Allen v. Lindamood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

JAMES HENRY ALLEN, )

)

Petitioner, )

)

v. ) No. 2:18-CV-147-RLJ-CRW

)

WARDEN CHERRY LINDAMOOD, )

)

Respondent. )

MEMORANDUM OPINION

This is a prisoner’s pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254 in which Petitioner challenges his convictions for first degree murder and unlawful

possession of a deadly weapon with the intent to employ it in the commission of first-degree

murder. After reviewing the relevant filings, including the state court record, the Court finds that

the record establishes that Petitioner is not entitled to relief under § 2254. Accordingly, no

evidentiary hearing is warranted, see Rules Governing § 2254 Cases, Rule 8(a) and Schriro v.

Landrigan, 550 U.S. 465, 474 (2007), the petition for habeas corpus relief will be DENIED, and

this action will be DISMISSED.

I. BACKGROUND

On May 10, 2010, Deborah Keplinger, Petitioner’s ex-wife with whom he was romantically

involved periodically after their divorce, was at her home, where Petitioner had previously resided

with her, with Richard Carter (“the victim”). State of Tennessee v. Allen, No. E2014-00529-CCA-

R3-CD, 2015 WL 303479, at *1–2 (Tenn. Crim. Ct. App. Jan. 23, 2015), perm. app. denied (Tenn.

Aug. 13, 2015) (“Allen I”). After both dogs at her house began barking, Mrs. Keplinger opened a

door to a porch to let her “‘inside’” dog out. Id. at 2. When she did so, she tried to turn on the

porch light, but it did not come on. Id. Mrs. Keplinger then asked the victim whether they had

just changed that light bulb, which the victim confirmed before approaching the porch door and

looking through the window. Id. While he did this, Mrs. Keplinger walked into the kitchen, at

which point she “heard what sounded like ‘fireworks’ and ‘popping sounds’ coming from outside

of the home.” Id. Mrs. Keplinger realized they were gun shots and ran to the door. Id. The glass

from the window on the door was shattered and the victim, who was still standing in front of the

door, stated he had been shot before falling to the floor. Id.

Mrs. Keplinger called 911. Id. During this phone call, a recording of which the trial court

admitted into evidence at Petitioner’s trial despite objection by Petitioner’s counsel, “Mrs.

Keplinger was often hysterical, stating more than once that it was probably her ‘ex’ that was

responsible for the shooting.” Id. at 4. Mrs. Keplinger also cried and pleaded for help, and gave

Petitioner’s name, a description of his car, and his address to the 911 dispatcher. Id.

The victim died as a result of the shooting, and police located Petitioner and took him in

for an interview. Id. at *2–3. In this interview, which police did not record because the recording

equipment in the room was not working, Petitioner told police that seeing Mrs. Keplinger and the

victim hug through the window of her residence made him angry and made him “‘snap.’” Id. at

*4–5. Petitioner then obtained a gun that he had hidden previously, went to Mrs. Keplinger’s

house, and unscrewed a light bulb on her porch because he did not want to be seen. Id.

After the dogs at Mrs. Keplinger’s house started barking, Petitioner saw Mrs. Keplinger

open and close the front door, then saw the victim’s face in the window of the door, at which point

Petitioner shot one or two “‘warning shot[s]’” in the air. Id. Petitioner then shot through the door

of the house several times, which he explained by stating that his daughter had told him the victim

had been carrying a gun and that he thought it looked like the victim was pulling up a gun. Id. An

officer took notes during Petitioner’s police interview, from which he created a written statement

that Petitioner signed. Id. at *4.

A grand jury from Washington County, Tennessee indicted Petitioner for first-degree

murder, unlawful possession of a deadly weapon with the intent to use it in committing first-degree

murder, and violation of an order of protection. Id. at *1. Prior to trial, Petitioner’s counsel filed

a motion to suppress his statement to police from the evidence on the ground that police had not

given him Miranda warnings before this interview. Id. at *3. However, the trial court denied this

motion after a hearing, and specifically discredited Petitioner’s testimony at the hearing that the

signature on the Miranda rights waiver form was not his and that he was not sure whether his

signature was on certain pages of his written statement. Id.

During Petitioner’s trial, the trial court dropped the charge against him for violation of the

order of protection. Id. at *1. Also, police testimony at Petitioner’s trial showed that when police

arrived at Mrs. Keplinger’s residence after the shooting, they found the porch light outside was not

working. Id. at *4. Additionally, an agent from the Tennessee Bureau of Investigation (“TBI”)

testified that a bullet retrieved from the ceiling of Mrs. Keplinger’s residence came from a rifle

obtained from Petitioner. Id. at *5. However, he was unable to determine whether a bullet found

in the wall of that house came from the same rifle due to its damage but noted that the second

bullet “has a lot of the same characteristics.” Id. The same TBI agent further testified that the

door from the residence, which he examined in the courtroom, indicated that six bullets had passed

through the door from the outside to the inside, and that the glass on the door was cratered in a

way that indicated the bullet that had penetrated it had also come from the outside. Id.

Based on this and other evidence, the jury convicted Petitioner of both remaining charges

against him. Id. at *6. Petitioner received a sentence of life imprisonment with the possibility of

parole for his first-degree murder conviction, and one year for his conviction for possession of a

weapon during the commission of the first-degree murder, to be served concurrently. Id. Petitioner

appealed, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed, id. at *14, and the

Tennessee Supreme Court denied Petitioner permission to appeal [Doc. 19].

Petitioner then filed a petition for post-conviction relief alleging claims for ineffective

assistance of counsel, which the post-conviction court denied after a hearing. Allen v. State of

Tennessee, No. E2017-01043-CCA-R3-PC, 2018 WL 994046, at *1 (Tenn. Crim. App. Feb. 20,

2018), perm. app. denied (May 16, 2018) (“Allen II”). The TCCA affirmed, id. at * 5, and the

Tennessee Supreme Court denied Petitioner permission to appeal [Doc. 10-28].

Now before the Court is Petitioner’s pro se petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254, in which he asserts (1) a claim challenging the sufficiency of the evidence for

his convictions [Doc. 1 p. 4–6]; (2) several claims for ineffective assistance of trial counsel [Id. at

6–8]; and (3) a claim challenging his life imprisonment sentence as excessive [Id. at 9].

Respondent filed a response in opposition to the petition [Doc. 13], as well as the state record

[Doc. 10]. Petitioner did not file a reply, and his time for doing so has passed [Doc. 9 p. 1].

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28

U.S.C. § 2254, et. seq., a district court may not grant habeas corpus relief for a claim that a state

court decided on the merits unless the state court’s adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

state court proceeding.

28 U.S.C. § 2254(d)(1)–(2).

The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,

676 (6th Cir. 2011) (noting that Ҥ 2254(d), as amended by AEDPA, is a purposefully demanding

standard . . . ‘because it was meant to be’”) (quoting Harrington v. Richter, 131 S. Ct. 770, 786

(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 that presumption

with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

III. ANALYSIS

The Court will first address Petitioner’s claim challenging the sufficiency of the evidence

supporting his first-degree murder conviction, which he exhausted with the TCCA, before

addressing the remaining claims.

A. Sufficiency of the Evidence

Petitioner challenges the sufficiency of the evidence for his first-degree murder conviction1

[Doc. 1 p. 4–5]. Petitioner presented this claim to the TCCA in his direct appeal, and the TCCA

found it had no merit. Allen I, at *13–14.

Petitioner has not established that he is entitled to relief under § 2254 for this claim. In the

relevant portion of its opinion addressing this claim, the TCCA first correctly noted that the United

States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307 (1979), provides the

controlling rule for such claims, before citing a number of Tennessee state court decisions

regarding claims challenging the sufficiency of the evidence. Allen I, at *13. In Jackson, the

Supreme Court held that the evidence is sufficient to sustain a conviction if, viewing the evidence

1 As noted above, Petitioner challenges the sufficiency of the evidence for both of his

convictions in his petition [Doc. 1 p. 4–5]. However, as set forth more fully below, Petitioner

procedurally defaulted this sufficiency of evidence claim for his unlawful possession of a deadly

weapon conviction. Thus, the Court will address it separately.

in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. Id.; Jackson, 443 U.S. at 319.

After setting forth the Jackson standard for Petitioner’s claim challenging the sufficiency

of the evidence for his first-degree murder conviction, the TCCA analyzed the claim as follows:

First degree murder is described as “[a] premeditated and intentional killing of

another....” T.C.A. § 39–13–202(a). Tennessee Code Annotated section 39–13–

202(d) provides that:

“[P]remeditation” is an act done after the exercise of reflection and

judgment. “Premeditation” means that the intent to kill must have

been formed prior to the act itself. It is not necessary that the

purpose to kill pre-exist in the mind of the accused for any definite

period of time. The mental state of the accused at the time the

accused allegedly decided to kill must be carefully considered in

order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

An intentional act requires that the person have the desire to engage in the conduct

or cause the result. T.C.A. § 39–11–106(a)(18). Whether the evidence was

sufficient depends entirely on whether the State was able to establish beyond a

reasonable doubt the element of premeditation. See State v. Sims, 45 S.W.3d 1, 7

(Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). Whether

premeditation is present is a question of fact for the jury, and it may be inferred

from the circumstances surrounding the killing. State v. Young, 196 S.W.3d 85,

108 (Tenn. 2006); see also State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State

v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998).

Premeditation may be proved by circumstantial evidence. See, e.g., State v.

Brown, 836 S.W.2d 530, 541–42 (Tenn. 1992). Our supreme court has identified a

number of circumstances from which the jury may infer premeditation: (1) the use

of a deadly weapon upon an unarmed victim; (2) the particular cruelty of the killing;

(3) the defendant’s threats or declarations of intent to kill; (4) the defendant’s

procurement of a weapon; (5) any preparations to conceal the crime undertaken

before the crime is committed; (6) destruction or secretion of evidence of the

killing; and (7) a defendant’s calmness immediately after the killing. State v.

Bland, 958 S.W.2d 651, 660 (Tenn. 1997); Pike, 978 S.W.2d at 914–15. This list,

however, is not exhaustive and serves only to demonstrate that premeditation may

be established by any evidence from which the jury may infer that the killing was

done “after the exercise of reflection and judgment.” T.C.A. § 39–13–

202(d); see Pike, 978 S.W.2d at 914–15; Bland, 958 S.W.2d at 660. One well-

regarded treatise states that premeditation may be inferred from events that occur

before and at the time of the killing:

Three categories of evidence are important for [the] purpose [of

inferring premeditation]: (1) facts about how and what the defendant

did prior to the actual killing which show he was engaged in activity

directed toward the killing, that is, planning activity; (2) facts about

the defendant’s prior relationship and conduct with the victim from

which motive may be inferred; and (3) facts about the nature of the

killing from which it may be inferred that the manner of killing was

so particular and exacting that the defendant must have intentionally

killed according to a preconceived design.

2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003).

We conclude that the evidence presented was sufficient to support the jury’s

findings that premeditation existed. The evidence presented at trial showed that

Defendant engaged in repeated harassment of his ex-wife and was unhappy with

and troubled by her new relationship with the victim. Defendant spied on the victim

and his ex-wife and made threats against their lives prior to the incident. On the

night of the victim's death, Defendant removed the lightbulb from the porch lamp

in order to prevent himself from being discovered. When the victim appeared to

investigate why the dog was barking and to see why the porch light was not

working, Defendant shot him through the door of the trailer several times. Mrs.

Keplinger hysterically called 911 and reported that Defendant was most likely the

shooter. After he was apprehended, Defendant himself confirmed that he was the

shooter. He led the police to where he had hidden the murder weapon. Testing

confirmed that this was indeed the gun that murdered the victim. The jury heard

the evidence and chose to disregard Defendant’s theory that the crime was born out

of passion. It was in their prerogative to do so. From this evidence, we conclude

that a reasonable jury could find premeditation. Consequently, Defendant’s

conviction for first degree murder is affirmed.

Allen I, at *13–14.

Petitioner has not established that this decision was contrary to clearly established federal

law or based on an unreasonable determination of the facts in light of the evidence presented. A

habeas court reviewing a challenge to the sufficiency of the evidence must apply two levels of

deference. Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). First, under Jackson, the court

gives deference to the verdict “with explicit reference to the substantive elements of the criminal

offense as defined by state law.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (citing

Jackson, 443 U.S. at 324 n.16); see also Cavazos v. Smith, 565 U.S. 1, 6–7 (2011) (providing that

“a reviewing court ‘faced with a record of historical facts that supports conflicting inferences must

presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution’”) (quoting Jackson,

443 U.S. at 326). The habeas court must also give additional high deference to the state court’s

consideration of the verdict pursuant to the AEDPA standards. Cavazos, 565 U.S. at 6 (noting the

double deference owed “to state court decisions required by § 2254(d)” and “to the state court’s

already deferential review”). As such, a petitioner bringing a claim of insufficient evidence “bears

a heavy burden.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).

However, Petitioner presents only conclusory allegations that the TCCA’s decision

denying this claim was contrary to clearly established federal law and/or based on an unreasonable

determination of the facts in light of the evidence presented [Id.]. His failure to present any specific

legal theories and facts to support these conclusions is fatal to this claim. Rule 2(c)(2) of the Rules

Governing Section 2254 Cases (providing that a petition must “state the facts supporting each

ground” for relief in the petition); McKnight v. Bobby, No. 2:09-CV-059, 2020 WL 5513576, at

*80 (S.D. Ohio Sept. 14, 2020) (holding that the petitioner’s conclusory statement that a state court

decision “meets the requirements of 28 U.S.C. § 2254(d)(1) and (2) . . . does not establish the

unreasonableness of the state court’s rejection of [his] claim”). Moreover, after reviewing the state

court record and the relevant elements of the crime of first-degree murder under Tennessee law,

the Court agrees with the TCCA that a reasonable jury could have found Petitioner guilty of first-

degree murder based on the evidence presented at his trial. Thus, Petitioner is not entitled to relief

under § 2254 for this claim.

B. Remaining Claims

Petitioner did not present his remaining claims to the TCCA [Docs. 10-13, 10-22]. Before

a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his available

state court remedies. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

Exhaustion requires the petitioner to “fairly present” each federal claim to all levels of the state

appellate system by presenting the “same claim under the same theory” up to the state’s highest

court, Wagner v. Smith, 581 F.3d 410, 414, 418 (6th Cir. 2009), to ensure that states have a “full

and fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881

(6th Cir. 1990). Where a petitioner no longer “has the right under the law” of Tennessee to

properly exhaust a claim, the claim is technically exhausted but procedurally defaulted. See 28

U.S.C. § 2254(c); Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (providing that “when a

petitioner fails to present a claim in state court, but that remedy is no longer available to him, the

claim is technically exhausted, yet procedurally defaulted”); see also Tenn. Code Ann. § 40-30-

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

“Federal courts lack jurisdiction to consider a habeas petition claim that was not fairly

presented to the state courts.” Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004) (citing

Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)). Thus, a federal habeas court will not review

a procedurally defaulted claim on the merits unless the petitioner shows cause to excuse his failure

to comply with the procedural rule and actual prejudice from the constitutional violation. Coleman

v. Thompson, 501 U.S. 722, 750 (1991).

Accordingly, the Court must now examine each of Petitioner’s procedurally defaulted

claims to see if he has shown cause to excuse that default and actual prejudice from the alleged

violation.

i. Sentence

First, Petitioner seeks to excuse his procedural default of his claim challenging his life

imprisonment sentence as excessive and imposed in violation of his due process rights and/or

Tennessee statutes by noting that the Supreme Court decisions in Johnson v. United States, 135

S. Ct. 2552, 2563 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018) were unavailable

at the time of his state court filings [Doc. 1 p. 9].

But this argument is unpersuasive, mainly because these decisions have no relevance to

this claim. Specifically, in Johnson and Dimaya, the Supreme Court invalidated the Armed Career

Criminal Act and the Immigration and Nationality Act’s definitions of a “crime of violence” under

their respective residual clauses governing enhancement of a sentence. Johnson, 135 S. Ct. at

2563; Dimaya, 138 S. Ct. at 1212. However, as Respondent correctly points out, Petitioner’s life

imprisonment sentence was not enhanced due to any other crimes, but rather resulted from the fact

that Tenn. Code Ann. § 39-13-202 provides that this is the minimum sentence for a first-degree

murder conviction [Doc. 10-1 p. 109]. Thus, Petitioner has failed to establish cause to excuse his

procedural default of this claim and the Court will not address it on the merits.

ii. Sufficiency of the Evidence for Possession of a Weapon Conviction

Petitioner also seeks to challenge the sufficiency of the evidence to support his possession

of a weapon during the commission of the first-degree murder conviction in his petition [Doc. 1 p.

4–5]. However, as noted above, Petitioner only exhausted his claim challenging the sufficiency

of the evidence underlying his first-degree murder conviction with the TCCA [Doc. 10-13 p. 19–

24]. Thus, he procedurally defaulted this claim, and he has not presented any reason for the Court

to excuse this default. Accordingly, the Court will not address it on the merits.

iii. Ineffective Assistance of Counsel

The only claim for ineffective assistance of counsel that Petitioner exhausted with the

TCCA was his claim that trial counsel did not investigate his case and present his defense as

Petitioner requested [Doc. 10-22 p. 11–19]. However, Petitioner does not raise this claim in his §

2254 petition but instead asserts that counsel was ineffective in (1) failing to assert that the trial

court erred in admitting hearsay statements from the victim about the changing of the lightbulb;

(2) failing to object to Mrs. Keplinger’s testimony about his prior bad acts, including violation of

the order of protection; (3) failing to call Petitioner to testify about his lack of intent to kill the

victim; and (4) failing to employ a crime scene reconstruction expert [Doc. 1 p. 6–7]. Petitioner

also asserts a claim challenging his convictions based on the cumulative effect of these alleged

errors [Id. at 7].

Petitioner seeks to excuse his procedural default of these claims by asserting that his

attorney refused to raise these claims in his post-conviction proceedings, although Petitioner raised

them in his pro se application for permission to appeal the denial of his post-conviction petition

[Doc. 10-26]. An attorney’s ineffective assistance in post-conviction proceedings generally does

not establish “cause” to overcome procedural default. Id. at 755. However, where a habeas

petitioner could raise a claim for trial counsel’s ineffective assistance for the first time in a post-

conviction petition, ineffective assistance of post-conviction counsel may be “cause” to excuse a

procedural default of a substantial ineffective assistance of counsel claim. Trevino v. Thaler, 133

S.Ct. 1911, 1918–21 (2013); Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012); Wallace v. Sexton,

570 F. App’x 443, 452–53 (6th Cir. 2014). This exception, commonly referred to as the Martinez

exception, applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir. 2014).

As Petitioner’s claims for ineffective assistance of trial counsel arguably fall under

Martinez to the extent that they are substantial, the Court will address the merits of these claims.

a. Standard

The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.

amend. VI. This includes the right to “reasonably effective assistance” of counsel. Strickland v.

Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged

test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made errors so

serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result

is reliable. Unless a defendant makes both showings, it cannot be

said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.

Id. at 687. A petitioner has the burden of proving ineffective assistance of his counsel. Virgin

Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).

In considering the first prong of Strickland, the appropriate measure of attorney

performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688.

To meet this prong, a petitioner must demonstrate that his counsel was so deficient that he no

longer “function[ed] as the ‘counsel’ guaranteed under the Sixth Amendment.” Id. at 687. The

evaluation of the objective reasonableness of counsel’s performance must be made “from

counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the

standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

The second prong of the Strickland test requires a claimant to show counsel’s deficient

performance prejudiced the defense. Thus, “[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Strickland, 466 U.S. at 691.

The Supreme Court has emphasized that a claimant must establish both prongs of a claim

for ineffective assistance of counsel to meet his burden, and if either prong is not satisfied, the

claim must be rejected. Id. at 687. Moreover, a habeas petitioner alleging ineffective assistance

of counsel bears a heavy burden, given the “doubly deferential” review of a such a claim under §

2254(d)(1). Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

b. Analysis

Petitioner has failed to establish that he is entitled to relief under § 2254 for any of his

ineffective assistance of counsel claims. First, Petitioner’s allegation that trial counsel was

ineffective for not arguing that the trial court erred in admitting Mrs. Keplinger’s testimony

regarding statements from the victim about the changing of the lightbulb as it was hearsay is not

supported by the record, as the record establishes that these statements were not offered to prove

whether the lightbulb had been changed but rather to explain the victim’s actions in going towards

the door, and therefore were not hearsay [Doc. 10-5 p. 70–72]. See Fed. R. Evid. 801(c)(2);

Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d 904, 924 (E.D. Tenn. 2003) (providing

that “an out of court statement offered to serve some other purpose is not hearsay and may be

considered by the trier of fact”). Thus, counsel cannot be constitutionally ineffective for failing to

raise a meritless argument regarding this testimony. See, e.g., Mapes v. Coyle, 171 F.3d 408, 427

(6th Cir. 1999).

Further, as Respondent correctly points out, at the time Mrs. Keplinger testified about her

order of protection against Petitioner and his acts violating that order, the charge against Petitioner

for violating the order of protection was pending, and thus this testimony was relevant [Id. at 61–

66; 93]. Accordingly, counsel cannot be faulted for failing to object to this testimony. Id. To the

extent Petitioner challenges his counsel’s failure to object to other testimony from Mrs. Keplinger

about his bad acts, he has not established that any such objection would have changed the result

of his trial.

Also, the record establishes that Petitioner chose not to testify at trial [Doc. 10-8 p. 83–89].

Thus, his attorney cannot be faulted for not calling him to testify. Moreover, to the extent

Petitioner challenges counsel’s choices regarding trial strategy,2 he has failed to set forth any proof

that these choices were the result of counsel’s lack of preparation for Petitioner’s trial. See

Strickland, 466 U.S. at 690–91 (holding that counsel’s “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable”); Burton

v. Renico, 391 F.3d 764, 774 (6th Cir. 2004) (holding that “strategic choices by counsel, while not

necessarily those a federal judge in hindsight might make, do not rise to the level of a Sixth

Amendment violation”). While Petitioner generally alleges that counsel failed to present

“available evidence” and “credible proof” that Petitioner acted under duress in support of

Petitioner’s defense, Petitioner likewise has failed to present any such evidence or to establish that

any such evidence was available to his counsel at the time of his trial. Accordingly, Petitioner has

not met his burden to show that counsel was ineffective with regard to any such evidence or that

such evidence would have changed the result of his trial.

2 To the extent this is the same claim Petitioner presented to the post-conviction court [Doc.

10-20 p. 18–19, but not to the TCCA, he is unable to raise it now under the Martinez exception.

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”). Also, to the extent this claim could be construed as the same claim Petitioner presented

to the TCCA in his post-conviction appeal [Doc. 10-22], he has failed to show that the TCCA’s

denial of this claim was contrary to clearly established federal law or based on an unreasonable

determination of the facts in light of the evidence presented. Allen II, at *5.

Also, Petitioner’s allegation that counsel was ineffective for not presenting a crime scene

reconstruction expert is conclusory,3 and Petitioner presents no facts or evidence to support a

finding that such an expert would have changed the result of his trial.

Lastly, as to Petitioner’s claim alleging that the cumulative effect of his counsel’s

deficiencies entitles him to § 2254 relief, “[t]he Supreme Court has not held that constitutional

claims that would not individually support habeas relief may be cumulated in order to support

relief.” Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002). Moreover, even if such a claim were

cognizable under § 2254, Petitioner has failed to establish that he is entitled to habeas corpus relief

for any of his trial counsel’s individual acts, and thus could not recover for any such claim. Id.

IV. CONCLUSION

For the reasons set forth above, the petition for habeas corpus relief under § 2254 will be

DENIED and this action will be DISMISSED.

V. CERTIFICATE OF APPEALABILITY

The Court must now consider whether to issue a certificate of appealability (“COA”),

should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may

appeal a final order in a habeas corpus proceeding only if he is issued a COA, and a COA may

only be issued where a Petitioner has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2). Where the court dismissed a claim on the merits, but reasonable

jurists could conclude the issues raised are adequate to deserve further review, the petitioner has

made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537

U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484. When a district court denies a habeas petition

3 Again, to the extent this is the same claim Petitioner presented to the post-conviction

court [Doc. 10-20 p. 19], but not to the TCCA, he is unable to raise it now under the Martinez

exception. Middlebrooks, 843 F.3d at 1136.

on a procedural basis without reaching the underlying claim, a COA should only issue if “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 v. McDaniel, 529 U.S. 473, 484 (2000).

Reasonable jurists could not conclude that Petitioner has made a substantial showing of a

denial of a constitutional right for his claim challenging the sufficiency of the evidence for his

first-degree murder conviction or his ineffective assistance of counsel claims such that they would

be adequate to deserve further review. Moreover, jurists of reason would not disagree with the

Court’s finding that Petitioner procedurally defaulted his other claims and has not presented

sufficient grounds for the Court to excuse that default. Accordingly, a COA SHALL NOT

ISSUE. Also, the Court CERTIFIES 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 ORDER WILL ENTER.

IT IS SO ORDERED.

ENTER:

s/ Leon Jordan

United States District Judge