ALETA A. TRAUGER, District Judge.
Patrick Edwards, a state inmate, filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 ("Petition") (Doc. No. 1), and the respondent filed a response. (Doc. No. 14.) For the following reasons, the Petition will be denied and this action will be dismissed.
In January 2007, a Davidson County grand jury indicted the petitioner for first degree felony murder and first degree premeditated murder. (Doc. No. 13-1 at 4-7.) The case proceeded to trial, but the court granted a mistrial at the request of the petitioner's counsel. (Id. at 78.) The petitioner later pleaded guilty to the lesser-included offense of second degree murder on count one, and count two was dismissed. (Id. at 79-82.) As a result, the petitioner faced a range of 15 to 25 years' imprisonment, to be determined by the court at a sentencing hearing. (Id. at 79-80.) The court sentenced the petitioner to 21 years' imprisonment. (Id. at 86.) The Tennessee Court of Criminal Appeals ("TCCA") affirmed the court's judgment, and the Tennessee Supreme Court denied the petitioner's application for permission to appeal on May 26, 2011. State v. Edwards, No. M2009-01277-CCA-R3-CD, 2011 WL 497444, at *1, 4 (Tenn. Crim. App. Feb. 11, 2011), perm. app. denied May 26, 2011.
On June 1, 2011, the trial court received the petitioner's pro se petition for post-conviction relief. (Doc. No. 13-15 at 12-18.) The court appointed counsel (id. at 28-29), and the petitioner filed an amended petition (id. at 34-41). The court held an evidentiary hearing (id. at 45; Doc. No. 13-17) and then dismissed the petition (Doc. No. 13-15 at 46-50; Doc. No. 13-16 at 3-8). The TCCA ultimately
At the plea hearing, the state provided a factual basis for the petitioner's plea. According to the state, five individuals—including the victim, Christopher Hudson—went to Nashboro Village to buy ecstasy from the petitioner and co-defendant Ryan Lewis. (Doc. No. 13-8 at 7.) The petitioner was in the driver's seat of a car at the scene, with Lewis in the passenger's seat. (Id.) Hudson approached the car, leaned in on the driver's side, and saw the petitioner's gun. (Id.) Hudson "became frightened and started running back behind the car," and the petitioner shot Hudson "in the back as he was running." (Id.) As Hudson "tried to crawl to the sidewalk," the petitioner got out of the car and went to where Hudson was lying. (Id.) If the case had proceeded to trial, co-defendant Lewis would have testified that he and the petitioner intended to rob Hudson and that the petitioner took over one hundred dollars from Hudson's body. (Id.) Lewis would have testified that he and the petitioner returned to an apartment and divided the money. (Id.) Police went to this apartment and then a man named Corey Ashley took them to another home to retrieve the gun used to shoot Hudson. (Id. at 7-8.) The petitioner testified that these facts were basically true, but he disputed Lewis's expected trial testimony. (Id. at 8-9.)
At the sentencing hearing, police detective Robert Swisher testified that he interviewed the petitioner after taking him and co-defendant Lewis into custody. (Id. at 15.) The court viewed a video of this interview, and the TCCA summarized it as follows on direct appeal:
Edwards, 2011 WL 497444, at *1. The TCCA also summarized Lewis's sentencing hearing testimony:
Id. at *2. Finally, the TCCA summarized the sentencing hearing testimony of petitioner's mother as follows:
Id.
In the Petition, the petitioner asserts that his: (1) confession was coerced; (2) plea was unknowing and involuntary; (3) sentence was improper; (4) conviction was not supported by sufficient evidence; (5) trial counsel was ineffective; and (6) post-conviction counsel was ineffective. He asserts that his trial counsel was specifically ineffective in failing to: (1) present mitigating evidence at sentencing; (2) move to suppress his confession; (3) allow him to proceed to trial rather than plead guilty; (4) investigate co-defendant Ryan Lewis; (5) object to application of enhancement factors at sentencing; (6) appeal the court's application of sentencing enhancement factors; and (7) consult with his first appointed attorney. (Doc. No. 1.)
Federal courts have the authority to grant habeas corpus relief to state prisoners under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Harrington v. Richter, 562 U.S. 86, 97 (2011). Where a petitioner's claim was "adjudicated on the merits" in state court, a federal court may not grant habeas relief unless the state's decision was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "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)-(2). Thus, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)). "The petitioner carries the burden of proof." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
Under Section 2254(d)(1), a state court's decision is "contrary to" clearly established federal law "`if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a [different result].'" Hill v. Curtin, 792 F.3d 670, 676 (6th Cir. 2015) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 73 (2003)). "Under the `unreasonable application' clause of [Section] 2254(d)(1), habeas relief is available if `the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008)). A state court's application is not unreasonable under this standard simply because a federal court finds it "incorrect or erroneous"—"rather," the federal court must find the state court's application was "objectively unreasonable." Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)).
To obtain relief under Section 2254(d)(2), the federal court must find that "the state court's factual determination was `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). State-court factual determinations are only unreasonable "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." Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007)). "[I]t 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) (citing Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)).
The demanding review of claims rejected on the merits in state court, however, is ordinarily only available to petitioners who "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); Harrington, 562 U.S. at 103. In Tennessee, a petitioner is "deemed to have exhausted all available state remedies for [a] claim" when it is presented to the Tennessee Court of Criminal Appeals. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39). "To be properly exhausted, each claim must have been `fairly presented' to the state courts," meaning that the petitioner presented "the same claim under the same theory . . . to the state courts." Wagner v. Smith, 581 F.3d 410, 414, 417 (6th Cir. 2009) (citations omitted).
The procedural default doctrine is "an important `corollary' to the exhaustion requirement" under which "a federal court may not review federal claims that . . . the state court denied based on an adequate and independent state procedural rule." Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (citations omitted). A claim also may be "technically exhausted, yet procedurally defaulted," where "a petitioner fails to present a claim in state court, but that remedy is no longer available to him." Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones v. Bagley, 696 F.3d 475, 483-84 (6th Cir. 2012)).
To obtain review of a procedurally defaulted claim, a petitioner must "establish `cause' and `prejudice,' or a `manifest miscarriage of justice.'" Middlebrooks v. Carpenter, 843 F.3d 1127, 1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790-91 (6th Cir. 2014)). A petitioner may establish cause by "show[ing] that some objective factor external to the defense"— a factor that "cannot be fairly attributed to" the petitioner—"impeded counsel's efforts to comply with the State's procedural rule." Davila, 137 S. Ct. at 2065 (citations omitted). There is also "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, 541 U.S. at 392 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). To establish prejudice, "a petitioner must show not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Garcia-Dorantes v. Warren, 801 F.3d 584, 598 (6th Cir. 2015) (quoting Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991)) (internal quotation marks omitted).
The court will first address claims adjudicated in state court and then turn to procedurally defaulted claims. As an initial matter, however, the court notes that the petitioner's assertion of ineffective assistance of post-conviction counsel is not an independent ground for habeas relief. 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Nonetheless, post-conviction ineffectiveness may be used to establish the "cause" necessary to obtain review of another procedurally defaulted claim in some circumstances. Martinez v. Ryan, 566 U.S. 1, 17 (2012). Thus, the court will consider the assertion of post-conviction ineffectiveness as allegations of "cause" regarding the petitioner's defaulted claims.
On post-conviction appeal, the petitioner exhausted a claim that his guilty plea was not knowing and voluntary and two of his seven sub-claims for ineffective assistance of trial counsel— that counsel coerced him to plead guilty and failed to present mitigating evidence at sentencing. Edwards, 2016 WL 1161084, at *1, 4-7.
The petitioner asserts that his plea was not knowing and voluntary because his counsel coerced him into pleading guilty by working with the prosecution and contacting his mother. (Doc. No. 1 at 7.) In affirming the dismissal of the petitioner's post-conviction petition, the TCCA accurately identified the federal standard for determining whether a guilty plea is knowing and voluntary:
Id. at *5-6.
The TCCA then rejected the petitioner's claim on the merits:
Id. at *7.
The state court's rejection of this claim was neither contrary to, nor an unreasonable application of, Supreme Court precedent, and it was not based on an unreasonable determination of the facts before it. As reflected above, the TCCA reviewed transcripts of the petitioner's plea hearing and the post-conviction evidentiary hearing. Id. at *6. During the plea colloquy, the court specifically asked the petitioner if anyone had forced or threatened him in any way to plead guilty, and he responded "no." (Doc. No. 13-8 at 6.) The petitioner also explicitly affirmed that he signed the plea petition freely and voluntarily. (Id.) The TCCA appropriately noted that such plea hearing testimony "carries great weight." Marks v. Davis, 504 F. App'x 383, 386 (6th Cir. 2012) (citing Blackledge, 431 U.S. at 73-74). Through the plea petition itself, the petitioner also declared that "no person ha[d] pressured, forced, threatened or intimidated" him into pleading guilty. (Doc. No. 13-1 at 80.)
At the evidentiary hearing, the petitioner testified that he "[k]ind of" felt pressured into pleading guilty by his trial counsel and his mother. (Doc. No. 13-17 at 24.) But on cross-examination by the state, the petitioner also testified as follows:
(Id. at 21.)
The record, therefore, supports the state court's determination that the petitioner failed to demonstrate that his guilty plea was unknowing and involuntary. This claim is without merit. See Wright v. Lafler, 247 F. App'x 701, 705 (6th Cir. 2007) (citing Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993)) ("A state court's determination that a guilty plea was valid is a factual finding entitled to a presumption of correctness on federal habeas review, rebuttable only by clear and convincing evidence.").
The petitioner asserts that trial counsel was ineffective in coercing him to plead guilty and failing to present mitigating evidence at sentencing. (Doc. No. 1 at 2, 5, 7-8.) The federal law governing the adequacy of a criminal defendant's representation is defined in Strickland v. Washington, 466 U.S. 668 (1984). Premo v. Moore, 562 U.S. 115, 121 (2011). Under Strickland, a petitioner must show (1) deficient performance of counsel and (2) prejudice to the defendant. Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citing Strickland, 466 U.S. at 687). Trial counsel's performance is deficient where it falls "below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. "[A] 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, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). To establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "[A] court deciding an ineffective assistance claim" need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
When a petitioner raises an exhausted ineffective-assistance claim in a federal habeas petition, "[t]he pivotal question" is not "whether defense counsel's performance fell below Strickland's standard," but "whether the state court's application of the Strickland standard was unreasonable." Harrington, 562 U.S. at 101. Thus, a federal court applies a "`doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting Pinholster, 563 U.S. at 190). That is because, under Section 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Id. (quoting Williams, 529 U.S. at 410). Accordingly, "[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id.
Here, the TCCA correctly set forth the Strickland standard before rejecting the petitioner's claims for ineffective assistance of trial counsel on the merits. Edwards, 2016 WL 1161084, at *4-5. As to the claim that the petitioner's counsel coerced him into pleading guilty, the voluntariness of the petitioner's plea is addressed above. The TCCA's determination on this issue—that the petitioner failed to carry his burden of demonstrating that his guilty plea was unknowing and involuntary—was not unreasonable. In short, counsel was not ineffective for coercing the petitioner to plead guilty because the record reflects that his plea was knowing and voluntary. See Shanks v. Wolfenbarger, 387 F.Supp.2d 740, 750-51 (E.D. Mich. 2005) (citations omitted) (finding that a petitioner's "bare claims that his counsel coerced him" into entering a plea "is insufficient to overcome the presumption of verity which attaches to petitioner's statements during the plea colloquy, in which he denied that any force or threats had been used to get him to enter his plea").
As to the mitigation claim, the petitioner argues that trial counsel was ineffective at sentencing for failing to present an expert witness to testify regarding his mental health. (Doc. No. 1 at 2, 5, 8.) The TCCA rejected this claim:
Edwards, 2016 WL 1161084, at *4-5.
Because the petitioner did not present any proof at the evidentiary hearing of what a mental health expert would have testified to, the state court's application of Strickland to this claim was not objectively unreasonable. See Hutchison v. Bell, 303 F.3d 720, 748-49 (6th Cir. 2002) (citations omitted) ("[A] petitioner cannot show deficient performance or prejudice resulting from a failure to investigate if the petitioner does not make some showing of what evidence counsel should have pursued and how such evidence would have been material.") Moreover, the petitioner's apparent aim of using an expert witness at sentencing would have been to present evidence of his "earlier suicide attempt." (Doc. No. 1 at 2.) But the petitioner's mother testified at the sentencing hearing that he attempted suicide when he was about eighteen years old, and that he was subsequently hospitalized for about one week. And the petitioner's trial counsel introduced medical records in support of that testimony. (Doc. No. 13-8 at 84.) Thus, the petitioner's counsel presented evidence at sentencing regarding his earlier suicide attempt, and he does not explain how expert testimony would have been beneficial to him. See Martin v. Mitchell, 280 F.3d 594, 607-08 (6th Cir. 2002) (finding that a habeas petitioner failed to demonstrate prejudice where he claimed that his counsel failed to retain "a psychologist for purposes of mitigation" but did not show how "the retention of experts . . . would have been beneficial to his defense"). The petitioner is not entitled to relief on this claim.
The petitioner's remaining claims are procedurally defaulted.
The petitioner challenges the constitutionality of his custodial statements to police. (Doc. No. 1 at 2, 5, 8-9.) While he did not raise this claim on direct appeal, the petitioner did check a box on his pro se post-conviction petition reflecting that one of his asserted grounds for relief was as follows: "[c]onviction was based on use of coerced confession." (Doc. No. 13-15 at 15.) But he did not provide any argument in support of this assertion, and the petitioner's appointed post-conviction counsel did not include this claim in the amended post-conviction petition. The post-conviction court did not address the merits of this claim, and the petitioner did not present this issue to the TCCA on post-conviction appeal. Because the petitioner did not fairly present this claim to the state courts, and he can no longer do so, it is procedurally defaulted.
As stated above, the court considers the petitioner's assertion of post-conviction ineffectiveness as an allegation of cause to excuse any procedural default. But "ineffective assistance by a prisoner's state post[-]conviction counsel" can only act as "cause to overcome the default of a single claim—ineffective assistance of trial counsel." Davila, 137 S. Ct. at 2062-63 (discussing Martinez, 566 U.S. 1, and Trevino v. Thaler, 569 U.S. 413 (2013)). Because this claim challenges the constitutionality of the petitioner's statements to police rather than his trial counsel's effectiveness, he cannot rely on his post-conviction counsel's alleged ineffectiveness to overcome its default.
Additionally, and notwithstanding any default, the petitioner waived challenges to the constitutionality of his custodial statements by pleading guilty. The United States Supreme Court has held that, after "solemnly admitt[ing] in open court that he is in fact guilty of the offense with which he is charged, [a criminal defendant] may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." United States v. Brown, 21 F. App'x 336, 337 (6th Cir. 2001) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)) (finding that a defendant waived a challenge to constitutionality of confession to law enforcement official by pleading guilty). Accordingly, this claim is without merit.
The trial court applied two mitigating factors and three enhancement factors at sentencing. (Doc. No. 13-8 at 104-06.) The TCCA summarized these factors on direct appeal:
Edwards, 2011 WL 497444, at *3. The court sentenced the petitioner to 21 years' imprisonment "for his second degree murder conviction, for which the possible sentence range [was] 15 to 25 years." Id.
Here, the petitioner asserts that the court should have given greater weight to the first mitigating factor listed above—that he lacked substantial judgment in committing the offense because of his youth. (Doc. No. 1 at 3.) This claim is procedurally defaulted because he did not exhaust it either on direct appeal or through his post-conviction proceedings. On direct appeal, the petitioner argued that his sentence was excessive because the court erred in applying the third enhancement factor listed above—that he had no hesitation about committing a crime when the risk to human life was high. (Doc. No. 13-10 at 18-21 (direct appeal brief)); Edwards, 2011 WL 497444, at *4. Thus, the petitioner did not raise "the same claim under the same theory" on direct appeal as he does in his habeas petition. See Wagner, 581 F.3d at 417. In his amended post-conviction petition, the petitioner did raise this same claim (Doc. No. 13-15 at 36, 40-41), and the trial court rejected it (Doc. No. 13-16 at 6-7). But the petitioner did not include this claim in his post-conviction appeal. Accordingly, the petitioner failed to present this claim to the state courts.
Because this is a claim of trial court error rather than ineffective assistance of counsel, the petitioner cannot rely on any alleged post-conviction ineffectiveness as cause to excuse its default. And even if "the Martinez-Trevino exception" could apply to these types of claim generally, it would not apply to this claim in particular because the petitioner raised it at the initial review stage of his post-conviction proceedings but not on post-conviction appeal. Atkins, 792 F.3d at 657 (internal citations and quotation marks omitted) ("[T]he Martinez-Trevino exception does not extend to attorney error at post-conviction appellate proceedings because those proceedings are not the first occasion at which an inmate could meaningfully raise an ineffective-assistance-of-trial-counsel claim."). For all of these reasons, the petitioner's improper sentence claim is defaulted without cause, and it is not subject to further review.
Additionally, even if the court considered this claim exhausted through the petitioner's excessive-sentence claim on direct appeal, it would fail on the merits. On direct appeal, the TCCA agreed with the petitioner that the trial court erred by applying the third enhancement factor listed above. Edwards, 2011 WL 497444, at *4. Nonetheless, the TCCA reviewed the petitioner's sentence and affirmed the trial court's judgment as follows:
Id.
This determination was neither contrary to nor an unreasonable application of clearly established federal law. Because he was a Range I standard offender, the petitioner's possible sentence range for his second degree murder conviction was 15 to 25 years. Edwards, 2011 WL 497444, at *3; see Tenn. Code. Ann. 40-35-112(a)(1). The court sentenced the petitioner to 21 years' imprisonment. "As long as the sentence remains within the statutory limits, trial courts have historically been given wide discretion in determining `the type and extent of punishment for convicted defendants.'" Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000) (quoting Williams v. New York, 337 U.S. 241, 245 (1949)) (rejecting a petitioner's federal habeas claim that the state court violated his due process rights by imposing an excessive sentence). Further, the court observes that the petitioner acknowledged his sentence range when he signed the plea petition. (Doc. No. 13-1 at 79.) He also acknowledged that the court would determine the sentence length at a sentencing hearing (Doc. No. 13-1 at 80), and this was reiterated to him at the plea hearing (Doc. No. 13-8 at 3-4). The sentence imposed was four years shorter that the longest sentence he knew he risked when he pleaded guilty. The petitioner is not entitled to relief on this claim.
The petitioner also asserts that there was not sufficient evidence to support his conviction of second degree murder. (Doc. No. 1 at 3, 6, 9.) This claim is defaulted without cause—the petitioner did not present it to the TCCA on direct appeal or in his post-conviction proceedings, and he cannot rely on any post-conviction ineffectiveness to overcome this default because this is not a claim of ineffective assistance of counsel. But even if this claim were subject to further review, it would fail on the merits. To the extent that the petitioner challenges the sufficiency of the factual basis for his guilty plea, this claim "is not cognizable in federal habeas." Bonior v. Conerly, 416 F. App'x 475, 479 (6th Cir. 2010). And by pleading guilty, the petitioner waived a challenge to the sufficiency of the evidence supporting his conviction. Post v. Bradshaw, 621 F.3d 406, 426-27 (6th Cir. 2010) (citing United States v. Freed, 688 F.2d 24, 25-26 (6th Cir. 1982)).
Through the petitioner's five remaining sub-claims for ineffective assistance of trial counsel, he asserts that his counsel failed to: (1) move to suppress his statements to police; (2) investigate co-defendant Ryan Lewis; (3) object to application of enhancement factors at sentencing; (4) appeal the court's application of sentencing enhancement factors; and (5) consult with his first appointed attorney. (Doc. No. 1 at 2, 5, 7, 9-10.) The petitioner procedurally defaulted these sub-claims by failing to present them to the TCCA.
As stated above, a petitioner must demonstrate "cause" and "prejudice" or a "manifest miscarriage of justice" to obtain review of these procedurally defaulted claims. Middlebrooks, 843 F.3d at 1134 (citing Sutton, 745 F.3d at 790-91). "[I]neffective 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." Atkins, 792 F.3d at 658 (quoting Sutton, 745 F.3d at 795-96). Thus, the court considers the asserted ineffective assistance of post-conviction counsel as an allegation of cause to overcome the default of these claims. To determine whether the petitioner has demonstrated cause, the court considers "(1) whether state post-conviction counsel was ineffective; and (2) whether [the petitioner's] claims of ineffective assistance of counsel were `substantial.'" Id. at 660 (citations omitted). If the petitioner demonstrates "cause," then the court must consider "whether [he] can demonstrate prejudice." Id. And if the petitioner establishes both "cause" and "prejudice," only then would the court "evaluate [his] claims on the merits." Id. (citations omitted).
First, the petitioner asserts that his counsel was ineffective for failing to file a motion to suppress his inculpatory statements to police. (Doc. No. 1 at 2, 9.) The petitioner has not established cause to overcome this claim's default because the claim is not "substantial." "A substantial claim is one that has some merit and is debatable among jurists of reason." Abdur'Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015) (citing Martinez, 566 U.S. at 14). "In the converse, a claim is insubstantial when `it does not have any merit,' `is wholly without factual support,' or when `the attorney in the initial-review collateral proceeding did not perform below constitutional standards.'" Porter v. Genovese, 676 F. App'x 428, 432 (6th Cir. 2017) (quoting Martinez, 566 U.S. at 15-16). Here, this claim is without merit because the petitioner's "guilty plea represent[ed] a break in the chain of events which preceded it in the criminal process," and the petitioner cannot "raise independent claims relating to the deprivation of constitutional rights that occurred" before that point. Brown, 21 F. App'x at 337 (quoting Tollett, 411 U.S. at 267) (finding that district court's denial of suppression motion was "not reviewable" under Tollett).
Second, the petitioner asserts that his counsel failed to investigate co-defendant Ryan Lewis. (Doc. No. 1 at 7.) But the record reflects that the petitioner decided to plead guilty regardless of Lewis's statements. As discussed in the Factual Background section, at the plea hearing, the state provided a summary of Lewis's expected trial testimony as part of the factual basis for the petitioner's plea. The petitioner then testified that these facts were basically true while specifically disputing Lewis's expected testimony. Thus, this claim is without merit for the same reason as the petitioner's first defaulted sub-claim—the alleged failure to investigate Lewis or his statements is a claim "of pre-plea ineffective assistance not relating to the acceptance of the plea" that is "waived under the same Tollett rule." Rice v. Olson, No. 16-1125, 2016 WL 3877866, at *2 (6th Cir. July 15, 2016) (citing United States v. Stiger, 20 F. App'x 307, 309 (6th Cir. 2001)).
Third, the petitioner argues that counsel was ineffective for failing to object to application of enhancement factors at sentencing. (Doc. No. 1 at 5, 9.) This claim is without merit because the petitioner fails to demonstrate that trial counsel was deficient. The state argued that eight enhancement factors applied. (Doc. No. 13-1 at 84-85.) At the sentencing hearing, the petitioner's counsel conceded that two of these factors applied. Based on information in the presentence report, counsel conceded that the petitioner had a previous history of criminal behavior in addition to those necessary to establish the appropriate range, (Doc. No. 13-8 at 88-89, 94-95), while attempting to limit the impact of this factor by arguing that the petitioner's criminal history was not violent or extensive. (Id. at 89, 95.) Counsel also conceded, based on the facts of the case, that the petitioner possessed or employed a firearm during the commission of the offense. (Id. at 92, 94-95.) The petitioner does not identify any objections counsel should have raised regarding these two factors. Meanwhile, counsel specifically disputed the other six asserted enhancement factors (id. at 89-95), and the petitioner does not explain how these arguments were deficient. The petitioner is not entitled to relief on this claim.
Fourth, the petitioner asserts that his counsel failed to appeal the court's application of sentencing enhancement factors. (Doc. No. 1 at 5, 9.) Ineffective assistance of post-conviction counsel, however, can only act as cause to excuse a claim of ineffective assistance of trial counsel—not a claim of ineffective assistance of appellate counsel. Davila, 137 S. Ct. at 2065. Accordingly, this claim is defaulted without cause, and it is not subject to further review. Additionally, as explained in the court's analysis of the petitioner's improper sentence claim, a sentence like the petitioner's is "generally not subject to habeas review" because it is within the statutory limit for his offense of conviction. Cooper v. Haas, No. 17-1235, 2018 WL 1224451, at *5 (6th Cir. Jan. 9, 2018) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)).
Fifth, and finally, the petitioner asserts that his trial counsel failed to consult with his first appointed attorney.
This claim does not "attack the voluntary and intelligent character" of his plea of guilty to second degree murder, so it is waived. Rice, 2016 WL 3877866, at *2 (quoting Tollett, 411 U.S. at 267). Moreover, even liberally construing the Petition, the petitioner does not assert that his first attorney's negotiations resulted in a formal plea offer from the state that would have allowed him to plead guilty to a lesser offense. Indeed, the petitioner seems to be under the impression that the state specifically rejected his first attorney's suggestion of pleading guilty to reckless homicide due to a discriminatory animus. The petitioner's trial counsel could not have been deficient for failing to consult with his first attorney about a plea offer that did not exist. See Ambrose v. Romanowski, 621 F. App'x 808, 817 (6th Cir. 2015) ("If [the petitioner's] attorneys were never presented with a valid offer, his trial attorney[] could not have failed to convey . . . a legitimate plea offer. . . .").
For these reasons, the petitioner's claims either fail on the merits or are procedurally defaulted. Accordingly, the Petition will be denied, and this action will be dismissed.
A petitioner may not appeal an adverse final order in a habeas corpus proceeding unless a district or circuit judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). "If the petition [is] denied on procedural grounds, the petitioner must show, `at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Dufresne v. Palmer, 876 F.3d 248, 253 (6th Cir. 2017) (quoting Slack, 529 U.S. at 484). Here, the court concludes that the petitioner has not satisfied these standards, and will therefore deny a COA.
An appropriate order is filed herewith.
