# Campbell v. Genovese

> District Court, E.D. Tennessee · February 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10434244

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** February 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10434244

## How later opinions describe it (automated extraction)

- noting that “§ 2254(d), as amended by AEDPA, is a purposefully demanding standard . . . ‘because it was meant to be’”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

CARLOS D’JUAN CAMPBELL, JR., )
)
Petitioner, )
)
v. ) No. 3:20-CV-00394-JRG-DCP
)
KEVIN GENOVESE, Warden, )
)
Respondent. )

MEMORANDUM OPINION
This is a pro se prisoner’s petition for habeas corpus relief filed pursuant to 28 U.S.C.
§ 2254 in which Petitioner challenges his conviction for two counts of attempted first-degree
murder and one count of employing a firearm during the commission of a dangerous felony. 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. PROCEDURAL HISTORY
A Knox County grand jury indicted Petitioner on seven counts of attempted first-degree
murder, two counts of employing a firearm during the commission of a dangerous felony, and two
counts of felony reckless endangerment. Campbell v. State, No. E201801877CCAR3PC, 2019
WL 5858141, at *1 (Tenn. Crim. App. Nov. 8, 2019), appeal denied (Apr. 16, 2020). The State
dismissed the two counts of felony reckless endangerment prior to trial. Id. Petitioner was
convicted of two counts of attempted first-degree murder, one count of employing a firearm during
the commission of a dangerous felony, and five counts of misdemeanor reckless endangerment,
and the trial court sentenced Petitioner to serve forty-six years. Id. at *2.
On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed
Petitioner’s convictions for attempted first-degree murder and employing a firearm during the
commission of a dangerous felony. Id. The TCCA reversed and dismissed the convictions for

misdemeanor reckless endangerment on the basis that misdemeanor reckless endangerment is not
a lesser included offense of attempted first-degree murder. Id. The Tennessee Supreme Court
denied Petitioner’s application for permission to appeal. Id. The United States Supreme Court
denied certiorari. Campbell v. Tennessee, No. 16-5256, 137 S. Ct. 212 (Mem) (Oct. 3, 2016).
Petitioner filed a timely petition for post-conviction relief with the Knox County Criminal
Court, and his petition was denied. Campbell, 2019 WL 5858141, at *1. Petitioner appealed to
the TCCA. Id. at *8. Petitioner asserted that (1) he received ineffective assistance of counsel at
trial, and (2) the post-conviction court erred in allowing the State to present proof and argument at
the post-conviction hearing after the State failed to file a written response to his petition. Id. at *1.

The TCCA concluded that trial counsel was deficient on two issues raised by Petitioner, but the
deficiencies were not prejudicial. Id. at *21. The TCCA also concluded that the post-conviction
court did not abuse its discretion in allowing the State to present proof and argument at the post-
conviction hearing, and Petitioner had not shown he was prejudiced by the State’s failure to file a
written response to his petition. Id. at *22. The Supreme Court of Tennessee denied Petitioner’s
application for permission to appeal. [Doc. 8-28].
Petitioner timely filed a writ of habeas corpus with this Court on September 1, 2020.
[Doc. 1].
II. BACKGROUND
On direct appeal, the TCCA summarized the facts of this case as follows:
At 3:15 a.m. on August 13, 2012, the Knox County
Emergency Communications District began to receive 911 calls
about a shooting at a residence on Wilder Place in Knoxville.
Officers C. Cadet Hutton and Jeff Hopkins of the Knoxville Police
Department (KPD) responded to the home. The officers found
parked “on the north side” of the house a black Nissan Maxima with
“a bullet hole near the gas tank ... on the driver’s side.” They also
found a silver Lincoln that belonged to Devante Nail “parked on the
east side of the house” that “had been struck approximately six times
down the driver’s side quarter panels from the front to the rear.”
Officer Hutton testified that it appeared that no one was in the cars
when they were shot.

The officers found ten Smith and Wesson .40 caliber shell
casings “spread out” at a nearby intersection. They also found “two
large chunks of grass that were torn up” in the yard next to the silver
Lincoln. Officer Hutton opined that the chunks of grass could have
“possibly [been from] shotgun blasts.” Officer Hutton testified that
the house had been struck by two bullets, once on “the corner of the
house” and once on “the east side of the house facing Wilder Place.”
However, Officer Hutton testified that the bullets “actually entered
the wall but did not make it all the way through [to the inside of] the
residence.”

Officer Hopkins testified that when they arrived at the house,
Mr. Nail was the only person standing outside. Officer Hopkins
recalled that there were three other people in the house that morning
and that they told him that they “[h]ad heard nothing.” Officer
Hutton testified that “[e]verybody inside was okay, nobody had been
struck by gunfire.” Officer Hutton did not see any bullet holes inside
the house, but Officer Hutton did recall seeing a box of twelve gauge
shotgun shells on the living room table.

Brittaney Nail was the only victim to testify at trial. Ms. Nail
testified that on August 13, 2012, she was living with her sister,
Lakeshia Reynolds, at the house on Wilder Place. Ms. Nail also
testified that Mr. Nail was her brother. According to Ms. Nail, she
was at the house that morning with Ms. Reynolds; Ms. Reynolds’s
friend, Tamichael Bennett; Mr. Nail; and Mr. Nail’s girlfriend,
Darlessa Clemons. Ms. Nail testified that she had slept on the couch
while Mr. Nail and Ms. Clemons were in Mr. Nail’s bedroom, and
Ms. Reynolds and Mr. Bennett were in Ms. Reynolds’s bedroom.
Ms. Nail recalled that she woke up to Ms. Reynolds asking
if she had heard a noise. Ms. Nail testified that the next thing she
remembered was the police knocking on the door because “the
neighbor had called the police [and] said they heard shooting.” Ms.
Nail admitted that she did not hear “any shooting” that morning. Ms.
Nail testified that the next morning she saw the damage to the two
cars and “a couple of holes” on the side of the house.

At 2:29 a.m. on August 15, 2012, the Knox County
Emergency Communications District began receiving 911 calls
about another shooting at the Wilder Place residence. Ms. Nail
testified that on the morning of August 15, 2012, she and Ms.
Clemons were the only people in the house. Ms. Nail recalled that
they were awake, with several lights on in the house, and watching
movies in the living room that morning. Ms. Nail admitted that there
were no cars parked in front of the house and that the windows had
dark curtains. According to Ms. Nail, she was sitting on a couch
pushed up against a window with her “front towards the window,”
and Ms. Clemons was next to her “with her back towards the
window,” when “all of a sudden, [they] just heard gunshots and
[saw] the plaster from the walls going everywhere.”

Ms. Nail testified that she and Ms. Clemons got on the
ground and waited for the shooting to end. Ms. Nail stated that she
was “really just scared” and shocked during the shooting. Once the
shooting ended, Ms. Clemons called Mr. Nail and told them to call
the police. Ms. Nail then called 911, and during the call, she told the
911 operator that she saw who had shot at the house and recognized
his face. Ms. Nail then said that the Defendant was the shooter. Ms.
Nail admitted at trial that she had not actually seen the shooter that
night. Ms. Nail explained that she told the 911 operator that the
Defendant had shot at the house because Ms. Clemons told her that
she had heard the Defendant’s name “a lot in conversation.”

Officer Hopkins testified that he responded to the shooting
on August 15, 2012. Officer Hopkins testified that the house “was
riddled with gunshots” with “pieces of drywall just scattered all over
the place indicating that it had been struck multiple times.” Officer
Hopkins also testified that Ms. Clemons had “a through and through
hole in her shirt” and a “scratch mark” on her back where, Officer
Hopkins opined, a bullet had almost struck her. Ms. Nail testified
that the next day, she found bullet holes in the bathroom in addition
to the ones in the living room that the police had photographed.
KPD Investigator Chas Terry testified that he investigated
the shootings at the Wilder Place house. Inv. Terry testified that
when he went to the house after the August 15, 2012 shooting, he
“saw numerous bullet holes throughout the entire house,” including
“the bedroom, kitchen, [and] living room.” Inv. Terry also found a
bullet “that had gone through the length of the house, gone out of
the back door, [and] landed in a trash can.” An “additional
fragmented round” was also found inside the house.

Inv. Terry testified that he questioned the Defendant about
the shootings on August 26, 2012. Inv. Terry testified that he
advised the Defendant of his constitutional rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), and that the Defendant
signed a “rights waiver” form. Inv. Terry recalled that the Defendant
initially denied any involvement in the shootings, but by the end of
the questioning, he told Inv. Terry that Cuben Lagrone was the
shooter and that “he simply drove.”

Inv. Terry testified that he interrogated the Defendant again
in October 2012 after the Defendant signed a second “rights waiver”
form. Inv. Terry stated that he was assisted by KPD Investigator
Brandon Wardlaw during portions of that interrogation. Inv. Terry
testified that during the October 2012 interrogation, the Defendant
stated “once again, [that] he was driving” during the shootings and
that Cuben was the shooter. Inv. Terry further testified that the
Defendant never admitted to him that he shot at the house during
either of the interrogations. Inv. Terry also explained that it took
around fifteen minutes to get from the Defendant’s neighborhood to
Wilder Place. An approximately fifty-minute excerpt of the October
2012 interrogation was played for the jury.

During the excerpt played for the jury, the Defendant stated
that from what he knew, the conflict between Cuben Lagrone and
Mr. Nail started when Mr. Nail’s little brother “got jacked.” The
Defendant explained that Mr. Nail’s brother “got robbed” but that
his friends lied about making Mr. Nail’s brother “get naked.” The
Defendant further explained that Mr. Nail’s brother had “walked up
on the car” and “was mugging and stuff.” The Defendant claimed
that he never left the car but that one of his friends told Mr. Nail’s
brother to empty his pockets, and Mr. Nail’s brother emptied his
pockets and they “took his cell phone.”

The Defendant then stated that Mr. Nail came to the
Mechanicsville neighborhood of Knoxville “three or four times” and
shot at a house “twice.” The Defendant claimed he was not in
Mechanicsville for any of the occasions when Mr. Nail and his
friends were there. The Defendant further claimed that “some people
would call” him bragging about the shootings and threatening him.
The Defendant told the investigators that Mr. Nail repeatedly said
that “he was gonna shoot” him.

The Defendant also stated that Mr. Nail’s little brother “was
talking s—t on Twitter” about how “[t]hey was ... gonna kill” a
“little dude” that lived in Mechanicsville. The Defendant then
detailed an ongoing Twitter exchange with people from the “east
side” and stated that he told Mr. Nail that he “didn’t want no
problems with him.”

The Defendant admitted to driving the car during the
shootings at the Wilder Place house. The Defendant stated that
Cuben told him how to get to the house and admitted that a third
man, Quinton, was in the car with them. The Defendant also stated
that he was driving a white car. The Defendant said that he did not
know how Cuben and Quinton knew that Mr. Nail would be at the
Wilder Place house and that they had “s—t that they [did not] tell
[him] all the time.” The Defendant said he “guess[ed]” that Cuben
and Quinton wanted to shoot at the house because Mr. Nail put their
“name[s] in [a] Tweet” that said “F—k the Ville.”

The Defendant told the investigators that as they drove past
the house on Wilder Place, Cuben and Quinton “start[ed] shooting”
and shot “a whole clip.” The Defendant said that he could not
remember where they went after the shooting. The Defendant denied
calling anyone to say “we done bust ‘em back.” Inv. Terry stated
that an hour after the first shooting his “phone was blowing up” with
messages that the Defendant, Cuben, and Quinton “shot up that
house.” Inv. Terry then asked what Mr. Nail did after the first
shooting “to get back at y’all” to make them go over there a “second
time.”

The Defendant said that Mr. Nail came to Mechanicsville
“two cars deep.” The Defendant claimed that he was not there at the
time, but he was told that Mr. Nail came “strapped up” and “looking
for” him, Cuben, and Quinton. The Defendant also claimed that
“they shot ... at [him] on the east side.” However, the Defendant then
claimed that he did not know that the house “got shot up twice” or
the reason for the second shooting. Inv. Wardlaw said that there
were actually three shootings at the house, but only two were
reported. Inv. Terry then told the Defendant that he had “just told”
them that he “drove both times.”
After that, the Defendant admitted that he was in the white
car again for the second shooting and that Cuben and Quinton were
both with him. The Defendant also admitted that a juvenile was with
them that night. The Defendant then said that they went to the house
on Wilder Place because Quinton said Mr. Nail was at the house and
that “they started shooting.” The Defendant “guess[ed]” that they
shot “the clip” again. The Defendant stated that they “went to the
crib probably” after the shooting. The Defendant reiterated that both
times he was “just driving” and that he did not “shoot up cribs.”

Inv. Wardlaw testified he was present for portions of the
Defendant’s October 2012 interrogation and that the Defendant
“said that he only was the driver and he never shot at anyone.” Inv.
Wardlaw testified that he was present at a May 2013 suppression
hearing in this case and that at the suppression hearing, the
Defendant testified that “he actually was one of the shooters.” Trial
counsel did not object to this testimony.

Patricia M. Resig, a firearms examiner for the KPD, testified
as an expert witness in firearms identification. Ms. Resig testified
that she examined the ten Smith and Wesson .40 caliber casings
recovered after the August 13, 2012 shooting and that all ten casings
had been fired from “the same unknown gun.” With respect to the
August 15, 2012 shooting, Ms. Resig testified that she examined two
.40 caliber bullets that she opined had been fired from a Glock
handgun, a .380 caliber casing that she found “no matches” for, and
a 9 mm casing and bullet.

Ms. Resig testified that she was able to match the 9 mm
casing to a Ruger pistol seized from Cuben Lagrone and that the
bullet “could have been fired” from the Ruger pistol, but “there was
a lack of sufficient matching individual characteristics” for her to
“say it was indeed fired through that” gun. Ms. Resig opined that, in
all, three guns had been used during the August 15, 2012 shooting.

Based upon the foregoing evidence, the jury convicted the
Defendant of five counts of misdemeanor reckless endangerment
and acquitted him of the charge of employing a firearm during the
commission of a dangerous felony for the August 13, 2012 shooting.
For the August 15, 2012 shooting, the jury convicted the Defendant
of two counts of attempted first degree murder and one count of
employing a firearm during the commission of a dangerous felony.

At the sentencing hearing it was established that the
Defendant had two convictions for simple possession of marijuana
as an adult. The Defendant’s juvenile record was much more
extensive. In 2007, the Defendant was adjudicated delinquent for
committing aggravated robbery and vandalism of $500 or less. In
2008, he was adjudicated delinquent for conspiracy to commit
aggravated robbery and also had his probationary sentence revoked.
In 2009, the Defendant was adjudicated delinquent for committing
aggravated assault and unlawful possession of a weapon. In 2010,
he was adjudicated delinquent for committing reckless
endangerment with a deadly weapon and vandalism valued at more
than $500 but less than $1,000. Also at the sentencing hearing, the
Defendant admitted to being present at both shootings and shooting
at the house on August 13, 2012, but denied doing so on August 15,
2012.

In sentencing the Defendant, the trial court applied the
following enhancement factors to all of the Defendant’s convictions:
(1) the Defendant had a previous history of criminal convictions or
behavior in addition to those necessary to establish the appropriate
range; (3) the offenses involved more than one victim; (8) the
Defendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community; (13)
the Defendant was released on bail at the time the felony offenses
were committed; and (16) the Defendant had been adjudicated to
have committed delinquent acts as a juvenile that would constitute
felonies if committed by an adult. See Tenn.Code Ann. § 40–35–
114. The trial court also found that the Defendant had no hesitation
about committing a crime when the risk to human life was high with
respect to the misdemeanor reckless endangerment convictions. See
Tenn.Code Ann. § 40–35–114(10).

The trial court sentenced the Defendant to eleven months
and twenty-nine days for each of the misdemeanor reckless
endangerment convictions, twenty years for each of the attempted
first degree murder convictions, and the mandatory minimum six
years for the employing a firearm during the commission of a
dangerous felony conviction. The trial court also found that
consecutive sentences were warranted because the Defendant was a
dangerous offender and had an extensive history of criminal activity.
See Tenn.Code Ann. § 40–35–115(b)(2), (4). The trial court ordered
the Defendant’s sentences for his attempted first degree murder
convictions and employing a firearm during the commission of a
dangerous felony conviction to run consecutively. The trial court
further ordered that the Defendant’s sentences for his misdemeanor
reckless endangerment convictions run concurrently to his felony
convictions, for a total effective sentence of forty-six years.
State v. Campbell, No. E2014-00697-CCA-R3-CD, 2015 WL 6155893, at *1–*5
(Tenn. Crim. App. Oct. 20, 2015).

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
Petitioner asserts three claims of ineffective assistance of his trial counsel: (1) trial counsel
failed to object to Investigator Wardlaw’s trial testimony regarding Petitioner’s suppression
hearing admission of shooting at the residence; (2) trial counsel failed to sever the offenses that
occurred on August 13, 2012 from those that occurred on August 15, 2012; and (3) trial counsel
failed to request specific jury instructions. [Doc. 1].
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.

Strickland, 466 U.S. 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).

A. Suppression Hearing Testimony
Petitioner asserts that trial counsel was ineffective by failing to object to Investigator
Wardlaw’s testimony regarding Petitioner’s suppression hearing admission of being a shooter on
August 15, 2012. Trial counsel’s failure to object was deficient, but the TCCA did not
unreasonably apply the prejudice prong of Strickland. Thus, Petitioner is not entitled to relief
under § 2254.
When a defendant testifies in a suppression hearing to protect a constitutional right, the
testimony may not be used against the defendant at trial unless the defendant makes no objection.
Simmons v. United States, 390 U.S. 377, 394 (1968). If trial counsel had objected to Investigator

Wardlaw’s testimony at trial regarding Petitioner’s suppression hearing admission, his admission
would have been excluded. Thus, trial counsel was deficient by failing to object to Investigator
Wardlaw’s testimony at trial regarding Petitioner’s admission of shooting at the residence.
Petitioner claims that trial counsel’s deficient performance prejudiced his defense by
leading to convictions. Petitioner argues that the substantial difference in the convictions related
to the events of August 13, 2012 as compared to the events of August 15, 2012 evidences the
impact of Petitioner’s admission of being a shooter in the latter event. The TCCA disagreed:
Given the evidence presented at trial, a rational jury could
have found that because the two gunshots at the residence did not
penetrate the interior of the home and because no one was injured
during the August 13, 2012 shooting, it was unreasonable to find the
Petitioner guilty of anything greater than misdemeanor reckless
endangerment. A jury could have easily found that compared to the
injuries to person and property associated with the August 15, 2012
shooting, the August 13, 2012 shooting was much less serious.
Because there was substantial independent evidence, other than
Investigator’s Wardlaw’s testimony about the Petitioner’s
confession at the suppression hearing, that tended to show that the
Petitioner’s statement that he drove the shooters to the scene was
trustworthy and that sufficiently linked the Petitioner to the crime,
we conclude that the Petitioner has failed to show that trial counsel’s
deficiency on this issue was prejudicial.

Campbell, 2019 WL 5858141, at *15.
The question before the Court is whether the TCCA’s application of the prejudice prong of
Strickland was unreasonable. Harrington v. Richter, 562 U.S. 86, 101 (2011). The TCCA’s
analysis precludes relief under § 2254 if “fairminded jurists could disagree” on whether the
TCCA’s analysis was correct. Id. (quoting Yarbrough v. Alvarado, 541 U.S. 652, 664 (2004)).
Furthermore, the range of reasonable applications under Strickland is substantial.
Harrington, at 105. When analyzing the prejudice prong under Strickland, the TCCA was tasked
with determining whether Petitioner demonstrated “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, at 694.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
It is not enough “to show that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The standards under Strickland and § 2254 are both “highly deferential”
and are “doubly” so when applied in tandem. Harrington, at 105.
Petitioner failed to demonstrate a reasonable probability that the result of his trial would
have been different if not for trial counsel’s deficient performance. As discussed by the TCCA,
there was “substantial independent evidence” with which to convict Petitioner, including his own
admissions to driving the shooters to the scene. Thus, Petitioner did not meet his burden, and the
TCCA’s application of the prejudice prong of Strickland was not unreasonable.
Petitioner further argues that the TCCA overlooked the significance of the jury acquitting
him of employing a firearm during a dangerous felony for the events on August 13, 2012. The
jury convicted Petitioner of five counts of misdemeanor reckless endangerment for the August 13,

2012 shooting. Misdemeanor reckless endangerment is not dangerous felony under the relevant
statute. Tenn. Code Ann. § 39-17-1324 (West). Thus, the jury could not convict Petitioner of
employing a firearm during a dangerous felony as a result of his conduct on August 13, 2012, see
id., and Petitioner’s acquittal for such is irrelevant. The difference in convictions from the August
13, 2012 shooting as compared to the August 15, 2012 shooting was most likely the result of the
seriousness of the latter offense. Even if the Court was to conclude that Petitioner’s argument had
merit, it is clear from the TCCA’s decision that fairminded jurists could disagree, which precludes
federal habeas corpus relief. Petitioner is not entitled to relief under § 2254.
1. Law-of-the-Case Doctrine

Petitioner also claims the TCCA misapplied the federal law-of-the-case doctrine by
revisiting the issue of corroboration of his extrajudicial confessions when examining the prejudice
prong under Strickland. Under Tennessee law, “a person cannot be convicted solely on the basis
of an uncorroborated extrajudicial confession.” State v. Bishop, 431 S.W.3d 22, 61 (Tenn. 2014).
Upon direct appeal from his convictions, Petitioner argued that there was no evidence to
corroborate his confessions. Campbell, 2015 WL 6155893, at *16. The TCCA concluded that
since trial counsel had not objected to Petitioner’s suppression hearing confession, that confession
could be used to corroborate his extrajudicial confessions. Id. at *17. The TCCA provided no
other evidence to support the extrajudicial confessions. Id.
Upon appeal of the denial of Petitioner’s post-conviction relief, the TCCA held that trial
counsel was deficient for failing to object to Investigator Wardlaw’s testimony regarding
Petitioner’s suppression hearing confession. Campbell, 2019 WL 5858141, at *14. The TCCA
concluded that trial counsel’s failure was not prejudicial given there was sufficient additional
evidence to corroborate Petitioner’s extrajudicial confessions and link him to the crime:

At trial, the State presented the Petitioner’s statement to
police that he had driven the shooters to the Wilder Place residence
on August 13, 2012 and August 15, 2012. Brittaney Nail testified
that on August 15, 2012, she was watching movies with Darlessa
Clemons inside the Wilder Place residence when numerous bullets
pierced the drywall of her home. Ms. Nail said that she told the 9-1-1
operator that the Petitioner was responsible for the August 15, 2012
shooting because Clemons had told her that she heard the
Petitioner’s name “a lot in conversation.” Ms. Nail added that she
knew the Petitioner and Devante Nail “had something between each
other.” Officer Hopkins testified that upon his arrival, he noticed
that the inside of the Wilder Place residence “was riddled with
gunshots” and “there were pieces of drywall just scattered all over
the place.” He stated that Darlessa Clemons had “a through and
through hole in her shirt” and a “scratch mark” on her back where
he opined that a bullet had nearly struck her. Investigator Chas Terry
testified that he observed “numerous bullet holes throughout the
entire house.” Patricia Resig, an expert in firearm identification,
opined that three guns had been used during the August 15, 2012
shooting. Numerous photographs were admitted showing the bullet
holes and damage that these bullets caused to the residence, the hole
in Clemons’ shirt, and Clemons’ injury. Although the Petitioner
contends that Nail and Clemons were biased against him because
they knew about the feud between the Petitioner and Devante Nail
and had reason to embellish or fabricate evidence against him, we
conclude that all of the aforementioned evidence, when viewed
together, tends to show that the Petitioner’s admission to driving the
shooters on August 13, 2012 and August 15, 2012 was trustworthy.

Id. at *15.
The law-of-the-case doctrine is an amorphous concept. Arizona v. California, 460 U.S.
605, 618 (1983). It provides that “when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” Id. The doctrine
“merely expresses the practice of courts generally to refuse to reopen what has been decided, not
a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912). A court can revisit its
prior decisions, “although as a rule courts should be loathe to do so in the absence of extraordinary
circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest
injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting

Arizona v. California, 460 U.S. at 618). Nevertheless, “[t]he doctrine of the law of the case . . .
does not foreclose a court from reconsidering issues in a case previously decided by the same
court . . . .” United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990).
The TCCA was within its discretion to revisit the issue of corroborating evidence. The
TCCA disposed of Petitioner’s claim on direct appeal without discussing evidence other than
Petitioner’s suppression hearing confession. Once the TCCA decided that the suppression hearing
confession would have been inadmissible if not for trial counsel’s failure to object, it necessitated
a review of additional evidence in order to determine if the failure was prejudicial. The TCCA did
not misapply the federal law-of-the-case doctrine, and the TCCA did not unreasonably apply the

prejudice prong of Strickland.
2. Insufficient Corroboration
Petitioner argues that without the suppression hearing confession, there was insufficient
evidence to corroborate Petitioner’s extrajudicial confessions. Under Tennessee law, Petitioner
could not be convicted solely based on uncorroborated extrajudicial confessions.
Bishop, 431 S.W.3d at 61. Arguments based on state law are not entitled to federal habeas corpus
review unless the “alleged error independently violated the Constitution or laws of the United
States.” Williams v. Chapleau, No. 97-6015, 2000 WL 32015, at *4 (6th Cir. Jan. 4, 2000); Combs
v. Tennessee, 530 F.2d 695, 698 (6th Cir.), cert. denied, 425 U.S. 954 (1976). The Constitution
does not demand that states require corroboration of a criminal defendant’s extrajudicial
admissions. United States v. Brown, 617 F.3d 857, 862 (6th Cir. 2010); Williams, 2000 WL 32015,
at *4. Thus, Petitioner failed to state a claim upon which habeas corpus relief can be granted.
To the extent that Petitioner’s argument is based on the constitutional sufficiency of all the
evidence, and not just the corroboration requirement under Tennessee law, the proper standard is

set forth in Jackson v. Virginia, where the Supreme Court held that evidence is sufficient to sustain
a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner admitted to driving the car
during the shooting, and the jury was instructed on criminal responsibility for an offense
committed by the conduct of another. [Doc. 8-6 at 77]. A rational jury could have found that
Petitioner was guilty of attempted first-degree murder and employment of a firearm during the
commission of a dangerous felony. Thus, Petitioner is not entitled to relief.
B. Severing the Offenses

Petitioner asserts trial counsel was ineffective for failing to move to sever his offenses
related to the August 13, 2012 shooting from the offenses related to the August 15, 2012 shooting.
When offenses are permissively joined, “the defendant has the right to a severance of the offenses
unless the offenses are part of a common scheme or plan and the evidence of one would be
admissible in the trial of the others.” Tenn. R. Crim. P. 14(b)(1). Upon Petitioner’s post-
conviction appeal, the TCCA held that Petitioner did not have a right to sever the offenses:
[T]he record shows these two shootings were part of a
common scheme or plan because they occurred at the same location,
took place only two days apart, and were committed because of the
ongoing feud between the Petitioner and Devante Nail. Moreover,
because evidence of each shooting was relevant to the material issue
of the Petitioner’s motive and intent to retaliate against Devante
Nail, evidence of the first shooting would have been admissible in
the trial of the second shooting, and vice versa. Because these
shootings were part of a common scheme or plan and because
evidence of one shooting would have been admissible in the trial of
the other shooting, the Petitioner did not have a right to sever the
August 13, 2012 offenses from the August 15, 2012 offenses.

Campbell, 2019 WL 5858141, at *16. Petitioner argues that the TCCA previously held that the
shared motivation was insufficient to establish a common scheme or plan [Doc. 1 at 18], but the
TCCA additionally relied upon the proximity in time and location of the two shootings to find the
offenses properly joined. Accordingly, any motion to sever by counsel would have been futile,
and trial counsel was not deficient for failing to raise a meritless motion. Chapman v. United
States, 74 F. App’x 590, 593 (6th Cir. 2003) (counsel “is not required by the constitution to raise
frivolous defenses or arguments to avoid a charge of ineffective representation”).
Additionally, Petitioner was not prejudiced by the joinder of his offenses. Petitioner argues
that the joinder allowed the jury to infer guilt based on a propensity to commit crimes. However,
had the offenses been tried separately, the evidence from the shooting on August 13, 2012 would
have been admissible in the trial for the later shooting. See Tenn. R. Evid. 401. Thus, the TCCA
properly applied the Strickland standard, and Petitioner is not entitled to relief under § 2254.
C. Jury Instruction
Petitioner asserts trial counsel was ineffective for failing to request two specific jury
instructions. Had trial counsel requested the instructions, they would have been denied. Thus,
trial counsel was not deficient, nor was his failure to request the jury instructions prejudicial, and
Petitioner is not entitled to relief under § 2254.
Specifically, Petitioner claims that trial counsel should have requested a missing witness
instruction for Devante Nail, Lakeshia Reynolds, Darlessa Clemons, and Tamichael Bennett.
Under Tennessee state law, a missing witness instruction should not be given “where the only
object of calling such witness would be to produce corroborative, cumulative, or possibly
unnecessary evidence[.]” Dickey v. McCord, 63 S.W.3d 714, 721 (Tenn. Ct. App. 2001) (quoting
Stevens v. Moore, 24 Tenn. App. 61, 139 S.W.2d 710, 717 (1940). The testimony of the additional
witnesses would have been cumulative to the testimony given by Brittaney Nail, so the request for
a missing witness instruction would have been denied. Id. Trial counsel could not be ineffective

for failing to request an instruction that would have been denied. Chapman, at 593.
Petitioner also claims that trial counsel should have requested solicitation of first-degree
murder be included in the jury instructions as a lesser included offense of attempted first-degree
murder. A defendant is guilty of solicitation if, “by means of oral, written or electronic
communication, directly or through another, intentionally commands, requests or hires another to
commit a criminal offense, or attempts to command, request or hire another to commit a criminal
offense, with the intent that the criminal offense be committed . . . .” Tenn. Code Ann.
§ 39-12-102(a). A lesser included offense instruction is not required where the evidence does not
support it. Goodwin v. Johnson, 632 F.3d 301, 317–318 (6th Cir. 2011); Bowling v. Parker, 344

F.3d 487, 500 (6th Cir. 2003); Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001). While the
TCCA agreed that solicitation of first-degree murder is a lesser included offense of attempted first-
degree murder, Campbell, 2019 WL 5858141, at *18, there is no evidence in the record to suggest
that Petitioner commanded, requested, or hired another to shoot at the residence. Trial counsel
was not ineffective for failing to request the unsupported instruction, Chapman, at 593, and
Petitioner is not entitled to relief under § 2254.
IV. CONCLUSION
For the reasons set forth above, Petitioner has failed to establish that the TCCA’s decision
rejecting his ineffective assistance of counsel claims warrants relief under § 2254. According, the
instant petition 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 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 v. McDaniel, 529 U.S. 473, 484 (2000). When a district court denies a
habeas petition 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, 529 U.S. at 484.
Reasonable jurists could not conclude that Petitioner has made a substantial showing of a
denial of a constitutional right for his ineffective assistance of counsel claims such that they would
be adequate to deserve further review. 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.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434244. Public record. Not legal advice.