Mills v. Genovese

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

MICHAEL DEON MILLS,, )

) Case No. 3:17-cv-515

Petitioner, )

) Judge Travis R. McDonough

v. )

) Magistrate Judge H. Bruce Guyton

KEVIN GENOVESE, Warden, )

)

Respondent. )

MEMORANDUM OPINION

Petitioner Michael Deon Mills, a Tennessee inmate proceeding pro se, has filed a federal

habeas petition pursuant to 28 U.S.C. § 2254 challenging his Tennessee judgments of conviction

for two counts of especially aggravated kidnapping, one count of especially aggravated robbery,

and one count of aggravated burglary. Having considered the submissions of the parties, the

state-court record, and the law applicable to Petitioner’s claims, the Court finds that the petition

should be denied.

I. SUMMARY OF RELEVANT EVIDENCE & PROCEDURAL HISTORY

At trial, evidence was introduced that Petitioner and several others forced their way into a

home in Knox County, Tennessee, and beat the occupants using a baseball bat and the butt of a

shotgun while committing a robbery. (See, e.g., Doc. 14-2, at 64–107; Doc. 14-3, at 32–58; Doc.

14-4, at 15–29.) An emergency call was placed during the attack, and police arrived while

Petitioner and another assailant were still in the home. (See, e.g., Doc. 14-4, at 22–24, 30–35,

38.) Petitioner was discovered by police “sandwiched in between the bed and the wall in the

bedroom” with a loaded shotgun lying on the bed. (Id. at 38–39.)

One of the assailants testified against Petitioner at trial. (See, e.g., Doc. 14-3, at 71–98.)

During closing arguments, the State argued that “you heard from the one – the only one that has

accepted responsibility in this case – [a co-defendant].” (Doc. 14-5, at 54.) During the State’s

rebuttal argument, the prosecutor stated, “At the end of the day what [the co-defendant] told you

is unrefuted. Absolutely unrefuted.” (Id. at 68.) Petitioner’s trial counsel did not object to either

of these statements. (Id. at 54, 68.)

A Knox County jury convicted Petitioner of two counts of especially aggravated

kidnapping, one count of especially aggravated robbery, and one count of aggravated burglary.

(Doc. 14-6, at 124.) He was sentenced to an effective sentence of twenty-five years. (Doc. 14-1,

at 55–58.) The convictions and sentence were affirmed on appeal. State v. Mills, E2009-01708-

CCA-R3-CD, 2011 WL 13167859, at *4 (Tenn. Crim. App. April 21, 2011), perm. app. denied

(Tenn. July 14, 2011) (“Mills I”). The Tennessee Supreme Court denied discretionary review.

(Doc. 14-15.)

Through post-conviction counsel, Petitioner filed a petition for post-conviction relief and

several amendments thereto. (Doc. 14-16, at 12–20.) At the post-conviction evidentiary hearing,

Petitioner testified that he hired trial counsel after she convinced him that the plea offer of twelve

years at thirty percent to serve that his first attorney obtained for him was not favorable enough.

(Doc. 14-17, at 26–28.) He stated that he had never intended to go to trial, and that his attorney

never discussed with him what penalties he might face if he went to trial. (Id. at 28–29.)

Petitioner maintained that when he learned that he would face trial, he asked his attorney to call

the prosecutor and to secure his plea bargain for a twelve-year sentence, but she advised him that

the prosecutor declined to renew the offer. (Id. at 33–34.) He otherwise claimed that counsel

advised him that the most severe penalty he would face if convicted would be fifteen years at

thirty percent to serve, because everything except the robbery case would get dismissed at trial.

(Id. at 34–35.)

Trial counsel testified that she began representing Petitioner following the termination of

his first retained counsel. (Id. at 62–64.) She stated that Petitioner adamantly refused to plead

guilty and that she “wasn’t even authorized to do any negotiations for [Petitioner] because he

said he was not going to plea.” (Id. at 64, 69–70, 73.) She testified that Petitioner’s father “was

trying to get [Petitioner] to consider” taking a plea but that Petitioner “was adamant that he did

not want to plea[d], he wanted to go to trial.” (Id. at 69.) Trial counsel stated she researched

Petitioner’s sentencing exposure on each charge and advised him that he could receive a sentence

between fifteen and twenty-five years to be served at 100 percent for the especially aggravated

robbery charge. (Id. at 66–67, 69.) She testified that she “never promised [Petitioner] anything.”

(Id. at 68.)

In a written order denying relief, the post-conviction court credited trial counsel’s

testimony and found Petitioner had failed to prove trial counsel’s deficiency. (Doc. 14-16, at 30–

35.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the denial of relief. Mills v.

State, E2016-01544-CCA-R3-PC, 2016 WL 6840484, at *4 (Tenn. Crim. App. Nov. 21, 2016),

perm. app. denied (Tenn. Mar. 8, 2017) (“Mills II”). The Tennessee Supreme Court denied

discretionary review. (Doc. 14-25.)

Thereafter, Petitioner filed the instant petition for writ of habeas corpus, as amended,

raising the following claims: (1) the prosecution improperly commented on Petitioner’s failure

to testify at trial; (2) trial counsel rendered ineffective assistance in misadvising Petitioner of his

sentencing exposure; (3) trial counsel rendered ineffective assistance in failing to object to

improper comments made by the prosecutor at sentencing; and (4) post-conviction counsel

rendered ineffective assistance. (Doc. 5.) Respondent filed an answer on May 18, 2018. (Doc.

15.) This matter is now ripe for the Court’s review.

II. LEGAL STANDARD

The Court’s review of the instant petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any

claim adjudicated on the merits in a State court unless that adjudication (1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established United

States Supreme Court precedent; or (2) resulted in a decision based on an unreasonable

determination of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1), (2);

Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Federal habeas relief may be granted under the “contrary to” clause when the state court

(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or

(2) decides a case differently than the Supreme Court on a set of materially indistinguishable

facts. See Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the “unreasonable

application” clause, a federal court may grant relief when the state court applies the correct legal

principle to the facts in an unreasonable manner. See id. at 407–08; Brown v. Payton, 544 U.S.

133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn

on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The 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.”); Williams, 529

U.S. at 410–11. This standard will allow relief on a federal claim decided on its merits in State

court only where the petitioner demonstrates that the State ruling “was so lacking in justification

that there was an error understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating

the evidence presented in state court, a federal habeas court presumes the correctness of the state

court’s factual findings unless the petitioner rebuts the presumption by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1).

The doctrine of procedural default also limits federal habeas review. See O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner’s procedural default forfeits his federal

habeas claim). A procedural default exists in two circumstances: (1) when the petitioner fails to

exhaust all of his available state remedies, and the state court to which he would be required to

litigate the matter would now find the claims procedurally barred, and (2) when a state court

clearly and expressly bases its dismissal of a claim on a state procedural rule, and that rule

provides an independent and adequate basis for the dismissal. See, e.g., Coleman v. Thompson,

501 U.S. 722, 731–32, 735 n.1 (1991). A procedural default may be circumvented, allowing

federal habeas review of the claim, only if the prisoner can show cause and actual prejudice for

the default, or that a failure to address the merits of the claim would result in a fundamental

miscarriage of justice. Id. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 87, 90–91 (1977).

“Cause” is established when a petitioner show somes objective external factor impeded

defense counsel’s ability to comply with the State’s procedural rules, or that his trial counsel

rendered ineffective assistance. See id. at 753. The prejudice demonstrated to overcome the

default must be actual, not merely a possibility of prejudice. See Maupin v. Smith, 785 F.2d 135,

139 (6th Cir. 1986) (citations omitted); see also United States v. Frady, 456 U.S. 152, 170 (1982)

(holding prejudice showing requires petitioner to bear “the burden of showing, not merely that

errors [in the proceeding] created a possibility of prejudice, but that they worked to his actual

and substantial disadvantage, infecting his entire [proceeding] with error of constitutional

dimension”) (emphasis in original). A fundamental miscarriage of justice of occurs “where a

constitutional violation has probably resulted in the conviction of one who is actually innocent.”

Murray v. Carrier, 477 U.S. 478, 496 (1986).

III. DISCUSSION

A. Procedurally Defaulted Claims

1. Prosecutorial Misconduct

In Claim 1, Petitioner alleges that the prosecution made improper comments on his

failure to testify at trial. (Doc. 5, at 6–7.) This claim was held waived on direct appeal based on

Petitioner’s failure to lodge a contemporaneous objection to the alleged error at trial. Mills I,

2011 WL 13167859, at *4. Petitioner does not acknowledge his default of this claim and instead

maintains that he exhausted his state-court remedies with regard to this claim by raising the

claim on direct appeal. (Doc. 5, at 7.)

However, as the Court noted above, failure to comply with a state procedural rule will

foreclose habeas review of a claim if the decision of the state court rested on the state-law rule,

and it is independent of the federal question and adequate to support the judgment. See, e.g.,

Walker v. Martin, 562 U.S. 307, 315 (2011). To determine whether a habeas claim is precluded

by the failure to observe a State procedural rule, a reviewing court must determine: (1) whether

an applicable rule exists with which the petitioner failed to comply; (2) whether the state courts

actually enforced the rule; (3) whether the rule is an adequate and independent state rule on

which the state can rely to foreclose review of the federal claim; and (4) whether cause exists for

the petitioner’s failure to follow the rule, and that he was prejudiced by the alleged error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).

The Court finds that the waiver rule articulated in Tennessee Rule of Appellate Procedure

36(a) and relied upon by the TCCA constitutes a firmly established and regularly enforced

independent rule that precludes this Court’s review of the instant claim. See Hugueley v.

Westbrooks, No. 09-1181-JDB-EGB, 2017 WL 3325008, at *23 (W.D. Tenn. Aug. 3, 2017); see

also State v. Willis, 496 S.W.3d 653, 755 (Tenn. 2016) (waiving challenge to prosecutorial

comments where defendant failed to object at trial); State v. Armstrong, 256 S.W.3d 243, 249

(Tenn. 2008) (noting failure to contemporaneously object to prosecutor’s comments waives

challenge). Therefore, the rejection of this claim by the state court rested on a state-law rule

independent of the federal question and adequate to support the judgment. See Coleman, 501

U.S. at 738; Walker, 562 U.S. at 315. Petitioner has neither demonstrated cause and prejudice

for the default, nor that a fundamental miscarriage of justice would result from failure to consider

this claim.1 Accordingly, federal habeas relief will be denied.

2. Ineffective Assistance of Counsel Based on Counsel’s Failure to

Object to Prosecution’s Improper Comments at Sentencing

In Claim 3, Petitioner alleges the ineffective assistance of trial counsel based on counsel’s

failure to object to the prosecution’s improper comments at sentencing. This claim was raised in

Petitioner’s initial post-conviction petition but was abandoned on post-conviction appeal. (See

Doc. 14-16, at 16; Doc. 14-20.)

A claim must be presented to the TCCA in order to meet the AEDPA’s exhaustion

requirement. See Adams v. Holland, 330 F.3d 398 (6th Cir. 2003); see also Tenn. S. Ct. R. 39

(establishing presentation of claim to TCCA is sufficient to exhaust State remedies). Therefore,

by failing to pursue this claim to the TCCA, Petitioner failed to fully exhaust this claim. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that proper exhaustion requires

petitioner to pursue claim through “one complete round of the State’s established appellate

1 The Court otherwise notes that the TCCA reviewed this claim for plain error and determined

that none existed, since the jury was properly instructed that it could not place any significance

on Petitioner’s choice not to testify at trial (see Doc. 14-6, at 113) and the proof against him “was

overwhelming.” Mills I, 2011 WL 13167859, at *5.

review process”). Because there is no avenue by which Petitioner may now obtain state-court

review of this claim, it is technically exhausted but procedurally defaulted by Tennessee’s

applicable statute of limitation and prohibition against successive petitions. See Jones v. Bagley,

696 F.3d 475, 483 (6th Cir. 2012) (“When a petitioner has failed to present a legal issue to the

state courts and no state remedy remains available, the issue is procedurally defaulted.”); see also

Tenn. Code Ann. § 40-30-102(a) (one-year limitation period) and § 40-30-102(c) (“one petition”

rule).

Petitioner has not argued that a fundamental miscarriage of justice would result from

failure to review the claims. He has, however, claimed that post-conviction counsel rendered

ineffective assistance in failing to pursue this claim. (See Doc. 5, at 14.) In some circumstances,

the ineffective assistance of post-conviction counsel may provide cause to excuse the default of a

substantial ineffective-assistance of trial counsel claim. See Martinez v. Ryan, 566 U.S. 1, 9, 14

(2012). In this case, however, Petitioner cannot avail himself of the Martinez exception to secure

review of this claim, because this claim was raised in the initial collateral-review proceeding but

defaulted on post-conviction appellate review. See West v. Carpenter, 790 F.3d 693, 698 (6th

Cir. 2015) (finding ineffectiveness of post-conviction counsel sufficient to establish “cause” does

not apply “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”) (citation omitted)). Accordingly, this claim is defaulted and barred from review.

B. Ineffective Assistance of Counsel Based on Counsel’s Advice Regarding

Petitioner’s Sentencing Exposure

In Claim 2, Petitioner alleges that his trial counsel rendered ineffective assistance in

misadvising him regarding his sentencing exposure. (Doc. 5, at 9.) Petitioner states that trial

counsel allegedly told him that “the kidnapping charges were going to be dismissed . . . and that

the worst he could get would be 15 years at 30 [percent].” (Id.) Petitioner further states that

counsel told him “that the case was just really on aggravated assault,” and that, based on

counsel’s advice, he “turned down a plea offer of 12 years.” (Id.)

Claims of ineffective assistance of counsel are governed by the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), which requires a habeas petitioner to satisfy a

two-prong test to warrant federal habeas corpus relief: (1) he must demonstrate constitutionally

deficient performance, and (2) he must demonstrate actual prejudice as a result of such

ineffective assistance. Strickland, 466 U.S. 668 (1984). Deficiency is established when a

petitioner can demonstrate that counsel’s performance falls below an objective standard of

reasonableness as measured by professional norms, such that counsel was not functioning as the

“counsel” guaranteed by the Sixth Amendment. Id. at 687–88. A reviewing court’s scrutiny is

to be highly deferential of counsel’s performance, with an effort to “eliminate the distorting

effects of hindsight.” Id. at 689. In fact, counsel is to be afforded a presumption that his actions

were the product of “sound trial strategy” and undertaken with the exercise of reasonable

professional judgment. Id. Prejudice is established when the petitioner can demonstrate to a

reasonable probability that the result of the proceedings would have been different but for the

challenged conduct, thereby undermining confidence in the reliability of the outcome. Id. at 694.

However, an error, even if professionally unreasonable, does not warrant setting aside the

judgment if it had no effect on the judgment. Id. at 691.

On habeas review, the issue for the district court is not whether the Strickland standard is

met, but rather, whether the State-court’s decision that Strickland was not met warrants relief

under AEDPA standards. See Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When 2254(d)

applies, the question is not whether counsel’s actions were reasonable. The question is whether

there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”).

Accordingly, when a Strickland claim has been rejected on its merits by a State court, a

petitioner “must demonstrate that it was necessarily unreasonable” for the State court to rule as it

did in order to obtain federal habeas relief. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

Trial counsel’s testimony that she properly advised Petitioner of his sentencing exposure,

that she never promised him any particular outcome, and that Petitioner adamantly refused to

consider taking a plea, was credited by the post-conviction court. (See Doc. 14-17, at 66, 69, 72–

73.) This Court must defer to those credibility findings absent “powerful” evidence to the

contrary. Miller-El v. Dretke, 545 U.S. 231, 265 (2005); see also Miller-El v.Cockrell, 537 U.S.

322, 339 (2003) (holding “[d]eference is necessary because a reviewing court, which analyzes

only the transcripts[,] . . . is not as well positioned as the trial court to make credibility

determinations”). After a review of the record, the Court agrees with the TCCA’s assessment

that “[t]he evidence in the record does not preponderate against the post-conviction court’s

findings.” Mills II, 2016 WL 6840484, at *7. Therefore, the Court finds that Petitioner has not

shown that the TCCA’s decision rejecting this claim was contrary to, or that it involved an

unreasonable application of, Strickland and its progeny, or that it was based on an unreasonable

determination of facts in light of the evidence presented. This claim does not warrant federal

habeas relief.

C. Ineffective Assistance of Post-Conviction Counsel

In his fourth and final claim for relief, Petitioner alleges that post-conviction counsel

rendered ineffective assistance by doing “virtually nothing to represent” him in the initial

collateral-review hearing. (Doc. 5, at 15.)2 However, a freestanding claim that post-conviction

counsel was ineffective is not a cognizable basis for federal habeas relief. See 28 U.S.C. §

2254(i) (determining ineffectiveness of collateral-review counsel is not a basis for federal

habeas relief); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that

prisoners have a constitutional right to counsel when mounting collateral attacks upon their

convictions[.]”); Coleman, 501 U.S. at 752 (“There is no constitutional right to an attorney in

state post-conviction proceedings.”); Wallace v. Sexton, 570 F. App’x 443, 454 (6th Cir. 2014)

(finding “[t]he Supreme Court has not recognized ineffective assistance of post-conviction

counsel as a free-standing constitutional claim”). Because Petitioner possesses no constitutional

right to post-conviction counsel, he has no extant right to the effective assistance of such

counsel. Therefore, this claim is not cognizable on federal habeas review, and it must be

dismissed.

IV. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability (“COA”) before he may appeal this

Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue

unless a petitioner makes “a substantial showing of the denial of a constitutional right” of any

claim rejected on its merits, which a petitioner may do by demonstrating that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.” 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim

that has been rejected on procedural grounds, a petitioner must demonstrate “that jurists of

2 The Court notes, however, that at the post-conviction evidentiary hearing, Petitioner agreed that

he had “no concerns or complaints about any representation by [post-conviction counsel] in his

representation of [Petitioner] on direct appeal and on [his] petition for post-conviction relief” and

that he had waived the right to later claim that post-conviction counsel had “done anything wrong

in his representation” of Petitioner. (Doc. 14-17, at 5.)

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.” Slack, 529 U.S. at 484. Applying this standard, the Court

concludes that a COA should be denied in this case.

V. CONCLUSION

Petitioner has failed to demonstrate an entitlement to federal habeas relief. Therefore, his

petition for a writ of habeas corpus will be DENIED, and this action will be DISMISSED

WITH PREJUDICE. A certificate of appealability from this decision will be DENIED.

Further, the Court will CERTIFY that any appeal from this action would not be taken in

good faith and would be totally frivolous. Fed. R. App. P. 24.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE