KEVIN H. SHARP, District Judge.
Petitioner Richard Frank D'Antonio, a prisoner in state custody who is currently incarcerated at the Turney Center Industrial Complex, has filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus (ECF No. 1) and, with the Court's permission, an amended petition (ECF No. 20). The respondent has filed an answer in opposition to the petition (ECF No. 23), along with a complete copy of the underlying state-court record. After being granted leave to do so, the petitioner filed a reply brief (ECF No. 36). Thereafter, the Court directed both parties to supplement their pleadings in light of the Sixth Circuit's decision in Sutton v. Carpenter, 745 F.3d 787 (6th Cir. March 19, 2014), cert. denied, 134 S.Ct. 1889 (April 21, 2014). (See ECF Nos. 40, 42.) The petition is ripe for review, and this Court has jurisdiction. 28 U.S.C. § 2241(d). For the reasons set forth herein, the petition will be denied and this action dismissed.
On September 25, 2003, petitioner Richard Frank D'Antonio was found guilty by a Davidson County jury on one count of first-degree murder and one count of assault with intent to commit murder. (ECF No. ECF No. 15-1, at 65 (criminal court minutes).) The trial court granted the petitioner's motion for judgment of acquittal as to count two, assault with intent to commit murder, on statute-of-limitation grounds, but denied the petitioner's motion for a new trial. (ECF No. 15-1, at 77.) Judgment was entered against D'Antonio on the murder charge, and he was sentenced to life imprisonment with the possibility of parole. (ECF No. 15-1, at 67.) The conviction and sentence were affirmed on direct appeal. State v. D'Antonio ("D'Antonio I"), No. M2003-03052-CCA-R3-CD, 2005 WL 2874657 (Tenn. Ct. Crim. App. March 9, 2005), perm app. denied (Tenn. May 1, 2006).
On November 15, 2006, the petitioner filed a lengthy pro se post-conviction petition and supporting memorandum in the state court. (ECF No. 15-3, at 29-145.) After the appointment of counsel, an amended petition was filed on November 17, 2008. (ECF No. 15-14, at 11-20.) The trial court conducted a hearing on April 19, 2011, and thereafter entered an order denying the petition. (ECF No. 15-14, at 29-47.) That decision was affirmed. D'Antonio v. State ("D'Antonio II"), No. M2011-01378-CCA-R3-PC, 2012 WL 2411871 (Tenn. Ct. Crim. App. June 27, 2012), perm. app. denied (Tenn. September 19, 2012). The petitioner filed his § 2254 petition in this Court on April 8, 2013 (ECF No. 1, at 25 (petitioner's oath as to the date the petition was placed in the prison mailing system)). The petition is timely, and this Court has jurisdiction.
The Tennessee Court of Criminal Appeals summarized the testimony presented during trial as follows:
D'Antonio I, 2005 WL 2874657, at *1-7.
In his habeas petition in this Court, Richard Frank D'Antonio asserts ten "grounds" for relief, most of which encompass more than one claim. The Court construes the petition as setting forth twenty-seven separate claims for relief, as follows:
Generally, a federal district court will not entertain a petition for writ of habeas corpus unless the petitioner has first exhausted all available state-court remedies for each claim in his petition. 28 U.S.C. § 2254(b)(1). While exhaustion is not a jurisdictional requirement, it is a strictly enforced doctrine which promotes comity between the states and the federal government by giving the state an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Consequently, as a condition precedent to seeking federal habeas corpus relief, the petitioner is required to fairly present his claims to every available level of the state court system. Rose v. Lundy, 455 U.S. 509, 518-20 (1982); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) ("[A] federal habeas petitioner . . . [must] provide the state courts with a `fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim."). Moreover, "the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). Once his federal claims have been raised in the highest state court available,
A habeas petitioner bears the burden of demonstrating that he has properly and fully exhausted his available state court remedies with respect to the claims he presents for federal habeas review. Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987) (citation omitted). If a habeas petitioner retains the right under state law to raise a claim by any available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(c). Ordinarily, habeas petitions containing unexhausted claims are dismissed without prejudice in order to permit the petitioner the opportunity to pursue them in state court. Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002) (citing Rose, 455 U.S. at 518, 520-22); see also Rhines v. Weber, 544 U.S. 269 (2005) (reconfirming the continued relevance of Rose under AEDPA)).
If, however, an unexhausted claim would be procedurally barred under state law, for instance by a statute of limitations or a state rule barring successive petitions, then the claim is deemed exhausted (because no further state review is available) but procedurally defaulted (because it was not presented to a state court for review), and may not be considered by the federal court on habeas review except under extraordinary circumstances. Alley, 307 F.3d at 385-86 (citations omitted); In re Cook, 215 F.3d 606, 607-08 (6th Cir. 2000). Specifically, in order to obtain consideration of a claim that is procedurally defaulted, a petitioner must demonstrate both "cause" for the procedural default and actual prejudice resulting from the alleged constitutional errors. Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Coleman also recognized that a prisoner can overcome a procedural default without showing cause and prejudice by "demonstrat[ing] that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. A fundamental miscarriage of justice results when one who is "actually" innocent is convicted. Gibbs v. United States, 655 F.3d 473, 477 (6th Cir. 2011). Actual innocence means factual innocence, not merely legal insufficiency. Luster v. United States, 168 F.3d 913, 915 (6th Cir. 1999). "Actual innocence" is an extremely narrow exception, and "claims of actual innocence are rarely successful." Gibbs, 655 F.3d at 477 (citing Schlup v. Delo, 513 U.S. 298 (1995)). Moreover, "a claim of `actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Id. (citing Herrera v. Collins, 506 U.S. 390 (1993)). Although the petitioner here clearly denies responsibility for the murder of which he was convicted and insists upon his actual innocence, he does not provide new, concrete evidence of actual innocence and therefore cannot overcome procedural default on this basis. See Schlup, 513 U.S. at 324 ("To be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.").
The petitioner here must therefore establish both cause and prejudice to overcome any procedural default. The "cause" standard generally requires a petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise a claim in the state courts. Wogenstahl v. Mitchell, 668 F.3d 307, 321 (6th Cir. 2012) (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991) (internal quotation marks omitted)). Until recently, a prisoner could not demonstrate cause by claiming that he received ineffective assistance of counsel during state post-conviction proceedings. See Coleman, 501 U.S. at 752-53 (holding that a post-conviction attorney's error is not cause to excuse a default). That barrier was based on the premise that an individual does not have a constitutional right to counsel in post-conviction proceedings, and therefore no right to the effective assistance of post-conviction counsel, so the prisoner himself "bear[s] the risk of attorney error that results in a procedural default." Id. (internal quotation marks omitted).
However, in Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012), the Supreme Court held that the ineffective assistance of post-conviction counsel can establish "cause" to excuse the procedural default of a defendant's substantial claim of ineffective assistance of counsel at trial, but only where state procedural law prohibits defendants from raising such claims on direct appeal and instead requires defendants to raise the claims for the first time in post-conviction proceedings. Id. at 1318-19. In Trevino v. Thaler, 569 U.S. ___, 133 S.Ct. 1911 (2013), the Court extended Martinez to apply to cases where, although state procedural law might permit defendants to raise ineffective-assistance claims on direct appeal, 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 trial counsel on direct appeal." Id. at 1921. Applying Trevino, the Sixth Circuit Court of Appeals recently held that "ineffective assistance of post-conviction counsel can establish cause to excuse a Tennessee defendant's procedural default of a substantial claim of ineffective assistance at trial." Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. March 19, 2014) cert. denied, 134 S.Ct. 1889 (April 21, 2014).
The narrow exception to the procedural-default bar created by these cases requires both that the ineffective assistance of post-conviction counsel occur during the "initial-review collateral proceeding," see Martinez, 132 S. Ct. at 1320 ("The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts."), and that the claim be a "substantial" one. See id. at 1318-19 ("[T]he underlying ineffective-assistance-of-trial-counsel claim [must be] a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit"). In addition, Martinez did not dispense with the "actual prejudice" prong of the standard for overcoming procedural default first articulated by the Supreme Court in Coleman, 501 U.S. at 750.
Neither the Supreme Court nor the Sixth Circuit has yet provided guidance as to how district courts reviewing habeas petitions are to implement the ruling in Martinez. In one of the first circuit court opinions to address the issue directly, the Ninth Circuit held that, to establish that his claim is "substantial," a habeas petitioner must "show that his post-conviction relief counsel was ineffective under Strickland v. Washington." Clabourne v. Ryan, 745 F.3d 362, 376 (9th Cir. 2014). That is, the petitioner must show both that his post-conviction counsel's performance was constitutionally deficient and that the petitioner was prejudiced by the deficiency. Prejudice, under Strickland, requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [post-conviction] proceeding would have been different." Strickland, 466 U.S. at 694. Further, according to the Ninth Circuit, "actual prejudice," for purposes of the Coleman analysis in the Martinez context, requires a showing that "the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the claim has some merit." Clabourne, 745 F.3d at 377 (quoting Martinez, 132 S. Ct. at 1318).
The Clabourne court recognized some "overlap" between the two prejudice requirements:
Id.
In other words, in 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. If not, because the "cause and prejudice" standard is conjunctive rather than disjunctive, the reviewing court would have no need to consider whether the petitioner has established cause to overcome the procedural default, in the form of ineffective assistance of post-conviction counsel.
With these principles in mind, the Court turns to the consideration of the petitioner's claims.
The Court, having reviewed the entire underlying record, finds that, of the twenty-seven claims identified above, those claims listed below were never presented, or were not presented under the same theory, to the Tennessee Court of Criminal Appeals, either on direct review or in the post-conviction proceedings, nor did the Tennessee Court of Criminal Appeals consider sua sponte any of these issues. Those claims marked with an asterisk were included in the petitioner's pro se post-conviction petition or in the amended petition filed by counsel in the state trial court, but were not included in the petitioner's post-conviction appellate brief:
For purposes of discussion, the claims in this list fall into three distinct categories: Claims 1, 2, 4, 5, 6, 17, and 19 are substantive claims of alleged trial court error; Claims 7, 8, 9, 10, 11, 12, 14, 18, 20, 21, and 22 are claims of ineffective assistance of trial or appellate counsel; and Claims 23, 24, 25, 26, and 27 are claims of ineffective assistance of post-conviction counsel during initial-review proceedings or in post-conviction appellate proceedings.
The first group consists of substantive claims of trial court error. As set forth above, the doctrine of exhaustion requires that a habeas claim for relief be raised at every available level of the state courts. Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990). In Tennessee, that means the claim must be presented to the Tennessee Court of Criminal Appeals. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. S. Ct. R. 39). Presenting a claim only at the trial court level does not satisfy the exhaustion requirement. In addition, to preserve a federal constitutional claim for habeas corpus, the legal and factual basis of the claim must be "fairly presented" to the state courts so that they have an opportunity to remedy the alleged constitutional violation. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). To be found to have fairly presented a claim in the state courts, a petitioner must have presented his claim to the state courts "under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998).
Claims 1, 2, 4, 5, 6, and 17 were raised during initial post-conviction proceedings, but they were never presented to the Tennessee Court of Criminal Appeals. Regarding Claim 19, although the petitioner argued on direct appeal that the trial court erred in admitting testimony concerning the business and conduct of Chuck Dixon because this evidence violated the Tennessee Rules of Evidence, he did not argue that admission of the evidence violated his due-process and other federal constitutional rights, as he does now in this Court.
Although these claims remain technically unexhausted, because they were never presented to the state appellate court under a federal constitutional theory, the petitioner is barred by Tennessee's one-year statute of limitations, Tenn. Code Ann. § 40-30-102(a), and the state's one-petition rule, Tenn. Code Ann. § 40-30-102(c), from presenting any of the claims to the state courts now. He does not argue that any of the circumstances enumerated in Tenn. Code Ann. § 40-30-117(a) permit him to re-open his post-conviction petition in the Tennessee courts. The claims listed above are therefore considered to be exhausted (because no further state review is available) but procedurally defaulted (because they were never presented to the state courts), and may not be considered by the federal court on habeas review unless the petitioner demonstrates both cause for the procedural default and actual prejudice resulting from the alleged constitutional errors.
The petitioner offers generally as "cause" for his default the ineffective assistance of his trial counsel in failing to raise these issues at trial, his appellate counsel's waiver of these issues by refusing to raise them on direct appeal, and his post-conviction counsel's failure to argue them in the post-conviction appeal. However, while constitutionally ineffective assistance of trial counsel may constitute cause to excuse a procedural default, see Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wogenstahl, 668 F.3d at 321, counsel's allegedly constitutionally deficient performance cannot constitute cause here, because the petitioner did not exhaust his claims of ineffective assistance of counsel based on his trial or appellate counsel's failure to raise these substantive issues as independent claims in the state courts. As the Supreme Court has recognized, "ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim." Carpenter, 529 U.S. at 451. Thus, in order for counsel's ineffectiveness in failing properly to preserve a claim for review in state court to establish cause, counsel's performance must actually amount to ineffective assistance of counsel under the Sixth Amendment. For this reason, the ineffective assistance claim which is asserted as cause must itself be exhausted and not procedurally defaulted. Id. at 452-53.
Here, the petitioner never presented any ineffective-assistance claims based on claims 1, 2, 4, 5, 6, 17, or 19 to the Tennessee Court of Criminal Appeals.
Moreover, the petitioner's express reliance upon Martinez does not help him overcome the procedural default as to these claims. The Court understands the petitioner to posit as "cause" for his default the failure of his post-conviction counsel to present these issues in the initial post-conviction proceeding (or to argue them on appeal), either substantively or as ineffective-assistance claims. The Sixth Circuit, however, has continued to reject claims based on such dual layers of alleged ineffectiveness, even under Martinez. In Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013), the petitioner, like the petitioner here, attempted to rely on the ineffective assistance of his post-conviction counsel to establish cause to excuse the default of a substantive claim of juror misconduct. The court observed: "Hodges also cannot rely on ineffective assistance of post-conviction counsel to excuse the default. Hodges did not default an ineffective assistance of trial counsel claim; he defaulted his claim that he was not competent to stand trial. Accordingly, Martinez v. Ryan and Trevino v. Thaler are inapplicable and the Coleman rule [of default] still applies." Hodges, 727 F.3d at 540 (internal citations omitted).
In short, these claims are procedurally defaulted, and the petitioner has not established cause sufficient to overcome the default.
These claims of ineffective assistance of trial and appellate counsel were not raised in the petitioner's post-conviction appeal, though several of them (Claims 9, 11, 12, 18 and 21) were presented in the petitioner's pro se post-conviction brief in the state trial court. The petitioner again asserts as "cause" for this default the ineffective assistance of his post-conviction counsel.
The Sixth Circuit has expressly held that the Martinez exception does not extend to situations in which a petitioner asserts the ineffective assistance of post-conviction counsel as cause for the default of a claim of ineffective assistance of appellate counsel, as opposed to trial counsel:
Hodges, 727 F.3d at 531. Claim 14, which is premised upon the ineffective assistance of appellate counsel, is defaulted, and the ineffective assistance of post-conviction counsel clearly may not serve as "cause" to overcome this default.
Similarly, Martinez does not extend to the ineffective assistance of post-conviction appellate counsel, because the exception pertains only to "initial-review collateral proceedings." Martinez, 132 S. Ct. at 1316. Consequently, the ineffective assistance of post-conviction counsel for failing to raise issues in the post-conviction appeal that were raised in the initial-review post-conviction proceedings cannot serve as cause to overcome the procedural default. The petitioner therefore cannot overcome the default of Claims 7, 9, 11, 12, 18 and 21, which were presented to and rejected by the trial court in initial-review post-conviction proceedings.
This leaves for consideration only the petitioner's claims that the ineffective assistance of post-conviction counsel serves as "cause" to overcome the procedural default of Claims 7, 8, 10, 20, and 22, which were not raised in initial-review collateral proceedings. The respondent argues generally that these claims
The petitioner asserts in this claim that his trial counsel was ineffective for failing to mount a defense based on the state's lack of jurisdiction. It is clear, however, that the petitioner's assertion that the state court lacked jurisdiction to arrest and try him has no legitimate legal foundation. The jurisdiction of a Tennessee circuit court is limited to crimes that occur within the territorial boundaries of the county in which the court sits. State v. Hill, 847 S.W.2d 544, 545 (Tenn. Ct. Crim. App. 1992) (citing Tenn. Const. art. I, § 9; Harvey v. State, 376 S.W.2d 497 (Tenn. 1964); Norris v. State, 155 S.W. 164 (Tenn. 1913)). There is no dispute in this case that the murder occurred in Davidson County and that the petitioner was indicted by a Davidson County grand jury and convicted by a petit jury in the Davidson County Criminal Court. Accordingly, trial counsel had no apparent basis for raising a defense premised on the trial court's lack of jurisdiction. In turn, post-conviction counsel's failure to raise an ineffective-assistance claim based on trial counsel's failure to raise a jurisdictional defense was not unreasonable, nor was the petitioner prejudiced thereby. The claim is insubstantial and does not merit relief.
In Claim 8, the petitioner asserts that his trial counsel was ineffective for failing to mount a defense based on his allegedly unconstitutional arrest in Las Vegas, and that the ineffective assistance of post-conviction counsel constitutes cause to overcome the default of this claim. In support of his claim that his arrest violated the Fourth Amendment, the petitioner insists that he was arrested inside his home in Las Vegas with no arrest warrant and no indictment. (See ECF No. 1-1, at 1 (stating that detectives Bill Pridemore and Pat Postiglione, "with the aid of local authorities . . . went to the home of Richard F. D'Antonio and arrested him inside his home without warrants or any documentation whatever.") In his supplemental memorandum, the petitioner asserts that state prosecutor obtained the indictment after the petitioner was arrested. (ECF No. 42, at 7.)
The Fourth Amendment protects "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. A "seizure" of an individual takes place when, "by means of physical force or a show of authority, his freedom of movement is restrained." United States v. Mendenhall, 446 U.S. 544, 553 (1980). "It is a well-settled principle of constitutional jurisprudence that an arrest without probable cause constitutes an unreasonable seizure in violation of the Fourth Amendment." Ingram v. City of Columbus, 185 F.3d 579, 592-93 (6th Cir. 1999) (citation omitted). Conversely, it has also "long been settled that `the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer.'" Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002) (quoting Ex parte United States, 287 U.S. 241, 250 (1932)). Even in the absence of a warrant, probable cause to arrest exists where there are "`facts and circumstances within the [arresting] officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).
In this case, as a factual matter, the record establishes that the indictment was filed on July 19, 2002. (ECF No. 15-1, at 5.) The petitioner was arrested on July 24, 2002, after the indictment had been issued. The petitioner does not contest the facial validity of the indictment or argue that the arresting officers lacked probable cause to arrest him. Regardless of whether the petitioner was presented with a copy of the indictment or even aware of its existence, the fact that the indictment had already been issued necessarily means that his arrest was based upon probable cause and therefore did not violate the Fourth Amendment. Because it appears that the arrest did not violate the Fourth Amendment, trial counsel was not ineffective for failing to raise this claim, and post-conviction counsel was not ineffective for failing to raise an ineffective-assistance-of-trial-counsel claim premised on this issue. This claim is without merit.
In this claim, the petitioner argues that his trial counsel was ineffective for failing to object to Brady violations and that the default of this claim was caused by the ineffective assistance of post-conviction counsel.
To establish a Brady claim, a petitioner must show that the state withheld exculpatory evidence material to either the petitioner's guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court has articulated "three components of a true Brady violation: 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). 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) (citations and 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) (citations and quotation marks omitted). Importantly, Brady does not apply when the defendant "knew or should have known the essential facts permitting him to take advantage of any exculpatory information." Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Similarly, Brady does not apply when the factual basis for the claim was readily available to the petitioner or his counsel from a publicly available source. Bell v. Bell, 512 F.3d 223, 235 (6th Cir. 2008).
The alleged basis for the Brady claim in this case is that:
(ECF No. 1-1, at 1.) The Court finds that the petitioner's allegations fail to establish that the alleged suppression of the media video footage violated Brady, first because the petitioner himself and therefore his counsel either knew or should have known the essential facts permitting him to take advantage of whatever exculpatory evidence was contained in the footage. Second, the footage at issue was apparently publicly available. In any event, the petitioner has not established that it was actually in the possession of the state such that the state would have had a duty to disclose it. And finally, the petitioner has not shown how the footage would have had a reasonable probability of altering the outcome of trial.
In short, the petitioner cannot show that post-conviction counsel was ineffective for failing to raise this claim, and it does not provide a basis for relief.
In this claim, the petitioner asserts that his trial counsel was ineffective for failing to object to witness Robert Metzgar's testimony about Chuck Dixon's business practices and conduct at Cashbox. (ECF No. 1, at 17.) In actuality, defense counsel did object to the testimony of Robert Metzgar on the grounds that the testimony he sought to offer was not in furtherance of the alleged conspiracy (see Trial Tr. Vol. IV, at 459, ECF No. 15-5, at 31), but the trial court overruled the objection. Thus, the petitioner's claim that counsel was ineffective for failing to object to Metzgar's testimony fails as a factual matter, and it would have been frivolous for post-conviction counsel to argue that trial counsel was ineffective for failing to do something that he actually did. The petitioner is not entitled to relief on the basis of this claim.
Finally, the petitioner argues that trial counsel was ineffective for failing to call "Lori," former "housekeeper/nanny" as an alibi witness. He asserts that Lori would have been able to testify that
The Court finds that if, in fact, a former nanny/housekeeper named Lori was available to testify and could have testified that on the particular day in question, the petitioner was in his office with his children between 4:30 and 5:00 p.m., this testimony might have had an impact on the outcome of the trial. However, in order to establish that post-conviction counsel was ineffective for failing to raise an ineffective-assistance-of-trial-counsel claim based on this evidence, the petitioner would need to show, at a minimum, that post-conviction counsel was aware of Lori's existence, that she was available to testify, and that she would corroborate the petitioner's claims. As the state points out, however, the petitioner submitted an exhaustive post-conviction petition in which he raised every issue he personally could think of, but he did not include any mention of an alibi or a nanny/housekeeper named Lori, despite the fact that his whereabouts on the day of the murder was an important issue in the case. Moreover, the petitioner, even now, does not assert that he mentioned this issue to his post-conviction counsel but that counsel refused or simply failed to include the issue in the amended petition or to amend the petition a second time, if necessary, to include the issue. Nor does the petitioner allege that Lori was available to testify to corroborate his claims.
Likewise, the petitioner does not suggest that he told his trial counsel about Lori and this potential alibi evidence but that his trial counsel refused or neglected to follow up on this witness. If trial counsel was unaware of Lori's existence, counsel could not have been negligent for failing to search for her to present her testimony.
Accordingly, although the Court finds this claim to be potentially "substantial" for purposes of Martinez, the Court further finds that the petitioner has not carried his burden of establishing any failure on the part of post-conviction counsel. He is not entitled to relief on the basis of this claim.
Because these claims were never presented to any other court, they are procedurally defaulted and on that basis not reviewable by this Court. Moreover, as indicated above, the petitioner is mistaken in believing that the Supreme Court has recognized a free-standing right to effective counsel in state post-conviction proceedings. In Coleman v. Thompson, the Court stated in no uncertain terms: "There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman, 501 U.S. at 752 (citations omitted). The Supreme Court's recent rulings in Martinez and Trevino did not relax or abrogate that part of Coleman's holding. Thus, because the petitioner is not constitutionally guaranteed the assistance of counsel in post-conviction proceedings, he is not entitled to relief on the basis of the claims 23 through 27.
Even when a petitioner's application for a writ of habeas corpus raises only federal constitutional claims that have been properly exhausted in the state courts, this Court's review of the state court's resolution of those issues remains quite limited. The standard for reviewing applications for the writ of habeas corpus is set forth in 28 U.S.C. § 2254(d). This section states:
Id. In other words, a federal court is bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Further, this Court must presume the correctness of state court factual determinations, and the petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous."), abrogated on other grounds by Thompson v. Keohane, 516 U.S. 99, 111 (1995).
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (citation omitted).
With respect to the "unreasonable application" clause of § 2254(d)(1), the Supreme Court has held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Williams, 529 U.S. at 409. The Court defined "unreasonable application" as follows:
Id. at 409-11 (emphasis original).
With these principles in mind, the court will turn to the examination of the exhausted claims raised in D'Antonio's petition for habeas relief.
The petitioner argues that he was interrogated without the benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and that admissions made during that interrogation were admitted at trial in violation of his rights under the Fifth Amendment. He moved in the trial court to suppress these statements (see ECF No. 15-1, at 29) and raised the issue on direct appeal. The respondent concedes that this issue is fully exhausted.
In the first statement he sought to suppress, the petitioner stated after he was informed of the charges against him that he knew the matter "had to be about Kevin." (Id.; see also Mot. to Suppress Hr'g Tr. at 124:23-24, ECF No. 15-2, at 145.) When Deputy District Attorney Thurman confronted the petitioner with alleged evidence of his guilt and informed him that Tennessee might seek the death penalty, the petitioner again stated that when he had heard the charge was for homicide, he "knew it had to be about Kevin." (Id. at 30.) The third statement occurred after the petitioner had been brought from Las Vegas to Nashville. According to the testimony of Detective Bill Pridemore, the detective escorted D'Antonio into the booking room in night court. The defendant inquired about whether he would receive his medication and where he would be housed. Detective Pridemore told him he would be in the "general population, most likely," unless he was placed in a medical ward. (Mot. to Suppress Hr'g Tr. at 128:3-6, ECF No. 15-2, at 149.) Shortly thereafter, the petitioner, again according to Pridemore, volunteered to the detective that he would be willing to discuss the case if the detective would get him a private cell.
The trial court, in considering the Miranda issue, found as a factual matter that the police officers and the deputy district attorney had simply advised the defendant of the charges against him and the possible range of punishment, and that Detective Pridemore had not been interrogating the petitioner at the time he volunteered that he would provide information in exchange for a private cell. On that basis the court held that there was no Fifth Amendment or Miranda violation.
In addressing the Miranda issue, the Tennessee Court of Criminal Appeals articulated the governing federal legal standards and concluded, based on the facts as determined by the trial court, that the petitioner's rights had not been violated:
Id. at 301-02 (footnotes omitted).
D'Antonio, 2005 WL 2874657, at *14-15.
The Tennessee Court of Criminal Appeals' determination of the facts in light of the evidence was not unreasonable. Moreover, the state court identified the correct legal principles, and its application of those principles to the facts in this case was not unreasonable or contrary to clearly established federal law. The petitioner is not entitled to relief on the basis of this claim.
This claim is partially exhausted. In his post-conviction petition in the trial court, the petitioner argued that his trial counsel was ineffective for failing to investigate numerous potential alternative suspects, including, among others, Milton Reyes, Steve Daniel, and Kenneth Matthews. On appeal, however, his post-conviction counsel raised only the issue of trial counsel's failure to investigate Milton Reyes as a possible alternative suspect. To the extent the petitioner continues to claim that his trial counsel was ineffective for failing to consider and investigate other potential suspects, those claims are procedurally defaulted at the post-conviction appellate level, and the petitioner has not presented cause to overcome the procedural default, for the reasons discussed in connection with the other petitioner's other defaulted claims.
In considering this issue as it concerns Milton Reyes, the Tennessee Court of Criminal Appeals correctly articulated the governing federal standard as established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and concluded that the petitioner had not met this standard with regard to this particular claim:
D'Antonio II, 2012 WL 2411871, at *13-14.
Federal habeas relief may not be granted under 28 U.S.C. § 2254 unless the petitioner shows that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of the United States Supreme Court, § 2254(d)(1); Williams, 529 U.S. at 412; or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2). Thus, when a claim of ineffective assistance of counsel is raised in a federal habeas petition, the question to be resolved is not whether the petitioner's counsel was ineffective. Rather, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 785 (2011). As the Supreme Court clarified in Harrington,
Harrington, 131 S. Ct. at 786 (internal quotation marks and citation omitted).
The petitioner has not shown the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," or that it "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). Accordingly, the petitioner is not entitled to relief on the basis of this claim.
In Claim 15, the petitioner contends that the state court's admission of several hearsay statements and "non-verbal" hearsay by the deceased victim, Kevin Hughes, violated his Sixth Amendment right to confront witnesses against him. He raised this issue in his direct appeal, arguing that the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), "support[ed] a finding that admission of the evidence at issue violated [the defendant's] Sixth Amendment right to confront witnesses against him." (Dir. App. Br. at 40, ECF No. 15-12, at 48.) He characterized Crawford as holding that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity to cross-examine." (Id. (quoting Crawford, 124 S. Ct. at 1374).) Without addressing whether the testimony at issue was "testimonial," he argued that Crawford applied in this case because the statements in question were never subject to a prior opportunity to cross-examine.
The statements at issue included testimony from various witnesses that "the victim was thinking of quitting his job at Cashbox, that he was feeling a lot of pressure, and that he was unhappy and wanted to visit his parents"; that the victim had "talked about going back home and . . . had enough of Cashbox"; that he "seemed nervous and almost scared" and in a telephone call to his brother the evening he was murdered, told his brother he loved him, which was unusual; that he appeared to be "intimidated" by Chuck Dixon; and that he had "expressed suspicion that the Cashbox charts were being changed in his absence." State v. D'Antonio, 2005 WL 2874657, at *16.
The state appellate court succinctly rejected the defendant's argument that this testimony violated the Confrontation Clause: "We do not believe Crawford to be applicable to the instant testimony. The holding therein forbade testimonial evidence unless the declarant was unavailable and there had been a prior opportunity to cross-examine. We do not characterize the victim's statements at issue as testimonial in nature." Id. at *17.
This decision was not contrary to or an unreasonable application of clearly held federal law. The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. A criminal defendant enjoys this right whether he is tried in federal or state court. Crawford, 541 U.S. at 42. The law, indeed, is clear that testimonial statements that are made for the truth of the matter asserted by witnesses absent from trial may be admitted at trial only if the declarant is unavailable and if the defendant had a prior opportunity to cross-examine him. Id. at 59. However, when non-testimonial statements are at issue, the Sixth Amendment simply does not apply, and the admission of the statements is governed by the state hearsay rules. Id. at 68.
To be considered "testimonial," the evidence generally must "involve[] out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and . . . involve[] formalized statements such as affidavits, depositions, prior testimony, or confessions." Williams v. Illinois, 567 U.S. ___, 132 S.Ct. 2221, 2242 (2012); see also Crawford, 541 U.S. at 68. Run-of-the-mill hearsay typically is not "testimonial" in nature.
The Tennessee Court of Criminal Appeals reasonably applied Crawford in the petitioner's case to find that the victim's statements (or non-verbal behavior) were not testimonial and therefore did not implicate the Sixth Amendment. Its decision did not involve an unreasonable determination of the facts in light of the evidence, because the statements did not accuse the petitioner of engaging in criminal conduct or even mention his name, and the purpose of the statements clearly was not to accuse the petitioner of engaging in criminal conduct. Moreover, the statements were not formalized or made during a hearing, trial, or police interrogation. The petitioner is not entitled to relief on the basis of this claim.
In his direct appeal, the petitioner argued both that the trial court erred in admitting certain hearsay statements by Chuck Dixon under the co-conspirator exception and that the statements were barred by the Supreme Court's interpretation of the Confrontation Clause in Crawford. As suggested above, a claim that a trial court erroneously admitted hearsay into evidence is governed by the state hearsay rules, Crawford, 541 U.S. at 68, and generally does not implicate federal constitutional rights. In this case, the Tennessee Court of Criminal Appeals first rejected the claim of error based on the admission of hearsay under state law. It reviewed the evidence of record to conclude that the state had established by a preponderance of the evidence that the petitioner and Chuck Dixon were "engaged in a conspiracy to manipulate the Cashbox charts for their personal gain," and that the statements at issue were "made in the course of and furtherance of that conspiracy." D'Antonio, 2005 WL 2874657, at *19.
Regarding the claim that the statements at issue violated the Confrontation Clause, the court concluded, that, like the hearsay statements by the victim, the statements at issue were not testimonial in nature and therefore not subject to Crawford. Again, this decision did not involve an unreasonable determination of the facts in light of the evidence in the record or an unreasonable application of clearly established federal law to those facts.
Other than invoking the Confrontation Clause, the petitioner has not indicated how the allegedly erroneous admission of hearsay testimony violated his federal constitutional rights. The petitioner is not entitled to relief on the basis of this claim.
For the reasons set forth herein, Mr. D'Antonio's petition under § 2254 will be denied and this matter dismissed with prejudice.
The Court must issue or deny a certificate of appealability ("COA") when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules Gov'g § 2254 Cases. The petitioner may not take an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the COA must "indicate which specific issue or issues satisfy the [required] showing . . . ." 28 U.S.C. § 2253(c)(3). A "substantial showing" is made when the petitioner demonstrates that "`reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). "[A] COA does not require a showing that the appeal will succeed." Miller-El, 537 U.S. at 337. Courts should not issue a COA as a matter of course. Id.
In this case, only four of the petitioner's twenty-seven claims were fully exhausted and therefore reviewable on the merits. The petitioner failed to show any error of constitutional dimension in the state court's resolution of those claims, however. The other twenty-three claims are procedurally defaulted, and the petitioner is unable to establish the cause and prejudice necessary to overcome the procedural default. Because an appeal by the petitioner on any of the issues raised in his petition would not merit further attention, the Court will deny a COA. The petitioner may, however, seek a COA directly from the Sixth Circuit Court of Appeals. Rule 11(a), Rules Gov'g § 2254 Cases.
An appropriate order is field herewith.
