ORDER TO MODIFY THE DOCKET, DISMISSING CLAIMS 1-3, REFERRING MATTER TO MAGISTRATE JUDGE FOR POSSIBLE APPOINTMENT OF COUNSEL AND DIRECTING PETITIONER TO FILE AN IN FORMA PAUPERIS AFFIDAVIT

S. THOMAS ANDERSON, District Judge.

Before the Court is the Petition Under 28 U.S.C.A. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("§ 2254 Petition") filed by Petitioner, Jarvis Harris, Tennessee Department of Correction prisoner number 400198, an inmate at the Hardeman County Correctional Facility ("HCCF") in Whiteville, Tennessee. (§ 2254 Pet., Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 1.)1 For the reasons stated below, the Court DISMISSES Claims 1 through 3 and refers the matter to the Magistrate Judge for consideration of the appointment of counsel.

I. BACKGROUND

A. State Court Procedural History

On January 28, 2003, a grand jury in Shelby County, Tennessee, returned two indictments against Harris, Thaddeus Johnson, and Maurice Thomas. Case Number 03-00441 charged Johnson, Thomas, and Harris with the first degree murder of Montreal [sic] Graham. (Indictment, State v. Harris, No. 03-00441 (Shelby County Crim. Ct.), ECF No. 15-1 at PageID 100-01.)2 Case Number 03-00442 charged Johnson, Thomas, and Harris with the attempted first degree murder of Maurice Wooten. (Indictment, State v. Harris, No. 03-00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-1 at PageID 102-03.)

At some point, Harris' attorney filed a motion to suppress his statements. (Mot. to Suppress Def.'s Statement, State v. Harris, Nos. 03-00441, -00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-1 at PageID 132-33.)

A jury trial on the charges against Harris commenced in the Shelby County Criminal Court on December 12, 2005. After jury selection, the trial judge held a hearing on the motion to suppress and, at the conclusion of the hearing, denied the motion. (Trial Tr. 97-101, id., ECF No. 15-4.) On December 15, 2005, the jury returned guilty verdicts on both indictments. (Trial Tr. 449-50, id., ECF No. 15-6.) On or about February 12, 2006, the State filed a motion seeking consecutive sentencing and a notice of enhancement factors. (Mot. for Consecutive Sentencing, id., ECF No. 15-1 at PageID 171-72; Not. of Enhancement Factors, id., ECF No. 15-1 at PageID 173-76.) At a sentencing hearing on February 23, 2006, the trial judge sentenced Harris to concurrent terms of life imprisonment with the possibility of parole on the first degree murder and eighteen years on the attempted first degree murder. (Sentencing Hr'g Tr. 39, id., ECF No. 15-7.) Judgments were entered on May 25, 2006. (J., State v. Harris, No. 03-00441 (Shelby Cnty. Crim. Ct.), ECF No. 15-1 at PageID 177; J., State v. Harris, No. 03-00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-1 at PageID 178.) The Tennessee Court of Criminal Appeals ("TCCA") affirmed the convictions but remanded the case for Harris to be resentenced on the attempted murder. State v. Harris, No. W2006-02234-CCA-R3-CD, 2007 WL 2409676 (Tenn. Crim. App. Aug. 24, 2007), appeal denied (Tenn. Jan. 28, 2008).3

On or about January 8, 2009, Harris filed a pro se petition in the Shelby County Criminal Court pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122. (Pet. for Post-Conviction Relief, Harris v. State, No. 03-00441 (Shelby County Crim. Ct.), ECF No. 15-15 at PageID 930-37; see also Post-Conviction for Relief, id., ECF No. 15-15 at PageID 943-77.) Harris filed a pro se amendment to his post-conviction petition on January 27, 2009. (Am. Post-Conviction for Relief, id., ECF No. 15-15 at PageID 978-1065.) The State responded to the petition on February 27, 2009. (Resp. to Pet. for Post-Conviction Relief, id., ECF No. 15-15 at PageID 1066.) Various attorneys were appointed to represent Harris. (Order Appointing Private Counsel to Represent Def., id., ECF No. 15-15 at PageID 1067; Order Allowing Attorney of Record to Withdraw as Counsel for Pet'r, id., ECF No. 15-15 at PageID 1068; Order Appointing Private Counsel to Represent Pet'r, id., ECF No. 15-15 at PageID 1069; Order Appointing Private Counsel to Represent Def., id., ECF No. 15-15 at PageID 1070.) Hearings on the post-conviction petition were held on May 20, 2010, and June 29, 2010. (05/20/2010 Post-Conviction Hr'g Tr., id., ECF No. 15-16; 06/29/2010 Post-Conviction Hr'g Tr., id., ECF No. 15-17.) The post-conviction court denied relief on August 9, 2010. (Order Denying Pet. for Post-Conviction Relief, id., ECF No. 15-15 at PageID 1072-79.) The TCCA affirmed. Harris v. State, No. W2010-01848-CCA-R3-PC, 2011 WL 3629230 (Tenn. Crim. App. Aug. 18, 2011), appeal denied (Tenn. Dec. 13, 2011).

The TCCA summarized the evidence introduced at the suppression hearing, at trial, and at the sentencing hearing:

Lieutenant Craig said the defendant made several corrections to his second statement and initialed each page.

Lieutenant Craig acknowledged that he knew Officer Eddie Bass but denied that Bass was present during the defendant's interview. He said that Officer Bass was a uniformed patrol officer at the time and would not have had access to homicide cases because officers from other departments are not allowed to speak to a suspect unless approval is obtained from a supervisor. He testified that Sergeant Reginald Morgan was related to the defendant and was removed from the case as a result. He denied that Morgan was present during the defendant's interviews and said there was no way Bass or Morgan could have talked to the defendant without his knowledge because, as the case coordinator, he was given notification of anyone desiring to speak to the defendant. He said the defendant was offered food and drink and an opportunity to use the restroom.

State v. Harris, 2007 WL 2409676, at *1-7.

B. Procedural History of Harris' § 2254 Petition

On July 30, 2012, Harris filed his pro se § 2254 Petition, accompanied by a legal memorandum. (§ 2254 Pet., Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 1; Mem. of Law in Supp. of § 2254 Pet., id., ECF No. 1-1.) Harris paid the habeas filing fee on July 31, 2012. (Case initiation fee, id., ECF No. 2.) The Court issued an order on August 27, 2012, directing Respondent, HCCF Warden Joe Easterling, to file the state-court record and a response to the § 2254 Petition. (Order, id., ECF No. 3.)9 That order inadvertently neglected to direct the Clerk to serve the § 2254 Petition and the August 27, 2012, order on Respondent. On November 16, 2012, the Court directed the Clerk to serve Respondent and extended Respondent's time to respond. (Order, id., ECF No. 5.)

On January 9, 2013, Respondent filed a motion to dismiss the § 2254 Petition as time barred. (Mot. to Dismiss, id., ECF No. 14.) Respondent also filed most of the state-court record at that time. (Resp't's Not. of Filing, id., ECF No. 15.) Harris filed a response in opposition to the motion to dismiss on March 18, 2013. (Pet'r's Resp. to Resp't's Mot. to Dismiss, id., ECF No. 19.) On April 10, 2013, Respondent filed a motion seeking leave to withdraw his motion to dismiss. (Resp't's Mot. for Leave to Withdraw His Mot. to Dismiss, id., ECF No. 21.) In an order issued on April 26, 2013, the Court granted leave to withdraw the motion to dismiss and ordered Respondent to file the remainder of the state-court record and a response to the § 2254 Petition. (Order, id., ECF No. 22.)

On June 10, 2013, Respondent filed the remainder of the state-court record and his Answer to the Petitioner's § 2254 Petition ("Answer"). (Resp't's Suppl. Not. of Filing, id., ECF No. 23; Answer, id., ECF No. 24.) On July 2, 2013, Harris filed his Reply to Respondent's Answer to Petition ("Reply"). (Reply, id., ECF No. 25.)

II. PETITIONER'S FEDERAL HABEAS CLAIMS

In his § 2254 Petition, Harris raises the following issues:

III. THE LEGAL STANDARD

The statutory authority for federal courts to grant 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).

A. Waiver and Procedural Default

Twenty-eight 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 exhausted available state remedies by presenting the same claim sought to be redressed in a federal habeas court to the state courts. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The petitioner must "fairly present"10 each claim to all levels of state court review, up to and including the state's highest court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), except when the state has explicitly disavowed state supreme court review as an available state remedy, O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Tennessee Supreme Court Rule 39 eliminated the need to seek review in the Tennessee Supreme Court in order to "be deemed to have exhausted all available state remedies." Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003); see Smith v. Morgan, 371 F. App'x 575, 579 (6th Cir. 2010) (the Adams holding promotes comity by requiring that state courts have the first opportunity to review and evaluate claims and by mandating that federal courts respect the duly promulgated rule of the Tennessee Supreme Court that recognizes that court's law and policy-making function and its desire not to be entangled in the business of simple error correction).

The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (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, 87-88 (1977); see Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (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"). If a claim has never been presented to the state courts, but a state court remedy is no longer available (e.g., when an applicable statute of limitations bars a claim), the claim is technically exhausted, but procedurally barred. Coleman, 501 U.S. at 732; see Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004) (the procedural default doctrine prevents circumvention of the exhaustion requirement).

Under either scenario, a petitioner must show "cause" to excuse his failure to present the claim fairly and "actual prejudice" stemming from the constitutional violation or, alternatively, that a failure to review the claim will result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 322 (1995); Coleman, 501 U.S. at 750. The latter showing requires a petitioner to establish that a constitutional error has probably resulted in the conviction of a person who is actually innocent of the crime. Schlup, 513 U.S. at 321; see House v. Bell, 547 U.S. 518, 536-39 (2006) (restating the ways to overcome procedural default and further explaining the actual innocence exception).

B. Merits Review

Section 2254(d) establishes the standard for addressing claims that have been adjudicated in state courts on the merits:

28 U.S.C. § 2254(d)(1)-(2). The petitioner carries the burden of proof for this "difficult to meet" and "highly deferential [AEDPA] standard," which "demands that state-court decisions be given the benefit of the doubt." Id. at 1398 (internal quotation marks and citations omitted).11

Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen, 131 S. Ct. at 1399. A state court's decision is "contrary" to federal law when it "arrives at a conclusion opposite to that reached" by the Supreme Court on a question of law or "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).12 An "unreasonable application" of federal law occurs when 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." Williams, 529 U.S. at 412-13. The state court's application of clearly established federal law must be "objectively unreasonable." Id. at 409. The writ may not issue merely because the habeas court, in its independent judgment, determines that the state court decision applied clearly established federal law erroneously or incorrectly. Renico v. Lett, 559 U.S. 766, 773 (2010); Williams, 529 U.S. at 411. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).

There is little case law addressing the standard in § 2254(d)(2) that a decision was based on "an unreasonable determination of facts." However, in Wood v. Allen, 558 U.S. 290, 301 (2010), the Supreme Court stated that a state-court factual determination is not "unreasonable" merely because the federal habeas court would have reached a different conclusion. In Rice v. Collins, 546 U.S. 333, 341-42 (2006), the Court explained that "[r]easonable minds reviewing the record might disagree" about the factual finding in question, "but on habeas review that does not suffice to supersede the trial court's . . . determination."13

"Notwithstanding the presumption of correctness, the Supreme Court has explained that the standard of § 2254(d)(2) is `demanding but not insatiable.'" Harris v. Haeberlin, 526 F.3d 903, 910 (6th Cir. 2008) (quoting Miller-El v. Dretke, 545 U.S. 231, 240 (2005)). "Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review.'" Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A state court adjudication will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010); see Hudson v. Lafler, 421 F. App'x 619, 624 (6th Cir. 2011) (same).

IV. ANALYSIS OF PETITIONER'S CLAIMS

A. The Motion to Suppress (Claims 1 and 3)

In Claims 1 and 3, Harris argues that the trial court erred when it denied his motion to suppress. (§ 2254 Pet. at PageID 5 & 9, Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 1.) Harris explains that, "[b]ased on the testimony of Lieutenant Anthony Craig during the petitioner's Motion to Suppression Hearing, he testified during cross-examination that `when the petitioner was taken in to custody that he was not taken into custody as a suspect but as witness.'" (Id. at PageID 5; see also id. at PageID 9 (same).)

Harris challenged the trial court's denial of the motion to suppress on direct appeal. (Br. of Appellant at 4, 12-13, State v. Harris, No. W2006-02234-CCA-F3-CD (Tenn. Crim. App.), ECF No. 15-10.) The TCCA denied that claim on the merits, reasoning as follows:

State v. Harris, 2007 WL 2409676, at *9-10.

In his post-conviction petition, Harris argued that his "[c]onviction was based on use of coerced confession by police misconduct" and that his "[c]onviction was based on use of evidence gained pursuant to an unconstitutional unreasonable search and seizure." (Pet. for Post-Conviction Relief at PageID 934, Harris v. State, No. 03-00441 (Shelby Cnty. Crim. Ct.), ECF No. 15-15.) In an attachment to the petition, Harris argued that the police lacked probable cause to arrest him (id. at PageID 946-47) and that he was handcuffed during his hours in the interrogation room (id. at PageID 949). Harris also claimed that his cousin, Officer Eddie Bass, encouraged him to cooperate. (Id. at PageID 946, 949.) The TCCA held that those issues were either waived or previously determined:

Harris v. State, 2011 WL 3629230, at *3.

In his Answer, Respondent argues that Claims 1 and 3 are not cognizable in a § 2254 Petition. (Answer at 21, Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 24.) Fourth Amendment issues are not cognizable in § 2254 petitions when the prisoner had a full and fair opportunity to litigate the issue in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). Here, Harris had a full and fair opportunity to litigate a Fourth Amendment claim, having been granted a suppression hearing and the opportunity to raise the issue on direct appeal. Therefore, Claims 1 and 3 are not cognizable in this § 2254 Petition.

Claims 1 and 3 are without merit and are DISMISSED.

In Claim 2, Harris argues that the "prosecution's references to [him] as a gang member and other related gang inferences they-so [sic] prejudice the jury as to deny [him] a fair trial." (§ 2254 Pet. at PageID 7, Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 1.) According to Harris,

(Id.; see also Mem. of Law in Supp. of § 2254 Pet. at 8 (same), id., ECF No. 1-1.) Harris also argued that the prosecutor committed misconduct by referring to him as a gang member. (Mem. of Law in Supp. of § 2254 Pet. at 9-10, id., ECF No. 1-1.)

Harris raised this issue on direct appeal. (Br. of Appellant at 4, 5-11, State v. Harris, No. W2006-02234-CCA-R3-CD (Tenn. Crim. App.), ECF No. 15-10.) The TCCA denied relief on the merits, reasoning as follows:

State v. Harris, 2007 WL 2409676, at *7-9.

Claim 2 is not cognizable in a federal habeas petition insofar as it argues that the evidence was admitted in violation of the Tennessee Rules of Evidence and Tennessee law because there was no proof that Harris was a member of a gang. 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). Error in the application of state law is not cognizable in a federal habeas proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law."). Therefore, Claim 2 is not cognizable in a § 2254 proceeding insofar as it seeks relief for an alleged violation of Tennessee law.

In Berger v. United States, 295 U.S. 78 (1935), the Supreme Court reversed a defendant's criminal conviction because the prosecutor had engaged in misconduct, namely,

Id. at 84. In addition, "[t]he prosecuting attorney's argument to the jury was undignified and intemperate, containing improper insinuations and assertions, calculated to mislead the jury." Id. at 86. The Supreme Court concluded that the remedy for the prosecutor's misconduct was to reverse the defendant's conviction and remand the case for a new trial:

Id. at 88-89 (citations omitted).

Berger was a direct appeal. In Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974), the Supreme Court held that the standard for evaluating a claim of prosecutorial misconduct during closing argument was "whether such remarks, in the context of the entire trial, were sufficiently prejudicial to violate [the prisoner's] right to due process." In so holding, the Supreme Court noted that the proper standard of review in a habeas case is "the narrow one of due process, and not the broad exercise of supervisory power that [a court of appeals] would possess in regard to (its) own trial court." Id. at 642 (internal quotation marks omitted). "[N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice." Id. (internal quotation marks omitted). In finding that the petitioner had not shown a violation of his due process rights, the Supreme Court emphasized that "[c]onflicting inferences have been drawn from the prosecutor's statement by the courts below," id. at 643, and that "the trial court took special pains to correct any impression that the jury could consider the prosecutor's statements as evidence in the case," id. at 644. The Supreme Court also noted that "the prosecutor's remark here, admittedly an ambiguous one, was but one moment in an extended trial and was followed by specific disapproving instructions." Id. at 645. Thus, the Supreme Court concluded that, "[a]lthough the process of constitutional line drawing in this regard is necessarily imprecise, we simply do not believe that this incident made respondent's trial so fundamentally unfair as to deny him due process." Id.

The next case in which the Supreme Court addressed a claim of prosecutorial misconduct during closing arguments was Darden v. Wainwright, 477 U.S. 168 (1986). According to the Supreme Court, the State's closing argument

Id. at 179-81 (footnotes omitted).

The Supreme Court carefully reviewed the prosecutors' remarks in context, along with the record as a whole, and concluded that "we agree with the reasoning of every court to consider these comments that they did not deprive petitioner of a fair trial." Id. at 181. Because of a local procedural peculiarity, the defense presented the initial summation and a rebuttal to the State's closing arguments. The Supreme Court emphasized that

Id. at 179 (footnotes omitted). "The prosecutors' argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent. Much of the objectionable content was invited by or was responsive to the opening summation of the defense." Id. at 181-82 (citation omitted). Any danger presented by the prosecutors' comments was neutralized by the trial judge's instructions. Id. at 182. The defense made an effective rebuttal, "turning much of the prosecutors' closing argument against them by placing many of the prosecutors' comments and actions in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner." Id. Finally, "[t]he weight of the evidence against petitioner was heavy . . ., reduc[ing] the likelihood that the jury's decision was influenced by argument." Id.

In Parker v. Matthews, 132 S.Ct. 2148 (2012), its most recent decision addressing a claim of prosecutorial misconduct during closing argument, the Supreme Court held that the Sixth Circuit had erred in granting the writ on the basis, inter alia, that the prosecution's closing argument amounted to a violation of due process. The Supreme Court reiterated that "[t]he `clearly established Federal law' is our decision in Darden v. Wainwright. . . ." Id. at 2153. The Supreme Court concluded that the Sixth Circuit had taken the prosecutor's objectionable statements out of context, making the conclusion that there had been a violation of due process "unsupportable." Id. at 2154. Even if the prosecutor's comments could properly be understood

Id. at 2155.

Finally, the Supreme Court noted that "[t]he Sixth Circuit also erred by consulting its own precedents, rather than those of this Court, in assessing the reasonableness of the Kentucky Supreme Court's decision." Id.

Id.

The § 2254 Petition and the Answer offer scant assistance in analyzing the prosecutorial misconduct claim. In his filings, Harris has not specified whether he contends that the decision of the TCCA on the issue was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). In his Answer, Respondent argues that Harris is not entitled to relief on his prosecutorial misconduct claim "because the state court's dismissal of the claim was not contrary to, or an unreasonable application of, clearly held federal law and was based on a reasonable determination of the facts." (Answer at 23, Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 24.) Although the Answer was filed a year after the Supreme Court's decision in Parker, the Answer applies the two-part test developed by the Sixth Circuit that had been disapproved in Parker. (See id. at 25.)

The TCCA's decision was not contrary to, or an unreasonable application of, the Supreme Court's decisions in Donnelly and Darden and was not based on an objectively unreasonable factual determination. During closing arguments, the prosecutor emphasized that there was no dispute about the essential facts of the case and that the only job for the jury was to determine whether Harris was completely uninvolved, a facilitator or a member of the conspiracy to commit first degree murder. (Trial Tr. 412-13, State v. Harris, Nos. 03-00441, -00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-6.) The prosecutor listed fifteen items of evidence that, he argued, "put Jarvis Harris in that third boat with these killers as a man who is criminally responsible for this first degree murder." (Id. at 413.) The prosecutor's argument with respect to Item 15 forms the basis for Harris' prosecutorial misconduct claim. The prosecutor argued: "Number 15, and it underlies all of them, when he describes what's really going on here. This is a 21 bricks execution. This is a Vice Lord execution. That's what this is all about. Can you get more premeditated? Can you get more planned?" (Id. at 417.) In rebuttal, the prosecutor stated,

(Id. at 436.) Later, the prosecutor made two more scattered references to "Vice Lord justice." (Id. at 445 ("a group of Vice Lords got together and decided they have their on [sic] laws. They have their own punishment. They have their own system of justice. And Maurice Wooten stole from them. So they're going to carry out their sentence."), 446 ("Maurice Wooten has got people chasing him, bullets flying by, whizzing by. Can you imagine that. Hitting apartment buildings where families are. That's Vice Lords justice. It does not matter who's around when they decide something is going to happen. It happens. And I ask you, ladies and gentlemen, I ask you, you, to make a decision just like the Vice Lords did on April 11, 2002. You make a decision and apply the right kind of justice.").)

The TCCA's conclusion that the references to the Vice Lords were supported by the evidence at trial, State v. Harris, 2007 WL 2409676, is not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. at 103. Eric Cooper testified that Harris had told him that he, Thaddeus Johnson, and Maurice Thomas were members of the Vice Lords. (Trial Tr. 153, State v. Harris, Nos. 03-00441, -00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-5.) Maurice Wooten testified that he knew Harris was a member of the Vice Lords because "[h]e was steadily telling me and throwing it up, throwing signs up." (Id. at 212; see also id. at 213 (by his gestures, Harris "was telling you what he is and he a member of this and that").) Wooten had previously had an altercation with Harris because Harris was trying to recruit Wooten's brother to join the Vice Lords. (Id. at 213.) On cross-examination, Wooten testified that he was not a member of the Vice Lords and did not know what the sign was. (Id. at 223.) He knew Harris was a Vice Lord because, in addition to making gang signs, he had told Wooten that he was a member "all the time." (Id. at 224.) On redirect examination, Wooten testified that Rell was a Vice Lord. (Id. at 225.) At the dice game, the people who were accusing Wooten of stealing marijuana were members of the Vice Lords. (Id. at 225-26.) On recross-examination, Wooten testified that he was not affiliated with a gang. (Id. at 226.)

Memphis Police Department Lieutenant Anthony Craig testified that Harris gave a statement to the police on April 16, 2002, in which he claimed that "Rell said it's 21 brick execution. It's time. This was Travelling Vice Lord stuff. Then Rell said it's got to be done. It's got to be done. It's a hit. I can't let it go no longer. It's got to be done tonight." (Trial Tr. 319, State v. Harris, Nos. 03-00441, -00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-6.) In his statement, Harris related that B, who had provided one of the guns used in the shooting, was "[o]ne of the Travelling Vice Lords." (Id. at 325.) Craig testified that Harris had told him that the phrase "21 bricks execution" was "Travelling Vice Lords stuff." (Id. at 328; see also id. at 326-28 (same).)

The TCCA concluded that the prosecutor's references to the "Vice Lords" in his closing arguments were supported by the evidence introduced at trial and were, therefore, not improper. State v. Harris, 2007 WL 2409676, at *9. That conclusion is not based on an objectively unreasonable factual determination.14

Harris also has not satisfied his burden of establishing that the TCCA's decision was contrary to, or an unreasonable application of, Donnelly and Darden. Although the TCCA did not cite the controlling Supreme Court decisions and did not explicitly refer to the highly generalized standard established in Donnelly and Darden, it did cite a decision that applied Darden. See State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). It was unnecessary for the TCCA to address the effect of the prosecutor's remarks on the jury because it concluded that the remarks were supported by the evidence introduced at trial and were, therefore, not improper. An examination of those remarks, in light of the evidence introduced at trial, establishes that they are far less inflammatory than those found not to have rendered the prisoners' trials fundamentally unfair in Donnelly, Darden and Parker.

Claim 2 is without merit and is DISMISSED.

C. Ineffective Assistance of Counsel (Claim 4)

In Claim 4, Harris argues that his trial and appellate counsel rendered ineffective assistance, in violation of the Sixth Amendment. (§ 2254 Pet. at PageID 10, Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 1.) In the form § 2254 Petition, Harris alleges only that "Petitioner's trial counsel failed to investigate the petitioner's case in relation to the law both factually and legally." (Id.) In his legal memorandum, Harris argues that his trial counsel (i) failed to mention during the argument on the motion to suppress that Harris had been arrested without probable cause "because the petitioner was arrested and taken into custody without an arrest warrant in relation to the victim's death" (Mem. in Supp. of § 2254 Pet. at 12, id., ECF No. 1-1); (ii) failed to mention during the argument on the motion to suppress that "the officers' [sic] continu[ed] to question [him] after he invoked his right to have counsel present during the custodial interrogation on both April 14, 2002 and on April 16, 2002" (id. at 13); (iii) failed to raise in the motion for a new trial that the trial court erred in denying the motion to suppress on the grounds that (a) "the petitioner was handcuffed the entire time, although, he was treated as a witness, not as a suspect, during the interview" and (b) the police continued to question him after he had invoked his right to counsel (id. at 14); and (iv) "fail[ed] to adequately prepare petitioner for trial and to adequately communicate with the petitioner prior to the petitioner trial, because petitioner's trial counsel failed to confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain what potential defenses were or were not unavailable" (id.). Harris further alleges that his appellate counsel rendered ineffective assistance by failing to raise on appeal the Fourth Amendment issues that trial counsel had neglected to include in the motion for a new trial. (Id. at 17.)

In his Answer, Respondent argues that the portion of Claim 4 addressing the performance of trial counsel is barred by procedural default. (Answer at 22-23, Harris v. Perry, No. 2:12-cv-02668-STA-dkv (W.D. Tenn.), ECF No. 24.) Respondent also argues that the TCCA's resolution of the ineffective assistance of appellate counsel claim was not contrary to, or an unreasonable application of, clearly established federal law. (Id. at 27-28.)

Harris has potentially viable ineffective assistance of trial counsel and ineffective assistance of appellate counsel claims that have not been squarely addressed by the state courts. Throughout the state-court proceedings, Harris consistently argued that he was arrested in violation of the Fourth Amendment. At the post-conviction hearing, "the petitioner maintained that trial counsel was ineffective because he failed to properly articulate the Fourth Amendment issue to the trial court." Harris v. State, 2011 WL 3629230, at *2. "The petitioner also asserted that his appellate counsel failed to challenge on appeal his illegal arrest. Essentially, the petitioner claimed that his statements to police should have been suppressed because he was arrested without probable cause prior to giving the statements." Id.15

The Fourth Amendment issue arises from the testimony of Lieutenant Craig at the suppression hearing about how Harris was developed as a suspect. Craig testified that,

(Trial Tr. 12-13, State v. Harris, No. 03-00441, -00442 (Shelby Cnty. Crim. Ct.), ECF No. 15-4.) When the police found Harris, he was placed under arrest and brought to the homicide office for questioning. (Id.) Harris' point, then, is that there was no probable cause to arrest him when he was considered only a witness.

In Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975), the Supreme Court held that "a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest." Although the Fourth Amendment does not require a pre-arrest judicial determination of probable cause, "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." Id. at 114; see also id. at 125 (states must "provide a fair and reliable determination of probable cause as a condition for any significant restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest") (footnotes omitted).

In County of Riverside v. McLaughlin, 500 U.S. 44, 53-54 (1991), the Supreme Court clarified that the Fourth Amendment does not require that the probable cause determination be made immediately after completion of the administrative steps incident to arrest, noting that "Gerstein held that probable cause determinations must be prompt — not immediate." Thus, the Supreme Court stated that "a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." Id. at 56. The Supreme Court further stated as follows:

Id. at 56-57 (emphasis added).

Harris relies on the Supreme Court's opinion in Brown v. Illinois, 422 U.S. 590, 592 (1975), in which police arrested the defendant and detained him for questioning despite having no information about him other than that he was acquainted with the murder victim. The suspect, who had been given the required Miranda warnings, confessed within two hours of his arrest. The Supreme Court held that the giving of Miranda warnings is insufficient to insulate a confession given after an illegal arrest from challenge. Id. at 603. The Supreme Court also declined to adopt an alternative per se rule that confessions that would not have been made without an illegal arrest must be suppressed. Id. Instead, the Supreme Court concluded that the determination of whether a confession is voluntary is highly fact-dependent:

Id. at 603-04 (footnotes and citations omitted).

The Supreme Court declined to remand the case for further factual findings because the record was sufficient to determine that the confession should be suppressed. Id. at 604-05. The Court considered the facts that the prisoner confessed within two hours of his arrest and that the illegality appeared to be purposeful. The Court emphasized that "[t]he arrest, both in design and execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up." Id. at 605. The manner of effecting the arrest, by lying in wait near the defendant's home, dressed in plain clothes, and accosting him with drawn weapons, was also problematic. The Supreme Court stated that "[t]he manner in which Brown's arrest was affected [sic] gives the appearance of having been calculated to cause surprise, fright, and confusion." Id. Nonetheless, the Supreme Court also emphasized that its "holding is a limited one. . . . We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest." Id.

Subsequently, in Powell v. Nevada, 511 U.S. 79, 84 (1994), the Supreme Court held that the rule in McLaughlin is retroactively applicable to cases that had not become final when the decision issued. Nonetheless, the Supreme Court noted that the appropriate remedy for a delay in determining probable cause is "an issue not resolved in McLaughlin." Id.

In Kaupp v. Texas, 538 U.S. 626 (2003) (per curiam), which was decided after Harris' arrest but two years before his trial, a nineteen-year-old confessed to the murder of his half-sister and implicated his seventeen-year-old friend in the crime. The police tried, unsuccessfully, to obtain a "pocket warrant," which would have authorized them to take Kaupp into custody for questioning. They did not seek a conventional arrest warrant because they did not believe they had probable cause to arrest him without corroborating evidence or a motive. Id. at 628 n.1. The police were let into Kaupp's home by his father in the middle of the night, went into his bedroom, shined a flashlight in his face, and told him that "we need to go and talk." Id. at 628. Kaupp responded, "Okay." He was handcuffed and led, barefoot and dressed in a t-shirt and boxer shorts, to a patrol car. Id. On the way to the police station, the officers stopped for five or ten minutes at the place where the victim's body had been found. At the police station, Kaupp was taken to an interview room, his handcuffs were removed, and he was advised of his Miranda rights. He initially denied any involvement but, after ten or fifteen minutes of questioning, and after hearing of the brother's confession, he admitted to having some part in the crime. Id. at 628-29.

The Supreme Court held that Kaupp had been arrested without probable cause when the police took him from his home, despite his having said "okay," when awakened by the police. Id. at 630-32.16 The Supreme Court addressed the remedy for a confession that is the fruit of an unlawful arrest:

Id. at 632-33.

Harris' point, which he made repeatedly in state court, is that he was arrested in violation of Brown v. Illinois. The Supreme Court's decision in Kaupp v. Texas also appears to provide support for his position. At a minimum, Harris appears to have exhausted a claim that the decision of the TCCA on his ineffective assistance of appellate counsel claim was contrary to, or an unreasonable application of, Smith v. Murray, 477 U.S. 527, 535-36 (1986), which applies the standards of Strickland v. Washington to a claim that counsel failed to raise a meritorious issue on direct appeal. It also appears that Harris' trial counsel and, apparently, the state court judges who presided over the trial, direct appeal, and post-conviction petition failed to realize that the Fourth Amendment does not permit the police to arrest an individual who might be a witness to a crime and hold him for 48 hours while the matter is investigated. It is unclear, however, whether Harris properly exhausted an ineffective assistance of trial counsel claim based on counsel's failure properly to litigate the Fourth Amendment issue. It is also unclear whether that failure can be excused on the basis of the Supreme Court's decisions in Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013).

Pursuant to 18 U.S.C. § 3006A(a)(2)(B), the Court is authorized to appoint counsel for indigent habeas petitioners when such appointment is in the interest of justice. The Court concludes that it is in the interest of justice to appoint counsel in this matter to represent Harris with respect to that portion of Claim 4 that addresses the handling by trial and appellate counsel of the Fourth Amendment issue arising from Harris' arrest. Therefore, the matter is REFERRED to Chief United States Magistrate Judge Diane K. Vescovo to determine whether Harris qualifies as an indigent habeas petitioner. Petitioner is ORDERED to file an in forma pauperis affidavit and a copy of his inmate trust fund account statement within twenty-eight days of the date of entry of this order.

IT IS SO ORDERED.