying claim of ineffective assistance of trial counsel, that is, that the underlying ineffective assistance of counsel claim has some merit. See Trevino, 133 S. Ct. at 1918; Martinez, 132 S.Ct. 1318-19; Cook v. Ryan, 688 F.3d 598, 610 (9th Cir. 2012) (Martinez requires that a petitioner's claim be rooted in "a potentially legitimate claim of ineffective assistance of trial counsel"). Based on this ineffective assistance of post-conviction counsel claim, the Court is required to review but not determine whether trial counsel's acts or omissions resulted in deficient performance and in a reasonable probability of prejudice, and to determine only whether resolution of the merits of the claim would be debatable among jurists of reason and whether the issues are deserving enough to encourage further pursuit of them. See Gunter v. Steward, No. 2:13-CV-00010, 2014 WL 2645452, at *13 (M.D. Tenn. June 13, 2014) ("[I]n many habeas cases seeking to overcome procedural default under Martinez, it will be more efficient for the reviewing court to consider in the first instance whether the alleged underlying ineffective assistance of counsel was `substantial' enough to satisfy the `actual prejudice' prong of Coleman.").
The trial transcript reflects that during Petitioner's direct examination, trial counsel asked if he had been convicted of a prior felony and that Petitioner said he had been convicted of selling and delivering cocaine. Frazier, 2013 WL 5964011, at *8. Trial counsel then asked if Petitioner's drug habits had "anything to do with what happened that night?" and Petitioner responded "Naw." Id. On cross-examination, the State asked if he actually had been convicted of three drug offenses, and the Petitioner said yes. Id. Thus, it appears that Petitioner's direct testimony triggered the State's questioning about his prior convictions. However, this Court finds no indication in the record that the result of the proceeding would have been different absent this one question offered by trial counsel. Given the overwhelming amount of evidence on record supporting the jury's conviction of Petitioner, the Court finds that under Strickland the underlying claim regarding trial counsel's actions during direct examination of Petitioner did not prejudice the outcome of the trial. As such, Petitioner is not entitled to relief on this claim.
Petitioner contends that trial counsel was ineffective for failing to object to medical examiner Charles Harlan's testimony regarding the victim's cause of death [Doc. 8 p 23]. Petitioner argues that had trial counsel conducted an investigation of Dr. Harlan, he would have learned of prior allegations of misconduct and been able to cross-examine the doctor about those allegations [Id.].
The TCCA addressed the issue on appeal and rejected Petitioner's argument. The TCCA found as follows:
Frazier, 2013 WL 5964011, at *11.
Respondent argues that the TCCA's adjudication on this issue "was not contrary to or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence before the state court" [Doc. 12 p. 18].
This Court finds that the TCCA properly applied the governing standard set forth in Strickland. Petitioner provided no supporting evidence to show that trial counsel was ineffective regarding Mr. Harlan's cross-examination or that he was prejudiced by Mr. Harlan's testimony in any way. Other than unrelated instances of alleged misconduct, Petitioner failed to provide any indication that Dr. Harlan's testimony in Petitioner's case was improper. Without a finding of prejudice resulting from Dr. Harlan's testimony, Petitioner has failed to satisfy the elements of Strickland. Petitioner is not entitled to relief on this claim.
Petitioner argues that his trial counsel was ineffective for failing to object when the prosecutor placed a gun in Petitioner's hand and had him demonstrate the victim's actions prior to the shooting [Doc. 8 p. 29]. Petitioner argues that an objection was necessary because "[t]he prosecution laid no foundation for the presentation of this evidence prior to asking Petitioner . . . to conduct a physical demonstration with a large firearm that was not connected to the offense" [Id. at 30]. Although trial counsel objected when the State moved the gun into evidence, Petitioner alleges that the objection was too late to undue its prejudicial effect [Id.]. Petitioner asserts that the probative value of putting a firearm in his hands in front of the jury, if any, was substantially outweighed by the danger of unfair prejudice [Id. at 31].
The TCCA addressed this claim on appeal from the denial of the post-conviction relief and rejected Petitioner's argument [Doc. 12 p. 19]. The state appellate court stated in pertinent part:
Frazier, 2013 WL 5964011, at *9.
Respondent argues that the TCCA's adjudication on this issue "was not contrary to or an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence before the state court" [Doc. 12 p. 19]. Respondent asserts that Petitioner failed to make any showing on the facts or law of actual deficiency of counsel or prejudice resulting therefrom that would render the TCCA's decision unreasonable [Id. at 21].
Based on the state court's finding that the gun was relevant at trial and beneficial to Petitioner's defense, the Court finds that the TCCA reasonably concluded that counsel was not deficient in failing to object. Further, trial counsel's failure to reference Tenn. R. Evid. 403 in his objection to the gun being entered into evidence is irrelevant because the objection has no merit. By failing to find any deficiency in trial counsel's actions regarding the reenactment with the gun, the TCCA properly rejected Petitioner's argument. Based on the TCCA's proper application of Strickland, this Court finds Petitioner is not entitled to relief on this claim.
Petitioner contends that the prosecutor failed to disclose investigative material regarding allegations of misconduct against Dr. Harlan in violation of Brady v. Maryland, 373 U.S. 83 (1963) [Doc. 8 p. 27].
Respondent asserts that Petitioner's claim is procedurally defaulted because Petitioner has never presented a Brady claim for review in state court [Doc. 12 p. 22]. Respondent moves this Court to dismiss this claim based on Petitioner's failure to make a showing of cause to excuse his default or any actual prejudice resulting therefrom [Id.]. In the alternative, Respondent asserts that Petitioner failed to state a basis for why he believes the prosecution had allegedly failed to disclose evidence and that he failed to state what "investigative materials" were undisclosed or the "investigating agencies" which possessed the undisclosed materials [Id.].
A state's suppression of Brady evidence can constitute cause under the procedural-default doctrine. Banks v. Dretke, 540 U.S. 668, 691 (2004). To demonstrate a Brady violation, a habeas petitioner must establish three elements: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A habeas petitioner demonstrates prejudice by showing that the suppressed evidence is "material." Id. at 282. Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (internal quotation marks omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (internal quotation marks omitted). A petitioner who proves a Brady violation demonstrates cause and prejudice to excuse procedural default of the Brady claim. Id.
First, the Court finds that Petitioner has not demonstrated cause for his procedural default because he is unable to show that allegations of misconduct by Dr. Harlan were in fact suppressed by the prosecutor. Next, in determining if the information was material, the Court finds that the information Petitioner asserts as material were merely allegations against Dr. Harlan made prior to the trial. Petitioner does not cite to any part of Dr. Harlan's testimony in his own trial that was negligent, deceitful, or fraudulent. Further, the Court agrees with Respondent's argument that Petitioner's allegations on this claim are vague. Petitioner failed to state what investigative materials were undisclosed or which investigating agencies possessed the undisclosed materials. Based on the lack of substance in Petitioner's argument, Petitioner has failed to establish that the purportedly suppressed information was material. Accordingly, Petitioner has neither demonstrated a valid Brady claim nor excused his procedural default. Petitioner is not entitled to relief on this claim.
Petitioner contends that the trail court improperly sentenced him to twenty-two years confinement and that his post-conviction counsel failed to raise this claim on appeal [Doc. 8 p. 32]. Petitioner cites Martinez as cause for his failure to exhaust this claim [Id. at 37]. Petitioner argues that the trial court "improperly enhanced [his] sentence by one [1] year on the judicially determined notion that he was out on bond at the time of the offense" [Id.]. Petitioner alleges he should have received a sentence of twenty-one years imprisonment, rather than twenty-two [Id.].
Respondent argues that Petitioner's claim is procedurally defaulted because it was presented solely under a state law theory on direct appeal in state court and, absent unusual circumstances, a district court should dismiss a petition filed under 28 U.S.C. § 2254 if it contains claims not fully presented to state courts under the same theory advanced in his habeas petition [Doc. 12 p. 23 (citing O'Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996)].
On direct appeal, the TCCA found as follows:
Frazier, 2001 WL 1627601, at *7-9.
This Court finds that an allegation that a sentence has been imposed in violation of state sentencing law does not present a constitutional issue, unless the petitioner can demonstrate that the sentence was unconstitutional. Sneed v. Donahue, 993 F.2d 1239, 1244 (6th Cir. 1993) (assertion that sentences were aggregated under state law causing an illegal total sentence is not a cognizable habeas corpus claim); Lindsey v. Parker, No. 2:10-CV-193, 2013 WL 3834005, at *3 (E.D. Tenn. July 23, 2013) (holding that petitioner's claim that he was improperly sentenced as a Range II offender based on a prior invalid conviction did not provide a "recognizable basis for habeas corpus relief"). Where state courts have spoken on a matter of state law, it is not the role of a federal habeas court "to reexamine state-court determinations of state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, a decision which rests entirely on state law generally is not of federal concern. See, e.g., Swarthout v. Cooke, 562 U.S. 216, 218 (2011) (holding claims which allege a state law error or an incorrect application of state law do not present cognizable issues for federal habeas review).
In the present case, Petitioner claims that his sentence was improperly enhanced. As stated above, claims which arise out of a state trial court's sentencing decision are not normally cognizable upon habeas review unless the petitioner can show that the sentence was unconstitutional or wholly unauthorized by law. See Howard v. White, 76 F. App'x. 52, 53 (6th Cir. 2003). Here, Petitioner fails to assert any federal constitutional violation before the state court. Accordingly, Petitioner fails to overcome the statutory presumption that the trial court's sentencing determination was correct. Petitioner's challenge to his sentence is not cognizable in a federal habeas corpus proceeding. Petitioner is thus not entitled to relief on this claim.
For the reasons set forth above, Petitioner's § 2254 petition [Doc. 8] will be
The Court must consider whether to issue a certificate of appealability ("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, 537 U.S. at 327, 336; 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. First, as to the procedurally defaulted claims, jurists of reason would not debate the Court's finding that the claims are procedurally defaulted. Further, in view of the law upon which the dismissal on the merits of the adjudicated sub-claim is based, reasonable jurists could not disagree with the correctness of the Court's resolution of this claim. Because the Court's assessment of Petitioner's claims could not be debated by reasonable jurists, such claims are inadequate to deserve further consideration, and the Court will
A SEPARATE JUDGMENT ORDER WILL ISSUE.