J. RONNIE GREER, District Judge.
Before the court is a pro se prisoner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 [Doc. 1]. Respondent has filed a response in opposition [Doc. 15], as well as the state court record [Doc. 14]. Petitioner filed a reply [Doc. 30]. After reviewing all of the relevant filings, the Court has determined that Petitioner is not entitled to relief under §2254 and no evidentiary hearing is warranted. See Rules Governing § 2254 Cases, Rule 8(a) and Schirro v. Landrigan, 550 U.S. 465, 474 (2007). For the reasons set forth below, the §2254 Petition is
In 1994, a Hamilton County jury convicted Petitioner of first-degree murder for shooting and killing his wife [Doc. 14 Attachment 1 at 24]. Petitioner appealed on several grounds including that the evidence was insufficient to support the finding of guilt by the jury, that the trial court erred in allowing and disallowing various pieces of evidence, and that the State had violated Brady v. Maryland by failing to disclose exculpatory information [Doc. 14 Attachment 9]. The Tennessee Court of Criminal Appeals ("TCCA") affirmed his conviction [Doc. 14 Attachment 11]. Petitioner then applied for permission to appeal to the Tennessee Supreme Court, but his application was denied [Doc. 14 Attachments 12, 15].
Next, Petitioner filed a motion for post-conviction relief alleging various grounds of ineffective assistance of counsel and various instances of prosecutorial misconduct [Doc. 14 Attachment 15 at 3-12]. His petition was summarily dismissed [Doc. 14 Attachment 16 at 63-64]. Thereafter, Petitioner amended his petition for post-conviction relief which was dismissed as untimely filed [Doc. 14 Attachment 16 at 65-81; 84]. Petitioner immediately appealed and the TCCA reversed in part and remanded for further proceedings on Petitioner's ineffective assistance of counsel claims, with specific instructions for the post-conviction court to allow Petitioner to amend his petition [Doc.14 Attachment 20].
Petitioner filed an amended petition in 2000, and over the next several years filed various amendments, with and without the assistance of counsel [Doc. 14 Attachments 21 at 5-114; 21 at 115-131; 21, at 140-141; 22 at 127-23 at 87; 23 at 88-123; 28 at 71-106; 28 at 107-29 at 5
The State appealed to the Tennessee Supreme Court ("TSC"), which found no ineffective assistance of counsel on either claim, reversed the TCCA's judgment, and remanded the case to the TCCA to address Petitioner's pretermitted claims [Doc. 14 Attachments 49, 60]. Petitioner then moved for a rehearing in the TSC which was denied [Doc.14 Attachments 61, 62]. He also filed a writ of certiorari with the United States Supreme Court which was also denied [Doc. 14 Attachments 63, 64]. Later, the TCCA evaluated Petitioner's remaining claims as directed by the TSC and affirmed the judgment denying petitioner post-conviction relief [Doc. 14 Attachment 72]. Petitioner filed an application for permission to appeal with the TSC, which was denied [Doc. 14 Attachments 73, 75]. Finally, in 2016 Petitioner filed for a writ of habeas corpus with this Court [Doc.1].
On Direct Appeal, the TCCA summarized the facts of this case as follows:
State v. Kendricks, 947 S.W.2d 875, 878-79 (Tenn. Crim. App. 1996).
As stated above, the post-conviction trial court conducted hearings over several days in February and March of 2011. In its second opinion addressing the dismissal of Petitioner's post-conviction petition, the TCCA summarized the evidence adduced at these hearings as follows:
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified in 28 U.S.C. §2254, a district court may not grant habeas corpus relief for a claim that a state court adjudicated on the merits unless the state court's adjudication of the claim:
28 U.S.C. § 2254(d)(1) and (2). This standard is intentionally difficult to meet. Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotation marks omitted). Under the unreasonable application clause, the proper inquiry is whether the state court's decision was "objectively unreasonable," and not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 409-11 (2000). The AEDPA likewise requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Where the record supports the state court's findings of fact, those findings are entitled to a presumption of correctness which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In his §2254 petition, Petitioner raises forty-eight claims for relief that he classifies in five broad categories: (1) ineffective assistance of counsel, (2) ineffective assistance of new trial and appellate counsel, (3) prosecution suppression of evidence, (4) new evidence, and (5) a singular claim that the AEDPA is an unconstitutional extension of Congressional power. Respondent argues that many of the claims set forth in Petitioner's federal habeas corpus petition have been procedurally defaulted and may not now be addressed on the merits. Petitioner first suggests that his claims have not been procedurally defaulted, and second offers multiple alternative grounds for which to excuse any procedural default. This Court finds that Petitioner's claims raised only in his pro se briefs were abandoned on appeal and have been procedurally barred. As there is no valid cause for the court to address these claims, the Court will only address the eighteen claims, spanning eleven issues, Petitioner now raises which were properly included in the appellate briefs filed by counsel.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must first exhaust the remedies available in state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to "fairly present" federal claims to state courts to ensure states have a "full and fair opportunity to rule on the petitioner's claims." Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990); see O'Sullivan, 526 U.S. at 842. Generally, to fulfill the exhaustion requirement, each claim must have been presented to all levels of the state appellate system, including the state's highest court. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). The Tennessee Supreme Court has established, however, that when the Tennessee Court of Criminal Appeals has denied relief on a claim, it is exhausted regardless of appeal to the Tennessee Supreme Court. Tenn. S. Ct. Rule 39 (Supp. 2001). Nevertheless, if there are no further state court remedies available to the petitioner, lack of exhaustion will not foreclose merits review. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
When a claim was never presented to the highest available state court and is now barred from such presentation by a state procedural rule, the claim may be considered "exhausted, but procedurally barred from habeas review." Wallace v. Sexton, 570 Fed. Appx. 443, 449 (6th Cir. 2014). Procedural default may also occur when a state court is prevented from "reaching the merits of the petitioner's claim" because petitioner failed to comply with an applicable state procedural rule, which is regularly enforced and is an "adequate and independent" state ground, and Petitioner "cannot show cause and prejudice to excuse his failure to comply." Id. at 449 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)); Seymour v. Walker, 224 F.3d 542, 549-550 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84 87 (1977)). In determining whether a state procedural rule was applied to bar a claim, a reviewing court looks to the last reasoned state-court decision disposing of the claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803; Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
On Petitioner's direct appeal, he raised twelve issues, three pertaining to the sufficiency of the evidence, eight questions of trial court error, and one question of prosecution suppression regarding the testimony of Martha Maston as a surprise witness [Doc. 14 Attachment 9]. Later, on his first appeal of the dismissal of his state petition for post-conviction relief, Petitioner raised six issues of trial court error, all relating to the summary dismissal of his post-conviction petition [Doc. 14 Attachment 17]. On his second appeal, in an opening brief appealing the denial of post-conviction relief, Petitioner's counsel raised two issues — (1) that the post-conviction trial court had used the wrong standard in evaluating Petitioner's claims, and (2) that the cumulative effect of trial counsel's deficient performance was sufficiently prejudicial to warrant relief [Doc. 14 Attachment 45].
The State appealed to the TSC, claiming error by the TCCA regarding both of the findings that Petitioner was entitled to post-conviction relief [Doc. 14 Attachment 52]. In a pro-se response, Petitioner attempted to include most, if not all, of the claims he had previously litigated in the post-conviction trial court, including those not addressed or outlined by the TCCA [Doc. 14 Attachments 56, 57]. Counsel filed a supplemental brief responding only to the two issues set out by the State in their opening brief [Doc. 14 Attachment 58]. The TSC addressed only the two issues identified by the State and reversed on both grounds, remanding the case to the TCCA to address Petitioner's remaining claims [Doc. 14 Attachment 60]. Petitioner filed a motion for supplemental briefing before his pretermitted claims were considered, which the TCCA denied [Doc. 14 Attachments 65, 70]. In its opinion on remand, the TCCA clarified the pretermitted issues as: (1) ineffective assistance of trial counsel for waiving Petitioner's attorney-client privilege with his divorce attorney, (2) ineffective assistance of trial counsel for failing to call the Petitioner's cousin as a witness, (3) ineffective assistance of trial counsel for "opening the door" to Petitioner's prior convictions, (4) ineffective assistance of trial counsel for failing to adequately challenge Lennell Shepheard's testimony, (5) ineffective assistance of trial counsel for failing to call Officer Lapointe to testify to Petitioner's state of mind after the crime, (6) ineffective assistance of trial and appellate counsel for failure to object to Detective Rawlston's use of Petitioner's volunteered testimony after arrest, (7) ineffective assistance of trial counsel for failure to seek curative measures for the surprise testimony of Martha Maston, and (8) whether the cumulative impact of counsels' errors entitle him to relief. The TCCA stated that all other claims had been abandoned on appeal [Doc. 14 Attachment 72 at 5].
Due to Tennessee's one-year statute of limitations and one petition rule, state remedies are foreclosed to Petitioner and lack of exhaustion will not prevent federal habeas review of his claims. Rust, 17 F.3d at 160; see Tenn. Code Ann. § 40-30-102. However, while Petitioner posits that all of his current claims have been fairly presented to either the TCCA or the TSC, presumably relying first on the incorporation by reference in his reply brief presented to the TCCA on his second-appeal of the dismissal of his post-conviction relief, and second on his "unchallenged" pro se response brief to the TSC [Doc. 2 at 8], a majority of the claims he now raises were procedurally defaulted and will not be reviewed on their merits.
Specifically, Petitioner's claims were not fairly presented to an appropriate state court because a Tennessee procedural rule barred consideration of his pro se briefs.
Here, counsel did not attach Petitioner's claims but rather tried to incorporate them by reference in her reply brief. Not only would the state court have been prevented from addressing the pro se brief in conjunction with counsel's brief, but this also improperly expanded counsel's reply brief. In Tennessee, "[a] reply brief is limited in scope to a rebuttal of the argument advanced in the appellee's brief." Caruthers v. State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991). Counsel could not add new arguments in her reply brief, by reference or otherwise, because to do so "would be fundamentally unfair as the appellee may not respond to a reply brief." Caruthers, 814 S.W.2d at 69; see also Flinn v. Sexton, 2018 U.S. Dist. Lexis 36927 (E.D. Tn. 2018). Petitioner has not demonstrated, and this Court cannot find, that the state courts arbitrarily enforced these rules to find that Petitioner did not fairly present his claims.
Like the reply brief discussed above, Petitioner's response brief on appeal to the TSC involved issues of Petitioner's brief being filed alongside a brief filed by counsel, although admittedly Petitioner's brief was filed first and counsel's as a supplement. Again, the TSC did not address Petitioner's additional claims, but did consider the arguments made in counsel's brief, leading us to infer that Tennessee was enforcing its own procedural rule regarding pro se filings from represented petitioners. Kendrick v. State, 454 S.W.3d 450, 475-76 (Tenn. 2015).
Moreover, even if Tennessee courts had looked to Petitioner's brief, Petitioner did not properly raise each of his previously litigated claims in his response. Petitioner correctly points to case law that asserts that appellees may include issues in response briefs not included by the appellant, as long as such is done in conjunction with the Tennessee Rules of Appellate Procedure. See Mobley v. State, 397 S.W.3d 70, 103-104 (Tenn. 2013); Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012). However, in Hodge, which Petitioner points to, the TSC clarified that TN. R. App. P. 27(b) limits such new issues to those in which the appellee is "seeking relief from the judgment" of the Court of Appeals. Hodge, 382 S.W.3d at 336 (Tenn. 2012). Petitioner cannot be claiming to seek relief from the judgment of the TCCA on his additional claims when no such judgment was made. See Id. Again, Petitioner has not demonstrated, and this Court cannot find, that the state court arbitrarily enforced these rules to find that Petitioner did not fairly present these claims.
Because Petitioner did not comply with various regularly-enforced state procedural rules, which are adequate and independent grounds, the claims he presented only in his pro se briefs are procedurally defaulted and may not now be addressed on the merits absent Petitioner's demonstration of cause and prejudice sufficient to excuse such default.
Petitioner next contends that any procedural default is excused for cause; specifically, he alleges as cause: (1) the ineffective assistance of post-conviction counsel; (2) state court action or inaction, including the arbitrary application of procedural law; (3) the respondent's continued failure to disclose exculpatory information; and (4) that equitable principles, as well as the due process clause of the 14th Amendment and/or 6th Amendment demand that this Court can and should hear critical constitutional claims [Doc. 2 at 3-11]. None of these are sufficient cause to excuse Petitioner's procedural default, and his defaulted claims will not be reviewed on their merits.
The Courts have carved out a narrow set of circumstances in which procedural default may be excused and defaulted claims may be evaluated on their merits. Procedurally barred claims may be considered on their "merits only if the petitioner establishes (1) cause for his failure to comply with the state procedural rule and actual prejudice from the alleged violation of federal law or (2) demonstrates that his is `an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Wallace, 570 Fed. Appx. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)"; see House v. Bell, 547 U.S. 518, 536 (2006). To show sufficient "cause," Petitioner must point to "some objective factor external to the defense" that prevented him from raising the issue in his first appeal. Murray, 477 U.S. at 488. Where petitioner fails to show cause, the court need not consider whether he has established prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Leroy v. Marshall, 757 F.2d 94, 100 (6th Cir. 1985).
In order to warrant review under the "actual innocence" prong, which is reserved for fundamental miscarriages of justice, a habeas petitioner must demonstrate that a constitutional error resulted in the conviction of one who is "actually innocent." Dretke v. Haley, 541 U.S. 386, 388 (2004). A habeas petitioner asserting a claim of actual innocence must establish that in light of new, reliable evidence — either eyewitness accounts, physical evidence, or exculpatory scientific evidence — that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. House, 547 U.S. 518, 536 (2006) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner alleges the ineffectiveness of post-conviction counsel as a ground on which to excuse the procedural default of his ineffective assistance of trial counsel and ineffective assistance of counsel on motion for new trial and appellate counsel claims.
Ordinarily, there is "no constitutional right to an attorney in state post-conviction proceedings," so ineffective assistance in post-conviction proceedings does not qualify as "cause" to excuse procedural default of constitutional claims. Coleman v. Thompson, 501 U.S. 722, 725, 755 (1991). However, the Supreme Court has carved out an exception to this rule for claims of ineffective assistance of counsel when those claims may be raised for the first time in post-conviction proceedings or "where a state procedural framework . . . makes it highly unlikely . . . that a defendant [had] a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013) (citing Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012)). This exception applies in Tennessee. See Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014).
However, claims of ineffectiveness of post-conviction appellate counsel cannot constitute cause to excuse procedural default because it is not an initial-review collateral proceeding. Martinez, 132 S. Ct. at 1320.
Petitioner's procedural default relates to his abandonment on appeal of the claims he now raises, which were previously raised at the post-conviction trial court level. The ineffective assistance of counsel at the post-conviction trial level cannot logically constitute cause for this procedural default. The Martinez exception applies to ineffective assistance of counsel claims which were not able to be pursued on direct appeal, and due to the ineffective assistance of counsel, were not properly raised at the initial-review collateral proceeding. Martinez, 132 S.Ct. at 1309; see also Wallace, 570 Fed. Appx. at 453. Here, Petitioner's claims were in fact raised at the initial-review post-conviction proceeding and the ineffective assistance of post-conviction counsel on appeal cannot excuse default. Petitioner expressly notes in his reply that he did not raise "the application of Martinez to post-conviction appellate counsel" [Doc. 30 at 22 ¶ 3].
Petitioner asserts inaction of the state courts as cause to excuse procedural default, stating "the Supreme Court has long found state action and/or inaction of the state courts as being cause to excuse [procedural default]" [Doc. 2 at 7]. Petitioner does not elaborate on this except to cite to a myriad of cases, many of which are not jurisdictionally appropriate, and most of which relate to the prosecution's suppression of exculpatory evidence [Doc. 2 at 7-8]. Petitioner does not alert the Court to any facts demonstrating how in this instance the state court would be responsible for any such withholding. Petitioner later alleges the following of the state court's behavior:
[Doc. 2 at 11]. This is a lengthy and weighty set of accusations against the state courts, yet Petitioner offers essentially no facts under which to evaluate these claims. The only actions, or inactions, Petitioner seemingly points to on behalf of the state courts are the court's denial of post-conviction appellate counsel's Motion to Withdraw as Counsel and denials of additional briefing.
As stated above, after significant disagreement between post-conviction appellate counsel and Petitioner on how to proceed, counsel attempted to withdraw from her representation of Petitioner, which the State did not oppose [Doc. 1 Attachments 1, 3, and 5]. Although criminal defendants do have a right to self-representation under 28 U.S.C. § 1654, courts have broad authority over who practices before them and are not required to permit hybrid representation, representation both pro se and by counsel. United States v. Mosely, 810 F.2d 93, 98 (6th Cir. 1987). "When counsel has `performed in a highly competent and professional manner' and the defendant has been `given ample time to consult with his counsel over strategy,' it is not an abuse of a court's discretion to prohibit hybrid representation." Miller v. United States, 561 Fed. Appx. 485, 488-89 (6th Cir. 2014) (quoting Mosely, 810 F.2d at 98). In its order denying the motion to withdraw, the TCCA found that counsel had substantially invested in her appellate brief and in preparing for oral argument [Doc. 1 Attachment 4]. Because counsel had already filed briefs and prepared for this case and would in the future be responsible for oral argument, the court was not required to allow Petitioner "hybrid representation" and Petitioner cannot demonstrate cause for his procedural default. See Id. Moreover, even if the TCCA's action could constitute cause, it would be exceedingly difficult for Petitioner to prove prejudice for the TCCA's prohibition of counsel's withdrawal, when counsel was in fact successful in having Petitioner's sentence vacated by the same court. Kendrick, 2013 Tenn. Crim. App. Lexis 539.
Regarding Petitioner's allegations that the TCCA's denial of additional briefing or a new briefing schedule constituted cause for his procedural default, again, the court holds broad discretion over whether to allow additional briefing. It is apparent that Petitioner was seeking to include his procedurally defaulted claims in his new brief and in some sense, the denial of additional briefing kept him from doing so. However, to demonstrate cause in this regard by clear and convincing evidence, Petitioner must show an external factor which "prevented him from raising the issue in his first appeal." Murray, 477 U.S. at 488. It was the decision of defense counsel, attributable to Petitioner, to winnow his claims and she did so on Petitioner's third trip through the TCCA. The court was not required to permit additional briefing, in an already long and procedurally complex case, to counteract the defense's decision and this will not constitute cause to excuse Petitioner's procedural default.
Petitioner also relies on the "continued failure of the Respondent to disclose . . . exculpatory evidence" as cause to excuse his procedural default [Doc. 2 at 10]. Presumably, Petitioner relies on this ground to excuse his procedural default of his "prosecution suppression" claims.
Prosecution suppression can serve as a ground to excuse procedural default when the ongoing suppression sufficiently frustrates a petitioner's ability to bring the claim and the cumulative effect of the suppressed evidence was reasonably likely to have produced a different result. See Kyles v. Whitley, 514 U.S. 419 (1995). However, as clarified above, Petitioner's claims are procedurally defaulted because he failed to raise them on appeal; he was, however, able to raise these claims at the trial court level. While prosecution suppression may provide cause in some cases, it does not logically follow that a Petitioner who did successfully raise his claims at the trial court level was impeded by the prosecution from raising his claims on appeal. Further, Petitioner has not established the factual basis for his claim that the prosecution did suppress substantial cumulative evidence by clear and convincing evidence. Petitioner has not established cause to excuse his procedural default.
Lastly, Petitioner argues that equitable principles, as well as Due Process, requires this Court to hear critical constitutional claims [Doc. 2 at 4]. Under this theme, and given the leniency granted to pro se petitioners, Petitioner appears to raise two issues for which to find cause: (1) that he was extraordinarily prevented from raising his claims due to the actions of post-conviction appellate counsel, and (2) that he is actually innocent [Doc. 2 at 4-6, 9-10].
Petitioner notes that he does not raise the actions of post-conviction appellate counsel as ineffective assistance of counsel
Second, Petitioner cites to McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), which recognizes "actual innocence as a gateway through which a petitioner may pass whether the impediment is a procedural bar or expiration of a limitations period" [Doc. 2 at 6]. This Court assumes that by doing so Petitioner is suggesting that his new evidence claims should be admitted under the "fundamental miscarriage of justice" exception to procedural default. Dretke, 541 U.S. at 388. Petitioner raises two claims of new evidence: (1) new scientific evidence of actual innocence regarding evidence of the common fire control mechanism's ability to accidentally discharge, and (2) evidence that the Petitioner was denied his 14th Amendment Right to Due Process because the post-conviction process discriminates against "Afro American" petitioners [Doc. 1].
A habeas petitioner asserting a claim of actual innocence must establish that "in light of new [credible] evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. The Court must determine whether Petitioner has shown actual innocence, by clear and convincing evidence, such that his conviction represents a "fundamental miscarriage of justice." See Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Here, the Court is concerned with "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
Petitioner first alleges that the evidence adduced at post-conviction hearings by Mr. Belk is new scientific evidence of his actual evidence [Doc. 1]. While Petitioner did raise new evidence, which was not raised at trial, and there are no issues alleged regarding the reliability of this evidence, Petitioner cannot show that no reasonable juror would have found him guilty beyond a reasonable doubt if provided with Mr. Belk's testimony. See House, 547 U.S. at 536. Mr. Belk's testimony that the common fire control mechanism was defective in design did not definitively establish that Petitioner's gun discharged without a trigger pull; he merely suggested that it was possible. Even given this information, the jury would have had to believe the testimony of Petitioner that accidental discharge is factually what happened, and discredit the contradicting proof presented by Agent Fite and even the testimony of Mr. Belk that he was not able to induce Petitioner's rifle to fire without a trigger pull. Both credibility determinations and determinations of value are questions for the jury and this Court will not now speculate that no reasonable juror could have found the State's evidence more credible than the testimony of Mr. Belk. See United States v. Griffin, 382 F.2d 823, 829 (6th Cir. 1967).
With regards to Petitioner's second new-evidence claim, the Court finds that even if Petitioner's information regarding systematic discrimination in the post-conviction process was determined to be "new evidence" and presented to be reliable, this would not be evidence of Petitioner's factual innocence. In other words, Petitioner could not show that because some habeas petitioners face discrimination within the justice system, that no reasonable juror could have found him guilty beyond a reasonable doubt.
Petitioner has failed to establish cause to excuse procedural default on this ground or any other and his procedurally defaulted claims will not now be considered on their merits. Accordingly, only Petitioner's non-defaulted claims will be discussed in turn.
If a claim is exhausted before the state courts, and not procedurally defaulted, the federal court may then evaluate the merits. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified in 28 U.S.C. §2254, et. seq., a district court may not grant habeas corpus relief for a claim that a state court adjudicated on the merits unless the state court's adjudication of the claim:
28 U.S.C. § 2254(d)(1) and (2). This standard is "intentionally difficult to meet." Woods, 135 S. Ct. at 1376 (quotation marks omitted).
"A state court's decision is `contrary to' clearly established law `if the state court arrives at a conclusion opposite to that reached by the Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts." Wallace, 570 Fed. Appx. at 450 (quoting Williams, 529 U.S. at 413). Under the "unreasonable application clause," the proper inquiry is whether the state court's decision was "objectively unreasonable," and not simply erroneous or incorrect. Williams, 529 U.S. at 409-11. As to a claim that the state court's decision was based on an unreasonable determination of the facts, the AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Where the record supports the state court's findings of fact, those findings are presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
All of Petitioner's remaining claims are based on the ineffective assistance of trial or appellate counsel. The Sixth Amendment entitles criminal defendants to the "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish that counsel's assistance was constitutionally ineffective, a defendant must prove (1) that counsel's performance was sufficiently deficient that he was no longer "functioning as the `counsel' guaranteed under the Sixth Amendment[,]" and (2) that his "deficient performance prejudiced the defense . . . so as to deprive the defendant of a fair trial" and undermined the reliability of trial results. Id. To prove deficiency, the defendant must show "that counsel's representation fell below an objective standard of reasonableness." Id. at 688. To prove prejudice, the defendant must show that he has been prejudiced by his counsel's deficiencies by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Supreme Court has clarified that when a federal court reviews a state court's application of Strickland, which sets its own high bar for claims, "establishing that a state court's application was unreasonable under §2254(d) is all the more difficult." Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). "In those circumstances, the question before the habeas court is `whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.'" Id.; see Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA. . . .").
Petitioner alleges that his trial counsel was ineffective for failing to adduce expert testimony relating to a defective firing mechanism design, present in Petitioner's rifle, that could have caused the gun to discharge accidentally [Doc. 3 at 6-25]. Respondent contends that trial counsel was not ineffective because he did plan and employ tactics to introduce evidence on this point and to controvert the evidence offered by the State [Doc. 15 at 20-23]. The Court finds that trial counsel was not ineffective in this respect.
The central theory of the defense was that the Petitioner's rifle malfunctioned and fired without Petitioner pulling the trigger. The State presented a firearms expert, Agent Fite, who stated that after testing Petitioner's rifle he concluded that the gun could not possibly fire without the trigger being pulled or the gun being broken [Doc. 14 Attachment 60 at 13]. Trial counsel attempted to counter this testimony by first, discrediting Agent Fite as someone who believed himself infallible and second, by attempting to cross-examine Agent Fite on issues present with the Remington Model 742, a precursor to Petitioner's rifle, although the trial court prohibited this line of questioning. Kendrick, 454 S.W.3d at 475-476.
At post-conviction, trial counsel conceded that he did not interview the State's firearms expert prior to trial and did not recall conducting any legal or factual investigation into the gun's propensity to fire without the trigger being pulled and did not look for an expert on this matter. Id. at 476. Instead, counsel planned to rely on the expected testimony of Officer Steve Miller to contradict the proof presented by the State. Id. at 477. Officer Miller testified that he retrieved the rifle from where Petitioner had thrown it and, when later removing the gun from the trunk of his police vehicle, shot himself in the foot. Id. Before trial, Officer Miller made definitive statements that his finger was not on the trigger, but at trial testified that he could not recall where his finger had been, although he did physically demonstrate how he believed himself to be holding the gun, notably without his finger on the trigger, and stated that officers are thoroughly trained to not touch triggers of weapons they are not intending to shoot. Id.
At the post-conviction hearings, Petitioner presented the testimony of Henry Belk, Jr., a firearms expert who testified that the common fire control mechanism, a trigger mechanism in the Remington 7400 model weapon in question, had malfunctioned in several cases and caused guns to fire without the trigger being pulled. Id. at 464. Mr. Belk testified that he first became aware of the problem in 1970, but did not first serve as an expert on this issue until 1994, and had since provided expert testimony in several courts regarding this defect, both in Remington 7400 models and other models containing the defective mechanism. Id. He also testified that he had been unable to cause Petitioner's rifle to malfunction. Id. Still, the post-conviction trial court noted that his testimony would have lent credence to Petitioner's case at trial. Id. at 476.
On Petitioner's second appeal of the denial of his post-conviction petition, the TCCA reversed the post-conviction trial court's holding on this issue. Kendrick, 2013 Tenn. Crim. App. LEXIS 539. The TCCA found that trial counsel's performance fell "below an objective standard of reasonableness when trial counsel failed to adduce expert testimony about the rifle's defective trigger mechanism, which was known to cause accidental shootings, to rebut the State's expert testimony that the rifle could only be fired by pulling the trigger[.]" Kendrick, 454 S.W.3d at 476 (citing Kendrick, 2013 Tenn. Crim. App. LEXIS 539). The TCCA found this issue prejudicial, particularly because they found that it was reasonably likely that the jury would have convicted Petitioner of a lesser degree of homicide, which satisfied the test for prejudice. Kendrick, 2013 Tenn. Crim. App. LEXIS 539 at *51.
The TSC, however, later reversed the TCCA's holding, finding that counsel's decision to "construct his `accidental firing' defense" around anticipated testimony from Officer Miller claiming that the specific gun in question did actually accidentally discharge was reasonable. Kendrick, 454 S.W.3d at 477. The TSC went through a lengthy analysis of both Harrington and Hinton, each of which apply the Strickland test for ineffective assistance of counsel. Kendrick v. State, 454 S.W.3d at 468-475(analyzing Harrington, 562 U.S. 86; Hinton v. Alabama, 571 U.S. 263 (2014); Strickland 466 U.S. 668). The court notes that Harrington held that defense counsel was not deficient for failing to hire expert testimony, even though such testimony may have been useful, when counsel had a reasonable strategic reason for doing so and took other measures to counteract the State's evidence. Id. Notably here, the court points out that in Harrington, counsel's defense strategy not working as well as planned does not prove counsel incompetent. Id.
The court then discussed Hinton which found that in some cases, the defense strategy relies on expert evidence and hiring one will be necessary. Id. However, the court notes that even in Hinton, counsel was held deficient for failing to appropriately research his ability to hire an expert, not for failing to hire an expert. Id. The TSC found that "[d]espite Sergeant Miller's memory lapse, defense counsel's performance on this issue indicated `active and capable advocacy,'" under Harrington v. Richter, because at the time counsel was forming his trial strategy it was reasonable to rely on this testimony, which was "not speculative[] and . . . did not involve other weapons" to refute Agent Fite and cast reasonable doubt on Petitioner's guilt. Id. at 477. The TSC further stated that while it was likely best practice for trial counsel to seek out expert proof, failing to do so was not objectively unreasonable when the defense did not hinge on expert proof. Id. Additionally, the TSC pointed out that although Mr. Belk's testimony may have been helpful, it is doubtful that in 1994 counsel would have been given permission to hire an expert,
The Court cannot find that the TSC unreasonably applied federal law on this claim. The TSC reasonably applied Harrington and Hinton to find that counsel was not constitutionally deficient, because he had a reasonable strategy to introduce proof regarding Petitioner's rifle's capacity for accidental discharge and did attempt to undermine the expert proof presented by the State. Petitioner has also not demonstrated by clear and convincing evidence that Mr. Belk's testimony could have been found at the time of his trial. Because the case here did not rely solely on expert testimony where the State presented much additional evidence, including eyewitness testimony, counsel was not ineffective for failing to hire an expert. While Mr. Belk's testimony would certainly have been useful at trial, this Court does not find that it was unreasonable for the TSC to conclude counsel was not deficient for failing to raise it. Petitioner is therefore not entitled to §2254 relief on this claim.
Petitioner claims that trial counsel was ineffective for failing to utilize the Tennessee Rule of Evidence regarding excited utterance hearsay exceptions to introduce the prior statements of Officer Steve Miller [Doc. 3 at 25-40].
When attempting to remove Petitioner's rifle from the trunk of his vehicle, Officer Steve Miller shot himself in the foot. Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *16. After the accident, Officer Miller made statements to Officers Holbrook, Sims, and Gann that he knew his finger was not near the trigger when the gun discharged. Id. at *16-20. However, at trial, Officer Miller testified that he could not recall where his finger was. Id. at *39-40. On cross-examination, trial counsel attempted to elicit from Officer Miller that his finger was not on the trigger. Kendrick, 454 S.W.3d at 460-461. While Officer Miller never used those words, and his answers did seem less than cooperative, trial counsel had him demonstrate how he recalled picking up the gun, where Officer Miller demonstrated that his finger was not near the trigger. Id. Counsel also led Officer Miller to concede that he knew the weapon was likely loaded, and had been trained for many years to not pick up any gun with his finger near the trigger, much less a loaded one. Id. Trial counsel also attempted to introduce Officer Miller's prior statements under the "prior inconsistent statements" rule, although the trial court did not allow him to do so. Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *9-12.
Petitioner contends that because Officer Miller's statements were made while "under the stresses-pain of the event . . . [and] bear their own indicia of reliability," they could have been introduced under the excited utterances exception to hearsay and "been used as truth of the matter asserted" [Doc. 3 at 26]. He claims that failure to include this information was prejudicial because the statement that Officer Miller's hands were nowhere near the trigger was crucial for the defense [Doc. 3 at 27]. Because the theory of defense was accident, Petitioner contends that the gun had discharged without Petitioner's finger on the trigger and without any intent or action on his part, and the only evidence outside of Petitioner's word that could have controverted the proof of the State's expert were the words of Officer Miller [Doc. 3 at 27].
Both the TCCA and TSC addressed this claim. On his second appeal of the dismissal of his post-conviction petition, the TCCA found that trial counsel's performance fell below an objective standard of reasonableness when he failed to seek the admission of Officer Miller's statements under the excited utterance hearsay exception. Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *50. They found that this error was prejudicial as it was reasonably likely that given this statement, the jury would have convicted Petitioner of a lesser degree of homicide. Kendrick, 2013 Tenn. Crim. App. LEXIS 539, at *50. Accordingly, the TCCA used this as the second ground on which to reverse the holding of the post-conviction trial court and vacate Petitioner's sentence. Id.
However, the TSC reversed, concluding that although the statements may have been admissible under excited utterance doctrine, Petitioner could not establish that trial counsel was deficient for failing to admit them under this rule because counsel took several alternative measures to demonstrate that Officer Miller had not pulled the trigger. Kendrick, 454 S.W.3d 480-81. The court noted that, in this context, the question was not whether the statements were admissible, but rather whether counsel was objectively unreasonable under Strickland, given the presumption that counsel was adequate. Id. at 480 (citing Strickland, 466 U.S. at 688 and Mobley, 397 S.W.3d at 80-81). The court found that while in some circumstances the "lack of familiarity with court rules may provide grounds for a finding of ineffective assistance of counsel," here, counsel closely cross-examined Officer Miller, attempted to refresh his memory, attempted to use the incident reports to impeach his testimony,
As with all issues of ineffective assistance of counsel on habeas, there is double deference here. Harrington, 562 U.S. at 105. The Court presumes both that counsel's representation was adequate and that the court's finding of such is reasonable. Id. Even if Officer Miller's statements were admissible under the excited utterances exception, such failure on behalf of trial counsel must be weighed against the many other actions counsel took to introduce this same testimony. Claims of ineffective assistance of counsel are reserved for those errors so clear and egregious that counsel was no longer functioning as guaranteed under the Sixth Amendment. Strickland, 466 U.S. at 687. As detailed above, counsel took painstaking measures to introduce this important defense evidence to the jury and to undermine the proof adduced by the State. Petitioner cannot then show that counsel deficiently served his adversarial function, for failing to use one tactic, such that the results of trial are undermined. See Id. The Court does not find that the state courts unreasonably applied federal law to this claim; therefore, Petitioner is not entitled to §2254 relief on this claim.
Petitioner contends that counsel was ineffective because he "opened the door" to Petitioner's prior convictions, which were otherwise inadmissible, and failed to request a limiting instruction after having done so [Doc. 3 at 40-46]. Respondent holds out that although this was likely error on behalf of trial counsel, Petitioner cannot establish prejudice [Doc. 15 at 35-39].
At trial, counsel questioned Petitioner regarding his criminal history. He asked Petitioner:
Kendrick v. State, No. E2011-02367-CCA-R3-PC, 2015 Tenn. Crim. App. LEXIS 887, at *68. Before trial, counsel had prepared Petitioner for his testimony and told Petitioner that only his conviction for writing bad checks was admissible. Id. Then on cross-examination, the State asked Petitioner about an additional conviction for driving under the influence, which Petitioner admitted to, as well as a conviction for possession of marijuana arising from the same incident. Id. at *69. The State through cross-examination also established for the jury that as a result of these convictions, Petitioner was driving without a valid driver's license the night of the shooting. Id. Trial counsel objected to this line of questioning but was overruled by the trial court. Id. Petitioner likewise complained about the trial court's allowance of this line of questioning on direct appeal, but the TCCA held that trial counsel "opened the door" to this type of impeachment given the form of his question and Petitioner's response regarding only some of his prior convictions. Id. at *69-70.
Petitioner raised this issue on post-conviction as an ineffective assistance of counsel claim, both for opening the door to the prior convictions and failing to request a limiting instruction after doing so [Doc. 3 at 40-46]. The TCCA held that although counsel was deficient with regards to the form of the question and should have requested a limiting instruction, it agreed with the post-conviction court that these errors did not prejudice Petitioner. Id. at *71. The TCCA noted that trial counsel attempted to limit the damage during closing arguments by explaining that the convictions do not contribute to Petitioner's honesty and truthfulness and alerting the jury to the fact that Petitioner actually volunteered testimony about an additional charge. Id. at *71-72. Additionally, the TCCA found that Petitioner's defense did not rely solely on his own credibility, rather it was better supported by the fact that Officer Miller also had an incident with the same rifle that strongly indicated the rifle misfired. Id. at *72. Citing Strickland, the TCCA held that because there was substantial other evidence against Petitioner, including eyewitness testimony, the TCCA could not find that there was a reasonable possibility but for this error that the result of the proceeding would have been different. Id. at *75.
The Court cannot find that the TCCA unreasonably applied Strickland with regard to this error and Petitioner is not entitled to relief on this claim. While Petitioner correctly points to case law that finds that counsel may be deficient for introducing inadmissible prior convictions, here the state court did not find that counsel was not deficient, but rather that petitioner was not sufficiently prejudiced by counsel's error. See Byrd v. Trombley, 352 Fed. Appx. 6 (6th Cir. 2009). Petitioner must show more than that counsel's error has "some conceivable effect on the outcome," he must show that but for counsel's error, it is reasonably likely that the outcome may have been different. Strickland, 466 U.S. at 694. The TCCA held that although Petitioner's credibility may have been damaged, neither his defense, nor the prosecution, relied only on his credibility or lack thereof. See Byrd, 352 Fed. Appx. 6. There was ample evidence in this case, both for and against Petitioner, that did not turn on Petitioner's credibility and the Court cannot find that there was no reasonable basis on which the state court could determine that Petitioner was not sufficiently prejudiced to undermine the reliability of the results of his trial. See Harrington, 562 U.S. at 105.
Petitioner claims that trial counsel was deficient for failing to properly object, request curative instructions, or seek other curative measures in relation to the prosecution's use of Martha Maston as a rebuttal witness, without having provided notice, and for failing to offer surrebuttal to Ms. Maston's testimony [Doc. 3 at 46-59].
At trial the prosecution called Martha Maston, an airport security officer, to testify. Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *100. Ms. Maston attested that she arrived at the scene and removed Petitioner's children from their car seats and when she did Petitioner's four-year old daughter wrapped her arms around Maston's neck and while crying said that she "told daddy not to shoot mommy but he did and she fell." Id.
Petitioner complains that counsel did not properly object or request curative measures regarding: (1) that he was not provided notice of Ms. Maston's testimony in violation of the parties' open file policy agreement and (2) that her testimony was offered in rebuttal. He also alleges that counsel was deficient for failing to raise surrebuttal testimony on this point [Doc. 3 at 46-59].
Regarding the "surprise" nature of Ms. Maston's testimony, the TCCA on direct appeal found that Petitioner was not prejudiced by the late notice, that the State was not granted undue advantage, and that because Ms. Maston's testimony had been discovered late, the State had not acted in bad faith. Kendricks, 947 S.W.2d at 883. The TCCA agreed with Petitioner, however, that Maston should have been called as part of the State's case-in-chief and not in rebuttal, yet still found that Petitioner was not prejudiced by the order in which Ms. Maston's testimony was adduced. Id. Finally, the court determined that because this testimony should have been part of the State's case-in-chief, no limiting instruction regarding the use of this testimony was needed. Id. On post-conviction appeal, the TCCA held that the issues regarding Martha Maston's testimony had been addressed on direct appeal, and were therefore not the proper subject for post-conviction relief. Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *103.
The TCCA went on to note that although Petitioner alleges that trial counsel was deficient for failing to request the State be ordered to execute specific performance of the plea agreement for the violation of the open-file agreement, Petitioner pointed to no case law, and the court found none, "where specific performance of a rejected plea offer was ordered following a breach of the prosecution's open-file discovery agreement." Id. at *104. The TCCA also determined that the post-conviction court had credited trial counsel's testimony that the statement of Petitioner's daughter was "ambiguous and not necessarily inconsistent with a theory of accident," and thus declined to reweigh or reevaluate this issue to establish prejudice. Id.
The TCCA also found that Petitioner appears to argue that trial counsel should have called him to testify to contradict Ms. Maston's testimony and minimize the damage done by her statement. Id. at *104-105. However, it determined the testimony given by Petitioner's daughter was already questionable and Petitioner had already contradicted her statements with his own testimony. Id. at 105. The TCCA found that they could not say that trial counsel was deficient for failing to call Petitioner to testify to a "fairly innocuous statement in surrebuttal." Id.
Petitioner points to state cases pertinent to the principle that Tennessee disfavors "surprise" witnesses [Doc. 3 at 49]. However, the question before us is whether there is any reasonable argument by which the state court could have determined that trial counsel was not deficient in his handling of Ms. Maston's testimony. See Harrington, 562 U.S. at 105. The TCCA found that trial counsel did challenge the lack of notice of this testimony, but the court did not find prejudice resulting from Petitioner's lack of notice or the fact that Maston's testimony was characterized as rebuttal. Without more, the Court will not hold that counsel is objectively unreasonable, here, for making a losing argument. Under the Tennessee Rules of Criminal Procedure, Petitioner was not entitled to discovery of the contents of Ms. Maston's expected statement and he fails to show how he was prejudiced by not knowing her identity. Tenn. R. Crim. P. 16(a)(2). He likewise fails to show how he was prejudiced by Ms. Maston's testimony being provided in rebuttal. When faced with the surprise witness, allowed by the court, counsel cross-examined her and sought to undermine her testimony. The Court will likewise not find that counsel was no longer functioning as counsel within the adversarial process for failing to request an order for specific performance of the plea deal. Petitioner points to no case law ordering such performance for a breach of open file policy and counsel is not deficient for failing to file a motion or assert a claim which has no merit. See O'Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007). Because counsel was not deficient and Petitioner has not demonstrated prejudice, he is not entitled to relief on this claim.
Petitioner argues that trial counsel was ineffective for failing to object to Lennell Shepheard's testimony as a discovery violation, failing to impeach Shepheard, and failing to object to Shepheard's reference of information outside the record or request a limiting instruction regarding the testimony of Lennell Shepheard [Doc. 3 at 67-75]. The Court finds that trial counsel was not ineffective.
At trial, Lennell Shepheard, an eyewitness who was acquainted with the victim through their respective jobs, testified that after hearing the gunshot, he looked outside and saw Petitioner standing over the victim's body shouting "I told you so" roughly six times. Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *76. Mr. Shepheard's previous statements provided in discovery did not contain this "I told you so" language. Id. Mr. Shepheard then stated that he made eye contact with the Petitioner and saw the Petitioner reach for the rear passenger-side car door as if to go for the rifle inside. Id. Trial counsel cross-examined Mr. Shepheard on these statements and elicited Mr. Shepheard's agreement that during a conversation prior to trial, Mr. Shepheard did not tell trial counsel about any threats and stated that he did not view any aggressive behavior, that the victim was not in fear of the Petitioner, and that he did not hear the couple arguing. Id. at 76-77.
Petitioner claims that Mr. Shepheard's change in testimony was a violation of the rules of discovery or the open file policy put into place by the parties and that trial counsel erred in failing to object or request curative measures [Doc. 3 at 67-75].
The TCCA held that under the Tennessee Rules of Criminal Procedure, defendants are not entitled to the statements of state witnesses and that even if counsel had objected to his lack of notice with regards to this testimony, there is no guarantee that the trial court would have issued curative measures. Id. at *79. The court further noted that counsel thoroughly cross-examined Mr. Shepheard on this variation in testimony and ensured that the jury knew that the "I told you so" statement was not included in Mr. Shepheard's prior statements. Id. at *80. The court held that Petitioner did not demonstrate what more counsel could have done to discredit Mr. Shepheard had he been given more time. Id. at *81-82.
Petitioner next claims that trial counsel erred in not using Detective Mathis's interview of Lennell Shepheard, which was transcribed, to contradict the evidence offered by Shepheard at trial [Doc. 3 at 67-75]. Trial counsel attempted to read part of Mr. Shepheard's previous statement during cross-examination, presumably to highlight the inconsistencies between his trial testimony and the statements he made to Detective Mathis. Id. at *84. The State objected and claimed that the statements were "consistent," the trial court made no ruling, and defense counsel continued to read from the statement. Id. When directly asked, Mr. Shepheard said that he did tell Detective Mathis about the "I told you so" statement and counsel again tried to either impeach or "refresh Shepheard's memory" to which the State again objected. Id. at *84-85. During a bench conference on this issue, the trial court said that the failure to make a statement is not "inconsistent" to making that statement later and defense counsel said he would simply call Detective Mathis regarding the statement. Id. at *86. However, he never called Detective Mathis to testify on this point. Id. at *87.
On post-conviction, the TCCA points out first that trial counsel did attempt to impeach Mr. Shepheard with his prior statement, but was not allowed to by the trial court. Id. at *87-88. The TCCA found that even after this tactic was prohibited, counsel performed a thorough cross-examination and even noted the deficiencies with the testimony in his closing arguments. Id. at *88-90. Petitioner argues that counsel should have called Detective Mathis to contradict Shepheard and was ineffective for failing to do so, and also argues, in the alternative, that counsel should have obtained the Mathis report for impeachment purposes and was ineffective for failing to do so [Doc. 3 at 67-75]. However, the TCCA noted that Mathis was not even called to the post-conviction hearings and had still given no testimony. Id. at *88. It applied Tennessee law to clarify that it could not speculate on the potential contents of Mathis's testimony and whether it would have been favorable to petitioner and thus found that Petitioner had not established that trial counsel was deficient. Id. at *90-91. The TCCA then ruled that Detective Mathis's report was redundant given Detective Rawlston's testimony about the same information, and that counsel was not deficient for seeking it out. Id. at *90.
Finally, Petitioner complains that trial counsel erred when he did not object or request curative measures, including a limiting instruction, when Mr. Shepheard testified that he spoke to Investigator Legg, and testified to the substance of that conversation, when such was outside of evidence [Doc. 3 at 67-75]. At trial, Mr. Shepheard testified that he spoke to Mr. Legg, an investigator from the district attorney's office, roughly one week before trial and that he told Mr. Legg about the "I told you so" remarks. Id. at *93. Counsel did object based on the Jenck's Act, which requires the government to produce written reports on statements made by government witnesses, because the State had not provided any such statement to the defense. Id. at *94. Mr. Shepheard said that Mr. Legg took notes during his statement but he was not sure whether the interview had been transcribed in writing or otherwise recorded. Id. Later, Investigator Legg testified outside of the jury's hearing that there were no written or recorded notations of his interview, which ended the discussion as the Jenck's Act was no longer applicable. Id. at *94-95.
Petitioner alleges that trial counsel was ineffective for failing to request a limiting instruction, instructing the jury that as a prior consistent statement, "the week-old statement [to Mr. Legg] could only be used in connection with credibility" [Doc. 3 at 67-75]. The TCCA held that Mr. Shepheard's testimony was a prior consistent statement and served permissible rehabilitation purposes, however, it also noted that the deficiencies with this statement, including the fact that it was only made one week before trial, were also made clear to the jury. Id. at *96-97.
The trial court did not issue specific jury instructions on prior consistent statements, but the jury did receive instructions on prior statements generally, outlining their impact on credibility and thus the weight the jury can give, or not give, to testimony. Id. at *97-99. The TCCA found that to hold that trial counsel's failure to request a limiting instruction on this matter was deficient would be impermissibly judging counsel's representation in hindsight. Id. at *99. The TCCA held that counsel was not deficient, because requesting this instruction could have emphasized the testimony, to the detriment of Petitioner, and counsel took many other measures to introduce the evidence that Mr. Shepheard's "I told you so" testimony was only delivered at the eleventh hour. Id.
To prevail on these claims, Petitioner would have to demonstrate that the State court's finding that counsel was not constitutionally ineffective, even given the deference granted to counsel's actions, was not simply incorrect, but objectively unreasonable. Harrington, 562 U.S. at 105. Mr. Shepheard's testimony did indeed raise many issues for the defense, both in its unexpected nature and through the difficulties counsel faced in impeaching Mr. Shepheard. However, it is evident from the record that trial counsel diligently attempted to advocate for his client in this regard, even though many of his attempts were thwarted. As clarified above, counsel had no legal basis to argue a discovery violation based on this change in testimony, he diligently attempted to impeach even after an incorrect ruling by the court, and attempted to limit Mr. Shepheard's testimony and his credibility. The Court will not find that counsel failed to serve his adversarial role where he took extensive measures to introduce evidence and contradict the proof offered by the State merely because such attempts were unsuccessful. Petitioner is not entitled to relief under §2254(d) on this set of claims.
Petitioner alleges that both trial and appellate counsel were ineffective for failing to object or request curative measures, again including specific performance of the State's previous plea deal,
As set forth above, on direct appeal, the TCCA concluded that Petitioner failed to show that he was prejudiced through the lack of disclosure of Maston as a witness because trial counsel was able to thoroughly cross-examine Ms. Maston and Petitioner did not indicate what more trial counsel could have done if he had known about her testimony earlier. Kendricks, 947 S.W.3d at 883. The TCCA also noted that it did not find bad faith or undue advantage on the State's part, because it credited the State's version of events that they did not know about Ms. Maston's potential testimony earlier. Id. at 884.
On post-conviction, the TCCA held that Petitioner had not pointed to any legal authority supporting that sanctions were required for the State's violation of the open-file policy. Kendrick, 2015 Tenn. Crim. App. LEXIS 887, at *79. The court, instead, applied Tennessee Rule of Criminal Procedure 16(d)(2), which provides that when a party fails to comply with discovery rules, the trial court has discretion to enter an order it deems just. Id. However, it also noted that Rule 16(a)(2) clarifies that statements made by state witnesses are not discoverable material. Id. The court cited a Tennessee case which held that even though a prosecutor had promised information and failure to supply it was "likely a breach of decorum," it was "not within the purview of the rules of procedure governing the practice of criminal law in Tennessee." Id. (citing Matrin Becton v. State, No. W2014-00177-CCA-R3-PC, 2015 Tenn. Crim. App. LEXIS 303, at *79-80.) With regards to the change in Mr. Shepheard's testimony not being disclosed to the defense before trial, the TCCA held that "[e]ven if trial counsel had objected to Mr. Shepheard's testimony on direct examination, there was no guarantee that the trial court would have issued any curative measures at all." Id. at 80. Neither the TCCA or the TSC analyzed the changes in Officer Miller's testimony and counsel's effectiveness or ineffectiveness resulting from them under this framework.
Under the Tennessee Rules of Criminal Procedure, Petitioner was not entitled to the discovery of the statements of state witnesses or prospective witnesses. Tenn. R. Crim. P. Rule 16(a)(2). Although the state promised the entirety of its information, it is not a settled matter that the state courts would have sanctioned the State in any form for failing to provide it, particularly when these statements are not alleged to have been reduced to writing, and Tennessee jurisprudence seems to indicate they would not. See Matrin Becton, 2015 Tenn. Crim. App. LEXIS 303, at *79-80. Petitioner can show neither deficiency nor prejudice for counsel's failure to object to Petitioner not receiving information he was not legally entitled to. The Court cannot find that the state courts were unreasonable for failing to find counsel deficient for choosing not to make an argument with no clear basis in law. See O'Hara, 499 F.3d at 506. Petitioner additionally alleged prejudice because he claims he would have accepted the plea deal if given these pieces of State evidence. However, such prejudice would only be attributable to the State's withholding, not counsel where he likewise had no knowledge of the additional testimony that would be offered at trial. Even if counsel had objected, there was no legal basis, under similar facts, for reinstatement of the plea deal. For these reasons, the Court will not find that "there is [no] reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.
Petitioner claims that counsel was ineffective for failing to object or request other curative measures for the prosecution's improper use of Petitioner's Fifth Amendment silence [Doc. 3 at 75-79]. Respondent holds out that Petitioner voluntarily agreed to speak with Detective Rawlston, which the detective was properly permitted to comment on, and that neither trial nor appellate counsel should be faulted for failing to bring a meritless claim [Doc. 15 at 55-60]. Neither trial nor appellate counsel were deficient on this issue.
On cross-examination, trial counsel attempted to elicit testimony from Detective Rawlston to suggest that the detective performed an inadequate and less than thorough investigation because he made up his mind on the scene about what had occurred. Kendrick, 2015 Tenn. Crim. App. 887, at *110. He asked Detective Rawlston whether he ever considered if the Petitioner's rifle was fired or discharged accidentally, and the Detective said no. Id. After which trial counsel went through the following line of questioning:
Id. at 110-111. On redirect examination, Rawlston stated that the statements of the witnesses and "[Petitioner's] response . . . in the case after advising him of his rights" contributed to his decision. Id. at 111. Trial counsel objected that they had not been made aware of any such statement and the prosecutor stated that Detective Rawlston was planning to "say something to the effect of I hope this is a dream or something like that." Id. at 111-112. Trial counsel acknowledged he was aware of this statement. Id. at 112. Detective Rawlston then testified that after he advised Petitioner of his rights and Petitioner indicated that he understood, Petitioner agreed to speak with him and stated "I hope this is only a dream," but never indicated at that time that this was an accidental discharge. Id. Petitioner conceded both that he made this statement and that he never told anyone at the airport that the shooting was an accident, but insisted he did not discuss anything else because of the "racial tension" at the airport. Id. at *113.
During closing arguments, the State highlighted Petitioner's failure to tell anyone that the shooting was an accident. Id. at *113-114. Specifically, the prosecutor said:
Id. Trial counsel then in his own closing tried to highlight both that Detective Rawlston had his mind made up by the time he reached the airport, and that while Petitioner did not tell the officers that the shooting was an accident, he also did not state that it was not and that his statement "I hope this is all a dream," is not actually inconsistent with the theory of accident. Id. at *114.
The TCCA held that while the "constitutional right to remain silent after arrest may not be exploited by the prosecution at trial[,]" Petitioner's claim fails because he failed to establish by clear and convincing evidence that he invoked his right to remain silent after Miranda warnings. Id. at *115-116 (citing Doyle v. Ohio, 426 U.S. 610, 618 (1976)). The TCCA said that although Petitioner was under arrest, Detective Rawlston testified that Petitioner voluntarily agreed to speak with him, making Rawlston's statement a comment on Petitioner's decision to make a voluntary statement, rather than his silence. Id. at *116. The TCCA held that because there was no error, there was no deficient performance by trial counsel. The TCCA likewise held that there was no prejudice because the State did not overly emphasize Detective Rawlston's testimony during closing and the jury heard the 9-1-1 call where Petitioner did not say the shooting was an accident. Id. The TCCA also provided that because there was no error here, appellate counsel will also not be faulted for failing to raise this issue on appeal. Id.
The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Criminal defendants have a right to remain silent and doing so cannot be used as substantive evidence of guilt. Griffin v. California, 380 U.S. 609, 615 (1965). Likewise, a defendant's silence during custodial interrogation may not be used to impeach the defendant's testimony at trial. Doyle, 426 U.S. 610 at 619. However, the Doyle rule does not apply where defendant waives his right to silence, expressly or implicitly, after Miranda warnings. United States v. Lawson, 476 F. App'x 644, 650 (citing United States v. Crowder, 719 F.2d 166, 172 (6th Cir.1983) (en banc)); see North Carolina v. Butler, 441 U.S. 369, 373 (1979) (holding that a waiver may be inferred "from the actions and words of the person interrogated"). Relying on Butler, the Supreme Court has held that an uncoerced statement following Miranda warnings may constitute a valid waiver of the right to remain silent, when the accused understood his rights. Berghuis v. Thompkins, 560 U.S. 370, 385-86 (2010).
The Court cannot find that the TCCA unreasonably applied Strickland when it found that Petitioner's counsel was not deficient in this regard. Petitioner and the Respondent seem to be in accord that Petitioner was under arrest, had been advised of his rights, and understood those rights. Petitioner does not contest that he made a statement after that point, but seems to imply that anything he did not say during that statement could not be used in trial. To hold so would be a logical fallacy. Because Petitioner's statements were made after valid and understood Miranda warnings, they constitute an implicit waiver of his right to remain silent and do not fall within the Doyle prohibition. See Berghuis, 560 U.S. at 385-386. As such, Detective Rawlston was permitted to comment on the entirety of what Petitioner did say. Even without explicit comment by Detective Rawlston, anything Petitioner did not say could have been logically inferred. Even if counsel was found deficient, the Court could not find prejudice sufficient to undermine the reliability of the trial.
Even without comments by Detective Rawlston or the prosecution about what Petitioner did not say, the jury was quite capable of discerning it on their own, particularly when the tape recorded 9-1-1 call made by Petitioner where he also did not indicate that the shooting was an accident, was before them. Neither trial nor appellate counsel will be faulted for failing to raise this meritless claim.
Petitioner alleges that counsel was deficient for failing to make a reasonable decision in the calling of Petitioner's divorce attorney, Ken Lawson, and for failure to request a jury-out hearing regarding the waiver of attorney-client privilege regarding this witness [Doc. 3 at 79-82]. Respondent characterizes this claim as involving a credibility dispute between Petitioner, who claims he was not consulted on the decision to call Ken Lawson or on the waiver of attorney-client privilege, and trial counsel, who claimed that the calling of this witness and the waiver were a result of client's own decision [Doc. 15 at 29-32]. The Court cannot find that the TCCA's holding that trial counsel was not deficient was an unreasonable application of Strickland, or based on an arbitrary finding of fact, therefore Petitioner is not entitled to habeas relief on this claim.
At trial, counsel called Mr. Lawson who testified on direct-examination that the parties were divorcing amicably, and that it was a mutual decision based on irreconcilable differences. Kendrick, 2015 Tenn. Crim. App. 887, at *54-55. He likewise testified that under the terms of the divorce Petitioner would be receiving child support from his wife, that he would have primary custody of the couple's children, and would retain most of the marital property. Id. at *55, *58. He likewise served as a character witness, stating that he believed Petitioner to be a "truthful and honest" person. Id. at *55.
Petitioner's complaints regarding Mr. Lawson's testimony began at cross-examination, where the State asked Mr. Lawson if he had discussed adultery or other grounds for divorce with the couple. Id. at *55. Mr. Lawson then asserted attorney-client privilege. Id. After his assertion, the parties held a bench conference at which trial counsel, prior to the court's ruling on privilege, stated "I'll make this easy for everybody. As long as I can do it in front of the jury, we'll waive the privilege. As long as I can announce it when counsel does it." Id. at *56. He then stated that he was comfortable doing so after conferring with Petitioner, at which point the court allowed counsel to waive privilege and the testimony to proceed. Id. at *56-57. At this point, Mr. Lawson admitted that he had discussed adultery grounds with Petitioner, who suspected that his wife was having an affair, although Lawson could not recall specifics about this conversation. Id. at *57. After this conversation, the couple attempted to reconcile, but their attempts failed and the couple agreed to file for divorce on the basis of irreconcilable differences. Id. at *57. Mr. Lawson testified that "[h]er affair had nothing to do with it at that point." Mr. Lawson stated that although in initial conversations Petitioner's mood was "more of a combination of anger and discouragement[,]" that later on the Petitioner "seemed more resigned to it" and told Mr. Lawson that he did not harbor any "aggressive feelings" towards the victim. Id. at 57-58.
Petitioner first alleges counsel's deficiency in calling this witness, because had counsel performed better pre-trial investigation, he would have either not called Mr. Lawson, or limited his testimony to character only [Doc. 3 at 80]. Next, Petitioner claims that trial counsel waived his attorney client privilege without consulting him and erred in doing so, as it allowed the State to insinuate the shooting was motivated by suspicions of adultery, and that counsel should have requested a jury out hearing before agreeing to waive privilege [Doc. 3 at 80-82].
The TCCA first found that regardless of Petitioner's contentions, Mr. Lawson's testimony actually corroborated Petitioner's testimony regarding the divorce and the couple's accord in the matter, and further demonstrated that the death of his wife would be tangibly detrimental to Petitioner under the terms of the divorce. Id. at *60. The court clarified that the fact that some elements of this witness's testimony were less than favorable did not amount to the deficiency of counsel. Id. Further, the court noted that post-conviction hearings established that the calling of the divorce attorney and the waiving of attorney-client privilege was a strategic decision at least partially directed by Petitioner. Id. at *61. The TCCA then found that Petitioner failed to demonstrate either deficiency of counsel or prejudice. Id.
The Court does not find that the TCCA unreasonably applied Strickland to determine that counsel was not deficient or made an arbitrary finding of fact in this regard. Counsel made a strategic decision to call this witness and to waive privilege. Due to the couple being in the process of divorce, motive could have been implied or naturally inferred with or without the testimony of Mr. Lawson. This witness had pertinent and useful information regarding lack of contention in the divorce, and thus lack of motive, which was important to the defense. Even if counsel knew of the prior adultery conversation between Petitioner and Mr. Lawson, the Court could not say that his professional decision that the benefit of this testimony outweighed any potential negatives is objectively unreasonable. Much less could the Court find that the state court had no reasonable basis for deciding so. Once Mr. Lawson had asserted privilege, it could have seemed to the jury that he was hiding something and counsel again made a strategic decision in order to soften any suspicions. Although Petitioner claims he was not consulted about such decisions, he has not demonstrated so by clear and convincing evidence. Petitioner is not entitled to habeas relief on this claim.
Petitioner claims that counsel was ineffective because he failed to fully investigate, interview, or call Randall Leftwich, Petitioner's cousin, to testify [Doc. 3 at 82-86]. Respondent states that although Leftwich's testimony may have provided useful corroboration, it does not necessarily follow that counsel was deficient for failing to call him as a witness [Doc. 15 at 32-35]. The Court cannot find that the TCCA's finding that counsel was not deficient for failing to call this singular witness is an unreasonable application of Strickland.
Petitioner first raised this claim in his state post-conviction petition. At post-conviction hearings, Mr. Leftwich stated that he would have been available to testify at trial, that he did not recall being contacted by trial counsel or an investigator prior to trial, and then summarized information he had that may have been useful to present to the jury. Kendrick, 2015 Tenn. Crim. App. 887, at *61-62. Leftwich testified that his parents owned the home that the couple lived in at the time of the shooting, which they remained in even during their divorce proceedings. Id. He saw the couple interact on the day of the shooting when Petitioner's car broke down and Leftwich went to assist; Petitioner called the victim who then bought needed car parts and delivered them to Petitioner and Leftwich. Id. at *62. Leftwich indicates that there was no indication of a problem between the couple at that time. Id. After learning of the shooting, Leftwich's mother asked him to go secure Petitioner's residence where he discovered cabbage that had been left simmering on the stove. Id. At post-conviction hearings, trial counsel testified that he could not recall whether he or anyone else contacted Mr. Leftwich, but did note that Petitioner was very engaged in the direction of his trial and that counsel frequently consulted with Petitioner on which witnesses to call. Id. at *63. Petitioner rebutted that Leftwich logically should have been interviewed to corroborate Petitioner's testimony because Petitioner informed trial counsel that he was with Leftwich on the day of the shooting and that the calling of witnesses was a decision for counsel. Id.
The TCCA agreed that Leftwich could have provided corroborating testimony, but declined to find counsel deficient for failing to interview and call him as a corroborating witness. Id. at *64-65. First, the TCCA noted one small discrepancy between Petitioner's testimony and Leftwich's, regarding the victim's mood upon having to deliver car parts to Petitioner, and second noted that as Petitioner was very involved with the direction of his case, he could have informed trial counsel of his desire to have Leftwich testify and counsel was likely to have complied, as he did in other circumstances. Id. at *65. Further the Court found no prejudice from the absence of this testimony because the testimony was largely cumulative or corroborative. Id. at *66-67. As to the non-corroborative evidence, regarding the cabbage simmering on the stove, the TCCA found that Petitioner did not demonstrate by clear and convincing evidence that he knew about or alerted trial counsel to Leftwich's discovery of the cabbage, which Petitioner alleges undermines premeditation, before or at the time of trial. Id. at *67.
Petitioner raises two distinct claims here: the failure to investigate Randall Leftwich as a witness and the failure to call Randall Leftwich as witness. See English v. Romanowski, 602 F.3d 714, 726 (6th Cir. 2010). To determine if counsel was ineffective for failing to investigate, the Court must assess the reasonableness of counsel's "investigation or lack thereof." English v. Romanowski, at 726. As with all ineffective assistance claims, Petitioner must still demonstrate prejudice resulting from this action. Strickland, 466 U.S. at 687. To show that counsel was ineffective for failing to call witnesses, Petitioner must establish that the witness had favorable information and the lack of that witness's testimony prejudiced his defense. Pillette v. Berghuis, 408 Fed. Appx. 873, 882-83 (6th Cir. 2010) (citing Towns v. Smith, 395 F.3d 251, 258-60 (6th Cir. 2005)). However, "defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant." Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004).
Here, the Court cannot find the TCCA's holding that counsel was not deficient for failing to investigate or call Randall Leftwich to testify is based on an unreasonable finding of fact or application of law. The TCCA considered Leftwich's potential testimony in two categories: first, corroborative evidence regarding Petitioner's account of the day of the shooting and good relationship with the victim and second, evidence of cabbage simmering at Petitioner's home that could have showed a lack of premeditation. Counsel was not deficient for failing to investigate or call Leftwich when he had no indication that Leftwich had potentially exculpatory information and only knew of Leftwich's potentially corroborative testimony. Petitioner did not establish by clear and convincing evidence that counsel had any indication of the "cabbage simmering" testimony, the only piece of Leftwich's testimony that was not merely cumulative. The Court cannot say that the TCCA had no reasonable basis for their decision that counsel was not constitutionally ineffective. Petitioner is not entitled to relief on this claim.
Petitioner alleges that counsel was deficient in failing to investigate, call, or otherwise seek to introduce the information available through Officer William Lapoint, as such would have communicated Petitioner's state of mind to the jury [Doc. 3 at 86-88]. Respondent states that the TCCA found that the jury had other evidence from which it could discern Petitioner's demeanor and in addition notes that Officer Lapoint's testimony was only relevant to Petitioner's state of mind after the event, while the TCCA focused only on his calmness before as indicative of premeditation and deliberation [Doc. 15 at 53-55]. Because Petitioner cannot show that this witness had favorable information, the TCCA's holding that counsel was not deficient in this regard is not unreasonable.
Officer Lapoint was present at the airport where Petitioner was arrested. Kendrick, 2015 Tenn. Crim. App. 887, at *106. At that time, he went to the police vehicle Petitioner was in to talk to the Petitioner. Id. At post-conviction hearings, Officer Lapoint described Petitioner as "very distraught" and noted that he was rocking his body, crying, and that he stated "I can't believe I did that." Id. Officer Lapoint testified that he put a tape recorder in the patrol car set to record Petitioner, but did not check that the tape recorder was working before doing so. Id. When the recorder was returned, it did not work because the batteries had corroded; other officers told Officer Lapoint there was nothing on the tape contained in the recorder. Id. The Petitioner noted at trial that the tape recorder was placed in the patrol car with him and that he believed that there must have been evidence favorable to him on the tape because the prosecution did not play it. Id. at *107.
On motion for new trial, counsel raised the State's failure to include the tape in discovery, but as the court denied the motion, appellate counsel chose not to raise it on appeal. Id. at *107. Trial counsel testified at post-conviction that he did not recall ever hearing about the tape recorder and did not recall speaking to Officer Lapoint. Id.
The TCCA held that counsel was not deficient in this regard for multiple reasons. First, Petitioner only alleged that this tape could have had evidence relevant to his mental state after the shooting, an issue which the jury had substantial alternative evidence on: testimony from Ms. Maston stating that Petitioner was crying, the tape of Petitioner's 9-1-1 call, and Petitioner's own testimony. Second, Petitioner's state of mind post-shooting was not used as evidence of premeditation and deliberation, but rather his calmness before the shooting. Id. at *107-109. Lastly, the tape has never been found and there is no indication of what was on it, not even by Petitioner.
This Court does not find that the state courts unreasonably applied Strickland to find that counsel was not deficient. Petitioner has not proven the factual basis of this claim by clear and convincing evidence — he has not demonstrated whether trial counsel ever heard about the tape or knew of Lapoint's existence as his name was not provided in discovery. This court likewise finds no prejudice where there is no indication as to the contents of the tape on which to assess their potential outcome on the verdict. Petitioner is not entitled to relief on this claim.
Although neither the state courts nor the Respondent address this issue, the Court finds that it was properly presented in Petitioner's brief to the TCCA appealing the second dismissal of his post-conviction petition [Doc. 14 Attachment 47 at 82-83]. As such, this claim will be reviewed de novo. See Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). Petitioner raises here that counsel was ineffective because, in his opening statement, counsel made an unfulfilled promise to the jury that irreparably damaged Petitioner's credibility [Doc. 3 at 94-106]. In opening statement, counsel informed the jury that Petitioner's wife was killed by a faulty rifle and that the jury would hear from Officer Miller that the firearm discharged, shooting him in the foot, without his hands anywhere near the trigger [Doc. 14 Attachment 47 at 82-83]. As detailed above, Officer Miller did not expressly testify that his finger was not on the trigger during his accident, but rather that he could not recall his posture. However, counsel did elicit some proof from Officer Miller indicating that his finger was not near the trigger. Petitioner alleges that counsel did not have a proper basis for this claim because he had not interviewed Officer Miller and that he should have realized by the State's plan to call Officer Miller and Agent Fite that Officer Miller's testimony had changed [Doc. 3 at 94-106].
"It is unreasonable for counsel to promise testimony to the jury without first examining the availability and soundness of such testimony where counsel could, and should, have discovered these details prior to trial." Plummer v. Jackson, 491 Fed. Appx. 671 (6th Cir. 2012)(citing English v. Romanowski, 602 F.3d 714, 728 (6th Cir. 2010)). Such an unfulfilled promise can create a negative inference in the mind of the jury, who may wonder why the promised testimony was not proffered. See English, 602 F.3d at 729. However, English makes clear that the ineffective assistance of counsel is formed by the lack of a reasonably investigated basis for the promise, not just the unfulfilled promise itself. English 729. While counsel generally has a duty to make reasonable investigation, Strickland clarifies that counsel can also reasonably determine that certain investigations are unnecessary. Strickland, 466 U.S. 668, n. 19.
In Petitioner's case, it was a reasonable decision for counsel to rely on previous signed statements by Officer Miller to inform his expectations for Officer Miller's trial testimony and his opening argument. Regardless of Petitioner's contention that counsel should have anticipated the change in testimony, this was an unforeseeable alteration, by a witness that counsel had no reason to presume was unreliable. Given his limited time and resources, it was reasonable for counsel to focus on other investigation rather than calling Officer Miller and every other officer to verify their sworn, written statements. Additionally, even if Petitioner had demonstrated deficiency, he cannot demonstrate prejudice. As English notes, the damage from such unfulfilled promises occurs when the jury is left to infer why such testimony was not raised or believes that counsel lied. English, 602 F.3d at 729. Here, counsel took or attempted to take measures to make it abundantly clear to the jury that he proposed that Officer Miller would say his finger was not on the trigger because he had said so before. Petitioner cannot show that this error, after being explained to the jury, was sufficient to undermine the reliability of the results of his trial.
For the reasons set forth above, Petitioner's petition for a writ of habeas corpus [Doc. 1] will be
The Court must now 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 v. Cockrell, 537 U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484.
Reasonable jurists would not disagree that Petitioner procedurally defaulted his claims, nor would they disagree that neither Petitioner's trial nor appellate counsel was constitutionally ineffective. Accordingly, a
