Winbush v. Boyd

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

WAYNARD WINBUSH, )

)

Petitioner, )

)

v. ) No. 3:20-CV-489-DCLC-HBG

)

BERT BOYD, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Now before the Court is a prisoner’s pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254 in which Petitioner challenges several drug-related convictions [Doc. 1]. Petitioner

has also filed many motions, including a motion to amend his petition [Doc. 6], which is

GRANTED to the extent that the Court will consider the arguments therein below. However,

after reviewing the parties’ filings and the state court record, the Court finds that Petitioner is not

entitled to habeas corpus 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 a writ of habeas corpus will be DENIED, this action will be DISMISSED, and the

remaining motions [Docs. 7, 8, 14, 18, 29, 30, 32] will be DENIED as moot.

I. BACKGROUND

In its opinion addressing Petitioner’s convictions on direct appeal, the Tennessee Criminal

Court of Appeals (“TCCA”) summarized the underlying state court criminal proceedings against

Petitioner as follows:

The Knox County Grand Jury charged [Petitioner], along with multiple co-

defendants, via presentment, with the following offenses:

Offense Charged

1 Conspiracy to possess with the intent to sell 150 grams or more of

a Schedule I controlled substance (heroin) in a drug-free zone

2 Conspiracy to possess with the intent to deliver 150 grams or more

of a Schedule I controlled substance (heroin) in a drug-free zone

3 Conspiracy to sell 150 grams or more of a Schedule I controlled

substance (heroin) in a drug-free zone

4 Conspiracy to deliver 150 grams or more of a Schedule I

controlled substance (heroin) in a drug-free zone

5 Conspiracy to possess with the intent to sell a Schedule II

controlled substance (oxycodone) in a drug-free zone

6 Conspiracy to possess with the intent to deliver a Schedule II

controlled substance (oxycodone) in a drug-free zone

7 Conspiracy to possess with the intent to sell a Schedule II

controlled substance (oxymorphone) in a drug-free zone

8 Conspiracy to possess with the intent to deliver a Schedule II

controlled substance (oxymorphone) in a drug-free zone

15 Failure to appear for arraignment for offense of driving without a

valid license

16 Possession with the intent to sell less than 15 grams of a Schedule

I controlled substance (heroin) in a drug-free zone

17 Possession with the intent to deliver less than 15 grams of a

Schedule I controlled substance (heroin) in a drug-free zone

18 Possession with intent to sell less than 200 grams of a Schedule II

controlled substance (oxycodone) in a drug-free zone

19 Possession with intent to deliver less than 200 grams of a

Schedule II controlled substance (oxycodone) in a drug-free zone

20 Possession with intent to sell less than 200 grams of a Schedule II

controlled substance (oxymorphone) in a drug-free zone

21 Possession with intent to deliver less than 200 grams of a

Schedule II controlled substance (oxymorphone) in a drug-free

zone

23 Destruction of evidence

25 Failure to appear for arraignment for offense of driving without a

valid license

26 Failure to appear for arraignment for offense of criminal

impersonation

Counts 9 through 14, 22, and 24 of the presentment did not include charges against

[Petitioner]. Counts 5 and 6 were dismissed prior to trial.

Trial

The case proceeded to trial and a jury found [Petitioner] guilty of Counts 1-4, 7-8,

18-19, and 20-21. The jury acquitted [Petitioner] on Counts 15-17, 23, and 25-26.

Counts 2-4 and 7-8 were merged into Count 1. Count 19 was merged with Count

18, and Count 21 was merged with Count 20. The trial court sentenced [Petitioner]

to 20 years’ incarceration for each conviction in Counts 1-4 and 7-8, and 3 years

for each conviction in Counts 18-19 and 20-21. The sentences in Counts 1-4 and

7-8 were run concurrently with each other. Additionally, the sentences in Counts

18 and 20 were run concurrently with each other, but consecutively to Count 1, for

an effective sentence of 23 years.

The trial testimony established [that] Knoxville Police Department (KPD)

Investigator Philip Jinks, recognized as an expert in the fields of drug and

conspiracy investigations, learned about the drug operation that transported heroin

from Detroit to Knoxville in this case in late 2012 or early 2013. The heroin

involved in the investigation was a “brown-rocky-type substance,” or black tar that

looks like “a black[,] gummy substance.” The heroin was not a type he had seen

before. Being an experienced investigator, Investigator Jinks knew that people

involved in the drug trade tried to hide who they were by renting vehicles and

houses in other people’s names, and paying people in cash or drugs. The dealers

used multiple cell phones, called “burner phones,” and did not use them for long

periods of time. The dealers did “everything they [could] to avoid law enforcement

contact and us[e] their real information.” Dealers often used code when talking or

texting each other. Oxycodone pills were known as “roxies,” “blues,” or “Rs.”

Oxymorphone pills were known as “opanas” or “moons.” Dealers did not typically

carry drug paraphernalia, needles, or filters with them, as they were not users.

Ohio State Highway Patrol Officer Jason Archer conducted a stop on January 3,

2013, of a vehicle containing Christopher Holloway, August Allen, and Nicole

Ferris. During the stop, Officer Archer found a marijuana cigarette, 4.68 grams of

heroin, and .52 grams of cocaine. He also found a bottle of white powder that was

later identified as a cutting agent. Eventually, Investigator Jinks learned that the

people in this vehicle were involved in drug transactions in the Knoxville area.

KPD Officer Joey Whitehead stopped a car on March 6, 2013 in Knoxville because

the driver was not wearing a seatbelt. After the car stopped, the unidentified driver

ran into a nearby apartment at Christenberry Heights on Dutch Valley Road in

Knoxville. Richard McFadden was a passenger in the vehicle. Officer Whitehead

knocked on the door of the apartment, and Amanda Maples answered. Ms. Maples

consented to a search of the apartment. Officer Whitehead observed a yellow folder

in the apartment. The folder contained paperwork from Ohio regarding Mr.

Holloway’s arrest for drug trafficking. Officer Whitehead knew that Investigator

Jinks had an ongoing drug investigation and reported the information to

Investigator Jinks.

On March 25, 2013, Knox County Sheriff's Officer James Trout stopped Mr.

McFadden at the Greyhound bus station. Mr. McFadden had marijuana, $9100

cash, and a set of digital scales on his person. Mr. McFadden was going to Detroit.

Mr. McFadden indicated the money was from marijuana sales. Mr. McFadden

consented to a search of his cell phone. Text messages consistent with the sale of

heroin were found on the phone. In one text message, Mr. McFadden directed

someone to the Adair Manor Apartments, and told them to “[c]all D.” Ms. Maples

confirmed that the $9100 belonged to [Petitioner].

During his investigation, Investigator Jinks heard the nicknames “Ooh” and

“Nunu.” At some point he learned that “Ooh” was Mr. Allen and that “Nunu” was

Mr. McFadden. Eventually Investigator Jinks identified Coleman Strickland, Tim

Ford, Nicole Farris, Joseph Green, Megan Huffaker, and [Petitioner] as those

involved in the drug conspiracy. The locations in Knoxville being used by

[Petitioner] and co-conspirators for dealing the drugs were 1313 New York

Avenue, Adair Manor Apartments, an apartment on Dutch Valley Road, locations

on Merchants Drive and Cedar Bluff Road, and 173 Chickamauga Avenue. Ms.

Maples rented the house at 1313 New York Avenue. [Petitioner] paid rent for the

residence and provided Ms. Maples with heroin in exchange for placing the 1313

New York Avenue residence in her name.

Investigator Jinks employed Nicole Bryant as a confidential informant during his

investigation. He paid Ms. Bryant $40 cash for each controlled buy. Each

controlled phone call between Ms. Bryant, Mr. Allen, Mr. Green, and [Petitioner]

was recorded. Each controlled buy was monitored live and video recorded by

police. The funds used to purchase the drugs were photocopied or photographed

prior to each transaction, so the dollars could be identified by serial number if they

were found during the course of the investigation.

On June 13, 2013, Ms. Bryant participated in a controlled buy from Mr. Allen. The

buy was set up during a phone call to XXX-XXX-9692. Ms. Bryant went to the

Adair Manor Apartments to complete the purchase. Investigator Jinks observed

Mr. Allen and Mr. Green enter the apartment building. Ms. Bryant completed the

purchase of .16 grams of heroin described as a “bluish-grey, rocky substance.” []

On June 20, 2013, Investigator Jinks and Ms. Bryant conducted another controlled

buy. Ms. Bryant met Mr. Allen at 1313 New York Avenue. When Ms. Bryant

arrived, Mr. Allen was outside the residence. Testing confirmed that the drugs

purchased by Ms. Bryant were .14 grams of “bluish-grey” heroin. After the buy,

police officers followed Mr. Allen in a Chevrolet Trailblazer driven by Ms.

Huffaker to a Christenberry Heights apartment, just off Dutch Valley Road.

On June 21, 2013, Investigator Jinks returned to the apartment at Christenberry

Heights and observed Ms. Huffaker and Mr. Allen leave in the Trailblazer. He later

observed Mr. Green [] in the Trailblazer. They stopped at a McDonald’s where

Investigator Jinks saw an unknown female get in the back of the vehicle and exit a

short time later. Investigator Jinks requested that a marked patrol car conduct a

stop of the vehicle, with a goal of identifying Mr. Allen, whom Investigator Jinks

only knew as “Ooh” at that point. The vehicle was stopped. Mr. Allen was taken

in to custody on an outstanding warrant from Ohio. At the time of the stop, Ms.

Huffaker possessed $2500 in cash, and Mr. Green possessed $1500 in cash. Three

of the $20 bills used in the June 20, 2013 controlled buy were among the cash found

in Mr. Green’s pocket.

Ms. Bryant informed Investigator Jinks that she attempted to contact Mr. Allen

again on June 24, 2013 and that Mr. Allen’s phone was answered by someone

named “D.” Investigator Jinks and Ms. Bryant made a controlled phone call to Mr.

Green to talk about members of the conspiracy and when she could obtain drugs.

On June 30, 2013, [Petitioner] contacted Ms. Bryant and asked that she come pick

him up at the Tanglewood Apartments. [Petitioner] and Mr. Green were both

present when she arrived, and she drove both of them to several places including a

house off of Kim Watt Road. [Petitioner] wanted Ms. Bryant to rent the house in

her name, indicated that he would deposit $2500 in to Ms. Bryant’s bank account

to pay for it, and told her that he would pay the rent on the house. Ms. Bryant

obtained the rental application from the owner. Ms. Bryant informed Investigator

Jinks about [Petitioner]’s plans to rent the house.

Investigator Jinks learned that Ms. Maples had an outstanding arrest warrant and

that she was staying at the Adair Manor Apartments. On June 28, 2013,

Investigator Jinks went to the Adair Manor Apartments to serve the warrant on Ms.

Maples and observed [Petitioner] driving a rental vehicle with Mr. Green as the

passenger. Ms. Maples came out of the apartment and interacted with Mr. Green.

Investigator Jinks approached with KPD Officer Adam Broome. Investigator Jinks

attempted to arrest Ms. Maples and deal with Mr. Green, while Officer Broome

spoke with [Petitioner]. Investigator Jinks saw [Petitioner] put his hands down by

the side of his seat, and Investigator Jinks heard something hit the vehicle

floorboard. Thinking it might be a weapon, Investigator Jinks ordered [Petitioner]

to put his hands up. [Petitioner] did not have identification and gave Investigator

Jinks a false name. [Petitioner] was arrested on a driver’s license offense. During

the search of the vehicle, Investigator Jinks discovered a cell phone and battery next

to the seat of the vehicle. He surmised that the sound he heard originated when

[Petitioner] took apart the battery and cell phone and dropped it next to the seat of

the vehicle. Investigator Jinks inserted the battery back into the phone and turned

it on. Investigator Jinks dialed the number, XXX-XXX-2960, listed under “D” in

Ms. Maples’s phone and the phone he found in the vehicle rang. Additional items

found in the vehicle were a bag of trash, empty plastic bags, and a baby powder

bottle with the top cut off. In all, five cell phones, including one with phone number

XXX-XXX-2960, were found during the search of the vehicle. The XXX-XXX-

2960 phone number was listed as “D” in numerous other phones already found

during the investigation. The phone associated with number XXX-XXX-4396 was

another of the phones found during the search. At the scene, several officers

overheard Ms. Maples ask Mr. Green, “[W]hat’s D going to jail for? What’s D

being arrested for?” Ms. Maples consented to a search of her apartment.

Investigator Jinks found digital scales and drug paraphernalia, including a piece of

cotton that appeared to have been used as a filter. The cotton had the same “bluish-

grey” color of the heroin purchased by Ms. Bryant.

On July 2, 2013, Officer Jinks and Ms. Bryant placed a controlled phone call to

number XXX-XXX-9692 and spoke to [Petitioner]. While discussing the rental

house, [Petitioner] agreed to give Ms. Bryant “two grams” if she rented the house

in her name. That same day, Investigator Jinks conducted a “trash pull” at 1313

New York Avenue where he found a utility bill in Ms. Maples’s name, rubber

gloves, packaging for a T-Mobile prepaid cell phone, a piece of paper with a list of

phone numbers and the cost of each phone line, a plastic cover for a digital scale, a

burnt spoon, a piece of straw, and receipts from stores located in Lansing,

Michigan, and Findlay, Ohio. Investigator Jinks also found a small baggie that

contained residue that field tested positive for heroin.

Investigator Jinks and Ms. Bryant made a controlled phone call to number XXX-

XXX-5584 and spoke to Mr. Green on July 11, 2013. Ms. Bryant asked when “D”

was coming back. Mr. Green informed her that “D” would be back the next day

and “guessed” he would [] bring something good back with him. On July 16, 2013,

another controlled phone call was placed by Ms. Bryant to Mr. Green at the XXX-

XXX-5584 number. Ms. Bryant told Mr. Green that she had been trying to reach

[Petitioner]. Mr. Green said that [Petitioner] had not come back to Knoxville yet

and that Mr. Green was out of the drug she was asking for, but suggested he could

get Ms. Bryant some oxymorphone.

On July 21, 2013, Mr. Green called Ms. Bryant and requested a ride. She picked

him up and dropped him off at an Econo Lodge on Merchant’s Drive. Upon

walking in to the hotel room, Ms. Bryant saw a lot of blue pills and between $10,000

and $20,000 in cash. Mr. Green told her that there was $20,000, and that he was

taking the money on a Greyhound bus to Detroit.

On July 31, 2013, Investigator Jinks learned that [Petitioner] was at Mr. Ford’s

residence at 173 Chickamauga Avenue. Investigator Jinks observed a white SUV

with an out-of-state license plate pull into the driveway. [Petitioner] got out of the

SUV and entered the residence. After a few minutes, [Petitioner] came back outside

and left in the SUV. The same SUV was later seen at the residence of Mr.

Strickland on Adcock Street. Investigator Jinks decided to arrest [Petitioner] on

outstanding warrants. Search warrants were obtained for Mr. Ford’s and Mr.

Strickland’s residences.

During the search of Mr. Ford’s home, officers found a baggie containing

marijuana, drug paraphernalia, plastic baggies that indicated narcotics packaging,

a ledger with items marked “M” and “H”, a cell phone, and prescription bottles that

contained a different number of pills from what was actually prescribed. Officers

also found a note that appeared to be a speech that Mr. Ford had intended to say to

[Petitioner]. During the initial search, in total, officers also found 38 tablets of

oxycodone, 28 tablets of oxymorphone, and 1.9 grams of marijuana. Mr. Ford

arrived home after the search began. In a later interview, Mr. Ford indicated there

was heroin in the house that police did not find during their initial search. Mr. Ford

consented to another search, and officers found 4.7 grams of heroin hidden in a pill

bottle inside a sock drawer.

Ms. Maples, Mr. Ford, and Ms. Huffaker all identified [Petitioner] as “D”, and as

the person in charge. They each pled guilty to their involvement in the conspiracy.

Ms. Maples and Ms. Huffaker each made multiple trips between Knoxville and

Detroit to transport drugs. The drugs were delivered to 1313 New York Avenue.

The drugs were stored in baby powder bottles. Each bottle held twenty to thirty

grams of heroin. Two to three bottles arrived at a time. The bottles were

transported using rental cars or Greyhound buses. The group would cut the top off

the baby powder bottles to remove the drugs.

Ms. Maples used at least 300 grams of heroin for her personal use and sold at least

another 200 grams during the time of the conspiracy. At the time of trial, she was

serving an eight-year sentence for convictions related to this case. Ms. Huffaker

used approximately 600 grams of heroin in the time she knew [Petitioner] and that

[Petitioner] personally gave her at least half of the 600 grams.

[Petitioner] was in possession of large amounts of heroin, usually between thirty

and eighty grams at any given time. On one occasion, [Petitioner] threw “a little

bit of blue powder substance” at Mr. Ford and told him that it was heroin. On

another occasion, [Petitioner] gave Mr. Ford 25 oxycodone pills and about one

gram of heroin and asked Mr. Ford if he could “do anything with those.” Mr. Ford

understood that [Petitioner] was asking him to sell drugs and agreed to sell them.

Mr. Ford used envelopes and ledgers to keep track of money he owed to

[Petitioner]. Mr. Ford delivered the money to the property at 1313 New York

Avenue. Mr. Ford gave [Petitioner] at least “a couple thousand dollars” each time

he delivered money. During one delivery, [Petitioner] pulled a “big sack” of heroin

out of his pocket containing about 38 to 40 grams. [Petitioner] let Mr. Ford know

that [Petitioner]’s girlfriend would be delivering pills to Mr. Ford’s house.

[Petitioner] arrived at Mr. Ford’s house after his girlfriend and removed baby

powder bottles from her bag. [Petitioner] gave Mr. Ford 100 pills and kept “[a]t

least a couple hundred more” pills for himself. Pills were delivered to Mr. Ford’s

house this way on two other occasions.

[Petitioner] had scheduled court dates for driving without a license and for criminal

impersonation on July 10, 2013, and August 21, 3013. [Petitioner]’s bail bond was

forfeited which indicated that he did not appear for either court date.

Investigator Jinks learned the phone numbers involved and issued a subpoena to

the cell phone company and received the phone records []. The phone numbers

involved were XXX-XXX-2960, XXX-XXX-4396, XXX-XXX-9692, XXX-

XXX-7405, and XXX-XXX-5584. The records showed that phone number XXX-

XXX-2960 being used regularly in Detroit and Knoxville. The phone associated

with XXX-XXX-9692 was found broken during the arrest of [Petitioner] on July

31, 2013. The phone associated with XXX-XXX-7405 belonged to Mr. Strickland

and was found during a search of his home on July 31, 2013. Lastly, the phone

associated with XXX-XXX-5584 was registered in the name of “Eddie Bang a

Hoe.” “Eddie Bang a Hoe” was the alias connected with Mr. Green.

[Petitioner] did not testify or present any evidence.

* * *

Motion for New Trial

[Petitioner] timely filed a motion for new trial. In the motion for new trial,

[Petitioner] argued that he received ineffective assistance of counsel, that the trial

court erred by failing to investigate [Petitioner]’s dissatisfaction with his attorney-

client relationship, that the trial court erred by allowing hearsay testimony, that the

State engaged in prosecutorial misconduct, that a search warrant was invalid, that

the trial court failed to include lesser-included offenses in the jury instructions, that

the State did not provide witness statements prior to trial, that there was a variance

between the presentment and the proof at trial, that there was newly discovered

evidence, that [Petitioner]’s right to a speedy trial was violated, that the trial court

erred by failing to rule on several pre-trial motions, that the State introduced

multiplicitous counts, that the State improperly introduced evidence of prior bad

acts, that the trial court denied [Petitioner] his right to effective counsel, that the

State’s witnesses made perjured statements, that [Petitioner] was convicted on guilt

transference, that the evidence was insufficient to convict [Petitioner], that the trial

court made errors in the jury instructions, that the State retaliated against

[Petitioner] by asking for a harsher sentence because [Petitioner] exercised his right

to appeal, that the State improperly vouched for witnesses, that [Petitioner]’s right

to confront witnesses was violated, that [Petitioner] was prejudiced in closing

arguments, and that the trial court failed to act as the thirteenth juror.

Hearing on the Motion for New Trial

Retained counsel testified that he represented [Petitioner]. He identified several

motions that he initially filed on behalf of [Petitioner], including: (1) a motion for

severance of unrelated counts; (2) a motion for discovery; (3) a motion for bond

reduction; (4) a motion in limine to exclude evidence about [Petitioner]’s

involvement in prostitution; (5) a motion to suppress evidence obtained during

[Petitioner]’s arrest; (6) a motion to suppress GPS evidence; (7) a motion to

suppress [Petitioner]’s statement; (8) a motion to strike alias; (9) a motion for the

State to give notice of any incentives offered to witnesses; (10) a motion for

disclosure of exculpatory evidence; (11) a motion for severance of co-defendants;

(12) a Bruton motion; (13) a motion for speedy trial; (14) a motion to suppress

evidence seized from a cell phone; (15) a motion to suppress pen register, trap, and

trace information; and (16) a motion for a continuance due to additional discovery.

The motion for speedy trial was dated March 12, 2015. The motion for continuance

was filed on July 23, 2015. Retained counsel withdrew from the case prior to trial

based on [Petitioner]’s refusal to cooperate. He testified that he turned all discovery

materials and other documentation over to appointed trial counsel. Retained

counsel testified that he had a legitimate basis for each of the motions filed.

Retained counsel testified that he sent a letter to the State asking for copies of

documentation concerning the search at 173 Chickamauga Avenue. He

acknowledged that he received the documentation and had notice of what evidence

was collected during the search. Retained counsel recalled that he sent a letter to

the State on April 25, 2014 [requesting] discovery. Retained counsel also notified

[Petitioner] of the request. He also recalled that he sent a letter to the State in which

he explained that he could not open the video files that were received in discovery

[and] the State explained how to open the files. Retained counsel did not recall

receiving information regarding the confidential informant. He identified a

debriefing of Ms. Maples, dated April 8, 2015; a debriefing of Mr. Strickland, dated

June 12, 2015; a debriefing of Ms. Bryant, dated June 18, 2015; and a debriefing of

Ms. Huffaker, dated July 10, 2015. Retained counsel saw these documents when

he represented [Petitioner]. He went over everything he received in discovery with

[Petitioner]. Retained counsel also recalled that [Petitioner] was “extremely

uncooperative.” He testified that [Petitioner] missed appointments and did not

appear for court dates. Retained counsel could not recall [] which recordings he

received in discovery. He did not recall which motions were heard, or which

witnesses he would have called at trial. Retained counsel testified that he was not

“at the point to develop our trial strategy, because the motions had not been heard”

and he was “having difficulty getting [Petitioner] to be serious about looking at this

case.” Retained counsel testified specifically about the motion to suppress GPS

evidence. He stated:

[T]he GPS motion, where they were tracking him through Ohio,

when [Petitioner] was coming from Detroit to Knoxville, if that

motion had been granted then, obviously, [the State] wouldn’t have

been able to use that GPS information, but [the State] could still use

the proof that [the State] had developed in Knoxville that

[Petitioner] was involved in a heroin conspiracy here. So it would

have affected the trial some. Would it have affected the trial

ultimately? No. Because there was other evidence than that.

Retained counsel agreed that, generally speaking, successful or unsuccessful

motions impacted his trial strategy one way or another. He did not recall the

criminal history of Ms. Bryant.

On cross-examination, retained counsel explained that he told [Petitioner] that it

was very important to attend meetings to review discovery. He agreed that in

complex cases, discovery can take a long period of time. He acknowledged that

the difficulty was not the amount or lack of discovery, but [Petitioner]’s refusal to

cooperate. Retained counsel testified that many of the motions filed were filed

early on in the case, and that as his investigation continued, some of the motions

would need to be amended or withdrawn. He acknowledged that some motions to

suppress were either not filed at all or would not have been granted because

[Petitioner] lacked standing to raise the issues. Retained counsel recalled that there

was a pen register, track and trace on [Petitioner]’s phone and that it was put on

[Petitioner]’s phone by authorities in either Ohio or Michigan. Retained counsel

recalled that [Petitioner] was identified by others as “D.” Retained counsel filed

the motion to strike alias because he was worried about any alias. Retained counsel

testified that none of the motions he filed were dispositive.

Mr. Holloway testified that he was a co-defendant in the conspiracy with

[Petitioner]. Mr. Holloway was arrested in Ohio on January 3, 2013 and was

released sometime in March 2013. He was re-incarcerated in May 2013. Mr.

Holloway was interviewed by the State in August 2016, prior to [Petitioner]’s trial.

Mr. Holloway, the State’s attorney, and Investigator Jinks were present for the

interview. Mr. Holloway testified that the interview focused primarily on his Ohio

arrest. He said that it was just him, Mr. Allen, and Ms. Ferris that were in the

vehicle in Ohio when it was pulled over and drugs were found. Mr. Holloway said

that he was “pretty sure [counsel for the State] was taking notes [during the

interview],” but that he did not know if the interview was recorded. Mr. Holloway

claimed no one contacted him on [Petitioner]’s behalf. He stated that if he had been

asked to testify at [Petitioner]’s trial, he would have said that [Petitioner] had

nothing to do with the Ohio arrests, as [Petitioner] was not present at the time. Mr.

Allen was his drug contact. Mr. Holloway stated that he did not know from whom

Mr. Allen got drugs. On cross examination, Mr. Holloway admitted that he was

from Detroit and that [Petitioner] was his cousin. He stated that he could only speak

to the “the Ohio situation because [he’s] going off of the date that [the State] said

the conspiracy started [,] January 3, [2013].” Mr. Holloway admitted that he pled

guilty to the conspiracy and that he agreed with the factual basis for the plea. He

claimed that he did not know if [Petitioner] had any involvement with Ms. Maples,

Ms. Huffaker, or Mr. Ford.

Mr. Allen, a co-defendant, testified that no one contacted him on [Petitioner]’s

behalf and that he was not subpoenaed to testify at the trial. He did not know the

owner of the phone number XXX-XXX-4396 and [] no phones were seized from

him. Mr. Allen stated that he did not know what happened to his phone as he did

not have it with him when he was arrested. Mr. Allen claimed that he had nothing

to do with [Petitioner] and [] received no drugs from [Petitioner]. On cross

examination, Mr. Allen admitted that he had several felony convictions in Ohio and

Michigan. He stated that [Petitioner] and most of the co-defendants grew up

together in the same neighborhood in Detroit. Mr. Allen said that Mr. Holloway

was known as “Midnight” and that Mr. Strickland was known as “Man.” He

admitted that he was involved in the conspiracy to sell heroin. Mr. Allen stated that

he “never knew that [he] [pled] out to conspiracy. [He] thought [he] was pleading

out to selling drugs.” Mr. Allen did not know that he was convicted of conspiracy

until he received his “TOMIS” sheet in prison. Mr. Allen claimed that he did not

recall that the word conspiracy was used numerous times during his guilty plea. He

admitted that he lived at 1313 New York Avenue and that [Petitioner] came by to

“just smoke weed.” Mr. Allen knew that Ms. Maples rented the house at 1313 New

York Avenue. Mr. Allen admitted to selling heroin at the house, and that he brought

it from Adair Manor Apartments. He said that he got the heroin from someone with

the street name of “D.” Mr. Allen could not recall his own cell phone number. He

admitted he lied to police about his real name. Mr. Allen knew “three or four D’s,”

although he could not name them when questioned and called them “homeboys.”

Mr. Allen stated that [Petitioner]’s nickname was “Nard.” He could not recall if he

had [Petitioner]’s phone number stored in his phone under “D,” but claimed that it

was probably stored under “Ricco.” Mr. Allen stated that other people used his

phone and that they could have put the phone number [] under the name of “D.”

Mr. Allen admitted that he sold heroin at the Adair Manor Apartments. He also

recalled that [Petitioner] was at the Adair Manor Apartments. Mr. Allen claimed

that he gave Ms. Maples the money to put the 1313 New York Avenue house in her

name. He admitted that the heroin he sold was “bluish-grey” in color, an unusual

color for heroin. When he was arrested in June 2013, Mr. Allen said that Mr. Green

was in the vehicle with him. Mr. Allen admitted to “smoking dope” with Mr. Ford’s

daughter at 173 Chickamauga Avenue.

[Petitioner] testified that he received trial counsel’s phone number from retained

counsel. [Petitioner] stated that he was “steady calling [trial counsel] asking him

to set a motion court date. So [Petitioner’s] motions can be heard. No answer. No

contact. Not nothing from [trial counsel].” [Petitioner] claimed that he called at

least two or three times a month and left messages with trial counsel’s office.

[Petitioner] said that his phone number remained the same from the day trial

counsel was appointed to the present day. [Petitioner] testified that he had not seen

the phone records for XXX-XXX-2960, XXX-XXX-9692, or XXX-XXX-7405.

He stated that he never saw the recordings or pictures of the controlled buys

between Mr. Allen and Ms. Bryant. [Petitioner] did not receive pictures of money

seized from Mr. Allen during Mr. Allen’s arrest on June 21, 2013. [Petitioner]

admitted that retained counsel showed him photographs of the baby powder bottle

found in the trunk of his vehicle during [Petitioner]’s June 28, 2013 arrest.

[Petitioner] saw photographs [] from Ms. Maples’s purse that were taken during the

June 28, 2103 arrest. [Petitioner] recalled that retained counsel showed him the

rental application that Ms. Bryant completed. [Petitioner] testified that any

discovery provided to him was supplied by retained counsel and that trial counsel

never showed him anything. [] [Petitioner] testified that he asked for, but never

received, a recording of his interview with Investigator Jinks. [Petitioner] insisted

the interview contained exculpatory evidence. [Petitioner] received a copy of the

search warrant, affidavit for the warrant, and all evidence seized from Mr. Ford’s

house from a private investigator in August 2017. [Petitioner] stated he received

all information about the search of Mr. Adcock’s residence before the trial.

[Petitioner] stated that he did not see any of the debriefings of co-defendants or Ms.

Bryant until appellate counsel gave them to him in August 2017.

[Petitioner] stated that trial counsel met with him one time for about 45 minutes

between August 8, 2016 and August 10, 2016 but did not go over any discovery

materials or trial strategy with him. Trial counsel presented a plea offer of fifteen

years at 100 percent to [Petitioner]. [Petitioner] testified that when was transferred

to the jail for trial he was in “classification” and could take no visitors, so it was

impossible that trial counsel to meet with him on August 8, 2016.

[Petitioner] stated that the majority of continuances were due to the State and that

his demand for speedy trial was filed on March 12, 2015. [Petitioner] recalled that

retained counsel withdrew as counsel on August 31, 2015, the same day he filed a

continuance because the State added additional discovery. The case was reset for

trial on February 22, 2016. [Petitioner] did not agree to reset the February 22, 2016

date to August 8, 2016, “because [he] never got in contact with [trial counsel].” He

had no contact with trial counsel before August 8, 2016. [Petitioner] stated that he

and trial counsel “never sat down and built a defense or had his pretrial motions

heard so [Petitioner] could know what evidence can be introduced in trial . . . .

[Petitioner] could not build a defense with a lawyer that [Petitioner] never met

before.”

[Petitioner] told the trial court that he wanted to go to trial even though he had not

met trial counsel. [Petitioner] stated that he had gone over all of the discovery that

he had been given, but that he did not know there was other evidence and discovery

that he had not seen. [Petitioner] testified that if he had seen all the evidence that

he could have made a better decision about moving forward with the trial or

pleading guilty. [Petitioner] said that he did not learn the identity of the confidential

informant until the trial. He stated that during the trial he told trial counsel to call

Mr. Holloway, Mr. Green, Mr. McFadden, Mr. Strickland, Mr. Allen, and Mr. Pate

as witnesses on his behalf. [Petitioner] recalled he told trial counsel to “move for

a dismissal or [make] an argument due to a speedy trial” on August 8, 2016 and

that trial counsel did not want to.

[Petitioner] denied knowing or ever meeting Mr. Ford and knew of no reason why

Mr. Ford would identify him as his narcotics supplier. He claimed that after

reviewing the search warrant affidavit for Mr. Ford’s house, he “noticed false and

misleading information.” In paragraph 11, the affidavit read:

On July 31[], 2013, Officer Jinks began receiving information from

the Michigan State Police Metro Narcotics Task Force that the GPS

surveillance on [a] cellular phone with [the] number [XXX-XXX-

9692] [] was traveling [] towards Knoxville. This is the cellular

telephone last known to have been [in] possession of [Petitioner].

At approximately noon[,] the phone was located at [] 1123 Adcock

Avenue through GPS surveillance. The GPS surveillance data

verified that the cellular telephone [XXX-XXX-9692] known to be

used by [Petitioner] travelled to [] 173 Chickamauga Avenue [].

Physical surveillance was picked up at [that residence]. Your affiant

was told by Officer Jinks that he watched as a black male matching

the description of [Petitioner] exited the residence and got into the

rental vehicle and drove back to 1123 A[d]cock. After that CS1

placed a consensually recorded telephone call to [XXX-XXX-9692]

and made contact with [Petitioner] who verified that he was in town

and that he had blueberry for [sale] for $30.00 each. Your affiant

knows that blueberry is common street slang for 30 milligrams

oxycodone tablets.

[Petitioner] stated that this was the subject of the motion to suppress GPS evidence.

[Petitioner] claimed that XXX-XXX-9692 was not his phone. [Petitioner] stated

that his phone number had a 517 area code, but could not remember the rest of the

number. [Petitioner] recalled he was not made aware of the recorded phone calls

and phone records until trial. He stated that had he known all of this evidence was

being presented at trial he would never have told the trial court that he had gone

through discovery a thousand times.

On cross-examination, [Petitioner] claimed that retained counsel lied on the stand

when he said that he could not contact [Petitioner] and that [Petitioner] failed to

meet with him to talk about discovery. [Petitioner] admitted that he missed one

court date. [Petitioner] opined that retained counsel did not give him video

recordings. He claimed that retained counsel lied about having the debriefings.

[Petitioner] claimed that he did not know Ms. Bryant at all and was never provided

debriefings from trial counsel. [Petitioner] denied that it was his voice on

recordings from phone number XXX-XXX-9692 that were played during the

hearing. [Petitioner] reiterated that XXX-XXX-9692 was not his phone.

[Petitioner] admitted that because it was not his phone, he had no standing to

complain about the GPS tracking and that any motion to suppress was moot.

[Petitioner] said that Investigator Jinks lied about finding the phone assigned to

XXX-XXX-9692 in the vehicle on the day he was arrested. He stated that the

affidavit incorrectly stated that he traveled down I-75. He stated he was already in

town and staying at Mr. Strickland’s residence on Adcock. He denied that he had

regular contact with Mr. Allen using the XXX-XXX-9692 number.

[Petitioner] denied that trial counsel came to see him in jail on August 8, 2016, at

2:54 p.m., even though the jail records showed otherwise. He testified the only day

he met with trial counsel was on August 9, 2016, for forty five minutes. [Petitioner]

testified that each co-defendant lied during the trial because they received a deal

from the State.

Trial counsel was called as a witness at the Motion for New Trial hearing. He

recalled the pre-trial motions filed by retained counsel, before him. Trial counsel

read the following from the trial transcript:

The Court: We have no motions pending.

[Petitioner]: I got a motion.

The Court: This is your lawyer. He has – [trial counsel], he’s saying

[retained counsel] has filed 12 motions.

[The State]: I’ve addressed those in this court in front of your

Honor.

The Court: Okay

[The State]: You’ve already ruled on them.

The Court: Okay. No. We’ve heard the motions. All of them.

[Petitioner]: Not mine, your Honor.

Trial counsel stated that he reviewed the entire file he received from retained

counsel and the State. The trial court asked if everyone could agree that the motions

were not heard pre-trial. The State responded that some had been heard and others

had not. The State agreed that the suppression motions had not been heard. Trial

counsel stated that it was his understanding that all pre-trial motions had been heard

and ruled on. Trial counsel did not recall if he had seen the chart regarding contact

between co-defendants. Trial counsel acknowledged that he received three

messages from [Petitioner] dated December 7, February 2, and October 5. None of

the messages stated the year, but Trial counsel conceded that the messages would

have corresponded with the time frame that he represented [Petitioner]. Trial

counsel stated that he would not have contacted or called any of [Petitioner]’s co-

defendants as witnesses, as he understood that the co-defendants were cooperating

with the State. Trial counsel did not recall if [Petitioner] spoke to him about

favorable witnesses. Trial counsel recalled several phone calls he made to

[Petitioner], but he did not remember actually speaking to [Petitioner]. He

remembered speaking with a female when he called [Petitioner]. Trial counsel

stated that [Petitioner] never came to meet with him. Trial counsel did not send

[Petitioner] any further discovery. Trial counsel did not recall a meeting between

Mr. Holloway and the State or viewing the criminal record of Ms. Bryant. Trial

counsel stated that he and [Petitioner] did not go over the entirety of discovery

during their meetings. They discussed which witnesses were going to be called, as

trial counsel had been informed “a number of co[-]defendants that were going to

testify.” Trial counsel stated that he did not watch the videos and that he did not

recall going over the phone records. Trial counsel recalled that he had been through

the discovery, but had not met with [Petitioner], so he was asking for a couple of

weeks’ continuance. Trial counsel stated that he would rather have had a couple of

weeks instead of two days, but that he did the best he could with what he had. Trial

counsel testified he understood that [Petitioner] had copies of everything and that

[Petitioner] had either reviewed it himself or with retained counsel. Trial counsel

stated that [Petitioner] wanted to go to trial and that [Petitioner] told him that he

had been over the discovery a “ton of times.” [] Trial counsel did not recall any

surprises at trial. Trial counsel did not file a motion to dismiss on a violation of the

right to a speedy trial [or] recall [Petitioner] asking him to file a motion for speedy

trial. Trial counsel did not recall if he objected to evidence concerning

[Petitioner]’s failure to appear charges. He admitted that he did not object to the

admissibility of evidence collected from the vehicle on June 28, 2013.

On cross examination, trial counsel testified that [Petitioner] lived in Michigan

during the time he represented [Petitioner]. Trial counsel was an appointed

attorney, and it was not practical for him to travel to Michigan to meet with

[Petitioner]. Trial counsel responded to each of [Petitioner]’s messages and made

efforts to reach out to [Petitioner], but [Petitioner] never came to meet with him.

Trial counsel agreed that because [Petitioner] did not come see him, his ability to

prepare for trial was hampered. Trial counsel wanted a continuance to properly

prepare with [Petitioner], but [Petitioner] was adamant about proceeding to trial.

Trial counsel felt that [Petitioner] could not ask for both a continuance and a speedy

trial. He agreed that pursuit of a speedy trial motion, when [Petitioner] would not

meet with him to prepare for trial, would be problematic. Trial counsel stated that

[Petitioner]’s missed court appearances caused problems. He did not recall why

the trial date was continued on February 22, 2016.

At the conclusion of the hearing, appellate counsel conceded that [] the motion to

sever co-defendants, the motion for discovery, the motion in limine regarding

prostitution, the motion to suppress [Petitioner]’s statement, the motion

for Brady material, and the motion for severance regarding co-defendants’

statements were moot. Appellate counsel conceded that the motion for bond

reduction was heard and ruled on [but] did not agree that the motions for striking

alias, for the State to give notice of incentives, for the demand for a speedy trial, to

suppress evidence from the cell phones, and to sever charges were moot.

During the hearing on the motion for new trial, the trial court commented that he

believed [Petitioner] perjured himself during his testimony. The trial court further

noted that the voice heard on the recorded phone calls sounded “remarkably like

that of [Petitioner].”

The trial court found that

[a]ssuming arguendo, that trial counsel was ineffective for failing to

litigate these motions (which this [c]ourt does not hold) there is no

evidence within this record supporting the second prong of

the Strickland [v. Washington, 466 U.S. 668, 687 (1984)] test. This

[c]ourt may not presume, nor may it infer, that a different outcome

may have resulted had the motions been litigated. Moreover, this

defendant does not have standing to challenge any search of co-

conspirator Tim Ford’s residence.

As to trial counsel’s lack of preparation for the trial, the trial court found that

[Petitioner] “may not now complain that the narrative he directed does not have the

happy ending he desired.” The trial court found that [Petitioner] insisted that he

had reviewed all discovery and [Petitioner] stated that “I’m ready to go [to trial]

today, Your Honor.” The trial court accredited the testimony of retained counsel

and trial counsel that [Petitioner] would not cooperate in preparation for trial.

The trial court found that “the evidence of [Petitioner’s] participation within the

alleged conspiracy was overwhelming[,]” [] that the witnesses implicated

[Petitioner]’s participation[,] and that their testimony was corroborated by the

evidence. The trial court stated:

[Petitioner]’s self-serving attempt to repudiate this evidence is not

credible. Nor does this [c]ourt find as credible the testimony of

[Mr.] Allen and [Mr.] Holloway wherein each asserts that

[Petitioner] had no role in the conspiracy for which he was

convicted.

This [c]ourt has spent considerable time reading the technical record

in this case, reading the trial transcript, and carefully reviewing all

of the grounds [Petitioner] has raised in support of his assertion that

he is entitled to a new trial.

The trial court denied the motion for new trial. It is from that denial that [Petitioner]

now appeals.

State v. Winbush, No. E2018-02136-CCA-R3-CD, 2020 WL 1466307, at *1–10 (Tenn. Crim. App.

Mar. 24, 2020), perm. app. denied (Aug. 6, 2020) (footnotes omitted) (“Winbush”). The TCCA

vacated Petitioner’s convictions for Counts 3 and 4 of the presentment because of Petitioner’s trial

counsel’s failure to object to the fact that the jury instructions for those counts did not match the

presentment charges but affirmed Petitioner’s other convictions. Id. at *1, *15, *27.

After he filed a state court habeas corpus petition,1 Petitioner filed his pro se petition for a

writ of habeas corpus under 28 U.S.C. § 2254 [Doc. 2] asserting the following claims:

1. The evidence is insufficient to sustain his convictions [Id. at 10–14; Doc. 6];

2. Counsel was ineffective for (1) failing to pursue the motion to suppress the cell

phone evidence; (2) failing to pursue the motion to suppress the GPS evidence;

(3) eliciting evidence of a prior bad act; (4) failing to request a jury instruction

for facilitation; (5) failing to request a jury instruction on accomplice

corroboration; (6) failing to file a motion to dismiss due to a speedy trial

violation; (7) commenting on Petitioner not testifying at trial; (8) failing to

investigate favorable witnesses; (9) failing to discover exculpatory evidence;

and (10) failing to object to illegally obtained evidence [Doc 2 p. 15–50];

3. The prosecution improperly failed to disclose a statement from Mr. Holloway

[Id. at 50–53];

4. The prosecution improperly inflamed the emotions of the jury [Id. at 53–54];

5. The prosecution improperly vouched for trial testimony [Id. at 54];

6. The prosecution introduced evidence obtained from an illegal search and

seizure [Id. at 55–56];

7. A new rule of law establishes that GPS and cell phone evidence introduced at

his trial was illegally obtained [Id. at 56–58]; and

1 The state court dismissed Petitioner’s state court habeas corpus petition [Doc. 24-

3] and the arguments therein [Doc. 24-1] are not relevant to this action.

8. Cumulative errors at his trial entitle him to habeas corpus relief [Id. at 58–61].

Respondent filed a response in opposition to the § 2254 petition [Doc. 25], as well as the state

record [Doc. 20]. Petitioner filed a reply [Doc. 28].

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). This standard is hard 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

A. Exhaustion Requirement

The Court must first examine whether Petitioner, a state prisoner, exhausted his available

state court remedies for his claims, as he must do before the Court may grant him habeas corpus

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

requires a 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” to properly exhaust a claim with

the state courts, 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). Procedural default may also

occur when a petitioner presented the claim to the highest court but the state court was prevented

from “reaching the merits of the petitioner’s claim” because petitioner failed to comply with an

applicable state procedural rule, which is regularly enforced and is an “adequate and independent”

state ground. Seymour v. Walker, 224 F.3d 542, 549–50 (6th Cir. 2000) (citation omitted).

“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) (citation

omitted). Thus, a prisoner’s procedural default of a claim forecloses federal habeas review 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).

Respondent contends that Petitioner did not exhaust the following two claims in his § 2254

petition: (1) Petitioner’s claim (Claim 4) that the prosecution improperly inflamed the emotions of

the jury and (2) Petitioner’s claim (Claim 5) that the prosecution improperly vouched for testimony

from Ms. Maples at trial by stating that the jury could “believe Ms. Maples was telling the truth”

[Doc. 25, p. 44–45]. Specifically, as to Petitioner’s claim that the prosecution improperly inflamed

the jury’s emotions, Respondent states that the TCCA did not reach the merits of this claim because

Petitioner’s counsel did not object at trial, and therefore waived this argument under Tennessee

law [Id. at 44]. As to Petitioner’s vouching claim, Respondent notes that while Petitioner asserted

other vouching claims in his appeal of his convictions, he did not assert such a claim as to the

statement about Ms. Maples he cites in his petition, and therefore procedurally defaulted this claim

[Id. at 45–46]. In his reply, Petitioner requests that the Court excuse his default of these claims

because it was due to the ineffective assistance of his appellate counsel [Doc. 28, p. 21–24].

The record establishes that Petitioner procedurally defaulted his claims that the prosecution

inflamed the emotions of the jury and improperly vouched for Ms. Maples’s credibility by stating

that the jury could believe her. Moreover, while Petitioner seeks to excuse his procedural default

of these claims by blaming the ineffective assistance of his appellate counsel, Petitioner cannot

rely on the ineffective assistance of his appellate counsel to establish cause to excuse a procedural

default in a federal habeas corpus action without first exhausting that ineffective assistance of

appellate counsel claim in the state courts. Edwards v. Carpenter, 529 U.S. 446, 453 (2000)

(providing that “an ineffective-assistance-of counsel claim asserted as cause for the procedural

default of another claim can itself be procedurally defaulted”). The record establishes that

Petitioner did not exhaust an ineffective assistance of appellate counsel claim with the Tennessee

courts. Accordingly, Petitioner has not set forth cause to excuse his procedural default of these

claims, and the Court will not address them on the merits.

Additionally, the Court notes that Petitioner did not present his claim that the prosecution

presented illegally seized cell phone evidence in his trial that he raises in his § 2254 petition to the

TCCA, but rather only asserted that (1) his counsel was ineffective for not pursuing motions to

suppress and/or objecting to this evidence and (2) that the trial court erred in not granting him a

new trial due to its failure to hear his pretrial motions to suppress this evidence prior to trial [Doc.

20-29]. Respondent does not raise Petitioner’s procedural default of this claim in response to the

§ 2254 petition but instead argues that Petitioner presented his Fourth Amendment claim in his

appeal, presumably through the aforementioned arguments, and that this claim therefore is not

cognizable in this action [Doc. 25, p. 46–47]. However, this is incorrect because, as set forth

above, Petitioner must have presented the same claim under the same theory to the TCCA in order

to have exhausted it, and the record establishes that he did not present a free standing claim

asserting that the prosecution presented illegally obtained evidence at his trial to the TCCA.

Nevertheless, the Court may raise the issue of Petitioner’s procedural default of this claim

sua sponte. Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000). As it was in Elzy, Petitioner’s

procedural default of this claim is obvious from the record. Moreover, he cannot excuse that

default by blaming his appellate counsel, as the record establishes that Petitioner did not exhaust

any such ineffective assistance of appellate counsel claim in his pro se petition for post-conviction

relief [Doc. 24], and he cannot do so now.

Accordingly, the Court sua sponte finds that Petitioner also procedurally defaulted his

claim that the prosecution presented illegally obtained cell phone evidence at his trial and will not

address it on the merits.

B. Sufficiency of the Evidence

Petitioner first challenges the sufficiency of the evidence underlying all his convictions

[Doc. 2, p. 10–14; Doc. 6]. In denying this claim in Petitioner’s direct appeal, the TCCA stated:

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. The relevant

question is whether any rational trier of fact could have found the accused guilty of

every element of the offense beyond a reasonable doubt. See Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury’s verdict replaces

the presumption of innocence with one of guilt; therefore, the burden is shifted onto

the defendant to show that the evidence introduced at trial was insufficient to

support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). “A guilty

verdict by the jury, approved by the trial court, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the prosecution's

theory.” Id. (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

Therefore, the prosecution is entitled to the “‘strongest legitimate view of the

evidence and to all reasonable and legitimate inferences that may be drawn

therefrom.’” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting Smith,

24 S.W.3d at 279). Questions concerning the “‘credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof

are matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d

289, 297 (Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn.

2008)). It is not the role of this Court to reweigh or reevaluate the evidence, nor to

substitute our own inferences for those drawn from the evidence by the trier of

fact. Id. The standard of review is the same whether the conviction is based upon

direct evidence, circumstantial evidence, or a combination of the two. Dorantes,

331 S.W.3d at 379; State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

Tennessee Code Annotated section 39-12-103(a) defines conspiracy as follows:

The offense of conspiracy is committed if two (2) or more

people, each having the culpable mental state required for

the offense that is the object of the conspiracy, and each

acting for the purpose of promoting or facilitating

commission of an offense, agree that one (1) or more of them

will engage in conduct that constitutes the offense.

As charged in this case, “[i]t is an offense for a defendant to knowingly . . . [p]ossess

a controlled substance with intent to manufacture, deliver, or sell the controlled

substance.” T.C.A. § 39-17-417(a)(4). Heroin, oxycodone, and oxymorphone are

all controlled substances. T.C.A. §§ 39-17-406(c)(11) - 408(b)(1)(M)-(N).

Defendant asserts that his convictions relied heavily on accomplice testimony. A

conviction “may not be based upon the uncorroborated testimony of an accomplice

to the offense.” State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001). This Court has

explained:

[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the

inference, not only that a crime has been committed, but also that

the defendant is implicated in it; and this independent corroborative

testimony must also include some fact establishing the defendant’s

identity. This corroborative evidence may be direct or entirely

circumstantial, and it need not be adequate, in and of itself, to

support a conviction; it is sufficient to meet the requirements of the

rule if it fairly and legitimately tends to connect the defendant with

the commission of the crime charged. It is not necessary that that

corroboration extend to every part of the accomplice’s evidence.

State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. Sept. 24, 1992).

Defendant maintains that the majority of the evidence came from testimony of his

alleged accomplices, that any testimony from Ms. Bryant is suspect, that he was

never found in possession of any drugs, and that all circumstantial evidence against

him was unlawfully obtained. Ms. Bryant completed a rental application on behalf

of Defendant. Recorded phone conversations revealed that Defendant would pay

any fees or rent associated with the rental house and give Ms. Bryant heroin in

exchange for her completion of the application.

Additionally, a recorded phone conversation between Mr. Green and Ms. Bryant

stated that “D” was returning from Detroit. Investigator Jinks testified that “D”

referred to Defendant. Investigator Jinks also testified that he heard Ms. Maples

and Mr. Green refer to Defendant as “D” when Investigator Jinks arrested

Defendant. Investigator Jinks also saw Defendant at multiple properties associated

with the conspiracy. Therefore, the record shows that the testimony of Ms. Maples,

Ms. Huffaker, and Mr. Ford were amply corroborated.

Each of the co-conspirators testified that Defendant was in charge of a network that

trafficked controlled substances from Detroit to Knoxville. Recorded phone calls

and text messages corroborated that Defendant was in charge of the drug network.

The controlled buys took place within drug-free zones. Defendant answered the

same phone number used by Ms. Bryant to set up the controlled buys with Mr.

Allen. Moreover, there was testimony from Ms. Bryant and Investigator Jinks that

Defendant had taken over Mr. Allen’s activities. Multiple people testified that

Defendant delivered heroin and opiate pills to members of the conspiracy. Officers

seized drugs at locations where Defendant was known to frequent.

It is reasonable that a jury could conclude that Defendant possessed heroin,

oxycodone, and oxymorphone with the intent to sell and deliver them and that he

had entered into a conspiracy with the intent to do the same. The evidence is

sufficient to support his convictions. Defendant is not entitled to relief.

Winbush, at *25–26.

To evaluate challenges to the sufficiency of evidence, federal courts determine “whether,

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); 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 courts look to the evidence supporting the conviction with specific

reference to the elements of the crime as established by state law. Id. at 324 n. 16. However,

because the trier of fact is charged with and in the best position to resolve conflicts in the testimony,

weigh the evidence, and draw inferences, the Court must defer to its verdict. Id. at 319.

As with ineffective assistance of counsel claims, it is incredibly difficult for a petitioner to

successfully challenge the sufficiency of the evidence due to the double layer of deference granted

to these claims. Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012). Specifically, not only is the

trier of fact’s verdict given deference, but, under the AEDPA, the federal courts must also defer to

the state court of appeals’ consideration of this verdict and may overturn it only if the state court

was objectively unreasonable. Id.

While the TCCA generally addressed the sufficiency of the evidence to support Petitioner’s

convictions together, it did not articulate its reasons for finding the evidence sufficient for each of

the charges as set forth in the presentment. Where the state court fails to articulate reasons to

support its decision, the federal court conducts an independent review of the claims. Williams v.

Anderson, 460 F.3d 789, 796 (6th Cir. 2006). “‘That independent review, however, is not a full

de novo review of the claims’” but rather requires the Court to “‘uphold the state court’s summary

decision unless the [c]ourt’s independent review of the record and pertinent federal law persuades

the [c]ourt that its result contravenes or unreasonably applies clearly established federal law, or is

based on an unreasonable determination of the facts in light of the evidence presented.’” Id.

(quoting Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) and Aycox v. Lytle, 796 F.3d 1174,

1177–78 (10th Cir. 1999) (internal quotation marks omitted)).

Accordingly, the Court will now independently review each of Petitioner’s claims

challenging the sufficiency of the evidence for each of his convictions based on the language of

the presentment to determine whether the TCCA’s holding that the evidence was sufficient to

support those convictions was an unreasonable application of federal law or an unreasonable

determination of the facts based on the evidence.

1. Counts 1 and 2: Conspiracy to possession with the intent to sell (Count 1) or

deliver (Count 2) 150 grams or more of a Schedule I controlled substance

(heroin) in a drug-free zone.

First, in Counts 1 and 2, the state charged Petitioner with conspiracy to possess with the

intent to sell or deliver one-hundred and fifty grams or more of heroin, with the overt act specified

as August Allen selling heroin to an agent of the Knoxville Police Department (“KPD”) within

one thousand feet of a school on June 20, 2013 [Doc. 20-1, p. 1–2]. Petitioner challenges his

convictions by asserting that (1) the prosecution did not provide evidence of his intent or

knowledge of this incident; (2) the record is devoid of evidence that Petitioner and his co-

conspirators agreed to possess, sell, or deliver the heroin at issue; (3) phone records do not prove

these charges; (4) he never possessed drugs or money or actively purchased, sold, or delivered

heroin; and (5) there was no independent evidence of him communicating with or participating in

the relevant heroin sale or discussing drug prices with his codefendants [Doc. 2, p. 10–12].

Petitioner also notes that the jury acquitted him of the charges in Counts 16 and 17 of the

presentment, which he asserts relied on the same evidence as Counts 1 and 2, and therefore claims

that the evidence was insufficient to support his convictions for Counts 1 and 2 [Id. at 11–12].

The evidence at trial showed that on June 20, 2013, August Allen sold heroin to Ms. Bryant,

a KPD confidential informant, at 1313 New York Avenue, a residence within 1,000 feet of a school

[Doc. 20-17, p. 61], that Ms. Maples rented and for which Petitioner paid the rent. Investigator

Jinks monitored this controlled-buy. Winbush, at *2–*3. Also, all of Petitioner’s coconspirators

who testified at trial identified him as the leader of a drug conspiracy for which August Allen,

among others, regularly sold heroin at this time [see, e.g., Doc. 20-13, p. 11–20]; Id. at * 2–4.

The evidence of Petitioner’s participation in and leadership of the relevant underlying

conspiracy at the time of the controlled buy on June 20, 2013, was clear and overwhelming. He

claims that the state failed to establish an agreement among the parties that would support the

conspiracy conviction [Doc. 2, p. 12]. To the extent that Petitioner challenges the sufficiency of

that evidence because it came from his co-conspirators, Respondent correctly notes that the Sixth

Circuit has held such evidence is sufficient to support a conviction under federal law. United

States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010) (providing that “it is well-settled that

uncorroborated testimony of an accomplice may support a conviction in federal court”).

Moreover, a conspiracy may be proven by circumstantial evidence. See United States v.

Small, 988 F.3d 241, 252 (6th Cir. 2021) (providing that “[j]ust as the existence of

a conspiracy ‘may be inferred from circumstantial evidence, a defendant’s knowledge of and

participation in a conspiracy also may be inferred from his conduct and established by

circumstantial evidence’” (quoting United States v. Conatser, 514 F.3d 508, 518 (6th Cir. 2008)).

That is what we have here. That the evidence was circumstantial, it was no less compelling. He

paid the rent for the house where the sale of heroin occurred. His coconspirators all testified that

Petitioner was the leader of the conspiracy. Petitioner routinely provided heroin to Mr. Allen to

sell. This evidence was sufficient to support Petitioner’s convictions.

Also, Petitioner’s assertion that the fact that the jury acquitted him of Counts 16 and 17 of

the presentment, which alleged that Petitioner and Tim Ford knowingly possessed heroin with the

intent to sell or deliver in a drug-free zone on July 31, 2013, [Doc. 20-1, p. 23], means that the

evidence to support his convictions for Counts 1 and 2 is insufficient because those counts relied

on the same evidence has no merit. The offenses alleged in Counts 1 and 2 occurred on different

dates and under completely different circumstances than those alleged in Counts 16 and 17, and

Petitioner’s acquittal for Counts 16 and 17 has no bearing on the sufficiency of the evidence for

Counts 1 and 2.

Accordingly, the evidence was sufficient to support these convictions.

2. Counts 3 and 4: Conspiracy to sell (Count 3) or deliver (Count 4) 150 grams

or more of a Schedule I controlled substance (heroin) in a drug-free zone.

In his motion to amend his petition [Doc. 6], Petitioner challenges the sufficiency of the

evidence supporting his convictions for Counts 3 and 4 of the presentment and asserts that, if the

Court finds the evidence insufficient to support those convictions, it should also find the evidence

insufficient to support Counts 1 and 2 [Doc. 6, p. 1–3]. However, as noted above, the TCCA

vacated Petitioner’s convictions for Counts 3 and 4 because of his trial counsel’s failure to object

to the fact that the jury instructions for those charges did not match the presentment and ordered

entry of judgments dismissing those counts. Winbush, *1, *15. Moreover, the Court has already

determined that the evidence was sufficient to support Petitioner’s convictions for Counts 1 and 2

of the presentment, as set forth above. Thus, these arguments have no merit.

3. Counts 7 and 8: Conspiracy to possess with the intent to sell (Count 7) or

deliver (Count 8) a Schedule II controlled substance (oxymorphone) in a drug-

free zone.

Counts 7 and 8 of the presentment charged Petitioner with conspiracy to possess with the

intent to deliver or sell oxymorphone, with the overt act specified as Petitioner delivering

oxymorphone to Tim Ford on July 31, 2013 in a drug-free zone [Doc. 20-1, p. 19–20]. Petitioner

challenges the sufficiency of the evidence to support his convictions for these charges by pointing

out that Tim Ford testified that he was not sure whether Petitioner or another co-conspirator

provided the oxymorphone to him on that day and noting that police never found any drugs on

Petitioner [Doc. 2, p. 12].

However, the Court’s review of the relevant testimony and evidence at trial demonstrates

that, drawing all inferences from conflicting evidence in favor of the prosecution, as the Court

must do, the evidence at trial was sufficient to support these convictions. Specifically, evidence

at trial established that police saw Petitioner enter Tim Ford’s house on July 31, 2013, and stay for

a few minutes [Doc. 20-10, p. 101–2]. Tim Ford testified that Petitioner brought him drugs during

this visit, specifically stating as follows:

Q: Let me stop you. Did he leave you with any pills at that time? You’re

waiting on the roxies, the blues.

A: Yeah. I think a few - - I think, actually, a few moons, maybe - -

Q: Okay.

A: -- a few moons, maybe - -

Q: Okay, so he - -

A: Not a lot.

[Doc. 20-15, p. 51]. Tim Ford later testified that he was not sure whether “Slim” or Petitioner

gave him the “moons,” also known as oxymorphone, on that day [Id. at 66]. Tim Ford also testified

that he had sold some, but not all, of the “moons” he received that day before police raided his

house and found oxymorphone pills, which he specified were not his [Id. at 72–73].

While Petitioner emphasizes that Tim Ford at one point professed uncertainty about who

had given him the oxymorphone pills on July 31, 2013, he ignores other compelling evidence to

the contrary. Tim Ford affirmatively identified Petitioner as the one who brought him “the moons”

on that day. While his later testimony equivocated, he did not repudiate what he had told the jury

before. Moreover, while Tim Ford stated that he thought Petitioner brought him “a few moons,

maybe,” this testimony also does not undermine the jury’s verdict. Ford clarified that when he

said “a few moons, maybe” he was not denying Petitioner gave him any moons. He immediately

clarified that statement with “Not a lot,” referring to the number he received from Petitioner. The

TCCA’s treatment of this issue is neither contrary to nor an unreasonable application of the

Jackson standard for assessing sufficiency of the evidence in a § 2254 proceeding.

Also, while Tim Ford subsequently testified that he could not recall whether Slim or

Petitioner had provided him the oxymorphone pills on July 31, 2013, thereby somewhat

contradicting his earlier testimony that Petitioner had given him drugs on that day, it is apparent

given the other evidence corroborating Petitioner’s involvement in this offense, the jury resolved

this conflict against Petitioner by finding him guilty of these charges. The Court must defer to that

resolution. And it was up to the jury, not this Court, to interpret that testimony and decide how

much weight to give that testimony.2 Accordingly, the evidence was sufficient to support

Petitioner’s convictions for Counts 7 and 8 of the presentment.

4. Counts 18–21: Possession with intent to sell (Count 18) or deliver (Count 19)

less than 200 grams of Schedule II controlled substance (oxycodone) in a drug-

free zone; and Possession with intent to sell (Count 20) or deliver (Count 21)

less than 200 grams of a Schedule II controlled substance (oxymorphone) in a

drug-free zone.

2 In State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993), the Tennessee

Criminal Court of Appeals recognized that “contradictory [sworn] statements by a witness in

connection with the same fact cancel each other.” Id. “The rule of cancellation applies when

inconsistency in a witness’s testimony is unexplained and when neither version of his testimony

is corroborated by other evidence.” State v. Franklin, 585 S.W.3d 431, 458 (Tenn. Crim. App.

2019)(quotations and citations omitted). This rule of cancellation does not apply here because

Investigator Jinks corroborated Petitioner’s presence at the residence on 173 Chickamauga Ave.

the date of the transaction on July 31, 2013, and the testimony of the other co-conspirators that

corroborated Petitioner’s involvement in this offense.

Counts 18 through 21 of the presentment charged Petitioner with knowingly possessing

with the intent to sell or deliver less than two hundred grams of both oxycodone and oxymorphone

in a drug free zone on July 31, 2013 [Doc. 20-1, p. 24–25]. Petitioner challenges these convictions

by asserting that there is no evidence that he actually or constructively possessed the oxycodone

or oxymorphone that police recovered from Tim Ford’s house on July 31, 2013 [Doc. 2, p. 13].

However, as noted above, evidence at trial established that police saw Petitioner, who was

the leader of a drug conspiracy that sold oxycodone, oxymorphone, and heroin from January to

July 31, 2013, enter Tim Ford’s house on July 31, 2013 and stay for a few minutes [Doc. 20-10,

p. 101–2]; Winbush, at *2–5. According to Tim Ford’s testimony at trial, he gave Petitioner five

to six thousand dollars during that visit [Doc. 20-15, p. 50]. When police later searched Tim Ford’s

house on July 31, 2013, they found many items indicating both drug use and the packaging of

drugs for resale, as well as twenty-eight blue oxymorphone pills and thirty-eight white oxycodone

pills [Doc. 20-14, p. 48–78, 82–88; Doc. 20-19, p. 17–25, 29, 32, 54, 55].

Tim Ford also testified that Petitioner provided him with one hundred “roxies” to sell on

an unspecified date [Doc. 20-15, p. 33]. He further testified that while he had legitimately obtained

pain pills from a pain clinic for some unspecified period of time, the clinic had discharged him

about three months before the police raided his house because he did not have the proper number

of pills in his prescription bottle [Id. at 71]. Tim Ford additionally testified that he personally used

a number of the pills he received during the conspiracy, that he sold many of the pills he obtained

during the conspiracy to pay for the heroin he also obtained through the conspiracy and personally

used, and that he was receiving one-hundred oxycodone and one-hundred oxymorphone pills per

week through the conspiracy at around the time of the raid on his house [Id. at 23–26, 35–36, 72].

Other evidence introduced at trial regarding the raid on the Ford house showed that Tim

Ford and his wife, Allison, had prescription bottles on separate sides of their bed and in various

other places in their home, that some oxycodone pills police recovered on July 31, 2013, came

from a prescription bottle for Meloxicam with Tim Ford’s name on it and others came from a

prescription bottle for oxycodone with Allison Ford’s name on it, and that the oxymorphone pills

recovered from the Ford residence came from prescription pill bottles with Allison Ford’s name

on them, one of which was labelled as oxymorphone and one of which was labelled as oxycodone

[Doc. 20-14, p. 54–55, 87; Doc. 20-19, p. 10, 16, 19, 20, 29, 31–32, 54, 55]. According to Officer

Broome, Allison Ford had a prescription for oxymorphone, and police found other legitimate

prescription bottles in the Ford residence [Doc. 20-14, p. 74].

Tim Ford testified that the “moons,” that the police recovered from his house on July 31,

2013, were not his pills, even though police found some of them in a prescription bottle for

oxymorphone with Allison Ford’s name on them [Doc. 20-14, p. 87; Doc. 20-19, p. 55]. The

record does not establish which other prescription pill bottles police found in the Ford residence

were from legitimate prescriptions, and Officer Broome responded to Petitioner’s counsel’s

question about whether that the pill count in the legitimate prescription pill bottles was “what the

prescription said” by stating that it was “well below” [Doc. 20-14, p. 54–55, 87].

Based on all this evidence, a rational juror could have found that Petitioner constructively

possessed the oxycodone and oxymorphone in the Ford residence on July 31, 2013. Tennessee

law allows possession of controlled substances to be actual or constructive. State v. Robinson, 400

S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)).

Circumstantial evidence is sufficient to establish constructive possession. State v. Cooper, 736

S.W.2d 125, 129 (Tenn. Crim. App. 1987). To support a finding of constructive possession, the

evidence must demonstrate that an individual “had ‘the power and intention at a given time to

exercise dominion and control over . . . [the controlled substance] either directly or through

others.’” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (quoting State v. Patterson, 966 S.W.2d

435, 445 (Tenn. Crim. App. 1997)).

In simple terms, under Tennessee law, “constructive possession is the ‘ability to reduce an

object to actual possession.’” State v. Porter, 2005 WL 2333569, at *3 (quoting State v.

Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App.1987)). But “[t]he mere presence of a person in

an area where drugs are discovered is not, alone, sufficient” to establish constructive possession,

nor is “mere association with a person who does in fact control the drugs or property where the

drugs are discovered.” Cooper, 736 S.W.2d at 129. This is not a case where Petitioner was merely

present in an area where drugs were found, or merely associated with a person who controls the

drugs and property where the drugs were found. To the contrary, as set forth above, the evidence

established that Petitioner was the leader of a drug sale conspiracy for which Tim Ford sold drugs,

including oxycodone and oxymorphone pills. The evidence further established that Tim Ford

regularly took the pills he received through that conspiracy and that, on July 31, 2013, Petitioner

visited Tim Ford’s residence, received five to six thousand dollars from Tim Ford, and delivered

oxymorphone to Tim Ford. When police later raided the Ford residence, they found oxymorphone

and oxycodone. While police found some of the oxymorphone pills in a prescription bottle for

which evidence at trial showed Allison Ford had a legitimate prescription, they found others in a

prescription bottle for oxycodone with her name on it, and Tim Ford specifically testified that the

“moons” that police found were not his. Also, while some oxycodone pills police found in the

Ford residence were in a prescription bottle with Allison Ford’s name on it, no evidence in the

record indicates that she had a valid prescription for oxycodone, and other oxycodone pills that

police recovered came from a prescription bottle for Meloxicam with Tim Ford’s name on it.

Thus, significant circumstantial evidence at trial suggested that when Petitioner visited Tim

Ford’s house on July 31, 2013, and received payment for drugs that Tim Ford sold for the

conspiracy, the Ford residence contained oxycodone and oxymorphone pills that Tim Ford had

received through the conspiracy for which Petitioner was the leader. As such, a rational juror

could have inferred that Petitioner had the intent to exercise dominion and control over the unsold

pills that Tim Ford had obtained through the conspiracy by collecting payment for other controlled

substances Tim Ford had sold for the conspiracy during that visit, and that Petitioner had the ability

to reduce at least some of the oxycodone and oxymorphone pills in that residence to his possession

during that visit. Accordingly, the evidence was sufficient to support these convictions as well.

Petitioner has failed to show that TCCA’s decision in this regard was either contrary to or an

unreasonable application of the Jackson standard.

C. Ineffective Assistance of Counsel

Petitioner brings several claims for ineffective assistance of counsel. 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 fails. 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).

Petitioner asserts that the TCCA applied the incorrect standards to a number of his

ineffective assistance of counsel claims. The Court will first address Petitioner’s assertions

regarding the TCCA applying the wrong standards before addressing the ineffective assistance of

counsel claims.

1. Standards

a. Motions to Suppress

Petitioner first asserts that the TCCA erred by requiring him to show that the motions to

suppress that he alleges his counsel was ineffective for not pursuing would have been granted, and

submits that it should have instead considered whether there is a reasonable probability that the

jury’s verdict would have been different if the evidence the motions to suppress sought to exclude

was excluded [Doc. 2, p. 15, 21–22]. To support this argument, Petitioner cites Kimmelman v.

Morrison, 477 U.S. 365, 375 (1986), for its statement that:

[w]here defense counsel’s failure to litigate a Fourth Amendment claim

competently is the principal allegation of ineffectiveness, the defendant must also

prove that his Fourth Amendment claim is meritorious and that there is a reasonable

probability that the verdict would have been different absent the excludable

evidence in order to demonstrate actual prejudice.

[Id.]. Petitioner insists that this statement means that the TCCA should have considered whether

the verdict in his case would have been different if the motions to suppress had been granted [Id.].

This argument has no merit. Even if Kimmelman sets forth the correct standard as

Petitioner claims, it required Petitioner show that the motions to suppress were “meritorious.” Id.

As such, Petitioner cannot meet the Kimmelman standard upon which he relies or show prejudice

under Strickland without showing that the trial court would have granted those motions, and the

Court will not presume that the motions to suppress would have been granted and instead review

whether there is a reasonable probably that the result of Petitioner’s trial would have been different

without the excludable evidence. Id.

b. Clear and Convincing Evidence

Petitioner also contends that the TCCA erroneously required him to prove by clear and

convincing evidence that his counsel provided ineffective assistance, whereas federal law requires

only that a habeas petitioner establish “by a preponderance of the evidence” that his counsel was

deficient [See, e.g., id. (citing Higgins v. Renico, 470 F.3d 624, 632 (6th Cir. 2006) (citing

Strickland, 466 U.S. at 687))]. Winbush, at *11–17.

In response, Respondent contends that Petitioner misconstrues the TCCA’s reliance on the

clear and convincing standard that Tennessee courts apply to factual allegations in post-conviction

proceedings and asserts that the TCCA reasonably applied Strickland to Petitioner’s claims [Doc.

25 p. 38]. He further notes that the Sixth Circuit has found that reasonable jurists would not debate

a district court’s finding that a state court applied the correct standard to ineffective assistance of

counsel claims where the court (1) expressly noted that the clear and convincing standard applied

to the factual allegations of the petition; (2) correctly identified the Strickland requirements of

deficient performance by counsel and prejudice to the petitioner; and (3) correctly noted that the

prejudice prong required “‘a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different’” [Id. (citing Churchwell v. Parris, No. 20-

5336, 2020 WL 5793542, at *3 (6th Cir. Aug. 12, 2020) (quoting Churchwell v. State, No. M2015-

01567-CCA-R3-PC, 2016 WL 5253203, at *3 (Tenn. Crim. App. Sept. 21, 2016))].

In his reply, Petitioner contends that, in his case, the TCCA did not state that the clear and

convincing standard applied only to factual allegations, and instead continuously applied that

standard to his ineffective assistance of counsel claims [Doc. 28, p. 14 (citing Bryant v.

Westbrooks, No. 3:15-0685, 2018 WL 4210784, at *13 (M.D. Tenn. Sept. 4, 2018) (providing that

where the Tennessee Supreme Court stated that “a defendant seeking post-conviction relief ‘must

prove by clear and convincing evidence the deprivation of a constitutional right,’” and consistently

referred to the defendant’s failure to prove his counsel was deficient by clear and convincing

evidence, the state court had applied the incorrect standard in a manner that was contrary to federal

law (quoting Bryant v. State, 460 S.W. 13 513, 521 (Tenn. 2015)].

The Court has reviewed Churchwell and Bryant and their underlying state court opinions

and compared those opinions to the TCCA’s opinion in this case and finds that where the TCCA

denied Petitioner’s ineffective assistance of counsel claims by finding that Petitioner had not

established that counsel was deficient under the first prong of Strickland, it applied an incorrect

“clear and convincing” standard to Petitioner’s claim as a whole, but that it did not do so where it

found that Petitioner had not shown prejudice under the second prong of Strickland. Specifically,

in identifying the legal standard for Petitioner’s ineffective assistance of counsel claims, the TCCA

cited Tenn. Code Ann. § 40-30-110(f) and stated that it required Petitioner to “prove his []

allegations ‘by clear and convincing evidence.” Winbush, at *11 (citing Tenn. Code Ann. § 40-

30-110(f)).

While the TCCA cited and relied upon Tenn. Code Ann. § 40-30-110(f), which provides

that a petitioner has the burden to prove his “allegations of fact by clear and convincing evidence,”

the TCCA did not apply this standard to just the factual allegations. See generally id. And while

the TCCA otherwise correctly laid out the Strickland standard and specifically noted that the

prejudice prong of the Strickland standard required Petitioner to show a “reasonable probability”

that the outcome of the trial would have been different to meet that requirement, it also repeatedly

noted that Petitioner had not presented “clear and convincing evidence” that his counsel was

deficient or “ineffective.” Id. at *11–17.

But, in keeping with its citation of the Strickland “reasonably probability” requirement for

the prejudice prong, the TCCA generally did not refer to “clear and convincing evidence” in its

analysis of Petitioner’s ineffective assistance of counsel claims where it found that Petitioner had

failed to show prejudice, or, if it did, it also referred to the “reasonable probability” standard in a

manner that indicated that it applied the “clear and convincing” standard only to the factual

allegations underlying those claims. Id. Thus, it appears that the TCCA properly applied the

Strickland “reasonable probability” standard to Petitioner’s ineffective assistance of counsel

claims where it found that he failed to show prejudice resulting from the alleged ineffective

assistance of counsel. But where the TCCA found that Petitioner failed to establish that his counsel

was deficient, or “ineffective,” it incorrectly required Petitioner to establish the underlying

deficiency, and not just factual allegations, by clear and convincing evidence, rather than by a

preponderance of the evidence, in a manner that was contrary to federal law.

Accordingly, the Court will now address Petitioner’s ineffective assistance of counsel

claims applying the Strickland standard de novo unless the TCCA clearly found that Petitioner

failed to show prejudice. Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006) (providing that

“[w]hen the state court issues a decision that is contrary to federal law, we review the merits of the

petitioner’s claim de novo”).

2. Cell Phone and GPS Evidence

In his ineffective assistance of counsel claims labeled 1, 2, and 10, Petitioner claims that

trial counsel was ineffective for not pursuing suppression of or objecting to cell phone evidence,

(claim 1), and GPS data (claim 2), and all evidence resulting therefrom (claim 10) [Doc. 2, p. 15–

27, 45–50]. While the TCCA arguably addressed at least part of these claims in different portions

of its opinion in Petitioner’s case, it did not squarely address the substance of the claims that

Petitioner brought in his state court appeal and brings in his § 2254 petition. The essence of these

claims is that his trial counsel provided ineffective assistance of counsel by failing to seek to

suppression of or object to all evidence from certain cell phones, including GPS data from the

phone number ending in 9692, and all resulting evidence. In support of his claim, he cites both

United States v. Cronic, 466 U.S. 648 (1984) and Strickland. Nevertheless, after examining the

TCCA’s opinion and independently and extensively reviewing the state court record in this case

to determine the merits of these claims, the Court finds that Petitioner is not entitled to relief under

§ 2254 based on his arguments.

First, the TCCA analyzed Petitioner’s claims challenging his trial counsel’s failure to

pursue the filed pretrial motions to suppress evidence as follows:

When a defendant asserts that counsel rendered ineffective assistance of counsel by

failing to call certain witnesses to testify, or by failing to interview certain

witnesses, these witnesses should be called to testify at the hearing; otherwise, the

defendant asks the Court to grant relief based upon mere speculation. Black v.

State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The same standard applies

when a defendant argues that trial counsel was constitutionally ineffective by

failing to file pre-trial motions to suppress evidence. Terrance Cecil v. State, No.

M2009-00671-CCA-R3-PC, 2011 WL 4012436, at *8 (Tenn. Crim. App., Sept. 12,

2011), no perm. app. filed. In order to show prejudice, the defendant must show by

clear and convincing evidence that (1) a motion to suppress would have been

granted and (2) there was a reasonable probability that the proceedings would have

concluded differently if counsel had performed as suggested. Id.

* * *

[] Motion to Suppress Evidence

[Petitioner] argues that trial counsel was ineffective for failing to litigate the motion

to suppress the evidence seized during [Petitioner]’s arrest. The State argues that

[Petitioner] has not shown prejudice.

Tennessee courts require motions to suppress evidence to be factually specific.

“[T]he supporting claim for an evidentiary hearing on a motion to suppress must be

sufficiently definite, specific, detailed and nonconjectural, to enable the [c]ourt to

conclude a substantial claim was presented.” Davidson, 606 S.W.3d at 297[]

(quoting Cohen v. United States, 378 F.2d. 751 (9th Cir. 1967)). Specificity is

required so that the court may be informed of whether Defendant has the right to a

hearing. “[I]n order to receive a hearing upon such a motion, the motion must be

sufficiently definite to enable the trial court to determine whether a substantial

claim has been presented.” State v. Bell, 832 S.W.2d 583, 588 (Tenn. Crim. App.

1991). Bare allegations of law without any factual allegations are

insufficient. See State v. Jefferson, 938 S.W.2d 1, 9 (Tenn. Crim. App. 1996); State

v. Howell, 672 S.W.2d 442, 444 (Tenn. Crim. App. 1984). Adherence to the

specificity requirement ensures judicial economy and fairness to all parties. “The

reason for [the specificity requirement] is to prohibit the expenditure of court time

in general exploratory probes to discover if there might be some possibility of a

substantial claim.” Davidson, 606 S.W.3d at 297

[Petitioner] argues that his June 28 and July 31 arrests were unlawful, thus any

items seized during the arrests and any evidence discovered because of the arrests

should have been suppressed. However, the motion speaks to one singular arrest.

We do not know to which arrest the motion refers. Retained counsel testified that

many of the motions he filed would need to be amended before they were heard.

Further, the trial court gave permission to trial counsel to object to any evidence

admitted during the trial. [Petitioner] has failed to show that, as written, the motion

to suppress would have been granted. Therefore, [Petitioner] has not shown

prejudice and is not entitled to relief.

[]GPS Evidence and Pen Register, Trap, and Trace Information

[Petitioner] argues that trial counsel was ineffective for failing to litigate the motion

to suppress GPS evidence. The State argues that [Petitioner] has not been

prejudiced.

The motion in question sought to “suppress this evidence [of] any information

obtained without a search warrant including, but not limited to GPS information.”

The record shows that 15 to 20 cell phones were recovered during the investigation.

No phone number is specified in the motion. Motions to suppress evidence must

be factually specific. See Davidson, 606 S.W.3d at 297. Defendant has failed to

show that, as written, the motion to suppress would have been granted. Therefore,

Defendant has not shown prejudice.

Winbush, at *13–14.

To the extent that Petitioner challenges his counsel’s failure to pursue the filed motions to

suppress evidence prior to trial, he has not shown that the TCCA’s denial of these claims was an

unreasonable application of federal law or an unreasonable determination of facts in light of the

evidence presented. As set forth above, while Petitioner insists that the TCCA applied the wrong

standard to these claims by not determining whether there was a reasonable probability that the

verdicts against him would have been different absent the excludable evidence under his reading

of Kimmelman, the Court notes that Kimmelman requires the litigant to show that the motion to

suppress was “meritorious,” and the TCCA clearly found that Petitioner’s pretrial motions to

suppress evidence, as written, were not.

In his § 2254 petition, Petitioner challenges his counsel’s failure to move to suppress and/or

object to the evidence derived from cell phone(s) Petitioner now claims were his, as well as GPS

data from the cell phone with the number 9692, and all resulting evidence [Id. at 45–47]. The

TCCA held as follows regarding Petitioner’s claim that trial counsel was ineffective for failing to

object to this evidence at trial:

Defendant argues that trial counsel was ineffective for failing to object to all

evidence that should have been suppressed, all evidence that should have been

severed, all hearsay evidence, and all evidence of Defendant’s prior bad acts. The

State argues that trial counsel was not ineffective.

The only exchange about objections at the motion for new trial hearing shows the

following exchange between appellate counsel and trial counsel:

[Appellate counsel]: . . . did you ever object to any evidence coming

in concerning the failure to appear counts? Evidence that came in

to -- just to evidence coming in about these failure to appear counts

during the trial?

[Trial counsel]: I don’t recall.

. . .

[Appellate counsel]: . . . did you ever object to any of the evidence

coming in based on the stops, the arrests of [Defendant], June 28th,

2013 [and/or] July 31st, 2013? Did you object to the admissibility

of any of that evidence based on a bad stop?

[Trial counsel]: What evidence? Again, I don’t recall what evidence

came in based on the stop. The trash in the back of the vehicle?

[Appellate counsel]: Like that, the photograph of the trash in the

back of the vehicle?

[Trial counsel]: I don’t believe I did.

Trial counsel did not recall if he made any objection to one question and stated he

did not object to the second question. Defendant did not ask trial counsel any

questions as to why he did or did not make any objections. Defendant did [not]

present any proof as to the myriad other objections he alleges trial counsel should

have made. There is no obligation to object at every opportunity. Donald Craig,

1985 WL 3866, at *3. Defendant has not proven by clear and convincing evidence

that trial counsel was ineffective.

Winbush, at *17. For reasons set forth above, the Court will address this argument de novo.

First, as the TCCA pointed out, Petitioner did not present any proof of why Petitioner’s

trial counsel did not object to the cell phone and/or GPS data at the hearing on the motion for new

trial. Additionally, even if the Court could read the record to establish that Petitioner had a

legitimate expectation of privacy in at least one of the cell phones that he claims police illegally

searched and seized (other than the cell phone with the number 9692, which he expressly

disclaimed, as addressed more fully below), Petitioner has not met his burden to show that there

is a reasonable probability that the verdicts against him would have been different without the cell

phone evidence that he asserts resulted from the cell phone searches/seizures [Doc. 2, p. 20–21,

47–48].3 Substantial evidence of Petitioner’s leadership role in the conspiracy and his guilt for the

3 In his petition, Petitioner claims that this ineffective assistance of counsel claim based on

his trial counsel’s failure to object to illegally obtained cell phone evidence results in a presumption

of prejudice under United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Supreme Court

provided that courts will presume prejudice under Strickland to a defendant where, among other

specified circumstances, counsel “entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” Id. at 659–60. This is the Cronic provision upon which Petitioner relied in

his state court appellate brief to support this argument [Doc. 20-29, p. 96, 98–99].

However, Petitioner does not allege that his trial counsel entirely failed to oppose the

prosecution’s case throughout trial but only that counsel failed to object to certain evidence

introduced at trial [Doc. 2, p. 15–27, 45–50]. Thus, these claims are subject to the Strickland

standard. Cone v. Bell, 535 U.S. 685, 697–98 (2002) (providing that where a petitioner did not

allege that his counsel failed to oppose “the sentencing proceeding as a whole,” but rather only

failed to “adduce mitigating evidence” and waived closing argument, his claim was subject to the

Strickland standard, rather than Cronic); Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir. 2002)

(providing that where counsel reserved her right to make an opening statement, cross-examined

several witnesses, and made a closing argument, claims challenging the effectiveness of her

representation fell under Strickland, rather than Cronic).

crimes for which he was convicted came from his coconspirators’ testimony about his leadership

role in the conspiracy, and that evidence was corroborated by evidence police obtained through

the raid on Tim Ford’s house, their observance of Petitioner, the confidential informant, and his

coconspirators, and the confidential informant’s recorded controlled buys and interactions with

Petitioner.

Moreover, while Petitioner asserts that his counsel’s failure to seek to suppress and/or

object to evidence that police obtained through GPS tracking of a cell phone and other evidence

that resulted from the GPS tracking, including evidence obtained from the residence of Tim Ford

and Tim Ford’s testimony, the record shows that the GPS information came from the cell phone

that had a phone number ending in 9692 [Doc. 20-6, p. 27–32]. But Petitioner disclaimed any

ownership of that phone and recognized that doing so rendered his motion to suppress GPS

evidence moot in his testimony under oath at the hearing on the motion for new trial [Doc. 20-24,

p. 103; Doc. 20-25, p. 4]. And Petitioner has set forth no other proof that he had a legitimate

expectation of privacy in data from that cell phone and therefore would not have had standing to

contest the GPS data from that cell phone under the Fourth Amendment. See United States v.

Mathis, 738 F.3d 719, 729 (6th Cir. 2013) (providing that, to have standing to contest a search, the

defendant must demonstrate that “he had a legitimate expectation of privacy in the area searched

or items seized”).

Petitioner asserts that he has standing to contest the search and seizure of GPS data from

the 9692 cell phone because the police application to gather such data indicated that he was the

owner of that phone and the prosecution waived its ability to contest his standing by not raising

that argument in response to his motions to suppress [Doc. 2, p. 55 n. 2]. However, the fact that

an application to obtain GPS data completed by police named Petitioner as the owner of a phone

does not create a reasonable expectation of privacy in an item on the part of Petitioner, as required

for him to have standing to challenge the seizure of data from that phone, especially in light of his

disclaiming any interest in the phone. Id.

Further, the record establishes that the prosecution raised its challenge to Petitioner’s

standing to challenge the GPS data as soon as it knew that Petitioner disclaimed ownership of the

9692 cell phone from which the GPS data was taken, which was in the hearing on his motion for

new trial. Nothing in the record prior to that point indicated that Petitioner disclaimed ownership

of that cell phone. To the contrary, Petitioner’s motions to suppress GPS data expressly requested

to suppress only GPS data from Petitioner’s cell phone [Doc. 20-1, p. 53, 97].

But most relevantly, Petitioner cannot now fault his counsel for not seeking to suppress

GPS data from a cell phone over which he disclaimed any ownership interest. Specifically,

Petitioner seeks to fault his counsel for not objecting to or moving to suppress GPS data from a

cell phone, but Petitioner disclaimed ownership of that cell phone under oath, and thereby removed

any standing he might have had to object to the admission of that evidence. Petitioner cannot have

it both ways.

Accordingly, Petitioner has failed to show by the preponderance of the evidence that his

counsel was deficient for not arguing for suppression of or objecting to this cell phone and GPS

evidence or that there is a reasonable probability that the result of his trial would have been

different if his counsel pursued suppression of or objected to such evidence, and he is not entitled

to relief under § 2254 for these arguments.

3. Speedy Trial

Petitioner next argues that his counsel was deficient for not pursuing a motion to dismiss

the charges against him based on a speedy trial violation4 [Doc. 2, p. 33–38]. The TCCA stated

as follows regarding this claim:

[Petitioner] argues that trial counsel was ineffective by failing to file a motion to

dismiss for violation of [Petitioner]’s right to a speedy trial. The State argues that

[Petitioner] has failed to show that trial counsel was ineffective.

At the hearing on the motion for new trial, trial counsel stated that he would not

have made a motion to dismiss when the trial was scheduled to begin in a few days.

Trial counsel further noted that some of the delay was caused by [Petitioner]’s

failure to meet with his attorneys. The record shows that trial counsel considered

the motion to dismiss and chose not to make the motion. We will not second-guess

a reasonable trial strategy, even if a different procedure or strategy might have

produced a different result. See Adkins, 911 S.W.2d at 347; Williams, 599 S.W.2d

at 279-80. [Petitioner] failed to prove by clear and convincing evidence that trial

counsel was ineffective.

Winbush, at *16.

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI. “The speedy-trial right is

“amorphous,” “slippery,” and “necessarily relative,” so any claimed violation must be evaluated

on an “ad hoc basis.” Miles v. Jordan, 988 F.3d 916, 925 (6th Cir. 2021) (quoting Barker v. Wingo,

407 U.S. 514, 522, 530 (1972). The Supreme Court established four factors to evaluate when

considering a speedy-trial claim: “(1) whether the delay was uncommonly long; (2) the reason for

the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether prejudice

to the defendant resulted.” Id. “No one factor is dispositive. Rather, they are related factors that

4 As Petitioner only alleged that his trial counsel was ineffective for not filing a motion to

dismiss due to speedy trial in his appellate brief [Doc. 20-29, p. 91], the Court only addresses this

argument.

must be considered together with any other relevant circumstances.” United States v. Sutton, 862

F.3d 547, 559 (6th Cir. 2017).

The first factor focuses on the length of delay. “The Supreme Court has never clearly

drawn that line, but has noted that ‘[d]epending on the nature of the charges, the lower courts have

generally found postaccusation delay ‘presumptively prejudicial’” once the delay “approaches one

year.” Miles, 988 F.3d at 925 (quoting Doggett v. United States, 505 U.S. 647, 652 n.1, 658 (1992).

In this case, the delay exceeded a year. Thus, further analysis of the Barker factors is necessary.

The second factor examines “whether the government or the criminal defendant is more to

blame for th[e] delay.” Doggett, 505 U.S. at 651. “Governmental delays motivated by bad faith,

harassment, or attempts to seek a tactical advantage weigh heavily against the government, while

neutral reasons such as negligence are weighted less heavily, and valid reasons for a delay weigh

in favor of the government.” Miles, 988 F.3d at 925 (quoting United States v. Robinson, 455 F.3d

602, 607 (6th Cir. 2006).

According to Petitioner, he was incarcerated for the charges against him in January 2014,

and the trial was originally set for January 12, 2015, but the prosecution sought a continuance of

the January 12, 2015, trial date to have more time to prepare for trial [Doc. 2, p. 35]. Because of

this, the trial court lowered Petitioner’s bond and placed him on GPS monitoring upon his release

[Doc. 20-7, p. 11, 15–18]. Petitioner made that bond and therefore was released from his

confinement [Doc. 20-8, p. 27].

Trial was then reset for March 31, 2015, and at a motion hearing on March 13, 2015, after

there was discussion of moving that trial date, Petitioner’s retained counsel noted that Petitioner

had asserted his right to a speedy trial and stated that he would be ready to go to trial on March

31st. [Id. at 35–36]. Subsequently, on March 15, 2015, Petitioner’s retained counsel filed

Petitioner’s demand for a speedy trial [Doc. 20-1, p. 58]. However, the March 31, 2015, trial date

was reset to August 31, 2015, at the request of the prosecution because a new prosecuting attorney

was assigned to the case [Id. at 16, 18, 20]. Because of this, the trial court removed Petitioner’s

GPS monitoring bracelet [Id. at 28]. But on August 31, 2015, Petitioner’s retained counsel sought

to withdraw from his representation of Petitioner due to Petitioner’s failure to cooperate with him,

and the trial court granted that request and appointed Petitioner’s trial counsel [Doc. 20-8, p. 39–

41, 44–47]. At that point, the trial was set for less than six months later, on February 22, 2016

[Id.].

But again, the case did not go to trial on February 22, 2016, and while the record is unclear

as to why, it establishes that when the next scheduled trial date arrived on Monday, August 8,

2016, Petitioner’s trial counsel told the trial court that he did not ethically feel that he was able to

go to trial because he had not met with Petitioner [Doc. 20-8, p. 47–48]. However, after Petitioner

told the Court that he was ready to go to trial “today” and that he had gone through discovery “a

thousand times” on August 8, 2016, Petitioner’s trial counsel agreed to go to trial on that

Wednesday, August 10, 2016, and the trial proceeded that day [Id. at 53–56; Doc. 20-9 p. 9].

In examining the different reasons Petitioner’s case was continued, it appears that while

the government certainly bears some of the responsibility for the delays, they do not rest solely on

the government. And, the reasons the government asked for more time do not seem to be based

on bad faith, harassment, or seeking a tactical advantage. Instead, on one occasion, the prosecuting

attorney had just been assigned the case and needed more time to prepare. On one occasion,

Petitioner’s own retained counsel asked to withdraw because Petitioner had refused to cooperate

with him in case preparation. At that point, the trial court reset the case to permit a new court

appointed attorney to prepare. Petitioner also refused to cooperate with his new attorney.

The third factor addresses whether the defendant asserted his right to a speedy trial. In this

case, Petitioner’s counsel asserted Petitioner’s right to a speedy trial in March 2015, fifteen months

after Petitioner was arrested on the charges. The trial court set the case for trial five months later,

but Petitioner’s counsel withdrew on the eve of trial because Petitioner had not been cooperating

with him. Thus, the case was continued in large measure based on Petitioner’s conduct, not that

of the government, after he had asserted his right to a speedy trial.

At the hearing on the motion for new trial, Petitioner testified that he did not agree to

continue the February 22, 2016, trial date because he and his trial counsel had not spoken from the

time of his appointment and that the lack of communication between him and trial counsel during

this time was due to trial counsel [Doc. 20-24, p. 77–78]; Winbush, at *7–8. However, Petitioner’s

trial counsel testified that while he expected Petitioner to come to see him to prepare for trial,

Petitioner did not do so, and this interfered with trial counsel’s ability to prepare for trial [Doc. 20-

25, p. 76–78]. While the case against Petitioner had been pending for a substantial amount of time

when the trial court appointed Petitioner’s new trial counsel, trial counsel needed at least some

period of time after his appointment on August 31, 2015, to investigate the case, go through what

Petitioner has acknowledged was “massive” discovery [Doc. 20-29, p. 18], and prepare for trial.

Trial counsel also testified that he did not file a motion to dismiss the charges against Petitioner

based on a speedy trial violation, did not recall Petitioner asking him to file such a motion on

August 8, 2016, or otherwise, and that, even if he were aware that retained counsel had filed a

demand for a speedy trial, he would not have pursued such a motion to dismiss because the case

was set for and moving towards trial [Id. at 58–59].

Trial counsel additionally testified that he would have preferred a longer continuance on

August 8, 2016, that he agreed to go to trial on August 10, 2016, due to Petitioner’s insistence, and

that seeking a continuance while asserting a speedy trial violation is problematic [Id. at 51–52, 76–

81]. Trial counsel also testified that he was unsure whether the February 22, 2016, trial date was

reset due to agreement, or whether the case was “bumped” due to the trial court having another

trial in progress [Id. at 81–83].

In ruling on the motion for new trial, the trial court stated that it believed that Petitioner

perjured himself during his testimony at the hearing on that motion, id. at *10, and specifically

credited the testimony from both Petitioner’s retained counsel and his trial counsel that Petitioner

was uncooperative in preparing his case for trial [Doc. 20-6, p. 57]. Though he asserted his right,

he prevented his own counsel from preparing the case for the very trial Petitioner claimed he

wanted.

The final factor is actual prejudice to the accused. “Prejudice ‘should be assessed in the

light of the interests of defendants which the speedy trial right was designed to protect,’ of which

there are three: ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and

concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’” Miles,

988 F.3d at 925 (quoting United States v. Ferreira, 665 F.3d 701, 706 (6th Cir. 2011)). Petitioner

was incarcerated until the trial was continued the first time in January 2015. At that point, because

the government requested a continuance, the trial court lowered Petitioner’s bond, which he made,

and placed him on GPS monitoring. The trial was reset for March 31, 2015. When the government

sought a continuance of that trial date, the trial court then removed the GPS monitoring bracelet.

Thus, it appears that Petitioner has not faced oppressive pretrial incarceration. In his petition, he

does not argue he faced anxiety and concern “beyond that which is inevitable in a criminal case.”

Id. at 928 (citation omitted). Instead, he claims that the delays caused his motions “to not be heard

and denied him the ability to properly prepare a complete defense.” [Doc. 2, p. 37]. His claim

here is meritless as there is no connection between the trial being continued and his counsel not

seeking a hearing on the pending pretrial motions. A continuance of the trial did not foreclose his

counsel seeking a hearing on the motions. In any event, the Court has already found that Petitioner

has not shown the motions were meritorious.

Petitioner has also failed to show any actual prejudice as a result of the delays. He has not

alleged any claim or witness lost due to the passage of time, any particular detriment to the

preparation to his defense, or any other change in circumstances that might be construed as

prejudice resulting from the delay in the case. See Doggett v. United States, 505 U.S. 647, 655,

112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (“such presumptive prejudice cannot alone carry a Sixth

Amendment claim without regard to the other Barker criteria….”). He claims that witness Bryant

could not remember “certain things,” but fails to show how he was prejudiced thereby [Doc. 2, p.

37]. He argues that he was prejudiced because Ford could not remember who had delivered

oxymorphone to him on July 31, 2013. But Ford specifically claimed as well that Petitioner had

delivered to him the oxymorphone prior to his equivocation. Petitioner has not identified any

witnesses whose testimony was lost as a result of the delay. Petitioner does not show how the

delay caused actual prejudice. See United States v. Jackson, 473 F.3d 660, 667–68 (6th Cir. 2007)

(collecting cases and holding that a nearly two-year delay between a defendant’s indictment and

his arrest, attributable to the government's negligence, did not satisfy the actual prejudice factor of

Barker); see also Barker, 407 U.S. at 533–34 (finding that “prejudice was minimal” despite delay

“well over five years”).

While the TCCA did not provide an analysis of the Barker factors in addressing Petitioner’s

speedy trial claim, that does not mean that it reached the wrong result. The Sixth Circuit noted in

Miles that the fact that the state court did not “expressly weigh the two less serious forms of actual

prejudice … does not mean that it arrived at a conclusion oppositive of that reached by the Supreme

Court on a question of law.” 988 F.3d at 928. “Indeed, to receive AEDPA deference, a state court

does not even have to ‘explicitly address the factors outlined in Barker’ at all, ‘as long as the court

does not apply a test or standard that is contrary to federal law.’” Id. (quoting Brown v. Bobby,

656 F.3d 325, 330 (6th Cir. 2011). Such is the case here. After a de novo review of this claim,

the Court finds that Petitioner has failed to establish by a preponderance of the evidence that his

trial counsel’s failure to file a motion to dismiss based on a speedy trial violation was deficient.

Nor has he shown that the TCCA’s decision was contrary to, or an unreasonable application of,

Barker’s four factors.

4. Prior Drug Conviction/Evidence of a Prior Bad Act

Petitioner next complains that his counsel was deficient for eliciting testimony from

Investigator Jinks about his belief that Petitioner had a prior drug conviction [Doc. 2, p. 27–30].

The TCCA denied this claim on the grounds that Petitioner had failed to show his counsel was

ineffective in this portion of the trial by clear and convincing evidence. Winbush, at *15.

Accordingly, the Court reviews this claim de novo.

The relevant exchange at trial went as follows:

Q. And prior to this, to your knowledge - - because I know you were in

contact with the - - did [Petitioner] ever have any drug charges,

period?

A. Prior to this? He did have drug charges in another jurisdiction.

Q. A conviction?

A. Yes, I believe so.

Mr. Slaughter: I was – that I’m aware of, there is none.

Mr. Irvine: Judge, we’re not allowed to go into those, so we haven’t

- - we haven’t looked them up today. I mean, we’re prohibited by

rule from going there. So I can’t answer that question for defense

counsel right here.

The Court: Okay.

Q. You know for a fact he does?

A. I believe he does. I won’t say that I know for a fact, but I believe

that he had a prior from another jurisdiction

[Doc. 20-11, p. 24–25]. According to Petitioner, he had no such conviction [Doc. 2, p. 29].

Petitioner has not established by a preponderance of the evidence that trial counsel was

deficient in this exchange. Instead, it is apparent that, in asking Investigator Jinks this question,

Petitioner’s trial counsel was attempting to emphasize to the jury that Petitioner did not have any

prior drug convictions but was surprised by Investigator Jinks providing an incorrect answer to his

question. The Court will not fault trial counsel for not foreseeing a witness’s mistake. Petitioner

has also not shown this would have impacted the outcome of his case in light of the overwhelming

evidence against him. Petitioner is not entitled to § 2254 relief for this claim.

5. Jury Instructions

Petitioner next claims that his counsel was ineffective for failing to request jury instructions

for (1) the lesser included offense of facilitation and (2) Tennessee case law providing that

testimony from a defendant’s accomplices must be corroborated [Doc. 2, p. 30–33]. The TCCA

rejected Petitioner’s claim that trial counsel was ineffective for not asking for a facilitation jury

instruction because Petitioner failed to present any proof with regard to that claim at the hearing,

and therefore found that Petitioner had failed to prove that his counsel was ineffective by clear and

convincing evidence. Winbush, at *15. The TCCA did not address Petitioner’s assertion that

counsel was ineffective for failing to request an instruction regarding corroboration of accomplice

testimony.

Reviewing these claims de novo, the record establishes that Petitioner did not present any

proof at the hearing on the motion for new trial regarding his trial counsel’s failure to request both

of these jury instructions. Accordingly, the record does not establish why Petitioner’s trial counsel

did not request these jury instructions; Petitioner has failed to establish by a preponderance of the

evidence that this omission was due to deficient performance rather than any number other reasons;

and he is not entitled to relief under § 2254 for these claims.

6. Commenting on Petitioner’s Decision Not to Testify

Petitioner next claims that his trial counsel’s statement to the jury that “Petitioner has

chosen not to testify, so we have no proof at this point” amounted to ineffective assistance of

counsel [Doc. 20-15, p. 90; Doc. 2, p. 38–39]. The TCCA found that Petitioner failed to show that

any prejudice resulted from this statement, among other things. Winbush, at *17. The Fifth

Amendment provides that no person “shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. Criminal defendants have a right to remain silent and

doing so cannot be used as substantive evidence of guilt. Griffin v. California, 380 U.S. 609,

615 (1965).

Even reviewing this claim de novo, the record supports the TCCA’s finding that Petitioner

failed to present any evidence to support his claim at the hearing on the motion for new trial. As

such, Petitioner failed to establish a reasonable probability that the result of his trial would have

been different without this statement. Moreover, what trial counsel said did not amount to an

improper comment on Petitioner’s exercise of his right not to testify. Instead, his isolated comment

when considered in context of the trial was a reasonable assessment of the evidence presented at

trial. In this case, he argued the state had introduced “no proof at this point.” [Doc. 20-15, p. 90;

Doc. 2, p. 38–39]. Just as a prosecutor may “summarize the evidence and comment on its

quantitative and qualitative significance” during closing, Bowling v. Parker, 344 F.3d 487, 514

(6th Cir. 2003), so can Petitioner’s counsel, and this, by itself, does not constitute ineffective

assistance of counsel. Petitioner is not entitled to relief under § 2254 for this claim.

7. Failure to Investigate Favorable Witnesses

Petitioner also claims that his counsel was ineffective for failing to investigate two

favorable witnesses, specifically August Allen and Christopher Holloway, who testified at the

hearing on the motion for new trial that Petitioner was not a participant in any conspiracy with

them [Doc. 2, p. 39–43]. The TCCA denied this claim, stating as follows:

Defendant argues that trial counsel was ineffective for failing to discover an

exculpatory statement made by a co-defendant and for failing to call Mr. Holloway,

Mr. Green, and Mr. Allen as favorable witnesses during the trial. The State argues

that Defendant is not entitled to relief.

Defendant argues that Mr. Holloway was interviewed by the State a week before

trial and that Mr. Holloway believed the prosecutor was taking notes during the

meeting. Mr. Holloway and Mr. Allen testified at the hearing on the motion for

new trial that Defendant was not present during the Ohio arrest. This same

information was testified to during the trial by Officer Archer. Mr. Holloway and

Mr. Allen also testified that Defendant had nothing to do with the drug conspiracy.

Although Mr. Holloway and Mr. Allen both provided exculpatory evidence during

the motion for new trial hearing, the trial court stated in its ruling; “[n]or does this

[c]ourt find as credible the testimony of [Mr.] Allen and [Mr.] Holloway wherein

each asserts that [Defendant] had no role in the conspiracy for which he was

convicted.” Mr. Green did not testify at the hearing. Trial counsel stated that he

spoke with the attorney[]s for Mr. Holloway, Mr. Allen, and Mr. Green and

understood that each of them would be cooperating with the State; therefore, he

would not call them as favorable witnesses. The trial court accredited the testimony

of trial counsel. We will not second-guess the trial court’s credibility

determination. See Honeycutt, 54 S.W.3d at 766-67. Defendant has not shown

prejudice and is not entitled to relief.

Winbush, at *14.

Petitioner asserts that the TCCA’s holding that Mr. Holloway and Mr. Allen’s testimony

lacked credibility and that he therefore had not shown prejudice improperly invaded the province

of the jury by assessing the credibility of witnesses [Id.]. In support thereof, he cites Barker v.

Yukins, 199 F.3d 867 (6th Cir. 1999) and Sullivan v. Louisiana, 508 U.S. 275 (1993). However,

even if the Court accepts as true Petitioner’s argument that the TCCA’s holding on this claim

improperly invaded the province of the jury and therefore reviews it de novo, Petitioner is not

entitled to relief, as he did not prove by a preponderance of the evidence that his counsel was

ineffective for not interviewing Mr. Holloway and Mr. Allen prior to trial.

To determine if counsel was ineffective for failing to investigate, the Court must assess

whether counsel’s “investigation or lack thereof” was reasonable. English v. Romanowski, 602

F.3d 714, 726 (6th Cir. 2010). At the hearing on the motion for new trial, Mr. Slaughter testified

that, prior to trial, he did not interview Petitioner’s codefendants because attorneys represented

them, but that he may have asked their attorneys if the codefendants were going to cooperate with

the prosecution, and that it was his understanding that Petitioner’s codefendants were cooperating

with the prosecution [Doc. 20-25, p. 41–42]. He also testified that he did not recall Petitioner

giving him the names of any favorable witnesses [Id. at 42], and nothing in Petitioner’s testimony

indicated that he ever gave his trial counsel any favorable witness names [Doc. 20-24, p. 52–103].

Moreover, testimony from Mr. Holloway and Mr. Allen confirmed that they pled guilty to

conspiracy charges based on their roles in the drug conspiracy over which the evidence at trial

established Petitioner was the leader [Doc. 20-23, p. 79–83; 95].

Accordingly, the record establishes Petitioner’s counsel believed that Mr. Allen and Mr.

Holloway were cooperating with the prosecution. As both Mr. Allen and Mr. Holloway pled guilty

to charges of conspiring with Petitioner in the drug conspiracy, the record indicates that this belief

was reasonable. And Petitioner presented no evidence that his counsel had any reason to believe

otherwise.

Thus, Petitioner has not shown by a preponderance of the evidence that his counsel was

deficient for not interviewing Mr. Holloway and Mr. Allen and he is not entitled to relief under

§2254 for this claim.

8. Exculpatory Evidence

Petitioner next claims that his counsel’s failure to discover notes from a police interview

with Mr. Holloway was ineffective assistance of counsel [Doc. 2, p. 39–43]. The TCCA evaluated

this claim with Petitioner’s claim regarding trial counsel’s failure to interview Mr. Holloway and

Mr. Allen prior to trial, as set forth above. Winbush, at *14.

Even reviewing this claim de novo, the only proof Petitioner has presented of any notes

from the police interview was Mr. Holloway’s testimony that he was “pretty sure” that Hector

Sanchez took notes during the interview [Doc. 20-23, p. 69–72]. But Petitioner presented no

evidence his counsel should have known about any such notes, if they existed.

As such, Petitioner has not shown by a preponderance of the evidence that his counsel was

deficient for not obtaining these notes from Mr. Holloway’s police interview and he is not entitled

to relief under § 2254 for this claim.

D. Prosecutorial Misconduct

Petitioner also argues that the prosecution improperly failed to disclose the notes from Mr.

Holloway’s statement to police [Id. at 50–53].5 The Due Process Clause of the Fourteenth

Amendment requires that the state disclose to criminal defendants “evidence that is either material

to the guilt of the defendant or relevant to the punishment to be imposed.” California v. Trombetta,

467 U.S. 479, 485 (1984) (citing Brady, 373 U.S. at 97). “Even in the absence of a specific request,

the prosecution has a duty to turn over exculpatory evidence that would raise a reasonable doubt

about the defendant’s guilt.” Id. at 485 (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)).

5 As set forth above, Petitioner procedurally defaulted his other prosecutorial misconduct

claims.

To establish a violation of Brady, a petitioner must show that the state withheld evidence

that was material to his guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence

is material “if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” Youngblood v. West Virginia, 547 U.S.

867, 870 (2006) (internal quotation marks omitted). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Pennsylvania v. Ritchie, 480 U.S. 39, 57

(1987) (internal quotation marks omitted).

A Brady violation has three requirements: “The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281–82 (1999). However, no Brady violation exists if a

defendant knew or had reason to know “‘the essential facts permitting him to take advantage of

any exculpatory information,’” or where the evidence was available to him from another source.

Abdur’Rahman v. Colson, 649 F.3d 468, 474 (6th Cir. 2011), cert. denied, 133 S. Ct. 30 (2012)

(quoting United States v. Clark, 928 F.2d 733, 738 (6th Cir.1991)).

Even if the Court assumes that Hector Sanchez took notes at Mr. Holloway’s interview in

which Mr. Holloway gave information exculpatory to Petitioner, Petitioner has not presented any

evidence of the contents of any such notes. But regardless, the record establishes that Petitioner

knew Mr. Holloway, and Petitioner has not presented any evidence that the information that would

have been in any such notes was not available to him directly from Mr. Holloway. Accordingly,

Petitioner is not entitled to relief under § 2254 for this claim.

E. Whether Carpenter v. United States, 138 S.Ct. 2206 (2018) applies to

Petitioner’s claim regarding evidence obtained from the cell phone and other

GPS data.

Petitioner next argues that the Supreme Court announced a new rule in Carpenter v. United

States, 138 S. Ct. 2206 (2018) that police must have probable cause to obtain GPS and other cell

phone data in order to comply with the Fourth Amendment, which he asserts applies to this case

[Doc. 2, p. 55–58]. However, as the Court found above, Petitioner disclaimed any ownership

interest in the 9692 cell phone from which police obtained GPS and other data he cites in this

claim, and he has not set forth any other reason that he had a legitimate expectation of privacy in

this cell phone’s data such that police use of that data could have violated his rights under the

Fourth Amendment. As previously discussed, he has not shown he had a legitimate expectation

of privacy in that cell phone in as much as he disclaimed any interest in it. As such, these

arguments have no merit and Petitioner is not entitled to relief under § 2254.

F. Cumulative Error

Petitioner next asserts that the cumulative errors in his trial that he identified above entitle

him to relief under § 2254. However, “[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) (citing Lorraine v. Coyle, 291 F.3d 416, 447 (6th

Cir. 2002)). Moreover, the Court has not found any constitutional errors in Petitioner’s trial

affecting his remaining convictions, and where “individual claims are all essentially meritless,

[Petitioner] cannot show that the cumulative error[s] violated his constitutional rights.” Keith v.

Mitchell, 455 F.3d 662, 679 (6th Cir. 2006) (citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.

2000)).

Accordingly, Petitioner is not entitled to relief under § 2254 on this claim.

IV. CONCLUSION

For the reasons set forth above, Petitioner’s motion to amend the petition [Doc. 6] is

GRANTED to the extent that the Court considered the merits of this motion above, the petition

for habeas corpus relief [Doc. 2] is DENIED, the remaining motions [Docs. 7, 8, 14, 18, 29, 30,

32] are DENIED as moot, 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 (2000).

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

denial of a constitutional right for his sufficiency of the evidence, ineffective assistance of counsel,

prosecutorial misconduct, or cumulative error claims addressed on the merits above 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 the claims that he did not present to the

TCCA. 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/Clifton L. Corker

United States District Judge