Clevenger v. Heidle

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

SCOTT CLEVENGER, )

)

Petitioner, )

)

v. ) No.: 1:13-CV-279-HSM-SKL

)

ERIC QUALLS, Warden, )

)

Respondent. )

MEMORANDUM OPINION

Petitioner Scott Clevenger, a Tennessee inmate proceeding pro se, has filed a federal

habeas petition pursuant to 28 U.S.C. § 2254 challenging his Tennessee convictions and sentences

for rape of a child, aggravated sexual battery, and incest. Having considered the submissions of

the parties, the State-court record, and the law applicable to Clevenger’s claims, the Court finds

that the petition should be denied.

I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

The Tennessee Court of Criminal Appeals (“TCCA”) summarized the facts of this case as

follows:

The victim, K.G., is the stepdaughter of the Appellant [Clevenger], and the victim,

S.C., is the Appellant’s daughter. On February 25, 2006, seventeen-year-old K.G.

confided in her sister S.C., who was fifteen, that the Appellant had reinitiated sexual

contact with her after believing that the ongoing molestation had ended. The

following day, the victims reported the incident to the Grainger County Sheriff’s

Department and informed officers that the Appellant had been sexually abusing

both of them over a period of years. After the two victims were interviewed by

Department of Children’s Services (“DCS”) investigators, the Appellant was

interviewed by Officer Maness of the sheriff’s department. Maness orally advised

the Appellant of his rights, including the right to remain silent and the right to an

attorney, before questioning the Appellant. Although the Appellant initially denied

any wrongdoing, he eventually gave four written statements during the course of

the interview, admitting sexual penetration and contact with both victims.

According to Maness, the Appellant was, prior to the giving of each of the four

statements, read his rights. Each statement was signed by the Appellant and

included a separate signed acknowledgment, also signed by the Appellant, waiving

his Fifth Amendment rights. The four signed statements by the Appellant, with

accompanying signed waiver of rights forms, were introduced as exhibits at the

hearing.

Following his indictment on August 15, 2006, by a Grainger County grand jury for

one count of aggravated sexual battery involving the victim K.G., one count of rape

of a child involving the victim S.C., and two counts of incest, one of K.G. and one

of S.C., the Appellant filed a motion to suppress his statements to Officer Maness.

A hearing on the motion was held on December 6, 2006, immediately prior to

commencement of the trial. At the hearing, the Appellant testified that he did not

recall being informed of his Miranda rights. He acknowledged that he “signed some

papers after the questioning,” but he claimed that he did not recall what the papers

were. Moreover, he insisted that he signed the papers after he had given his

statements to police. However, Officer Maness testified that he informed the

Appellant of his rights “each time before he gave [the four] statements.”

Additionally, he stated that he had specifically asked the Appellant each time if he

understood his rights and, further, reminded the Appellant of his rights following

each break that was taken during the questioning.

Tape recordings of the interview with the Appellant were admitted into evidence at

the hearing as well. No indication of Miranda warnings was audible on the tape,

with the only mention of the rights being “at the beginning of one ... tape, [the

Appellant] was advised that he had been read his rights.” When asked why the

warning as given did not appear on the tapes, Maness stated that he did not know

“whether [the rights portion of the interview] were taped or not.” The trial court,

after hearing the testimony presented, accredited the testimony of Officer Maness

and denied the Appellant’s motion to suppress, finding that the Appellant had

knowingly and voluntarily waived his constitutional rights as provided by Miranda.

At trial, S.C. testified that she had been sexually molested and raped by the

Appellant and that the incidents had beg[u]n when she was six years old. The first

incident involved her father forcing her and her stepsister, K.G., to “perform oral

sex on him, and he was touching us in places like down below...[.]” She also

testified regarding a 2002 incident, when she was twelve years old, during which

the Appellant took her into his bedroom, “and he penetrated me that night ... and he

performed oral sex [on her] ... [and] made her” perform oral sex on him. S.C. also

testified to a specific incident occurring in 2004, during which the Appellant had

her “on the couch and he was trying to do things with [her]. Once again it was oral,

and then he tried to stick his penis in [her] vagina and it hurt ... and he quit.”

K.G. also testified at trial that she had been sexually molested and raped by the

Appellant, stating the abuse began when she was nine years old with an incident

involving both her and S.C. during which the Appellant fondled her, touched her,

and made her perform oral sex on the Appellant. She stated that the abuse continued

until 2006, with the final incident occurring on February 25. According to K.G.,

she was lying on a futon with her eyes closed. She assumed the Appellant thought

her to be asleep. According to K.G., the Appellant was “sticking his fingers in me

and everything, and then oral sex again.”

At trial, Officer Maness read the Appellant’s four statements into the record. The

Appellant testified and denied that any of the incidents had occurred. He testified

that he only gave the statements to police after he was questioned for four and a

half hours and that he signed the statements because he “was scared mostly ... and

didn’t want to see my girls hurt or go through any pain or suffering.” According to

the Appellant, he informed the officers that he had problems with his memory due

to heavy drug usage, and they gave him “hints” and convinced him that the

incidents had occurred.

State v. Clevenger, No. E2007-00298-CCA-R3-CD, 2008 WL 588862, at *1–2 (Tenn. Crim.

App. Mar. 5, 2008) (“Clevenger I”) (footnotes omitted).

Clevenger was ultimately convicted by a Grainger County jury of one count of aggravated

sexual battery, one count of rape of a child, and two counts of incest. Id. at *1. He was sentenced

to consecutive sentences of 9 years for aggravated sexual battery, 25 years for rape of a child, and

6 years for one count of incest and 10 years for the second count, resulting in a total sentence of

50 years. Id.

On direct appeal, Clevenger argued only that his statements should have been suppressed

due to an alleged Miranda1 violation. Id. at *1. The TCCA deemed the issue waived because

Clevenger failed to present the issue in a motion for a new trial. Id. at *3. In the alternative, the

TCCA upheld the trial court’s determination that Clevenger knowingly and voluntarily waived his

Miranda rights. Id. at *4.

On October 16, 2008, Clevenger filed a pro se petition for post-conviction relief [Doc. 28-

18 p. 4-22]. Counsel was subsequently appointed, and counsel filed an amendment to the petition

alleging that Clevenger’s statements should have been suppressed [Id. at 32-33, 41]. On June 18,

1 Miranda v. Arizona, 384 U.S. 436, 444 (1966).

2009, the State filed an answer to the petition stating that Clevenger was entitled to file a motion

for a new trial [Id. at 45]. On July 14, 2009, Clevenger filed a motion for a new trial alleging, once

again, that his statements should have been suppressed. [Id. at 47-49]. On December 7, 2009, the

trial court denied the motion for a new trial and granted a delayed appeal [Doc. 28-10 p. 50-51].

On May 2, 2011, the TCCA determined that the Miranda issue had been previously determined in

the original direct appeal and denied the delayed appeal. State v. Clevenger, No. E2010-00077-

CCA-R3-CD, 2011 WL 1660580, at *3-4 (Tenn. Crim. App. May 2, 2011); perm. app. denied

(Tenn. Jul. 15, 2011) (“Clevenger II”). The Tennessee Supreme Court (“TSC”) denied

Clevenger’s application for discretionary review on July 15, 2011 [Doc. 28-17].

On April 22, 2013, following the delayed appeal, the State post-conviction court held an

evidentiary hearing on Clevenger’s post-conviction claims [Doc. 28-23]. Post-conviction relief

was denied following the hearing [Doc. 28-18 p. 62-64]. The TCCA affirmed the denial of post-

conviction relief on July 29, 2014. Clevenger v. State, E2013-01786-CCA-R3-PC, 2014 WL

3744274 (Tenn. Crim. App. Jul. 29, 2014); perm. app. denied (Tenn. Nov. 21, 2014) (“Clevenger

III”). The TSC denied Clevenger’s application for discretionary review on November 21, 2014.

[Doc. 22-29].

On or about August 23, 2013, while Clevenger’s post-conviction proceedings were

ongoing, Clevenger filed the instant action raising the following grounds for relief, as paraphrased

by the Court:

Ground One: Ineffective assistance of trial counsel

Ground Two: Denial of motion to suppress

Ground Three: Sufficiency of the evidence

[Doc. 2]. Respondent and Petitioner each moved to stay these proceedings pending the resolution

of Clevenger’s post-conviction action, and the Court granted the motions, thereby staying this

action and holding the petition in abeyance [See Docs. 7, 14, & 15]. After the conclusion of

Clevenger’s State-court proceedings, the Court ordered Respondent to respond to Clevenger’s

federal habeas petition and directed the Clerk to automatically lift the stay of these proceedings

upon receipt of the response [Doc. 26]. Respondent answered the petition on November 21, 2018

[Doc. 30]. Clevenger filed a reply to the response on December 6, 2018 [Doc. 32].

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 where 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 where 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) where 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) where 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 where 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 where a petitioner can show some 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. Additionally, 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. Ineffective assistance of counsel

Clevenger alleges that trial counsel rendered ineffective assistance in failing to: (1)

adequately cross-examine the State’s witnesses; (2) question why a rape kit was not performed on

the victim; (3) call witnesses; (4) file a motion for a new trial; and (5) file a motion to dismiss his

statements to police on Miranda grounds [Doc. 2 p. 27-29].

Clevenger raised numerous claims of ineffective assistance of counsel on post-conviction

review, including the federal habeas claims he presents here [Doc. 28-18 p. 4-19, 31-33, & 39-40].

However, on appeal from the post-conviction court’s denial of relief, Clevenger alleged only that

trial counsel was ineffective for “not meeting with [Clevenger] an adequate enough amount of

times to discuss his case, failing to give [Clevenger] adequate information as to make an informed

decision regarding the case with only, at best, going over the discovery and not giving [Clevenger]

a copy of the discovery for him to look over on his own time” [Doc. 28-24 p. 8].

A claim must be presented to the TCCA in order to be exhausted under 28 U.S.C. §

2254(b). 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 these discrete habeas claims to the TCCA on appeal, Clevenger failed to fully

exhaust these claims. 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 review process”). Accordingly, these claims are technically exhausted but

procedurally defaulted. 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).

Clevenger argues that he can establish “cause” for any default of these claims, as his post-

conviction counsel is at fault for failing to carry his federal habeas claims forward on appeal [See

Doc. 32]. Generally, the ineffective assistance of post-conviction counsel cannot serve as cause

for a procedural default. Coleman, 501 U.S. at 754. The Supreme Court altered the general rule

in Martinez v. Ryan, holding that “inadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective

assistance at trial.” Martinez, 566 U.S. 1, 9 (2012). However, the rule in Martinez “does not

concern attorney errors in other kinds of proceedings, including appeals from initial-review

collateral proceedings[.]” Id. at 16. Thus, Martinez does not apply to a claim of ineffective

assistance of trial counsel raised in the initial-review collateral stages but defaulted on appeal, as

is the case here [Doc. 28-18 p. 62-64; Doc. 28-24 p. 8]. See Middlebrooks v. Carpenter, 843 F.3d

1127, 1136 (6th Cir. 2016) (stating that Martinez did not apply “because those claims were raised

and rejected on the merits by the initial postconviction court, and ineffective assistance of counsel

on post-conviction appeal cannot establish ‘cause’ to excuse [petitioner]’s procedural default,

which occurred only in the Tennessee Court of Criminal Appeals”); West v. Carpenter, 790 F.3d

693, 698 (6th Cir. 2015) (stating that Martinez does not apply to a claim the petitioner raised in

the initial review post-conviction proceeding but failed to preserve on appeal). Therefore, any

alleged ineffectiveness of post-conviction counsel cannot serve as cause to excuse the default of

these claims, and they must be dismissed.

2. Sufficiency of the evidence

Clevenger alleges that the evidence presented at his trial is legally insufficient to support

his convictions, as no rape kit was conducted on the victim, and therefore, “there is no evidence to

the rape” [Doc. 2 p. 30].

As noted above, a claim must be presented to the TCCA in order to be exhausted under 28

U.S.C. § 2254(b). See Adams, 330 F.3d at 398; see also Tenn. S. Ct. R. 39. Clevenger never

presented this claim to the State courts, and he is now barred by State procedural rules from

returning to pursue this claim. See Tenn. Code Ann. § 40-30-102(a) (one-year limitation period)

and § 40-30-102(c) (“one petition” rule). Accordingly, this claim is technically exhausted but

procedurally defaulted. See Jones, 696 F.3d at 483 (“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.”). However, Clevenger does not allege any cognizable cause for his default or make

any showing of resulting prejudice. Accordingly, this claim must be dismissed.

Alternatively, the Court notes that a federal habeas petitioner can successfully challenge

the sufficiency of the evidence only when the evidence, viewed in the light most favorable to the

prosecution, is such that no reasonable fact finder “could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Court

notes that in making this claim, Clevenger discounts the victim’s extensive testimony about

Clevenger’s abuse against her and her sister, which was sufficient to satisfy the Jackson standard

[Doc. 28-2 p. 28-34]. Therefore, even in the alternative, Clevenger is not entitled to relief.

B. Suppression of statement to law enforcement

In another ground for relief, Clevenger asserts that he was never advised of his Miranda

rights, and therefore, his inculpatory statements to police should have been suppressed [Doc. 2 p.

29-30].

Clevenger presented this claim on his delayed appeal [Doc. 28-12 p. 676-81]. Employing

a totality of the circumstances test, the TCCA found that Clevenger “knowingly and voluntarily

waived his Miranda rights,” and that such a conclusion was supported by “four signed waivers of

rights” Clevenger executed. Clevenger II, 2011 WL 1660580, at *2 (citing Clevenger I, 2008 WL

588862, at *4).

In Miranda v. Arizona, the Supreme Court held that, prior to a custodial interrogation, an

accused must be advised of certain rights, such as the right to silence and the right to counsel, to

protect his privilege against self-incrimination. Miranda, 384 U.S. 436, 444 (1966). These rights

may be waived, provided that, under the totality of the circumstances, the waiver is made

“voluntarily, knowingly[,] and intelligently.” Miranda, 384 U.S. at 445; Clark v. Mitchell, 425

F.3d 270, 283 (6th Cir. 2005). In deciding the validity of a waiver, courts examine “the particular

facts and circumstances surrounding [the] case, including the background, experience, and conduct

of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

In this case, Officer Maness testified at the suppression hearing that Clevenger’s Miranda

warnings were offered before each of his statements [Doc. 28-2 p. 5]. He testified that Clevenger

“signed the statement, and again, his was given his Miranda warning. His Miranda rights were

read to him. He also read the Miranda rights. He signed each Miranda waiver on the back of the

statement that was written” [Id. at *5-6; Doc. 28-11 p. 3-10]. Officer Maness stated that he asked

Clevenger if he understood his rights each time they were read [Doc. 28-2 p. 8]. The trial court

determined that Clevenger’s statements were given “with a full knowledge of his constitutional

rights” and “without any coercion or threats” [Doc. 28-2 p. 15].

Therefore, in light of the record before the Court, it finds that the decision rejecting

Clevenger’s Miranda claim is not contrary to, nor does it involve an unreasonable application of,

clearly established federal law, and it is not based on an unreasonable determination of facts in

light of the evidence presented. Accordingly, this claim is 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 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

Clevenger 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/ Harry S. Mattice, Jr._______

HARRY S. MATTICE, JR.

UNITED STATES DISTRICT JUDGE