Howell v. Lebo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

KAREN HOWELL, )

)

Petitioner, )

)

v. ) No. 2:18-CV-00109-JRG-CRW

)

JOHNNY FITZ, Warden, )

)

Respondent. )

MEMORANDUM OPINION

This matter is before the Court on Petitioner Karen Howell’s Second Amended Petition

for a Writ of Habeas Corpus under 28 U.S.C. § 2254 [Doc. 34], the State of Tennessee’s Answer

[Doc. 36], and Ms. Howell’s Reply [Doc. 40]. For the reasons herein, the Court will deny Ms.

Howell’s petition.

I. BACKGROUND

In 1998, Ms. Howell pleaded guilty in Greene County Criminal Court to three counts of

felony first-degree murder, one count of attempted first-degree murder, two counts of especially

aggravated kidnapping, two counts of aggravated kidnapping, and one count of theft over $1,000.

She unsuccessfully pursued direct review and collateral review of her convictions. In 2006, the

Tennessee Supreme Court, in affirming the denial of her request for collateral relief, recited the

facts of her case as follows:

On April 6, 1997, Howell and her co-defendants, Natasha Cornett, Crystal

Sturgall, Joseph Risner, Dean Mullins, and Jason Bryant, planned a trip from their

homes in Pikeville, Kentucky, to New Orleans, Louisiana. At the time, Howell was

seventeen years old; Bryant was fourteen years old; and each of the remaining co-

defendants was at least eighteen years old. Prior to leaving Kentucky in Risner’s

vehicle, Howell and her co-defendants secured a nine millimeter handgun, a .25

caliber handgun, and cash. While en route, they discussed the possibility of stealing

a vehicle due to the poor condition of Risner’s vehicle.

At a rest stop on Interstate 81 near Greeneville, Tennessee, Mr. Lillelid, a

Jehovah’s Witness, approached Howell and her co-defendants at a picnic table and

began discussing his religious views. At some point, Risner displayed one of the

firearms and said, ‘I hate to do you this way, but we are going to have to take you

with us for your van.’ Risner directed the Lillelid family to their van even though

Mr. Lillelid offered the group his keys and wallet in exchange for allowing the

family to remain at the rest area.

Mr. Lillelid drove the van, and Risner, who was still armed, sat in the

passenger seat. Howell, Bryant, and Cornett also rode in the van with the Lillelids.

Mullins and Sturgall followed in Risner’s vehicle. Mrs. Lillelid began singing in an

attempt to console the crying children, and Bryant ordered her to stop. Risner

subsequently directed Mr. Lillelid to a secluded road and ordered him to stop the

van. Once outside the van, all four members of the Lillelid family were shot

multiple times. Bryant claimed that Risner and Mullins were the shooters, but

Howell and her remaining co-defendants maintained that Bryant was the shooter.

As Risner drove Howell and her co-defendants from the scene, the van struck one

or more of the victims.

Howell and her co-defendants were apprehended in Arizona after failing to

cross the border into Mexico. At the time of their arrests, Howell and several of her

co-defendants had personal items belonging to the Lillelids in their possession.

The State offered Howell and her co-defendants a ‘package plea offer’

whereby the State would not seek the death penalty against the four adult co-

defendants if Howell and all of her co-defendants agreed to enter guilty pleas to the

offenses. The plea offer provided for concurrent sentences of twenty-five years for

each conviction of especially aggravated kidnapping, twelve years for each

aggravated kidnapping conviction, and four years for the theft conviction. The trial

court would determine the sentences for the felony murder and attempted first

degree murder convictions.

Howell and her co-defendants accepted the State’s offer. Following a

sentencing hearing, the trial court sentenced Howell to life without the possibility

of parole for each of the three felony murder convictions and twenty-five years for

the attempted murder conviction. The trial court ordered that each sentence be

served consecutively. The Court of Criminal Appeals affirmed Howell’s sentences

on appeal.

Howell subsequently filed a post-conviction relief petition alleging that she

received ineffective assistance of counsel during proceedings in both the juvenile

court and the criminal court and that her guilty plea was not knowingly and

voluntarily entered. Following a hearing, the post-conviction court denied Howell

relief. The Court of Criminal Appeals affirmed the post-conviction court’s

judgment. We granted review.

Howell v. State, 185 S.W.3d 319, 324–26 (Tenn. 2006) (footnote and citation omitted).

After failing to obtain collateral relief at the state level, Ms. Howell petitioned this Court

for habeas relief under 28 U.S.C. § 2254, contending that her guilty pleas were unconstitutional

and that her counsel was ineffective. Howell v. Hodge, No. 2:06–CV–108, 2010 WL 1252201,

at *1 (E.D. Tenn. Mar. 24, 2010). The Court denied her § 2254 petition, id. at *19–20, and the

Sixth Circuit affirmed the Court’s decision, Howell v. Hodge, 710 F.3d 381, 387 (6th Cir. 2013).

Several years later, Ms. Howell again moved for collateral relief in the state courts, relying this

time on the Supreme Court’s then-newly minted opinion of Miller v. Alabama, 567 U.S. 460

(2012). [Second Am. Pet. ¶ 11(b)].

In Miller, the Supreme Court held that a juvenile defendant’s receipt of a mandatory life

sentence without parole violates the Eighth Amendment’s prohibition against cruel and unusual

punishment because “mandatory penalty schemes” prevent the sentencer from considering “the

‘mitigating qualities of youth,’” which is a necessary consideration under the Eighth Amendment

because it “diminish[es] the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes.” Miller, 567 U.S. at 472, 474, 476

(quotation omitted). But the Greene County Criminal Court ruled that Miller could not avail

Ms. Howell because “she did not receive [her] sentence without individualized consideration

in sentencing nor as a result of a mandatory penalty scheme as was at issue in Miller.” [Greene

Cty. Criminal Ct. Order, Doc. 23-2, at 2]. “Far from being ‘mandatory,’” the Greene County

Criminal Court wrote, “Tennessee’s sentencing scheme affords ‘substantial discretion’ to a

sentencing judge in a case such as Ms. Howell’s.” [Id. (citing State v. Howell, 34 S.W.3d 484,

484, 494 (Tenn. Ct. Crim. App. 2000))]. Although Ms. Howell appealed the Greene County

Criminal Court’s order, the Tennessee Court of Criminal Appeals, on procedural grounds,

declined to consider her appeal, [Tenn. Ct. Criminal Appeals Order, Doc. 23-3, at 1–2], and the

Tennessee Supreme Court denied her application for permission to appeal, [Tenn. Supreme Ct.

Order, Doc. 23-4, at 1].

A few years later, however, Ms. Howell continued her pursuit of collateral relief when

the Supreme Court, in Montgomery v. Louisiana, 577 U.S. 190 (2016), held that Miller applies

retroactively on collateral review. Relying on Montgomery, Ms. Howell moved to reopen the

collateral proceedings in the Greene County Criminal Court, [Second Am. Pet. ¶ 11(c)], but the

Greene County Criminal Court denied her motion, [Greene Cty. Criminal Ct. Second Order,

Doc. 23-5, at 3–5]. According to the Greene County Criminal Court, the record was “abundantly

clear” that it “complie[d] with all the requirements of” Miller and Montgomery by taking “into

consideration the petitioner’s youth and the attendant circumstances associated with youth when

[it] sentenced her.” [Id. at 3–4]. Specifically, it noted that, during Ms. Howell’s sentencing, it

heard and weighed her testimony about her “childhood, family life, social history, intelligence,

and educational background.” [Id. at 4]. The Tennessee Court of Criminal Appeals agreed that

the trial court satisfied Miller and Montgomery: “[T]he imposition of sentences of life without

parole in this case was done only after the presentation and consideration of mitigating factors,

including those specific to the petitioner’s youth, history of abuse, and mental health.” [Tenn. Ct.

Criminal Appeals Second Order, Doc. 23-6, at 3]. The Tennessee Supreme Court denied her

application for permission to appeal. [Tenn. Supreme Court Second Order, Doc. 23-7, at 1].

Ms. Howell then attempted to chart a path back to federal court. She moved the Sixth

Circuit for leave to file a second or successive § 2254 petition, and the Sixth Circuit granted her

motion, determining that “Howell has shown that her claim is based on Miller and ‘warrant[s] a

fuller exploration in the district court.’” [Sixth Circuit Order, Doc. 1-2, at 3 (alteration in original)

(quotation omitted)].1 While Ms. Howell’s § 2254 claim under Miller and Montgomery was

pending in this Court, the Supreme Court was in the process of deciding Jones v. Mississippi,

141 S. Ct. 1307 (2021), and the parties agreed that a stay was appropriate until the Supreme

Court rendered its decision in Jones, [Pet’r’s Mot. Stay Proceedings, Doc. 30, at 1–2]. Last year,

the Supreme Court issued its opinion in Jones, and this Court lifted the stay of this case. [Order

Lifting Stay, Doc. 35, at 1]. Afterwards, Ms. Howell filed a second amended petition in which

she alleges that “[t]he sole ground for this Second Amended Petition is . . . Jones v. Mississippi,

141 S. Ct. 1307, 1320 n.7 (2021)[.]” [Second Am. Pet. ¶ 12]. The State of Tennessee opposes

her petition. [Answer at 5–8]. Having carefully reviewed and considered Ms. Howell’s claim

and the parties’ arguments, the Court is now prepared to rule on them.

II. LEGAL STANDARD

If a state prisoner believes her conviction violates the United States Constitution, her

exhaustion of appeals at the state level is not a coup de gráce to her cause. She may petition a

federal district court for a writ of habeas corpus. The Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 et seq., governs claims for habeas relief. Section

2254(d) of the AEDPA states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim—

1 The Sixth Circuit also stated that “Howell’s sentencing transcript is not included in the record before us.

Although the Tennessee Court of Criminal Appeals, in denying a motion to re-open Howell’s post-conviction

proceedings, noted that the sentencing court considered Howell’s youth as a mitigating factor, the accuracy of this

finding cannot be reviewed without a copy of the sentencing transcript.” [Sixth Circuit Order at 3]. It therefore

transferred Ms. Howell’s case to this Court for further proceedings. [Id.].

(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). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on

the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (2),” Harrington v.

Richter, 562 U.S. 86, 98 (2011), which, together, form a standard of review known as “AEDPA

deference,” Fitzpatrick v. Robinson, 723 F.3d 624, 633, 637 (6th Cir. 2013). AEDPA deference

is a “strict standard of review”2 and “means. . . . federal courts defer to state court decisions.”

Minnick v. Winkleski, 15 F.4th 460, 467–68 (7th Cir. 2021); see Harrington, 562 U.S. at 102–03

(“Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions

in the state criminal justice systems,’ not a substitute for ordinary error correction through

appeal.” (quotation omitted)); see also Parke v. Raley, 506 U.S. 20, 29 (1992) (referring to a

“presumption deeply rooted in our jurisprudence: the ‘presumption of regularity’ that attaches

to final judgments” (quotation omitted)).

Under § 2254(d)(1), the first exception, “a federal habeas court may grant the writ ‘if the

state court applies a rule different from the governing law set forth in [the Supreme Court’s]

cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially

indistinguishable facts.’” Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018) (quoting Bell v.

Cone, 535 U.S. 685, 694 (2002)). Under § 2254(d)(2), the second exception, “a federal habeas

court may grant the writ if the state court identifies the correct governing legal principle

2 The Supreme Court has described AEDPA deference as “create[ing] ‘a substantially higher threshold’ for

obtaining relief than de novo review,” Renico v. Lett, 559 U.S. 766, 773 (2010) (quotation omitted), and one scholar

has described it as “one of the most uncharitable standards of review known to law,” Justin F. Marceau, Challenging

the Habeas Process Rather than the Result, 69 Wash. & Lee L. Rev. 85, 97 (2012).

from the Supreme Court’s decisions but unreasonably applies the law or bases its decision on

an unreasonable determination of the facts, in light of the record before the state court.” Id.

(citing Harrington, 562 U.S. at 100; Williams v. Taylor, 529 U.S. 362, 412–13, (2000))). In

short, a state court’s determination that a claim is without merit will preclude habeas relief “so

long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington, 562 U.S. at 100 (citation omitted)); see Woods v. Donald, 575 U.S. 312, 316 (2015)

(“When reviewing state criminal convictions on collateral review, federal judges are required

to afford state courts due respect by overturning their decisions only when there could be no

reasonable dispute that they were wrong.”).

III. ANALYSIS

In Jones, the Supreme Court held that Miller and Montgomery do not require a sentencer

to make a separate factual finding or an implicit finding that a juvenile defendant is permanently

incorrigible before imposing a life-without-parole sentence. Jones, 141 S. Ct. at 1311–21. The

Supreme Court took care to note that its holding in Jones did not disturb its holdings in Miller

or Montgomery. Id. at 1321. Although Jones did not narrow or expand Miller or Montgomery,

Ms. Howell relies exclusively on Jones in pursuing habeas relief. Again, in her second amended

petition, she states that “[t]he sole ground for [relief] is . . . Jones v. Mississippi, 141 S. Ct. 1307,

1320 n.7 (2021),” [Second Am. Pet. ¶ 12], and in her reply brief, she emphasizes that her “case

is footnote 7” of Jones, [Pet’r’s Reply at 2]. Footnote seven of Jones states:

This Court’s death penalty cases recognize a potential Eighth Amendment claim if

the sentencer expressly refuses as a matter of law to consider relevant mitigating

circumstances. See Eddings v. Oklahoma, 455 U.S. 104, 114–115, 102 S. Ct. 869,

71 L.Ed.2d 1 (1982). By analogy here, if a sentencer considering life without parole

for a murderer who was under 18 expressly refuses as a matter of law to consider

the defendant’s youth (as opposed to, for example, deeming the defendant’s youth

to be outweighed by other factors or deeming the defendant’s youth to be an

insufficient reason to support a lesser sentence under the facts of the case), then the

defendant might be able to raise an Eighth Amendment claim under the Court’s

precedents. In any event, we need not explore that possibility because the record

here does not reflect that the sentencing judge refused as a matter of law to consider

Jones’s youth.

Jones, 141 S. Ct. at 1320 n.7. Ms. Howell claims that “the evidence is overwhelming” that the

Greene County Criminal Court “did not consider [her] youth as a relevant mitigating factor as a

matter of law.” [Pet’r’s Reply at 13].

A. AEDPA Deference

Before addressing Ms. Howell’s claim, the Court must determine the proper standard of

review to apply to it by deciding whether AEDPA deference or, instead, a different standard of

review is appropriate. See Ray v. Maclaren, 655 F. App’x 301, 308 (6th Cir. 2016) (“Because

the deference owed to a state court decision can be dispositive of the claim, a federal court

reviewing a habeas petition must first address this ‘threshold question of the proper standard of

review’—specifically, whether AEDPA deference or de novo review applies.” (quoting Robinson

v. Howes, 663 F.3d 819, 822 (6th Cir. 2011))); English v. Berghuis, 529 F. App’x 734, 740 (6th

Cir. 2013) (“Before a reviewing court reaches the question of the reasonableness and conformity

to relevant precedent of the state court adjudication . . . it must first confront a more primal

question: whether the defendant’s claim was actually adjudicated by the state courts.”). “Claims

that were not ‘adjudicated on the merits in State court proceedings’ receive the pre-AEDPA

standard of review,” which is “de novo for questions of law (including mixed questions of law

and fact), and clear error for questions of fact.” Robinson, 663 F.3d at 823 (quotation omitted)).

The state courts did not specifically decide whether Ms. Howell’s sentencer “expressly

refuse[d] as a matter of law” to consider her youth and attendant characteristics. Jones, 141 S.

Ct. at 1320 n.7. After all, Jones, the sole basis for Ms. Howell’s request for relief, did not exist

when Ms. Howell was challenging her convictions in the state courts, and Jones’s non-existence

at the time might suggest the state courts did not have an opportunity to adjudicate the precise

claim that she now raises under footnote seven of Jones. But because the state courts denied

her federal claim for collateral relief under Miller and Montgomery—both of which Jones

clarified but did not disturb—this Court must presume that they adjudicated her claim on the

merits. See Smith v. Cook, 956 F.3d 377, 386 (6th Cir. 2020) (“When a state court denies relief

on a properly presented federal claim, we presume that the state court adjudicated that claim on

the merits.” (citing Harrington, 562 U.S. at 99)); Minnick, 15 F.4th at 467 (“We presume a state

court adjudicated a claim on the merits unless the state court relied wholly on state law grounds

for its decision or expressly declined to consider the claim.” (citation omitted)).

More importantly, Ms. Howell readily admits that the state courts did in fact adjudicate

her claim on the merits: “Here, the state courts (specifically, the Greene County Criminal Court

and the CCA) did adjudicate Petitioner’s Montgomery claim on the merits, and they purported

to apply Miller and Montgomery to it.” [Pet’r’s Reply at 18]; see [id. at 5 (“Petitioner has based

her claim solely on Montgomery (and on Montgomery’s subsequent clarification in Jones).”].

Because Ms. Howell concedes that the state courts addressed her claim on the merits, the Court

must accord AEDPA deference to the state courts’ decisions. See Hand v. Houk, 871 F.3d 390,

419 (6th Cir. 2017) (“As the Ohio Supreme Court addressed this claim on the merits, we are

required to grant that decision AEDPA deference on review.” (emphasis added)); Hogan v.

Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999) (recognizing that “[d]eference to the state court

under AEDPA is . . . required for ‘any claim that was adjudicated on the merits in State court

proceedings’” (quoting 28 U.S.C. § 2254(d)) (citations omitted)); see also Cornwell v. Bradshaw,

559 F.3d 398, 405, 415 (6th Cir. 2009) (applying AEDPA deference when the petitioner conceded

that it applied).

B. The Merits of Ms. Howell’s Claim

Ms. Howell challenges the state courts’ adjudication of her claim under § 2254(d)(1) and

(d)(2), though she devotes her argument almost fully to § 2254(d)(2). Under § 2254(d)(2), she

asserts that “both State courts made an ‘unreasonable determination of the facts in light of the

evidence presented in the State court proceeding’ within the meaning of section 2254(d)(2) in that

they both found (erroneously) that [the Greene County Criminal Court] had, in fact, considered

Petitioner’s youth and its attendant characteristics.” [Pet’r’s Reply at 18]. Under § 2254(d)(1),

she concedes the state courts acknowledged that Miller and Montgomery required the Greene

County Criminal Court to consider her youth and attendant characteristics, and she argues that

their decisions were not contrary to, or an unreasonable application of, Miller and Montgomery

only in “that limited sense.” [Id.]. In response, the State contends that her claim is untimely and

that it fails on the merits because the Greene County Criminal Court did consider her youth and

attendant characteristics. [Answer at 5–8]. The Court will begin, and end, by addressing Ms.

Howell’s claim on the merits, which cannot withstand AEDPA deference. See Pough v. United

States, 442 F.3d 959, 964 (6th Cir. 2006) (“Even though [the petitioner’s] motion may have been

untimely, this court need not reach the issue because the motion fails on the merits[.]”).

1. § 2254(d)(2): The Reasonableness of the State Courts’

Determination of the Facts

The underlying record shows—incontrovertibly—that the Greene County Criminal Court

considered Ms. Howell’s youth and attendant characteristics and that the state courts, in light of

the record before them, therefore did not make an unreasonable determination of the facts. In

Miller, the Supreme Court recognized that a “wealth of characteristics and circumstances [can

be] attendant” to a juvenile defendant’s youth, including “immaturity, impetuosity, and failure

to appreciate risks and consequences.” Miller, 567 U.S. at 476–77. It then touched on certain

characteristics and circumstances that may prove to be germane to an assessment of a juvenile’s

immaturity, impetuosity, and inability to appreciate risks and their consequences: “the family and

home environment that surrounds [her],” “the extent of [her] participation in the conduct,” “the

way familial and peer pressures may have affected [her],” “incompetencies associated with [her]

youth,” and “the possibility of rehabilitation.” Id. at 477–78. The underlying record is flush with

evidence as to each of these characteristics and circumstances, and it is pellucid that the Greene

County Criminal Court considered each of them.

a. Ms. Howell’s Home and Surrounding Environment

The Greene County Criminal court expressly stated that it considered evidence showing

that Ms. Howell was “abused and neglected as a child.” [Hr’g. Tr. II, Doc. 13, at 1042:9–12].

This evidence consisted of Ms. Howell’s testimony that her parents were incessantly fighting,

which led, ultimately, to their divorce when she was nine years old; [Hr’g Tr. I, Doc. 12-1, at

560:8–14, 561:3–9]; that, at one point, she ran away from home; [id. at 570:14]; and that her

uncle and his son sexually molested her when she was five or six years old and continued their

abuse of her for years, until she was ten or eleven, [id. at 562:5–11].

In addition, she testified that her father had a “major drinking problem,” [id. at 561:11],

and like her father, she began abusing alcohol herself, as well as other drugs including hashish,

marijuana, shake, LSD, PCP, and cocaine, [Hr’g Tr. II at 630:5–25, 631:1–2]. She also testified

that she had “a lot of problems” with her mother, who, as a devout Christian, was opposed to her

practice of witchcraft and black magic. [Hr’g Tr. I at 561:18–23, 570:18–25, 573:10]. Again, the

Greene County Criminal Court stated that it considered all of this evidence—evidence of her

abuse and neglect as a child—as a mitigating factor. [Hr’g. Tr. II at 1042:9–12].

b. The Extent of Ms. Howell’s Participation in the Criminal Conduct

The Greene County Criminal Court also carefully considered evidence of the extent of

Ms. Howell’s participation in the mass murders of the Lillelids. Although it acknowledged that

Ms. Howell was an accomplice, rather than the murderer, and had expressed remorse for her

conduct, it found that her role in the murders was significant:

You participated in everything [leading up to the murders]. You helped

steal guns and money. You helped initiate the plans for the trip . . . . You were at

the picnic table at the rest area with the Lillelids when they were kidnapped, when

they were crying. You were outside the van watching the Lillelids be murdered.

You did nothing to stop [it], when a weapon was available. You deliberately and

knowingly participated in every aspect of the killings and the things that led to

them, including the getaway and cover up.

[Id. at 1042:4–5, 1042:12, 1042:19–25, 1043:1–2]. In a similar vein, the Greene County Criminal

Court stated that “the occult mark,” a reference to the record evidence of Ms. Howell’s practice

of witchcraft, “continued on this case throughout the events that transpired.” [Id. at 1042:16–17].

The Greene County Criminal Court’s statements and findings about Ms. Howell’s involvement

in the murders show that it thoroughly considered the extent of her participation in the criminal

conduct.

c. The Effect of Peer Pressure on Ms. Howell

Next, the record establishes that the Greene County Criminal Court also considered the

way that peer pressure may have affected Ms. Howell’s decision making. In particular, it stated

that, as a mitigating factor, it considered the evidence showing that Ms. Howell “subordinate[s ]

[herself] to the needs of others in a group.” [Id. at 1042:11–12]. This evidence consisted of Ms.

Howell’s testimony that she did not fit in at school because she had always been “quiet and

withdrawn,” [Hr’g Tr. I at 569:23–25, 570:1–4], as well as her testimony that she and her co-

defendants drank each other’s blood so they would feel “closer together,” [id. at 577:14–22],

consumed alcohol together, [id. at 586:8–14], and attempted suicide together, [id. at 575:18–

25, 576:21–25, 577:1–7]. Again, the Greene County Criminal Court considered this evidence,

having stated that, as a mitigating factor, it acknowledged that Ms. Howell subordinates herself

to others in a group. [Hr’g Tr. II at 1042:11–12].

d. Ms. Howell’s Incompetencies

The record also plainly demonstrates that the Greene County Criminal Court considered

Ms. Howell’s incompetencies because it stated that her “borderline retarded IQ of 78” was a

mitigating factor. [Id. at 1042:10–11].

e. Ms. Howell’s Possibility of Rehabilitation

Lastly, the Greene County Criminal Court also considered Ms. Howell’s possibility of

rehabilitation. Citing a clinical psychologist’s report, it found that Ms. Howell was “not likely

to be rehabilitated” and had only a “fair to guarded [possibility of rehabilitation], at best, even

with extended treatment.” [Id. at 1043:3–5]; see [Dr. Miller’s Report, Doc. 12-2, at 8 (opining

that Ms. Howell had only a “fair to guarded” possibility of rehabilitation—even with long-term

psychiatric care, including therapy and psychiatric medication)].

f. Recapitulation

So, in sum, the Greene County Criminal Court considered the very circumstances and

characteristics of youth that the Supreme Court articulated in Miller, i.e., Ms. Howell’s family

and home environment, the extent of her participation in the criminal conduct, the way peer

pressure affected her, her incompetencies, and her possibility of rehabilitation. Miller, 567 U.S.

at 477–78. In fact, Ms. Howell later in her legal brief goes on to acknowledge, as she must, that

the Greene County Criminal Court did actually consider evidence of these circumstances and

characteristics: “The only mitigating factors that [the court] considered were that: Petitioner

was abused and neglected as a child; she had a borderline retarded IQ of 78; she subordinated

herself to the needs of others in a group; and she had shown remorse.” [Pet’r’s Reply at 19]. Yet,

with this acknowledgment, she suggests that the Greene County Criminal Court’s consideration

of these mitigating factors was somehow insufficient, but this suggestion is completely at odds

with Miller, and she makes no appreciable attempt to explain why the Greene County Criminal

Court’s consideration of these factors—the very factors that the Supreme Court expounded in

Miller—is insufficient. Having carefully reviewed the underlying record, this Court, therefore,

cannot conclude that the state-court proceedings “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)(2), or put another way, that “extreme malfunctions” occurred

in the state courts’ criminal justice system, Harrington, 562 U.S. at 102 (quotation omitted). Ms.

Howell is not entitled to the extraordinary remedy of habeas relief under § 2254(d)(2).

2. § 2254(d)(1): Contrary to or Unreasonable Application of Clearly

Established Federal Law

Next, to the extent that Ms. Howell invokes Jones to contend that the Greene County

Criminal Court—by “expressly refus[ing] as a matter of law” to consider her youth and attendant

characteristics, Jones, 141 S. Ct. at 1320 n.7—rendered a decision that “was contrary to” or “an

unreasonable application of[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1), this

contention, too, lacks merit. Although the Supreme Court, in Jones, did not define the phrase

“expressly refuses as a matter of law,” id. at 1320 n.7, it cited its death-penalty jurisprudence,

namely, Eddings v. Oklahoma, 445 U.S. 104 (1982), as a case in which a sentencer expressly

refused as a matter of law to consider relevant mitigating evidence. Jones, 141 S. Ct. at 1320 n.7.

In Eddings, the juvenile defendant “presented substantial evidence at the [sentencing]

hearing of his troubled youth,” 455 U.S. at 107, but the state court, before ultimately sentencing

him to death, stated that, “in following the law,” it could not “consider the fact of this young

man’s violent background,” id. at 109. From this statement, the Supreme Court determined that

“it is clear that the trial judge did not evaluate the evidence in mitigation and find it wanting as

a matter of fact; rather he found that as a matter of law he was unable even to consider the

evidence.” Id. at 876. The Supreme Court went on to state that while a sentencer may decide the

amount of weight to assign to relevant mitigating evidence of a juvenile defendant’s youth and

attendant characteristics, it may not give it “no weight by excluding such evidence from [its]

consideration.” Id. at 114–15 (emphasis added) (footnote omitted).

Ms. Howell argues that the Greene County Criminal Court did just that—i.e., gave the

mitigating evidence of her youth and attendant characteristics no weight. First, she points out

that the Greene County Criminal Court said that “there are no mitigating factors under § 40-35-

113, or from any other source.” [Pet’r’s Reply at 7 (quoting Hr’g Tr. II at 1040:18–19)]. This

statute, Tennessee Code Annotated § 40-35-113, “contains a non-exclusive list of mitigating

factors that a trial court may apply to a defendant’s sentence ‘if appropriate for the offense.’”

State v. Thomas, No. W2010–00949–CCA–R3–CD, 2011 WL 2698320, at *8 (Tenn. Ct. Crim.

App. July 11, 2011) (quoting Tenn. Code. Ann. § 40-35-113). Subsection 40-35-113(6), which

is the particular subsection at issue here, contains one of those mitigating factors, and it states

that “[i]f appropriate for the offense, mitigating factors may include” consideration of whether

“[t]he defendant, because of youth or old age, lacked substantial judgment in committing the

offense.” Tenn. Code Ann. § 40-35-113(6). Ms. Howell insists that the Greene County Criminal

Court expressly determined that § 40-35-113(6) was inapplicable and therefore “necessarily

excluded any consideration of [her] youth and attendant circumstances.” [Pet’r’s Reply at 7

(footnote omitted)].

Second, Ms. Howell also underscores the fact that the Greene County Criminal Court,

under Tennessee Code Annotated § 39-13-204—a statute that contains additional mitigating

factors for a sentencer’s consideration—did not identify subsection (j)(7) as a mitigating factor.

[Pet’r’s Reply at 7–8]. Subsection 39-13-204(j)(7) provides that the “youth or advanced age of

the defendant at the time of the crime” is a mitigating factor that a sentencer “shall consider.”

The Greene County Criminal Court, however, addressed mitigating circumstances under only

subsections (j)(1) and (j)(5), which list as mitigating factors a defendant’s lack of meaningful

criminal history and a defendant’s relatively minor participation as an accomplice in a murder,

respectively. [Hr’g Tr. II at 1041:25, 1042:1–8].3 Ms. Howell contends that the Greene County

Criminal Court’s failure to account for § 39-13-204(j)(7) demonstrates that it expressly refused

as a matter of law to consider her youth and attendant characteristics. [Pet’r’s Reply at 7–8].

The underlying record is not fully clear why the Greene County Criminal Court was

reticent or unwilling to apportion weight to Ms. Howell’s youth when it addressed the relevant

mitigating factors under § 40-35-113(6) and § 39-13-204(j)(7), specifically, but then went on to

consider many of those same or similar mitigating factors—i.e., her childhood abuse, the effect

of peer pressure on her, her incompetencies, her prospect of rehabilitation, and the extent of her

participation in the murders—before sentencing her to life without parole. See State v. Kelley,

34 S.W.3d 471, 481–82 (Tenn. Ct. Crim. App. 2000) (recognizing that § 40-35-113(6) “refers to

a defendant’s youth in the context of his or her ‘age, education, maturity, experience, mental

capacity or development, and any other pertinent circumstance tending to demonstrate the

defendant’s ability or inability to appreciate the nature of his [or her] conduct.’” (alterations in

3 The Greene County Criminal Court, despite raising § 39-13-204(j)(5), did not appear to find that Ms.

Howell’s role as an accomplice in the murder was relatively minor. Instead, it stated, “I’ll say again that no part in this

horrible crime can be minor, but it’s purely a relative statement.” [Hr’g Tr. II at 1042:6–7].

original) (quoting State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993))). While sentencing one of

Ms. Howell’s co-defendants, Crystal Sturgill,4 the Greene County Criminal Court did mention

that “[y]outh has been suggested by several as a mitigating circumstance” and that “[all the

defendants] w[ere] about the same age, except for Jason Bryant.”5 [Hr’g Tr. II at 1034:1–3]. But

for the older defendants who had suffered abuse during their childhoods, it dismissed the view

that youth was a mitigating factor because their experiences with abuse should have matured

them “more than the average person.” [Id. at 1034:5]. Yet despite suffering abuse in their own

lives, they showed no compunction about inflicting abuse on the Lillelids, the Greene County

Criminal Court stated, and it therefore found that “[t]he mitigating circumstances [of youth] are

rebutted.” [Id. at 1034:5–9].

This Court is uncertain whether the Greene County Criminal Court intended for these

statements—which ostensibly show that it considered, but rejected, youth as a mitigating factor

under § 40-35-113(6) and § 39-13-204(j)(7)—to apply only to Ms. Sturgill or to all the older

defendants who had suffered abuse, including Ms. Howell. But this Court has no need to try to

divine the Greene County Criminal Court’s intentions because, for all the reasons this Court has

stated up to this point, the Greene County Criminal Court indisputably considered Ms. Howell’s

youth and attendant characteristics as contemplated by the Supreme Court in Miller. Again, and

at the risk of belaboring the issue, the Greene County Criminal Court considered her childhood

abuse, the effect of peer pressure on her, her incompetencies, her prospect of rehabilitation, and

the extent of her participation in the crimes—the very characteristics and circumstances that the

Supreme Court in Miller described as relevant to an evaluation of a juvenile’s immaturity,

4 All the defendants’ cases were consolidated, and the Greene County Criminal Court sentenced all of the

defendants on the same date, February 20, 1998. [Hr’g Tr. I at 1].

5 Again, at the time of the murders, “Howell was seventeen years old; Bryant was fourteen years old; and

each of the remaining co-defendants was at least eighteen years old.” Howell, 185 S.W.3d at 324.

impetuosity, and inability to appreciate risks. Miller, 567 U.S. at 477–78. Only after considering

these relevant characteristics and circumstances, and finding them “to be an insufficient reason

to support a lesser sentence under the facts of the case,” Jones, 141 S. Ct. at 1320 n.7, did it

sentence Ms. Howell to life without parole, see [Hr’g Tr. II at 1042:13–14, 1043:7–9 (“All those

[mitigating circumstances], though, are overcome by and rebutted by the credible facts of the

case . . . . I sentence you to serve a sentence of life imprisonment, without the possibility of

parole[.]”).

But even if Ms. Howell is correct that the Greene County Criminal Court ran crosswise

with the Supreme Court’s comments in footnote seven of Jones—her alleged “sole ground” for

habeas relief, [Second Am. Pet. ¶ 12]—by expressly refusing as a matter of law to consider her

youth and attendant characteristics, her claim would still fail because footnote seven of Jones,

as the State maintains, is non-binding dicta and not clearly established law under § 2254(d)(1),

see [Answer at 7 (contending that “[t]his footnote has no application to Petitioner’s case, as the

[Supreme] Court merely addressed a hypothetical scenario that could possibly give rise to a

colorable Eighth Amendment claim”)]. “Dictum” refers to “[a] judicial comment made while

delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore

not precedential (although it may be considered persuasive).” Richmond Health Facilities v.

Nichols, 811 F.3d 192, 201 n.8 (6th Cir. 2016) (quotation omitted).

Generally, courts, of course, “treat dicta in case law as non-binding,” but “there is some

disagreement within the Sixth Circuit as to how much weight the federal judiciary should afford

to Supreme Court dicta.” United States v. Miller, 604 F. Supp. 2d 1162, 1167 (W.D. Tenn. 2009)

(citing Kelly v. Burks, 415 F.3d 558, 563 (6th Cir. 2005))). On one hand, the Sixth Circuit has

declared that it “finds itself ‘obligated to follow Supreme Court dicta, particularly when there

is no substantial reason for disregarding it, such as age or subsequent statements undermining

its rationale,’” Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 816 n.2 (6th Cir. 2020)

(quotation omitted), but on the other hand, it has also said that Supreme Court dicta are “of

persuasive precedential value,” Wright v. Morris, 111 F.3d 414, 419 (6th Cir. 1997) (emphasis

added) (quotation omitted).

Although the Supreme Court’s dicta may be authoritative in some contexts, habeas

proceedings under § 2254 are not one of them because dicta cannot serve as clearly established

law under § 2254(d)(1). See Brown v. Davenport, 142 S. Ct. 1510, 1525 (2022) (“This Court’s

dicta cannot supply a ground for relief [under § 2254(d)(1)]. Nor can a holding that speaks at a

high level of generality.” (citations omitted)); Jones v. Bell, 801 F.3d 556, 564 (6th Cir. 2015)

(“Federal law is clearly established ‘only when it is embodied in a holding’ of the Supreme

Court; dicta does not count.” (quoting Thaler v. Haynes, 559 U.S. 43, 47 (2010))). The Supreme

Court’s comments in footnote seven of Jones are precisely that—comments. In footnote seven,

the Supreme Court spoke not only at a high level of generality, contemplating that a juvenile

defendant “might be able to raise an Eighth Amendment claim” if a sentencer expressly refuses

as a matter of law to consider her youth and attendant characteristics, Jones, 141 S. Ct. at 1320

n.7 (emphasis added), but it also unmistakably recognized that it was not addressing the issue

before it, i.e., whether a sentencer must separately find that a juvenile defendant is permanently

incorrigible before sentencing her to life without the possibility of parole, see id. (“In any event,

we need not explore that possibility because the record here does not reflect that the sentencing

judge refused as a matter of law to consider Jones’s youth.”).

Footnote seven of Jones is therefore dicta. See Collins v. Runnels, 603 F.3d 1127, 1132

(9th Cir. 2010) (rejecting the petitioner’s claim under § 2254(d)(1) after determining that “[t]he

footnote upon which [he] relie[d] did not” constitute clearly established law and “was merely a

comment”). As dicta, it cannot form a claim under § 2254(d)(1). Davenport, 142 S. Ct. at 1525;

Bell, 801 F.3d at 564. Ms. Howell’s reliance on footnote seven as the “sole ground” for her claim

is therefore fatal to her pursuit of habeas relief. [Second Am. Pet. ¶ 12]; see [Pet’r’s Reply at 2

(emphasizing that her “case is footnote 7” of Jones)]. And even if footnote seven is not dicta,

Ms. Howell’s exclusive reliance on Jones would still be fatal to her claim because, as the Court

touched on earlier in this opinion, Jones did not exist when the state courts denied her requests

for collateral relief, and it therefore cannot qualify as clearly established law. See Williams v.

Taylor, 529 U.S. 362, 412 (2000) (“[T]he meaning of the phrase ‘clearly established Federal

law, as determined by the Supreme Court of the United States’ . . . . refers to holdings, as

opposed to the dicta, of the Court’s decision as of the time of the relevant state-court decision.”

(emphasis added)). In sum, the state courts’ decisions were not contrary to or an unreasonable

application of clearly established federal law as determined by the Supreme Court, and therefore,

Ms. Howell is not entitled to the extraordinary remedy of habeas relief under § 2254(d)(1).

C. Certificate of Appealability

The Court must now determine whether to issue a certificate of appealability, which is

necessary for Ms. Howell to appeal its ruling. 28 U.S.C. § 2253(a), (c)(1)(A). The Court may

issue a certificate of appealability only when a petitioner “has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). To make this showing when a court has

rejected a petitioner’s constitutional claims on the merits, that petitioner must demonstrate that

reasonable jurists would find the court’s assessment of those claims “debatable or wrong.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). Having addressed the merits of Ms. Howell’s claim,

the Court does not conclude that reasonable jurists would find that its rejection of her claim is

debatable or wrong. The Court will therefore decline to issue a certificate of appealability to Ms.

Howell.

IV. CONCLUSION

Ms. Howell fails to establish that the state courts’ adjudication of her claim resulted in a

decision that was contrary to or an unreasonable application of clearly established federal law

as determined by the Supreme Court or resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the state-court proceedings. Her

Second Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 [Doc. 34] is

therefore DENIED, and this case is hereby DISMISSED with prejudice. The Court will enter

an order consistent with this opinion.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE