THOMAS L. PARKER, District Judge.
Petitioner Adrian Delk
The issues Petitioner raises in his amended habeas petition fall into two categories: (1) whether the procedural default doctrine bars him from bringing a claim, and (2) whether his claim presents a question of federal law. For all the reasons below, the Court
In May 2014, Petitioner pleaded guilty to one count of aggravated assault and one count of solicitation to commit first-degree murder in the Shelby County, Tennessee Criminal Court. (Id. at PageID 578.) The trial court sentenced him to an effective sentence of 12 years in prison. (Id. at PageID 580-81.) Petitioner did not appeal that result.
He did however petition the trial court pro se under the Tennessee Post-Conviction Procedure Act, Tennessee Code Annotated §§ 40-30-101-122. (Id. at PageID 582-90.) In early 2015, Petitioner's appointed counsel amended that petition (id. at PageID 599-607) and supplemented it (id. at PageID 608-09). The post-conviction court held an evidentiary hearing and denied relief in an order entered in June 2015. (Id. at PageID 613-18.) Petitioner appealed that decision (id. at PageID 620), and the Tennessee Court of Criminal Appeals ("TCCA") affirmed, Delk v. State, No. W2015-01246-CCA-R3-PC, 2016 WL 4189718 (Tenn. Crim. App. Aug. 5, 2016), perm. app. denied (Tenn. Oct. 21, 2016).
Petitioner then moved to correct an illegal sentence in Shelby County Criminal Court. (ECF No. 43-11 at PageID 942-43.) The trial court denied relief in late 2015. (Id. at PageID 945.) Petitioner appealed that order (id. at PageID 946-47), and the TCCA dismissed the appeal because Petitioner failed to file a brief, State v. Delk, No. W2015-02432-CCA-R3-CD (Tenn. Crim. App. May 27, 2016). (ECF No. 43-12 at PageID 951.)
Later Petitioner sought habeas relief in Hardeman County Circuit Court. (ECF No. 43-13 at PageID 957-61.) That court denied relief in an order entered June 2016. (Id. at PageID 1028-30.) Petitioner appealed (id. at PageID 1031-32), alleging (1) that the State prosecutor breached the plea agreement by choosing an incorrect range of offense dates for the judgment for solicitation to commit first degree murder; (2) that the State prosecutor's error led to a breach of the plea agreement because it affected his sentencing credit; (3) that TDOC was not properly awarding post-judgment sentencing credits; (4) that there was insufficient proof to support the conviction for solicitation; and (5) that his indictment for solicitation was void because the grand jury returned it before the end of the crime and failed to provide notice. Delk v. Perry, No. W2016-01394-CCA-R3-HC, 2017 WL 5952935 (Tenn. Crim. App. Nov. 30, 2017).
The TCCA determined that Petitioner waived the indictment claim because he failed to provide adequate documentation, that he waived his challenge to the sufficiency of the evidence by pleading guilty, and that the remaining issues were unavailable in a habeas corpus petition. (Id. at *2-*3.) On post-conviction appeal, the TCCA reviewed the factual basis for Petitioner's guilty pleas:
Delk v. State, 2016 WL 4189718, at *1.
The TCCA post-conviction opinion summarized the evidence presented at the post-conviction hearing and the decision of the post-conviction trial court:
Id., at *2-*4.
Federal courts may issue habeas corpus relief for persons in state custody under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court has limited authority however and may grant that 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). Before a federal court may consider a request for habeas relief by a state prisoner, the court must examine the state court record for specific information.
A federal court may not grant a writ of habeas corpus for a state prisoner unless, with a few exceptions, the prisoner has exhausted state remedies by presenting the same claim to the state courts under 28 U.S.C. § 2254(b) and (c). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Petitioner must "fairly present"
The procedural default doctrine is much like 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, the petitioner's claim is then barred from seeking federal review by the procedural default doctrine. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977); see 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.") (internal quotation marks and citation omitted)).
If the procedural default doctrine bars a claim at the state level, the petitioner must then show cause to excuse his failure to present the claim and actual prejudice from the constitutional violation or that a failure to review the claim will lead to a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320-21 (1995); Coleman v. Thompson, 501 U.S. 722, 750 (1991). To make the latter showing, the petitioner has to show that a constitutional error has probably led to the conviction of a person who is innocent of the crime. Schlup, 513 U.S. at 321; see also House v. Bell, 547 U.S. 518, 536-39 (2006) (restating the ways to overcome procedural default and further explaining the actual innocence exception).
Under § 2254(d), where a state court decided a claim on the merits, a habeas petition in federal court should only be granted if resolving the claim:
28 U.S.C. § 2254(d)(1)-(2). Petitioner carries the burden of proof on this "difficult to meet" and "highly deferential [AEDPA] standard," which "demands that state-court decisions be given the benefit of the doubt." Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Under § 2254(d)(1) the court's review is limited to the record in the state court that decided the claim on the merits. Cullen, 563 U.S. at 182. 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). 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." Id. The state court's application of clearly established federal law must be "objectively unreasonable" for the writ to issue. Id. at 409. The writ may not issue only 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) (citing Williams, 529 U.S. 411).
There is scarce case law addressing whether, under § 2254(d)(2), a state court's decision was based on "an unreasonable determination of the facts." In Wood v. Allen, 558 U.S. 290, 301 (2010), the Supreme Court held that a state-court factual determination is not "unreasonable" just because the federal habeas court would have reached a different conclusion.
The Sixth Circuit has described the § 2254(d)(2) standard as "demanding but not insatiable" and has emphasized that, under § 2254(e)(1), the federal court presumes the state court's factual determination to be correct absent clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d at 301, 308 (6th Cir. 2010). A federal court will not overturn a state court decision on factual grounds unless objectively unreasonable given the evidence presented during the state court proceeding. Id.; see also Hudson, 421 F. App'x at 624 (same).
In Strickland v. Washington, the Supreme Court established the standard by which courts analyze a claim that ineffective assistance of counsel deprived a defendant of his Sixth Amendment right to counsel. See 466 U.S. 668, 687 (1984). To succeed on this claim, a petitioner must prove two elements: 1) that counsel's performance was deficient, and 2) "that the deficient performance prejudiced the defense." Id. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686.
To establish deficient performance, a person challenging a conviction "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range of reasonable professional assistance." Id. at 689. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687.
To prove prejudice, a petitioner has to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Even more, federal courts reviewing an ineffective assistance claim accord a state-court decision higher deference under 28 U.S.C. § 2254(d). The Supreme Court made this point emphatically.
Harrington, 562 U.S. at 105.
"There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman, 501 U.S. at 752 (internal citations omitted). So attorney error cannot constitute "cause" for a procedural default "because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error." Id. at 753 (internal quotation marks omitted). When the State has no constitutional obligation to ensure that a prisoner has competent counsel, the petitioner bears the risk of attorney error. Id. at 754.
In 2012, the Supreme Court decided Martinez v. Ryan, 566 U.S. 1 (2012) which recognized a narrow exception to the rule in Coleman, "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding . . . ." Martinez, 566 U.S. at 17. In those cases, "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance [of counsel] at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Id. What is more, the Supreme Court emphasized that "[t]he rule of Coleman governs in all but the limited circumstances recognized here. . . . It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons." Id. The requirements that a petitioner must satisfy to excuse a procedural default under Martinez are:
Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis and alterations in original).
In Martinez, the Supreme Court considered an Arizona law that did not permit petitioners to raise ineffective assistance claims on direct appeal. Martinez, 566 U.S. at 4. Later in Trevino, 569 U.S. at 429, the Supreme Court extended its holding in Martinez to states where a "procedural framework, by reason of its design and operation, make[] 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 . . . ." Trevino modified the fourth Martinez requirement for overcoming a procedural default. The holdings in Martinez and Trevino apply to Tennessee prisoners. Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014).
Now the Court will turn to the analysis of Petitioner's claims here.
The issues in the amended § 2254 Petition are difficult to decipher and read as follows:
Petitioner alleges:
(ECF No. 40 at PageID 472.) Respondent argues that, if Petitioner contends that the State failed to keep a commitment about a sentence recommendation, Petitioner is barred from bringing this claim under the procedural default doctrine and the claim lacks merit. (ECF No. 77 at PageID 1495-96.) Respondent further contends that none of the allegations raised here state proper federal habeas claims. (Id. at PageID 1496.)
Petitioner's post-conviction record shows that, although he challenged the voluntary nature of his guilty plea during the post-conviction appeal, he failed to raise a claim that the State breached the plea agreement by failing to fulfill a promise. The TCCA did not review that aspect of Issue 1 so that is not exhausted. As a result, this claim is now barred from review by procedural default and is
The computation of Petitioner's prison term is a matter of state law that a petitioner may not present for federal habeas corpus review. Kipen v. Renico, 65 F. App'x 958, 959 (6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 68 (1991)). Fines or restitution orders fall outside the scope of the federal habeas statute because they do not satisfy the "in custody" requirement of a proper habeas claim. See United States v. Watroba, 56 F.3d 28 (6th Cir. 1995) (holding that § 2255 does not grant subject matter jurisdiction over restitution orders); Michaels v. Hackel, 491 F. App'x. 670, 671 (6th Cir. 2012) (stating that a fine is not cognizable under § 2254 and citing Watroba, 56 F.3d at 29); see also Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (holding that fines and restitution orders are improper claims under § 2254); Washington v. Smith, 564 F.3d 1350, 1350-51 (7th Cir. 2009) (same); Tinder v. Paula, 725 F.2d 801, 804 (1st Cir. 1984) (collecting cases); Randy Hertz & James S. Liebman, 1 Federal Habeas Corpus Practice and Procedure § 8.2(e) (6th ed. 2012). "[C]ollateral relief from a noncustodial punishment—such as a fine or restitution order—is not made readily available to a defendant just because he happens at that time to also be subject to custodial penalties." Brian R. Means, Federal Habeas Manual § 1:21 (2012 ed.). These aspects of Issue 1 are improper and are
Petitioner alleges:
(ECF No. 40 at PageID 473.) Respondent argues that Petitioner waived these claims by his guilty pleas and are barred by the procedural default doctrine. (ECF No. 77 at PageID 1497-98.)
The TCCA held that Petitioner entered a knowing and voluntary guilty plea. Delk v. State, 2016 WL 4189718, at *5-*6. Nothing in this petition directly challenges or shows that the TCCA's decision contradicted or involved an unreasonable application of federal law. Neither does Petitioner show that the TCCA's decision was based on an unreasonable determination of the facts. By voluntarily pleading guilty, Petitioner waived all constitutional claims predating his guilty plea. Tollet v. Henderson, 411 U.S. 258, 266-67 (1973). The Court therefore
Petitioner alleges:
(ECF No. 40 at PageID 475.) Respondent argues that the procedural default doctrine bars this claim because Petitioner pleaded guilty. (ECF No. 77 at PageID 1498.)
This Court addressed Petitioner's monetary claim in its discussion of Issue 1. Petitioner should have raised the remaining claims here on direct appeal. But because Petitioner pleaded guilty, there was no appeal. Had he tried to raise these claims during the post-conviction proceedings, Tenn. Code Ann. § 40-30-106(g), would have prohibited review under the doctrine of waiver.
The procedural default doctrine exhausted these claims and Petitioner has no avenue remaining for presenting them, given the state statute of limitations on state post-conviction relief. This procedural default operates as a complete and independent procedural bar to federal habeas review of these claims. Petitioner has presented no evidence that requires review of Issue 3 to prevent a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Issue 3 is therefore barred by procedural default. The Court then
Petitioner next contends:
(ECF No. 40 at PageID 477.) Respondent argues that, because Petitioner pleaded guilty, he cannot now bring this alleged Brady claim in federal court and his claim of ineffective assistance by post-conviction counsel fails to state a proper ground for relief here. (ECF No. 77 at PageID 1500-01.)
Petitioner did not show that the State withheld Brady material during the post-conviction hearing and did not raise a claim of a Brady violation on post-conviction appellate review. If he contends ineffective assistance of post-conviction counsel caused the default of this claim, Martinez does not cover claims that ineffective assistance of post-conviction appellate counsel excuse the procedural default of a claim of ineffective assistance by appellate counsel. See Hodges v. Colson, 727 F.3d at 531. This Court finds no reason to extend the holding in Martinez to claims beyond ineffective assistance of trial counsel. Petitioner's Brady claim is therefore barred by procedural default and is
If Petitioner intended to raise also a freestanding claim of ineffective assistance of post-conviction counsel, ineffective assistance of post-conviction counsel does not constitute grounds for habeas relief. 28 U.S.C. § 2254(i). Even if that were not the case, the Supreme Court has long held that "[t]here is no right to counsel in state post-conviction proceedings" and therefore no right to effective post-conviction counsel. Coleman, 501 U.S. at 752 (citations omitted). Martinez and Trevino did not abrogate that rule. Rather, the Supreme Court recognized that the ineffective assistance of post-conviction counsel may, in narrow circumstances, provide "cause" for the procedural default of a claim of ineffective assistance of trial counsel. Martinez, 566 U.S. at 8-16. Petitioner's claim of ineffective assistance of post-conviction counsel does not provide a cognizable ground for habeas relief and is
In sum, the issues Petitioner raised in his amended petition are barred by procedural default and are improper here. The Court therefore
A petitioner is not entitled to appeal a district court's denial of his § 2254 Petition. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). The Court has to issue or deny a certificate of appealability ("COA") when it enters a final order adverse to a § 2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the United States District Courts. A petitioner may not take an appeal unless a circuit or district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).
The Court may issue a COA only if the petitioner has made a substantial showing of the denial of a constitutional right, and the COA must reflect the specific issue or issues that satisfy the required showing. 28 U.S.C. § 2253(c)(2)-(3). A petitioner makes a "substantial showing" when he shows that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El, 537 U.S. at 336 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)); Henley v. Bell, 308 F. App'x 989, 990 (6th Cir. 2009) (per curiam) (holding a prisoner must show that reasonable jurists could disagree with the district court's resolution of his constitutional claims or that the issues presented warrant encouragement to proceed any more).
A COA does not require a showing that the appeal will succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App'x 809, 814-15 (6th Cir. 2011) (same). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App'x 771, 773 (6th Cir. 2005) (quoting Slack, 537 U.S. at 337).
Here, there can be no question that the claims in this petition are barred by procedural fault and not cognizable. Because any appeal by Petitioner on the issue raised in this petition does not deserve attention, the Court
And for the same reasons the Court denies a certificate of appealability, the Court also finds that any appeal would not be taken in good faith. The Court therefore
