ALETA A. TRAUGER, District Judge.
Petitioner Sentoryia Young, a state prisoner serving a sentence of life without the possibility of parole for second degree murder as a repeat violent offender, has filed a pro se petition and amended petition under 28 U.S.C. § 2254 for the writ of habeas corpus (ECF Nos. 1, 2), which were followed by the appointment of counsel (ECF No. 15) and counsel's filing of the operative second amended petition (ECF No. 30). The respondent has filed an answer, along with a copy of portions of the state court record (ECF Nos. 33 and 34), and the petitioner has now filed a reply (ECF No. 71) and two supplements accompanied by additional portions of the state court record (ECF Nos. 72, 73).
This matter was stayed from March 12, 2013, until May 30, 2013, pending the United States Supreme Court's decision in Trevino v. Thaler, 133 S.Ct. 1911 (2013). (ECF Nos. 50, 52.) The court subsequently denied the petitioner's motion for discovery, finding that no good cause existed for the particular discovery sought because the claims related to the proposed discovery were procedurally defaulted despite the impact of Trevino and Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014). (ECF No. 66.)
This case is now fully briefed and ripe for review. For the reasons set forth below, the petition for the writ of habeas corpus will be denied.
At the petitioner's first trial in March 2004, a witness alluded to his prior criminal history after the trial court expressly ordered that no such reference was to be made. The petitioner requested and was granted a mistrial. Young v. State, No. M2010-01762-CCA-R3-PC, 2011 WL 3630128, at *1, 4 (Tenn. Ct. Crim. App. Aug. 18, 2011) (Docket Entry No. 34-30). The petitioner was retried in Davidson County Criminal Court and was convicted on December 14, 2004, of second degree murder and two counts of aggravated assault. (ECF No. 34-1, at 143-44.) He was sentenced to life in prison without the possibility of parole for the second degree murder conviction, as a result of his status as a repeat violent offender. (ECF No. 34-1, at 157.) He was also sentenced to six years in prison for each of the aggravated assault convictions, to be served concurrently with the life sentence. (ECF No. 34-1, at 158-59.) The Tennessee Court of Criminal Appeals affirmed the convictions and sentences on direct appeal, and the Tennessee Supreme Court denied permission to appeal on December 8, 2008. State v. Young, No. M2005-01873-CCA-R3-CD, 2008 WL 2026108 (Tenn. Ct. Crim. App. May 12, 2008), perm. to appeal denied, (Tenn. Dec. 8, 2008) (Docket Entry No. 34-26). The record does not reflect that the petitioner sought certiorari from the United States Supreme Court.
While the petitioner's direct appeal was pending in the Tennessee Court of Criminal Appeals, he filed a petition for writ of error coram nobis in the trial court, which was denied following an evidentiary hearing. (ECF No. 34-19, at 5-7, 79-87.) The Tennessee Court of Criminal Appeals affirmed that judgment in the petitioner's consolidated direct appeal, on which the Tennessee Supreme Court denied review. State v. Young, 2008 WL 2026108, at *11-14 (Docket Entry No. 34-26).
The petitioner filed a pro se petition for post-conviction relief on January 8, 2009 (ECF No. 34-27, at 22), and filed an amended petition through counsel on June 12, 2009. (ECF No. 34-27, at 40.) The trial court denied relief on July 8, 2010. (ECF No. 34-27, at 59-64.) The Tennessee Court of Criminal Appeals affirmed the denial, and the Tennessee Supreme Court again denied permission to appeal on November 16, 2011. Young v. State, No. M2010-01762-CCA-R3-PC, 2011 WL 3630128, at *1, 4 (Tenn. Ct. Crim. App. Aug. 18, 2011) (Docket Entry No. 34-30).
Pursuant to the prison mail-box rule, Petitioner filed his original petition under 28 U.S.C. § 2254 in this court on March 23, 2012. (ECF No. 1-1, at 1.) Respondent does not dispute that this action is timely.
The Tennessee Court of Criminal Appeals on direct appeal summarized the facts of the case as follows:
State v. Young, No. M2005-01873-CCA-R3-CD, 2008 WL 2026108, at *1-2 (Tenn. Crim. App. May 12, 2008).
In his Second Amended Petition, Petitioner asserts the following claims for relief:
The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S .C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a federal court may only grant relief if it finds that the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v. Warren, 311 F. App'x 798, 803-04 (6th Cir. 2009).
AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases . . . and `to further the principles of comity, finality, and federalism.'" Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). The requirements of AEDPA "create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained, AEDPA's requirements reflect "the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes "a substantially higher threshold" for obtaining relief than a de novo review of whether the state court's determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits in state court unless the state decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (d)(2). A state court's legal decision is "contrary to" clearly established federal law under § 2254(d)(1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An "unreasonable application" occurs when "the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A state court decision is not unreasonable under this standard simply because the federal court concludes that the decision is erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court's decision applies federal law in an objectively unreasonable manner. Id. at 410-12.
Similarly, a district court on habeas review may not find a state court factual determination to be unreasonable under § 2254(d)(2) simply because it disagrees with the determination; rather, the determination must be "`objectively unreasonable' in light of the evidence presented in the state court proceedings.'" Young v. Hofbauer, 52 F. App'x 234, 236 (6th Cir. 2002). "A state court decision involves `an unreasonable determination of the facts in light of the evidence presented in the State court proceeding' only if it is shown that the state court's presumptively correct factual findings are rebutted by `clear and convincing evidence' and do not have support in the record." Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting § 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 and n.3 (6th Cir. 2014) (observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did not read Matthews to take a clear position on a circuit split about whether clear and convincing rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under § 2254(d)(2), "it is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was `based on' that unreasonable determination." Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the merits by a state court "is a `difficult to meet' and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner carries the burden of proof. Pinholster, 563 U.S. at 181.
By its express terms, Section 2254(d)'s constrained standard of review only applies to claims that were "adjudicated on the merits" in the state court proceeding, including instances where the state court rules against the petitioner in a summary opinion that rejects all claims without discussion, or an opinion that addresses some claims but does not expressly address all of the federal claims presented. Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013); Harrington v. Richter, 562 U.S. at 98-99; Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004). Where a claim has not been adjudicated on the merits in state court but is still subject to federal review despite the bars of exhaustion and default, "federal habeas review is not subject to the deferential standard that applies under AEDPA. . . . Instead, the claim is reviewed de novo." Moritz v. Lafler, 525 F. App'x 277, 282 (6th Cir. 2013) (quoting Cone v. Bell, 556 U.S. 449, 472 (2009)); accord Bies v. Sheldon, 775 F.3d 386, 395-96 (6th Cir. 2014) ("Because Bies' Brady claim was never `adjudicated on the merits in State court proceedings,' the limitations imposed by § 2254(d) do not apply, and we review the claim de novo.").
28 U.S.C. §§ 2254(b) and (c) provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has presented the same claim sought to be redressed in a federal habeas court to the state courts. Cullen v. Pinholster, 563 U.S. at 182. The petitioner must "fairly present"
This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (exhaustion "generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review"). Moreover, the substance of the claim must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Fair presentation requires that the state courts be given the opportunity to see both the factual and legal basis for each claim. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). For the claim to be exhausted, it must be presented to the state courts as a federal constitutional issue, not merely as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). Specifically, in determining whether a petitioner "fairly presented" a federal constitutional claim to the state courts, federal courts should consider whether the petitioner: (1) phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; (2) relied upon federal cases employing the constitutional analysis in question; 3) relied upon state cases employing the federal constitutional analysis in question; or (4) alleged "facts well within the mainstream of [the pertinent] constitutional law." Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Moreover, the claim must be presented to the state courts under the same legal theory in which it is later presented in federal court. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). It cannot rest on a legal theory that is separate and distinct from the one previously considered and rejected in state court. Id. This does not mean that the applicant must recite "chapter and verse" of constitutional law, but the applicant is required to make a specific showing of the alleged claim. Wagner, 581 F.3d at 414.
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an independent and adequate state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977); see also Walker v. Martin, 562 U.S. 307, 315 (2011) ("A federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment"); Coleman v. Thompson, 501 U.S. 722 (1991) (same).
If a claim is procedurally defaulted, "federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice." Coleman, 501 U.S. at 750. The burden of showing cause and prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754).
A petitioner can establish cause in two ways. First, a petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Coleman, 501 U.S. at 753; Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488. Second, constitutionally ineffective assistance of counsel may constitute cause under certain circumstances. Murray, 477 U.S. at 488-89; Broom v. Mitchell, 441 F.3d 392, 401 (6th Cir. 2006); Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994).
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 attorney 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, so the prisoner "must bear the risk of attorney error that results in a procedural default." Id. (internal quotations omitted). However, in Martinez v. Ryan, 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 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. Less than a year later, the Supreme Court issued Trevino v. Thaler, 133 S.Ct. 1911 (2013). Trevino 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 has recognized that "Tennessee defendants, too, are highly unlikely to have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Sutton v. Carpenter, 745 F.3d 787, 792 (6th Cir. 2014). The court therefore held, based on Martinez and Trevino, 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." Id. at 795-96.
The Martinez Court's creation of a narrow exception to the procedural-default bar stemmed from its recognition, "as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim." Id. at 1318. Thus, Martinez requires, in order to establish cause for default, both that the ineffective assistance of post-conviction counsel occur during the "initial-review collateral proceeding," see id. at 1320 ("The rule of Coleman governs in all but the limited circumstances recognized here. 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 (noting that the prisoner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit").
A petitioner seeking to overcome procedural default must establish prejudice as well as cause. To establish prejudice, a petitioner must demonstrate that the constitutional error "worked to his actual and substantial disadvantage." Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that, "having shown cause, petitioners must show actual prejudice to excuse their default"). "When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice." Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot establish prejudice, the question of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has "probably resulted" in the conviction of one who is "actually innocent" of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing Murray, 477 U.S. at 495-96); accord Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
Respondent asserts that Claims 4, 10, 12, 15, 19, 21, 23, 24 and 25 are procedurally defaulted because the petitioner never raised them in state court. The petitioner does not dispute that the claims were never raised, but asserts various causes to excuse the defaults.
With respect to Claims 10 (trial court error — sleeping jurors), 12 (prosecutorial misconduct during closing), 19 (prejudicial photographs)
Murray, 477 U.S. at 488-89 (emphasis added). Because the petitioner's ineffective assistance of appellate counsel claim (Claim 16) was itself procedurally defaulted, and that default is not excused, as discussed in the following section, he cannot rely on that claim as cause to excuse default of these underlying claims. They must, therefore, be dismissed.
The petitioner claims that ineffective assistance of post-conviction counsel establishes cause for the default of Claim 4 (witness intimidation by prosecutor). (ECF No. 71, at 26.) Specifically, the petitioner asserts that post-conviction counsel's failure to raise this claim provides cause under Martinez v. Ryan, 132 S.Ct. 1309 (2012). The law in this circuit is perfectly clear, however, that the Martinez exception is strictly limited to claims of ineffective assistance of trial counsel:
Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013), cert. denied sub nom. Hodges v. Carpenter, 135 S.Ct. 1545 (2015), reh'g denied, 135 S.Ct. 2345 (2015). The petitioner's only argument against application of that law to his claims is that "Hodges was wrongly decided and is destined to be reversed." (ECF No. 71, at 7.) The court understands the petitioner's desire to preserve this issue, but is bound to follow the clear and unambiguous precedent of Hodges. Accordingly, the petitioner has failed to establish cause for the default of Claim 4 under Martinez, because it is not a claim for ineffective assistance of counsel at trial.
The petitioner argues in the alternative that the state's failure to provide investigators to assist him on post-conviction and/or the prosecution's failure to disclose its contact with the witness provides cause for the default of this claim. (ECF No. 71, at 27.) But the second amended petition affirmatively states that "[p]rior to Petitioner's trial, Clark contacted Petitioner's trial counsel and informed them that he was being pressured by the prosecutor to say that Petitioner fired his gun first and that his pending gun charge was being used as leverage against him by the prosecutor to force him to say that Petitioner fired first." (ECF No. 30, at 63.) Thus, it is apparent from the face of the operative petition that the petitioner was aware of the necessary facts to assert this claim even before trial,
With regard to the default of Claim 15 (Brady violation), the petitioner asserts as cause: (1) the prosecution's suppression of the relevant facts, (2) ineffective assistance of counsel on direct appeal; and (3) ineffective assistance of post-conviction counsel under Martinez. (ECF No. 71, at 46-48.) For the reasons set forth above, the petitioner may not rely on an ineffective-assistance-of-appellate-counsel claim, which is itself defaulted, as cause for the default of an underlying claim. Nor may he rely on Martinez with respect to the default of any claim other than one for ineffective assistance at trial. This leaves only the alleged suppression of relevant facts, which of course is also an element of the Brady claim, as a possible cause for the default.
The petitioner is correct that the prosecution's suppression of Brady material can constitute cause for the failure to exhaust a Brady claim. See Banks v. Dretke, 540 U.S. 668, 691 (2004). But in order for information to be considered suppressed for Brady purposes, and thus for the purpose of establishing cause, the information must be in the possession of the prosecution team. See Bell v. Bell, 512 F.3d 223, 234 (6th Cir. 2008) ("[T]he state's conduct, not disclosing something it did not have, cannot be considered a Brady violation.") (quoting Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)).
The operative petition alleges that the petitioner discovered a witness's mental illness through "recent investigation." (ECF No. 30, at 78.) Recent declarations submitted with his reply
Additionally, the respondent asserts that Claims 2 (counsel's conflict of interest), 5 (ineffectiveness of trial counsel in failing to move to suppress petitioner's statement), 7 (double jeopardy), 8 (ineffectiveness of trial counsel in failing to challenge prior conviction), 9 (ineffectiveness of trial counsel concerning sleeping jurors), 16 (ineffectiveness of counsel on direct appeal), 18 (trial court error in instructing jury on elements of second-degree murder) and 22 (juror misconduct) are procedurally defaulted because, although they were raised in the trial level post-conviction court, they were not raised in the subsequent appeal. Again, the petitioner does not dispute that the claims were procedurally defaulted on post-conviction appeal, but he asserts that ineffective assistance of post-conviction appellate counsel is cause to excuse all of these defaults. (ECF 71, at 6-12.)
It is well settled, however, that ineffective assistance of counsel during post-conviction appeal does not constitute cause to overcome procedural default. Coleman v. Thompson, 501 U.S. 722, 742-53 (1991); Martinez v. Ryan, 132 S. Ct. at 1320 (new exception "does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings"). Specifically, the Martinez exception does not apply to claims that were raised at the post-conviction initial-review proceeding but not preserved on post-conviction appeal.
The Supreme Court has observed, however, that there is an "essential difference between a claim of attorney error, however egregious, and a claim that an attorney had essentially abandoned his client." Maples v. Thomas, 132 S.Ct. 912, 923 (2012). In Maples, the death row petitioner's pro bono counsel left the law firm at which they had begun representation and took other employment that prevented them from continuing to represent him. Id. at 916. They did not inform the petitioner of their move, seek permission to withdraw from his case or move for the appointment of new counsel. Id. at 916-17. Notice of the trial court's denial of post-conviction relief was mailed to them at their former firm and returned unopened as undeliverable, and the time within which an appeal could have been filed expired with no action taken on the petitioner's behalf. Id. at 917. The state court of criminal appeals denied the petitioner's request to file a late appeal. Id. at 921. His claims were thus defaulted. The Supreme Court determined that "the uncommon facts" of that case established cause to excuse the petitioner's procedural default of his claims, because he had been "[a]bandoned by counsel," "left unrepresented at a critical time for his state postconviction petition," "left without any functioning attorney of record," and "lacked the assistance of any authorized attorney" during the time within which he could have appealed the denial of post-conviction relief. Id. at 917, 922, 927. The basis for the court's decision was that an attorney who abandons a client without notice severs the principal-agent relationship, such that the attorney's failure to act may no longer be fairly imputed to the former client. Id. at 922-23.
The petitioner in this case asserts that ineffective assistance of his post-conviction appellate counsel, Hershell Koger, amounted to "extreme negligence and ultimate abandonment" and constitutes cause to overcome procedural default under Maples. (ECF No. 71, at 6-12.) Specifically, the petitioner asserts that Koger failed to communicate with him about his case, despite the petitioner's repeated efforts to reach him, directly and through his previous attorneys. He further asserts that Koger missed his filing deadline and simply "slapped together a brief after being alerted by a court officer and his client of his dereliction." (ECF No. 71, at 11.) The petitioner has submitted state court records demonstrating that Koger first filed a motion for extension of time to submit his brief, which was granted, filed a late second motion for extension, which was also granted, finally filed the brief more than a month after the new deadline, and followed up weeks later with a motion to late-file brief in which he explained that his oversight in missing the deadline was caused by out-of-town preparation for a complex criminal trial. (ECF 71, at 8-9; ECF 71-3.) The petitioner also asserts that in the brief he ultimately filed, Koger failed to raise "the best and most obvious issues" for appeal. (Id. at 10.) The brief in question is 17 pages long and raises three claims of ineffective assistance of counsel, including the claims presented as Claims 6 and Claim 13 of the current habeas action. (ECF No. 34-28.)
Assuming that petitioner's description of Koger's handling of his appeal is accurate, it likely falls below the standards of professional conduct for attorneys, including Rules of Professional Conduct 1.3 (requiring reasonable diligence and promptness in representing a client) and/or 1.4 (communication with client), and the petitioner is free to submit a complaint to that effect to the Tennessee Board of Professional Responsibility. But that is not the standard that applies to the question before the court. Dereliction, neglect or ineffectiveness does not constitute the total abandonment required to establish cause under Maples. During the relevant time period, counsel did continue to represent the petitioner, however tardily or poorly. The delay in filing the brief was not held against the petitioner, as the state court accepted the late brief and ruled on the merits of the case. While the petitioner finds the brief to be deficient, there is no doubt that counsel was acting on behalf of the petitioner when he submitted it. Koger's omission of "the best and most obvious" issues from the appellate brief, allegedly without "conceivable strategic justification" (ECF No. 71, at 10), would bear upon the deficient performance prong of a claim of ineffective assistance, but does not constitute abandonment, as another district court in this circuit has explained:
Bell v. Howes, No. 2:06-CV-15086, 2014 WL 255886, at *6 (E.D. Mich. Jan. 23, 2014). Yet another district court in this circuit has found that even the complete failure to file a brief after receiving several extensions of time does not establish cause under Maples, because it is "more akin to neglect, however egregious, than to abandonment." Stojetz v. Ishee, No. 2:04-cv-263, 2014 WL 4775209, at *110-15 (S.D. Ohio Sept. 24, 2014). District courts in other circuits have reached the same conclusion on similar facts. E.g., Hurley v. Cassady, No. 14-3094-CV-S-MDH-P, 2014 WL 4185510, at *7 (W.D. Mo. Aug. 21, 2014) (failure to include four colorable claims on post-conviction appeal was not abandonment, but ineffective assistance that could not constitute cause); United States v. Soto-Valdez, No. CV-99-1591-PHX-RCB (LOA), 2013 WL 5297142, at *23-24 (D. Ariz. Sept. 19, 2013) (filing a deficient brief after receiving multiple extensions of time was negligence, not abandonment). Failure to raise colorable claims, even when combined with lack of communication with the petitioner, has been characterized as "a claim of serious negligence, but it is not `abandonment.'" Ngabirano v. Wengler, No. 1:11-cv-00450-BLW, 2014 WL 517494, at *5 (D. Idaho Feb. 7, 2014) (quoting Moorman v. Schriro, 672 F.3d 644, 648 (9th Cir. 2012)).
Because the petitioner was not abandoned as required to establish cause under Maples, and Martinez does not reach claims defaulted on post-conviction appeal, Claims 2, 5, 7, 8, 9, 16, 18 and 22 must be dismissed on the basis of procedural default.
The petitioner claims that there was insufficient evidence at trial to support his conviction as required by due process under the Fourteenth Amendment. The petitioner exhausted this claim on direct appeal, where the Tennessee Court of Criminal Appeals denied relief based on the following analysis:
Tennessee Code Annotated section 39-11-611(a) provides as follows:
State v. Young, No. M200501873CCAR3CD, 2008 WL 2026108, at *3-6 (Tenn. Ct. Crim. App. May 12, 2008).
The right to due process guaranteed by the Constitution ensures that no person will be made to suffer the onus of a criminal conviction except upon sufficient proof. The evidence is sufficient if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The state court accurately identified this standard, and analyzed the evidence presented at trial in light of it. The petitioner's claim is that the state court's analysis was unreasonable, though it is not entirely clear whether he claims that the decision involved an unreasonable application of the law under § 2254(d)(1) or an unreasonable determination of the facts presented at trial under § 2254(d)(2). (Compare ECF No. 71, at 16 ("But the Tennessee Court of Criminal Appeals did not make any pure fact findings. The TCCA's decision is a legal conclusion."), 17 (state court's analysis amounted to "spinning the evidence to make it appear to be what it is not and an unreasonable application of the facts under 28 U.S.C. § 2254(d)(2)"), and 18 (state court's analysis was "contrary to and an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319 (1979)."))
Regardless of the prong under which he is proceeding, the petitioner's position boils down to the argument that a rational trier of fact would not "ignor[e] a mountain of evidence" supporting self-defense in favor of "a[n] exceedingly small molehill of evidence" supporting guilt (ECF No. 71, at 18), with a lengthy discussion of the evidence on both sides of the scale. But a federal court reviewing the sufficiency of the evidence on habeas review may not re-weigh evidence or redetermine witness credibility. Marshall v. Lonberger, 459 U.S. 422, 434, (1983) ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."). A reviewing court "faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear on the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992). The state court correctly observed that there was conflicting testimony at trial about who fired first and about whether the circumstances were such that the petitioner could have believed he needed to shoot in defense of himself or someone else. Victims Shawn Pillow and Wayne Robison both testified that they saw the petitioner fire first (ECF No. 34-9, at 77-78; ECF No. 34-10, at 21), and Pillow and David Clark both testified that they saw Robison put his hands in the air and deny that he was doing anything before the shooting started. (ECF No. 34-10, at 21; ECF No. 34-11, at 29.) The court presumes that the jury credited those accounts over the conflicting evidence in convicting the petitioner. Accordingly, the state court's conclusion that there was sufficient evidence to support the verdict was not unreasonable, and this claim fails on the merits.
The petitioner alleges that a "prejudicial and extraneous piece of paper" reflecting the state's theory of the case against him was erroneously sent to the jury room during deliberation, and that the state court's denial of his petition for writ of error coram nobis on that basis "is contrary to and an unreasonable application of clearly established federal law and an unreasonable application of the facts." (ECF No. 30, at 56-62; ECF No. 71, at 24.) The petitioner exhausted this claim in his consolidated direct appeal, and the state court denied relief on the merits. Its recitation of the relevant facts and subsequent analysis are set forth herein:
The trial court further differentiated this case from Mason, stating as follows:
State v. Young, No. M200501873CCAR3CD, 2008 WL 2026108, at *2-3, 11-14 (Tenn. Ct. Crim. App. May 12, 2008).
The petitioner asserts that the state court's decision "is contrary to and an unreasonable application of clearly established federal law and an unreasonable application of the facts." (ECF 71, at 24.) The primary basis for the coram nobis trial court's denial of relief, which the appellate court essentially adopted, was that — as a matter of fact — the petitioner had not established that the jury had the chart in question during deliberation. According to the petitioner, that determination was unreasonable because "[t]he court reached that conclusion by assuming that the court officers had discharged their duties," despite "objective testimony of [two] jurors" "that they recalled [the chart] in the jury room and that the jurors utilized the exhibit in their deliberations." (Id.) But the court did not simply imagine that the court officers' procedures prevented the unadmitted document from going to the jury room. It reached that conclusion based on evidence that the responsible individuals "unequivocally deny that the non-exhibit was included with the exhibits that were submitted to the jury." (ECF No. 34-19, at 83.)
Review of the coram nobis hearing transcript confirms that in-court clerk Aaron Gray testified that the standard procedure followed before the physical delivery of exhibits to the jury room involved his personally handing the exhibits to court officer Chris Austin and their checking each one off the exhibit list together before Austin takes them to the jury, and that they never deviate from that procedure. (ECF No. 34-20, at 15.) Gray acknowledged that hours of emails from the petitioner's counsel had caused him to concede essentially that anything is possible, but testified that "[i]f you want to know what I think, it didn't go back there," and "if you asked me the question right now, I'll be adamant about it right now." (ECF No. 34-20, at 41-42, 44.) Gray acknowledged that an error had to have occurred at some point for an unmarked document to wind up in the property room or appellate record, but testified that in his view, keeping extraneous documents out of the property room is not as critical as keeping them out of the jury room where they could affect decisions. (ECF No. 34-20, at 46-47.) He testified to the effect that because of the "much higher degree of precaution" exercised in sending documents to the jury room, it would be more likely that the error occurred later in the chain of custody, although he could not say when or how it happened with certainty. (ECF No. 34-20, at 49-50.) Court officer Chris Austin also testified at the hearing. When asked if he could "state with certainty that the exhibit that's the bone of all the contention did not go back into the jury room," he responded "Yes, ma'am," and later added that "I know what [sic] when I brought the exhibits back that was not a piece of it or I would've made someone aware of it." (ECF No. 34-20, at 52.) He testified that "I would've seen it if it was there because we checked off every piece of paper that I gathered in that jury room," and that he was "certain" the document did not go to the jury. (ECF No. 34-20, at 58, 62.)
By comparison, the testimony of the jurors who appeared at the hearing was much more ambivalent. Mr. Jones testified with regard to the document at issue that "I know I've viewed it in the courtroom and I believe it may have been in the jury room as well," although he did not recall any discussion about the document in the jury room. (ECF No. 34-21, at 10. 17.) He did not remember whether trial exhibit 7 was in the jury room (ECF No. 34-21, at 15), although there is no dispute that it was. Similarly, Mr. Lynch testified that he was "pretty sure" he saw the relevant document in the jury room (ECF No. 34-22, at 15), but later stated that he recalled seeing the relevant document "somewhere," but could not remember whether it was in the courtroom or the jury room. (ECF No. 34-22, at 19.) He summarized his position on redirect examination by petitioner's trial counsel:
(ECF No. 34-22, at 21.) Based on this testimony, it was reasonable for the state court to conclude that it was possible that the jurors simply recalled seeing and discussing the document because it was "shown to them at great length during Mr. Clark's testimony." (ECF No. 34-19, at 84.) The state court's factual determination that the document in question did not go to the jury is supported by testimony and rational inferences and is not objectively unreasonable.
Nor is the state court's alternative finding of no prejudice contrary to or an unreasonable application of state law. A copy of the document in question appears in the state court's coram nobis record (ECF No. 34-19, at 10), and it is clear, as the state court determined, that the document simply tracks a portion of witness David Clark's testimony regarding his inconsistent statements about whether he saw the petitioner shoot first. (See ECF No. 34-11, at 40-49.) The document is effectively a loose timeline of Clark's four different enumerated statements, alternating between "SY shot first" and "I don't know (who shot first)" and listing events that Clark testified occurred between those statements (such as "Talked 0394" and "watched tape"). (ECF No. 34-19, at 10.) The text on the document is purely factual and chronological, without gloss or commentary by the prosecutor, and every fact reflected on the document is directly from Clark's testimony. The petitioner does not contend that the timeline inaccurately conveys the facts testified to by Clark, and in fact it was the petitioner's appellate counsel who recognized the document as a reflection of Clark's testimony. (ECF No. 34-20, at 70, 74-78.) Though the petitioner has complained that the prosecution's theory "SY shot first" is written in red on the original document, counsel acknowledged at the coram nobis hearing that "I don't know who shot first" is also in red. (ECF No. 34-20, at 105.) The document was created in open court in front of the jury, without objection. Particularly in light of the testimony of two other witnesses who testified at trial that the petitioner shot first, the state court's conclusion that the inadvertent presence of this document in the jury room during deliberation would not have prejudiced the verdict or warranted a mistrial is not an unreasonable application of any federal law cited by the petitioner.
In support of his claim, the petitioner cites Supreme Court precedent generally requiring due process in criminal convictions. (ECF No. 71, at 24 (citing Cole v. Arkansas, 333 U.S. 196 (1948), Gardner v. Florida, 430 U.S. 349 (1977) and Presnell v. Georgia, 439 U.S. 14 (1978)).) He does not cite any Supreme Court case that establishes any standard for determining the prejudicial effect of demonstrative aids in the jury room. The level of generality at which he frames his position is simply too great to satisfy the "clearly established" requirement of § 2254(d)(1). See Nevada v. Jackson, 133 S.Ct. 1990, 1994 (2013) (disapproving lower court's reliance on "a broad right" to present evidence and stating that "[b]y framing our precedents at such a high level of generality, a lower federal court could transform even the most imaginative extension of existing case law into `clearly established Federal law, as determined by the Supreme Court.'"). For guidance on the specific topic of extrinsic exhibits in the jury room, the petitioner relies on a decision by the United States Court of Appeals for the Eleventh Circuit, which he says "explains this clearly established federal law." (ECF No. 71, at 24-25 (citing United States v. Pessefall, 27 F.3d 511 (11th Cir. 1994)). But the Supreme Court has repeatedly counseled that "Circuit precedent cannot `refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced.'" Lopez v. Smith, 135 S.Ct. 1, at 4 (2014) (per curiam) (quoting Marshall v. Rodgers, 133 S.Ct. 1446, 1451 (2013)). Circuit court analysis is thus "irrelevant to the question" of clearly established federal law for AEDPA's purpose. Id.
Moreover, even if Pessefall provided the appropriate standard, the state court's decision in this case was not an unreasonable application of that standard. In Pessefall a court officer inadvertently delivered to the jury room a government task force case agent's notes, which amounted to hearsay that would have been inadmissible as evidence. 27 F.3d at 515-16. The Eleventh Circuit applied a presumption of prejudice arising from the "extrinsic contact," but found the presumption was rebutted, in part by the fact that the notes were cumulative of trial testimony, the substantial properly admitted evidence on point, and the inadvertent submission of the document to the jury. Id. In this case, both the trial court and state appellate court acknowledged a presumption of prejudice based on state law, and nevertheless reasonably found, as discussed above, that the facts of the case rebutted that presumption.
Claim 3 is without merit and will be denied.
Petitioner's first trial ended in a mistrial, on his counsel's motion, following a witness's reference to his prior criminal history after the trial judge had expressly ordered that no such reference was to be made. Young v. State, No. M2010-01762-CCA-R3-PC, 2011 WL 3630128, at *1, 4 (Tenn. Ct. Crim. App. Aug. 18, 2011) (Docket Entry No. 34-30). The petitioner claims that his trial counsel was ineffective for not moving that the mistrial be entered with prejudice, so double jeopardy would have foreclosed the second trial at which he was convicted. The petitioner exhausted this claim in post-conviction proceedings, and the state court of criminal appeals affirmed the denial of relief based on the following analysis:
Young v. State, No. M2010-01762-CCA-R3PC, 2011 WL 3630128, at *4-5 (Tenn. Ct. Crim. App. Aug. 18, 2011).
Claims of ineffective assistance of counsel are subject to the highly deferential two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether counsel was deficient in representing the defendant; and (2) whether counsel's alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To meet the first prong, a petitioner must establish that his attorney's representation "fell below an objective standard of reasonableness." Id. at 688. Mere attorney ignorance or inadvertence will not constitute "cause" unless the error rises to the level of a constitutional violation. See Coleman, 501 U.S. at 752-55. The "prejudice" component of the claim "focuses on the question of whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
In assessing counsel's performance, a reviewing court must be highly deferential and avoid the "second-guess[ing of] counsel's assistance . . ., [as] it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. The court must determine whether, under the circumstances, counsel's allegedly unreasonable acts or omissions "were outside the wide range of professionally competent assistance." Id. at 690. In order to avoid "the distorting effects of hindsight," a reviewing "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted).
Prejudice, under Strickland, requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court has further explained the Strickland prejudice requirement as follows:
Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal citations omitted). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697.
Looking first to the prejudice prong, the parties agree that the state court correctly identified Oregon v. Kennedy, 456 U.S. 667, 672 (1982), as the standard applicable to the double jeopardy issue underlying this claim. (ECF No. 33, at 33; ECF No. 71, at 32.) In that case, the state's expert witness testified that he had not done business with the defendant, and the prosecutor asked "Is that because he is a crook?" Id. at 669. The defendant moved for and was granted a mistrial based on the prosecutor's question, and moved to dismiss the charges on double jeopardy grounds before retrial. Id. The trial court denied the motion to dismiss, finding that "it was not the intention of the prosecutor in this case to cause a mistrial." Id. The state court of appeals agreed that the prosecutor did not intend to cause a mistrial, but held that double jeopardy barred retrial because the prosecutor's conduct constituted "overreaching" that left the defendant "with a `Hobson's choice — either to accept a necessarily prejudiced jury, or to move for a mistrial and face the process of being retried at a later time.'" Id. at 670 (quoting 619 P.2d 948, 950 (Or. Ct. App. 1980)). The Supreme Court granted certiorari and reversed, making clear that when a defendant moves for mistrial, the prosecutor's intent to cause a mistrial is an absolute requirement for double jeopardy to bar retrial: "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Kennedy, 456 U.S. at 675-76.
Nowhere in the petitioner's operative petition or his reply does he even allege that the prosecutor intentionally provoked the mistrial in his first trial. Nor does he cite any evidence that would make the state court's decision that the witness's reference to his previous criminal history was a "gratuitous declaration" unreasonable. At the post-conviction hearing, the petitioner's trial counsel acknowledged that the prosecutor simply asked the witness if he ascertained the petitioner's identity, and the witness responded that the petitioner showed him his parole card.
(ECF No. 34-27, at 63.) The petitioner's entire argument for the unreasonableness of this conclusion is that "[i]t is difficult to reconcile . . . with the fact that the police officer gave improper testimony only minutes after he had been told not to do so." (ECF No. 71, at 32.) While the witness's behavior may reflect poorly on his own judgment or intentions, the state court reasonably found that there was no evidence to implicate the prosecutor in any improper intentions.
There was no reasonable probability that mistrial with prejudice would have been granted on the facts before the state court. Accordingly, the petitioner was not prejudiced by his counsel's failure to seek mistrial with prejudice, and this claim fails on the merits, regardless of any alleged deficiencies in counsel's performance.
The petitioner claims that the prosecutor improperly characterized evidence and testified through her witness by directing firearm tool mark expert Kendall Jaeger to create a chart that included facts testified to by other witnesses, of which he had no personal knowledge. The petitioner exhausted this claim on direct appeal, where it was rejected on the merits by the state appellate court:
Irregardless of possible waiver, we conclude that either argument of the Defendant-improper comments by the prosecutor or the presence of the exhibit during jury deliberations-is without merit. The Defendant's reliance on Thornton, 10 S.W.3d 229, is misplaced. In Thornton, this Court ruled that comments by a prosecutor that he was "very proud" of the crime lab and that "they do an excellent job" was improper argument. 10 S.W.3d at 235. Here, the prosecutor's statements made during the creation of the chart did not amount to vouching for previous testimony of State's witnesses. See generally State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (discussing the five general areas of prosecutorial misconduct). The prosecutor was doing nothing more than accurately summarizing the evidence previously admitted in this case. The chart was simply created to aid the jury in analyzing the evidence; it was a demonstrative exhibit.
State v. Young, No. M200501873CCAR3CD, 2008 WL 2026108, at *9-11 (Tenn. Ct. Crim. App. May 12, 2008).
The issue the petitioner presented to state court on direct appeal relied exclusively on state law for the alleged impropriety of the prosecutor's actions (ECF No. 34-24, at 76-77), and the state court likewise relied exclusively on state law to reject it. In presenting this claim to this court, the petitioner does not identify or discuss any clearly established federal law — i.e. Supreme Court precedent — setting the standard for this case. He refers generally to his "Sixth and Fourteenth Amendment rights to due process and a fair trial," but the only Supreme Court case he cites is for the equally general proposition that "while a prosecutor `may strike hard blows, he is not at liberty to strike foul ones.'" (ECF No. 30, at 73 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).) The Supreme Court in Berger found a new trial was required on the basis of pervasive prosecutorial misconduct, including repeatedly misstating facts, assuming facts that were not in evidence, bullying witnesses, and arguing at closing that he personally knew that a witness knew the defendant even though the witness had been unable to identify him. Berger, 295 U.S. at 87-88. In contrast, the petitioner here does not dispute that the chart in question was comprised entirely of facts in evidence in the case. The state court's rejection of the petitioner's claim in this case was not an unreasonable application of the Berger standard, even aside from the court's misgivings about whether the federal claim was technically exhausted.
The petitioner claims that Amy Harwell, his trial counsel who also represented him at the coram nobis hearing, was ineffective at the latter hearing for failing to impeach witness Chris Austin with a prior inconsistent statement regarding his memory of the document in question in that proceeding (the same document at issue in the petitioner's Claim 3, addressed above). Another of the petitioner's previous attorneys, Holly Ruskin, has testified that she spoke to Mr. Austin shortly before the coram nobis hearing, and that he "stated that he did not recall specifically what happened with the chart, that he would've just followed the normal procedures," and "[h]e did not state whether or not he remembered whether or not it went back, if it did or not. He just said he just would follow the normal procedure." (ECF No. 34-27, at 121.) Intern Rob Wendell was present for that conversation and recalled that Mr. Austin said that "his procedure is not to take items that aren't evidence into the jury room," but that "he didn't have a specific memory one way or the other" about the particular item in question. (ECF No. 34-27, at 126.) Ms. Harwell explained that she did not examine Mr. Austin about the inconsistent statements because she was concerned that attacking the credibility of the court officer would have elicited disfavor from the judge.
The petitioner exhausted this claim in post-conviction proceedings. The trial court denied relief, and the state appellate court accurately set forth the Strickland standard for ineffective assistance of counsel, Young v. State, No. M2010-01762-CCA-R3PC, 2011 WL 3630128, at *3 (Tenn. Ct. Crim. App. Aug. 18, 2011), and affirmed denial of relief on the merits:
Id. at *6.
As Strickland expressly authorizes, the state court found it most efficient to dispose of the petitioner's ineffective-assistance claim by finding lack of prejudice without evaluating counsel's performance. The court concluded that because (as it had already decided on direct appeal) the petitioner would not have been prejudiced by the presence of the document in the jury room, any deficiency in counsel's performance with regard to establishing
Alternatively, even if this court had found the state court's decision on the prejudice prong of Strickland to be unreasonable, de novo review of the facts in the record would cause it to find that counsel's performance at the coram nobis hearing was not deficient. See Rayner v. Mills, 685 F.3d 631, 636-39 (6th Cir. 2012) (where state court relies on only one prong, the habeas court may review the other prong de novo). On cross-examination, counsel did, in fact, question Mr. Austin about his prior statement to Ms. Ruskin and his memory of the trial, and led him to acknowledge repeatedly that he did not specifically remember the handling of the document in question. (ECF No. 34-20, at 59-63.) It was clear from his testimony that he was certain that the document did not wind up in the jury room because of his strict compliance with procedure, rather than because he specifically recalled that particular document:
(ECF No. 34-20, at 64-65.) This testimony was consistent with Mr. Austin's alleged prior statement, and counsel's strategic decision not to elaborate further or be more overtly confrontational in making her point did not fall below the range of competent assistance.
Claim 13 is without merit and will be dismissed.
The petitioner claims that the trial judge erred by abdicating his duty under then-Tennessee Rule of Criminal Procedure 33(f) to act as thirteenth juror and independently weigh the evidence in ruling on the petitioner's motion for new trial. The petitioner exhausted this claim on direct appeal to the Tennessee Court of Criminal Appeals, which found based on applicable state law that the petitioner was not entitled to relief. State v. Young, No. M2005-01873-CCA-R3-CD, 2008 WL 2026108, at *7-9 (Tenn. Ct. Crim. App. May 12, 2008).
This claim arises under and is controlled by state law. State courts' interpretation of state law binds the federal court in habeas corpus cases. Estelle v. McGuire. 502 U.S. 62, 67-68 (1991) ("[W]e reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on state law questions."). The petitioner contends that a state court's misapplication of purely state law implicates federal due process rights. (ECF No. 30, at 78.) Even accepting that assumption for the sake of argument, the court finds that the petitioner has not cited any federal law clearly establishing that his rights were violated in connection with his Thirteenth Juror claim. This claim will be dismissed.
The petitioner claims that trial counsel Amy Harwell was ineffective for not moving to strike the entire panel of potential jurors who heard one prospective juror on voir dire discuss a gruesome crime of which he and his mother had been victims when he was a child. Ms. Harwell testified at the post-conviction hearing that she "recall[ed] very distinctly" the prospective juror's comments:
(ECF No. 34-27, at 82-83.) Asked about the impact on the other jurors, she said
(ECF No. 34-27, at 83-84.) On cross-examination, Ms. Harwell acknowledged that rape and being tied up in the woods had nothing to do with the crimes for which the petitioner was on trial, but said "[n]ot those parts, the killing part was somewhat related to our murder trial." (ECF No. 34-27, at 94-95.)
However, impactful Ms. Harwell felt the juror's comments to be, her recollection of the details was not as "distinct" as she believed. According to the voir dire transcript, the juror and his mother were in fact abducted, and she was raped, but she was not killed, and the perpetrators were not on death row. (ECF No. 73-2, at 38.) He did add that he wished the perpetrators had been sentenced to death because of his mother's years of struggling with depression and repeatedly having to object to parole for the perpetrators, and that — apparently unrelatedly — he had lost two close friends to murder. (ECF No. 73-2, at 39.) On further questioning by the trial judge, the juror acknowledged that the petitioner was presumed innocent, and that there are circumstances that would justify one person's taking the life of another person. (ECF No. 73-2, at 40-41.) Nevertheless, he admitted that he probably could not be fair and impartial as a juror, and the court excused him for cause on Ms. Harwell's motion. (ECF No. 73-2, at 42-43.)
Apparently without the benefit of the voir dire transcript, the post-conviction court adopted the petitioner's inaccurate account of the dismissed juror's comments, but still denied relief:
(ECF No. 34-27, at 62.) The state appellate court affirmed in abbreviated fashion by quoting a few lines of the lower court's opinion and stating:
Young v. State, No. M2010-01762-CCA-R3PC, 2011 WL 3630128, at *6 (Tenn. Ct. Crim. App. Aug. 18, 2011). Thus, after reciting the Strickland standard, the state court once again found it unnecessary to look beyond the prejudice prong to dispose of this claim.
The petitioner's only argument against the reasonableness of the state court's determination is the conclusory statement that the dismissed juror's comments were "obviously prejudicial." (ECF No. 71, at 50-51.) The petitioner had the opportunity in state court to present juror testimony on this point, just as he did in connection with Claim 3, but chose not to do so. He does not cite any facts in the record establishing prejudicial impact on the jury, and does not cite any clearly established federal law creating a presumption of such prejudice.
The petitioner has failed to demonstrate that he is entitled to relief under § 2254(d), and this claim will be dismissed.
For the reasons set forth above, all of the petitioner's claims are either procedurally defaulted or fail on the merits. Accordingly, the court will deny the requested relief and dismiss the petition.
An appropriate order shall enter.