Avilez-Canales v. Clendenion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

MAINOR CELINE AVILEZ-CANALES, )

)

Petitioner, )

)

v. ) No. 3:22-CV-008-RLJ-JEM

)

JASON CLENDENION, )

)

Respondent. )

MEMORANDUM OPINION

Petitioner Mainor Celine Avilez-Canales is a prisoner proceeding pro se in a federal habeas

action brought pursuant to 28 U.S.C. § 2254 in which he seeks to challenge the legality of his

confinement under a Sevier County, Tennessee judgment of conviction for aggravated sexual

battery [Doc. 1]. Having considered the submissions of the parties, the State-court record, and the

law applicable to Petitioner’s claims, the Court finds that the petition should be denied.

I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

The victim and her friend, Angelica Buckner, went to a bar for drinks shortly after 9 p.m.

on January 31, 2014, where they were approached at the bar by Petitioner and his friend [Doc. 12-

2 p. 108-09; Doc. 12-3 p. 58-60]. The victim and Petitioner drank and danced together [Doc. 12-

2 p. 26-27, 104-05; Doc. 12-3 p. 60-62]. Ms. Buckner testified that Petitioner was “handsy” with

both her and the victim, and that she and the victim repeatedly told him to leave them alone [Doc.

12-2 p. 109]. Eventually, Ms. Bucker used “very inappropriate language” to dissuade Petitioner’s

advances by telling Petitioner, “We do not f*** Mexicans” [Id.].

Later in the evening, the victim went outside to smoke, and Petitioner followed her [Doc.

12-3 p. 62]. The victim testified that she turned down Petitioner’s repeated sexual advances by

stating, “No, because you’re nothing more than a dirty f***ing Mexican” [Id. at 65-66]. Assuming

Petitioner would then leave her alone, the victim turned her head, felt something painful on the

right side of her head, and remembers the “cherry” of her cigarette getting knocked partially into

her mouth [Id. at 66, 74]. The victim, whose lips were burned in two places, was unsure if

Petitioner hit her directly or with an object [Id. at 66-67, 74]. After that, the victim begged to be

left alone, apologized, and offered to pay Petitioner for the drinks [Id. at 67].

The victim was severely intoxicated at the time of the incident and could not recall the

particulars of the events that followed [Id. at 70-71]. Her final recollection was lying on her back

with Petitioner above her [Id. at 67]. At trial, the victim testified that she did not unzip or unbutton

her pants, pull up her shirt, or consent to intercourse with Petitioner [Id. at 67-68].

Raymond Stupplebeen was outside of the bar smoking when he saw the victim and

Petitioner behind the restaurant next door “circling each other” and testified that, although it looked

like they were dancing, “The body language wasn’t right” [Id. at 42, 44-45]. At one point, Mr.

Stupplebeen saw the victim fall down and Petitioner stand over the victim [Id. at 44-45]. Rebecca

Kirby, who worked in the bar’s kitchen, saw the victim and Petitioner behind the restaurant next

door [Id. at 17, 18-19]. Ms. Kirby stated that Petitioner and the victim “looked like they were

making out” [Id. at 19]. She testified that the victim fell three or four times, at which point she

would hold her arms up and Petitioner would pick her up [Id. at 19-20]. Dakota Johnson, who

worked as a bar-back, observed Petitioner and the victim behind the air conditioning unit of the

restaurant and testified that “it looked like he had her pinned up against the wall, and she was kind

of trying to get away from him” [Doc. 12-2 p. 75, 77]. Dylan Owens, the kitchen manager at the

bar, testified that he was outside for thirty to forty-five minutes during the incident and heard

“shuffling” and possible raised voices; however, the sound was not entirely clear to him [ Id. at

89, 95-96].

Several witnesses saw Petitioner carry or drag the victim, who was beaten and semi-

conscious, through the parking lot. Mr. Owens testified that the victim appeared intoxicated and

“barely” able to walk [Id. at 90-91]. Mr. Stupplebeen testified that the victim’s pants were down

slightly, her feet limp, and her face hidden [Doc. 12-3 p. 45-47]. Both Mr. Stupplebeen and Ms.

Kirby testified that it appeared as though Petitioner was trying to hide the victim’s face as they

approached Petitioner in the parking lot [Id. at 32, 47]. When several witnesses shouted for

Petitioner to let the victim go, Mr. Stupplebeen noted that Petitioner dropped the victim to the

ground “hard” [Id. at 48]. As Mr. Stupplebeen approached, Ms. Kirby observed that the victim

held her arms out to him “almost like a ‘help me’ kind of thing” [Id. at 26-27]. Mr. Johnson

testified that Petitioner explained that the victim’s injuries occurred as the result of a fall [Doc. 12-

2 p. 77]. Mr. Stupplebeen unsuccessfully tried to stop Petitioner from leaving the scene and called

911 as he asked others to follow Petitioner [Doc. 12-3 p. 48-49]. Jesse Parker, a bouncer at the

bar who was on the outdoor patio when the victim was found, noted that as Petitioner passed him

on the way back into the bar, “he patted [Mr. Parker] on the shoulder and winked at [him]. [Doc.

12-2 p. 63-64, 66]. Mr. Parker stated he “thought it was very odd” [Id. at 66].

Several witnesses observed the victim’s condition, but none of the testifying witnesses

directly saw how the victim became injured. Mr. Stupplebeen noted that the victim had “road

burns or beat marks” on her face, was missing a shoe, and was unable to move on her own [Doc.

12-3 p. 47-48, 50]. Mr. Johnson observed that the victim’s “face was — it was bad. She didn’t

fall.” [Id. at 78]. Mr. Owens testified that the victim was missing a shoe, her pants were unfastened,

there was debris and gravel in her hair and on her arms, and that she appeared to be “beaten up,”

as she had visible red marks, scratches, and bruises [Doc. 12-2 p. 90-91]. Ms. Kirby noted that the

victim’s face was “messed up,” her clothes “askew,” she was missing shoes and a jacket, her pants

were undone, and her shirt was unbuttoned [Doc. 12-3 p. 22-23]. Mr. Parker observed that the

victim was “visibly beaten,” partially undressed, bleeding, and hysterical [Doc. 12-2 p. 67-68].

The victim repeatedly asked for “Angel,” Ms. Bucker’s nickname, and was still asking for her

when Ms. Buckner arrived outside prior to the ambulance’s arrival [Doc. 12-2 p. 113-14; Doc. 12-

3 p. 23].

Bradley Holt, a paramedic who arrived on the scene that evening, found the victim

unresponsive with a “pumpknot” on her face, other abrasions and lacerations to her face, a bruised

torso, other bruises forming in her upper extremities, and a bleeding nose [Doc. 12-2 p. 52-53, 56-

57]. The victim did not respond to speech, touch, or painful stimulation and was transported to

the hospital in emergency status [Id. at 57-58]. Mr. Holt testified that he would have intubated her

but for the fact that he did not have access to the appropriate paralytic medication [Id. at 57]. Along

with concurring with the general state of the victim’s condition described by the witnesses, Cecilia

Miller, another paramedic who drove the ambulance, noted that she would have recommended a

helicopter transport for the victim had one been available that night [Id. at 124-126]. Mr. Holt and

Ms. Miller both insisted that the victim’s injuries were inconsistent with a fall [Id. at 60, 127].

Officer Dan Wilder escorted the ambulance to the hospital “under emergency traffic,” with his

sirens and lights activated [Id. at 45].

A sexual assault nurse examiner, Misty Stamm, identified at trial a diagram she created of

the victim’s injuries, which included multiple facial abrasions; swelling and redness to the face;

injuries to the right knee, left foot, left shoulder, leg, left elbow, coccyx, and left forearm; and tears

on the victim’s labia minora with “a small amount of active bleeding” [Id. at 141-42]. Ms. Stamm

testified that she had only observed such injury to the labia minora consistent with sexual assault

— likely penetration — however, she acknowledged that the tears possibly could be the result of

a consensual sexual act [Doc. 12-2 at 144-45; Doc. 12-3 p. 5-6]. She testified that even though the

victim had a catheter at the hospital, she had never seen a catheter cause the type of tear the victim

sustained [Doc. 12-2 p. 144].

In rebuttal to Ms. Stamm’s testimony, the defense presented the testimony of Tracy Sisto,

a licensed registered nurse who practiced nursing between 1982 and 2001, but who had continued

to maintain her license status even after she stopped practicing nursing [Doc. 12-4 p. 9-10]. Ms.

Sisto testified that catheterization can cause labial tears and irritation such as the victim

experienced [Id. at 10-11].

The victim also testified at trial. She stated that when she awoke in the hospital the morning

following the incident, she was in a neck brace, her whole body hurt, she felt interior and exterior

vaginal pain, and she had trouble urinating for a few days due to the pain [Doc. 12-3 p. 70-71].

The victim noted that she had previously used a catheter in connection with giving birth that did

not cause the pain or irritation that she felt after she awoke in the hospital on this occasion [Id. at

90]. She further testified that none of her injuries or pain existed prior to the incident in question

[Id. at 68-69, 70-71]. The victim acknowledged having a long-term boyfriend at the time of the

incident but asserted that she was not fabricating an assault to protect that relationship [Id. at 81,

88-90].

When Petitioner was apprehended, he admitted to Detective Bush that he bought the victim

a drink, followed her to the patio, walked over to the restaurant with her with the intent to have

sexual intercourse, and unzipped her pants [Id. at106]. However, he denied having intercourse

with her and insisted that she fell on the concrete, hitting her face [Id. at 105].

At trial, Petitioner testified that the victim asked him to have sex three times, that they

intended to have sex, but that those plans were derailed when the victim fell [Id. at 124-126].

Petitioner testified at trial that he did not unzip the victim’s pants [Id. at 132]. Petitioner also stated

that accepting a drink “could be” consent to sexual intercourse [Id. at 142].

Although a Sevier County grand jury indicted Petitioner for one count of aggravated rape

[Doc. 12-1 8-9, 68], Petitioner was ultimately convicted of the lesser-included offense of

aggravated sexual battery following his jury trial [Doc. 12-4 p. 58]. The trial court sentenced

Petitioner to a twelve-year term of incarceration [Doc. 12-1 p. 68]. On direct appeal, the Tennessee

Court of Criminal Appeals (“TCCA”) affirmed. State v. Canales, No. E2017-01222-CCA-R3-

CD, 2018 WL 2084957, at *9 (Tenn. Crim. App. May 4, 2018) (“Canales I”).

Thereafter, Petitioner filed a pro se petition for post-conviction relief [Doc. 12-15 p. 4-6].

Following the appointment of post-conviction counsel, counsel filed an amended petition alleging

the ineffective assistance of trial counsel [Id. at 7-8, 18-24]. The post-conviction court held an

evidentiary hearing where William Lee Wheatley, Petitioner’s retained trial and appellate counsel,

testified [Doc. 12-16 p. 21-54]. Mr. Wheatley stated that he did not recall discussing with

Petitioner the possibility of retaining a medical expert witness, but that he was aware of the

victim’s medical records and the sexual assault nurse examiner’s report prior to trial [Id. at 24-27].

In response to the testimony of the sexual assault nurse examiner regarding the injury to the

victim’s labia minora, Mr. Wheatley recalled suggesting to the jury that the injury was the result

of the catheterization the victim received in the hospital [Id. at 26].

Mr. Wheatley noted that he called Ms. Sisto to testify about any possible damage to the

victim caused by using a catheter, and while he acknowledged that it was a late witness disclosure

and that the trial court would not certify Ms. Sisto as an expert, he noted that she was nonetheless

allowed to testify from her knowledge and experience [Id. at 43-44]. Mr. Wheatley stated he did

not perceive any other issue on which expert testimony was needed, and he noted that the sexual

assault nurse examiner testified that the victim’s injuries could have occurred from consensual

sexual contact [Id. at 44].

Mr. Wheatley pointed out that Petitioner was not convicted of penetration, because the jury

acquitted him of aggravated rape and only convicted him of the lesser-included offense of

aggravated sexual battery [Id. at 26]. Mr. Wheatley recalled that his strategy was to argue to the

jury that the victim’s injuries were a result of falling due to heavy intoxication [Id. at 26-27].

Mr. Wheatley noted that he questioned the employees of the bar who testified that they saw

the victim hugging Petitioner and dancing with him and was able to elicit testimony from the

victim that she had a child and boyfriend at home [Id. at 28]. The witnesses who testified they

saw the victim and Petitioner “making out” behind the restaurant stated that there was anywhere

from twenty to forty-five minutes prior to the victim returning to the bar with injuries [Id. at 29-

30]. Mr. Wheatley explained that no witnesses testified that the victim cried for help or that there

were sounds of a struggle, and that the elicited testimony supported the defense theory that the

victim went behind the restaurant consensually with the victim and later tripped, causing her

injuries [Id. at 30].

After the TCCA issued its opinion on direct appeal, Mr. Wheatley sent a copy to Petitioner

along with a letter informing Petitioner that if he wished to appeal, he had sixty days to do so [Id.

at 31-32]. Mr. Wheatley noted that his assistant was a registered court interpreter, and that the

assistant translated counsel’s letter to Petitioner from English to Spanish [Id. at 35]. Both the

Spanish and English versions of the letter were sent to Petitioner [Id.]. Thereafter, Petitioner twice

requested his court file from Mr. Wheatley, and Mr. Wheatley sent Petitioner the file after receipt

of Petitioner’s second letter [Id. at 32-33]. However, Petitioner never expressed a desire to appeal

to the Tennessee Supreme Court, and Mr. Wheatley did not believe there was a basis to appeal [Id.

at 33].

At the post-conviction hearing, Petitioner stated that he always spoke to Mr. Wheatley with

the assistance of an interpreter, and that he did not understand American laws [Id. at 55-56].

Petitioner acknowledged receiving the letter from trial counsel regarding the appeal deadline but

stated he did not understand what that might entail [Id. at 58-59]. Petitioner admitted that he never

asked trial counsel about the process of appeal to the Tennessee Supreme Court [Id. at 59]. Rather,

Petitioner stated that he believed post-conviction review to be the next step [Id.].

At the conclusion of proof and arguments, the post-conviction court denied relief [Doc. 12-

15 p. 28-30]. The TCCA affirmed the decision of the post-conviction court. Canales v. State, No.

E2020-01040-CCA-R3-PC, 2021 WL 3363454, at *1 (Tenn. Crim. App. Aug. 3, 2021) (“Canales

II”). The Tennessee Supreme Court denied Petitioner permission to appeal on November 17, 2021

[Doc. 12-27].

On January 7, 2022, this Court received Petitioner’s timely petition for a writ of habeas

corpus under 28 U.S.C. § 2254, in which Petitioner raises three claims of ineffective assistance of

trial counsel, and one claim challenging a jury instruction [Doc. 1]. Shortly after filing his § 2254

petition, Petitioner filed a petition for writ of certiorari in the United States Supreme Court that

was denied on April 18, 2022. Canales v. Tennessee, No. 21-7194, 142 S. Ct. 1684 (2022).

After an initial review of the federal habeas petition, the Court ordered Respondent to file

a response to the petition along with the State-court record [Doc. 3]. Respondent subsequently

filed the State-court record [Doc. 12] and an answer to the petition [Doc. 13]. Petitioner sought

and obtained an extension of time within which to file a reply to Respondent’s answer [Docs. 16

and 17] and submitted his reply on August 19, 2022 [Doc. 18]. Accordingly, this matter is ripe

for review.

II. LEGAL STANDARD

The Court’s review of the instant petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any

claim adjudicated on the merits in a State court unless that adjudication (1) “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established” United States

Supreme Court precedent; or (2) “resulted in a decision based on an unreasonable determination

of facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. §

2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

Federal habeas relief may be granted under the “contrary to” clause where the State court

(1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2)

decides a case differently than the Supreme Court on a set of materially indistinguishable facts.

See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application”

clause, a federal court may grant relief where the State court applies the correct legal principle to

the facts in an unreasonable manner. Williams, 529 U.S. at 407-08; Brown v. Payton, 544 U.S.

133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn on

whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under

AEDPA is not whether a federal court believes the state court’s determination was incorrect but

whether that determination was unreasonable — a substantially higher threshold.”); Williams, 529

U.S. at 410-11. This standard will allow relief on a federal claim decided on its merits in State

court only where the petitioner demonstrates that the State ruling “was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating

the evidence presented in State court, a federal habeas court presumes the correctness of the State-

court’s factual findings unless the petitioner rebuts the presumption by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1).

The doctrine of procedural default also limits federal habeas review. See O’Sullivan v.

Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner’s procedural default forfeits his federal

habeas claim). A procedural default exists in two circumstances: (1) where the petitioner fails to

exhaust all of his available State remedies, and the State court to which he would be required to

litigate the matter would now find the claims procedurally barred, and (2) where a State court

clearly and expressly bases its dismissal of a claim on a State procedural rule, and that rule provides

an independent and adequate basis for the dismissal. See, e.g., Coleman v. Thompson, 501 U.S.

722, 731-32, 735 n.1 (1991). A procedural default may be circumvented, allowing federal habeas

review of the claim, only where the prisoner can show cause and actual prejudice for the default,

or that a failure to address the merits of the claim would result in a fundamental miscarriage of

justice. Coleman, 501 U.S. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977).

“Cause” is established where a petitioner can show that some objective external factor impeded

defense counsel’s ability to comply with the State’s procedural rules, or that his trial counsel

rendered ineffective assistance. Coleman, 501 U.S. at 753-54. Additionally, the prejudice

demonstrated to overcome the default must be actual, not merely a possibility of prejudice. See

Maupin v. Smith, 785 F.2d 135, 139 (6th Cir. 1986) (citations omitted); see also United States v.

Frady, 456 U.S. 152, 170 (1982) (holding prejudice showing requires petitioner to bear “the

burden of showing, not merely that errors [in the proceeding] created a possibility of prejudice, but

that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with

error of constitutional dimensions”) (emphasis in original). A fundamental miscarriage of justice

occurs “where a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986).

III. ANALYSIS

A. Ineffective Assistance of Counsel

Petitioner alleges that trial counsel rendered ineffective assistance by failing to (1) identify,

disclose, and call an expert witness, (2) file an application for permission to appeal to the

Tennessee Supreme Court, and (3) raise in the motion for a new trial a claim that his jury

instructions misstated an element of the offense [Doc. 1].

To establish the constitutionally ineffective assistance of counsel sufficient to warrant

federal habeas corpus relief, a habeas petitioner must satisfy the two-pronged standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). That is, he must demonstrate (1) counsel’s

constitutionally deficient performance, and (2) actual prejudice as a result of such ineffective

assistance. Id. at 687, 694. Deficiency is established when a petitioner can demonstrate that

counsel’s performance falls below an objective standard of reasonableness as measured by

professional norms, such that counsel was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Id. at 687-88. A reviewing court’s scrutiny is to be “highly deferential” of counsel’s

performance, with an effort to “eliminate the distorting effects of hindsight.” Id. at 689. In fact,

counsel is to be afforded a presumption that his actions were the product of “sound trial strategy”

and undertaken with the exercise of reasonable professional judgment. Id.

Prejudice is established when the petitioner can demonstrate to a reasonable probability

that the result of the proceedings would have been different but for the challenged conduct, thereby

undermining confidence in the reliability of the outcome. Id. at 694. However, an error, even if

professionally unreasonable, does not warrant setting aside the judgment if it had no effect on the

judgment. Id. at 691.

On habeas review, the issue for the district court is not whether the Strickland standard is

met, but rather, whether the State-court’s decision that Strickland was not met warrants relief under

AEDPA standards. See Richter, 562 U.S. at 105 (“When 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.”). This creates a “doubly”

deferential standard of review in federal habeas proceedings. Id. Accordingly, when a Strickland

claim has been rejected on its merits by a State court, a petitioner “must demonstrate that it was

necessarily unreasonable” for the State court to rule as it did in order to obtain federal habeas relief.

Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

1. Expert Witness

Petitioner claims that trial counsel was ineffective for failing to investigate, identify,

disclose, and call an expert witness on his behalf [Doc. 1 p. 8]. Specifically, he maintains that Ms.

Sisto was not timely disclosed, and thus, was not allowed to testify as an expert [Id.].

The TCCA rejected Petitioner’s claim, noting that Petitioner’s trial counsel presented

evidence that use of a catheter could cause the victim’s injuries through Ms. Sisto as a lay witness,

and trial counsel elicited favorable testimony on the issue from Ms. Stamm on cross-examination.

Canales II, 2021 WL 3363454, at *5. Moreover, the TCCA found that Petitioner did not present

any uncalled witnesses at his post-conviction hearing, which precludes a finding of prejudice. Id.

The Court finds the TCCA’s determinations reasonable under the AEDPA standards. Ms.

Sisto was allowed to testify as a lay witness regarding her general knowledge and experience with

catheters, and trial counsel elicited from Ms. Stamm that the victim’s labial tear could have

possibly resulted from consensual sex [Doc. 12-4 p. 10-11; Doc. 12-3 p. 5-6]. Moreover, trial

counsel noted that Petitioner was not convicted of a crime requiring sexual penetration, which trial

counsel characterized as the State not carrying its burden of establishing penetration [Doc. 12-16

p. 26].

Further, Petitioner failed to present any expert testimony or additional witnesses at the post-

conviction hearing who would have testified in his favor. When a petitioner makes a claim of

ineffective assistance of counsel predicated upon a failure to present a fact, the petitioner must

present “a sufficiently detailed and convincing account” of what the facts would have been. See

Welsh v. Lafler, 444 F. App’x 844, 851 (6th Cir. 2011). It is not an unreasonable application of

federal law to determine that a petitioner failed to prove prejudice on a claim regarding the failure

to call an expert when he did not call the expert witness at the post-conviction hearing. Pewitte v.

Washburn, No. 3:20-cv-0010, 2020 WL 7489460, at *14 (M.D. Tenn. Dec. 21, 2020). Therefore,

under the doubly deferential standard of review, Petitioner cannot show prejudice under

Strickland.

Accordingly, the Court finds that the rejection of this claim was not contrary to, nor was it

an unreasonable application of, Strickland and its progeny, nor was it based on an unreasonable

determination of facts in light of the evidence presented. Petitioner is not entitled to relief on this

claim.

2. Appeal to the Tennessee Supreme Court

Petitioner next argues that trial counsel was ineffective for failing to file an application for

permission to appeal to the Tennessee Supreme Court [Doc. 1 p. 10]. The TCCA determined that

trial counsel was not deficient because he notified Petitioner of the time frame to seek permission

to appeal and Petitioner never requested that trial counsel seek further appellate review. Canales

II, 2021 WL 3363454, at *6.

Petitioner acknowledges that he cannot demonstrate prejudice under Strickland, which

precludes the grant of federal habeas relief as to this claim [Doc. 18 p. 24]. See Strickland, 466

U.S. at 697 (“A court need not determine whether counsel’s performance was deficient before

examining the prejudice suffered by the default as a result of the alleged deficiencies. . . . If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. . . that

course should be followed.”).

The Court otherwise finds that the record establishes that trial counsel clearly

communicated to Petitioner, in two languages, the necessary information concerning permission

to appeal to the Tennessee Supreme Court, and Petitioner conceded that he did not ask counsel to

pursue further appellate review [Doc. 12-16 p. 32-33, 35, 58-59, 63]. Accordingly, the Court finds

that the decision rejecting this claim is not contrary to, nor is it an unreasonable application of,

Strickland and its progeny, and it is not an unreasonable determination of the facts in light of the

evidence presented to the court.

3. Jury Instruction Claim in Motion for a New Trial

In his third claim of ineffective assistance, Plaintiff alleges that his counsel performed

ineffectively in failing to argue in Petitioner’s motion for a new trial that Petitioner was denied the

right to a correct and complete jury charge because the jury instructions misstated an element of

the offense [Doc. 1 p. 5].

Petitioner has never presented this claim of ineffective assistance to the State courts. A

claim must be presented to the TCCA in order to meet the AEDPA’s exhaustion requirement. See

Adams v. Holland, 330 F.3d 398 (6th Cir. 2003); see also Tenn. S. Ct. R. 39 (establishing

presentation of claim to TCCA is sufficient to exhaust State remedies). Therefore, by failing to

pursue this claim to the TCCA, Petitioner failed to fully exhaust this claim. See Boerckel, 526

U.S. at 845 (holding that proper exhaustion requires petitioner to pursue claim through “one

complete round of the State’s established appellate review process”). Because there is no avenue

by which Petitioner may now obtain State-court review of this claim, it is technically exhausted

but procedurally defaulted by Tennessee’s applicable statute of limitation and prohibition against

successive petitions. See Jones v. Bagley, 696 F.3d 475, 483 (6th Cir. 2012) (“When a petitioner

has failed to present a legal issue to the state courts and no state remedy remains available, the

issue is procedurally defaulted.”); see also Tenn. Code Ann. § 40-30-102(a) (one-year limitation

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

To the extent that Plaintiff argues that this procedural default should be excused due to trial

counsel’s failure to raise this jury instruction claim in a motion for a new trial, the Court must

consider whether Plaintiff can demonstrate sufficient cause to overcome the default. In Martinez

v. Ryan, the United States Supreme Court held that the ineffective assistance of post-conviction

counsel may, under limited circumstances, qualify as cause to excuse the procedural default of

ineffective-assistance-of-trial-counsel claims. Martinez, 566 U.S. 1, 16 (2012); Sutton v.

Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014) (applying Martinez in Tennessee). To constitute

“cause” to overcome a procedural default under Martinez, a petitioner must show that (1) he has a

substantial claim of ineffective assistance of trial counsel; (2) counsel on initial State collateral

review was nonexistent or ineffective; (3) the State collateral proceeding was the first occasion on

which to raise a claim of ineffective assistance of trial counsel; and (4) State law requires that the

ineffectiveness of trial counsel claim be raised for the first time during the State collateral

proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013). An ineffectiveness claim is substantial

if the petitioner can demonstrate that it has “some merit.” Hill v. Mitchell, 842 F.3d 910, 938 (6th

Cir. 2016).

The claim underlying Petitioner’s claim of ineffective assistance — the allegedly erroneous

jury instruction issue — was deemed waived on direct appeal. Canales I, 2018 WL 2084957, at

*6. Nonetheless, the trial court examined the issue for plain error and determined that the facts of

this case rendered any error in the jury instructions harmless beyond a reasonable doubt. Id. at 7-

8. Because Petitioner’s underlying jury instruction claim was determined to be harmless beyond

a reasonable doubt, Petitioner cannot show that but for trial counsel’s actions the result of the

proceedings would be different. That is, had trial counsel raised the claim in a motion for a new

trial, the TCCA would have found on direct appeal any error in the instruction harmless beyond a

reasonable doubt. Accordingly, Petitioner’s claim is not substantial because he cannot

demonstrate prejudice, and therefore, he is not entitled to application of the Martinez exception to

overcome the procedural default of this claim.

B. Jury Instruction

In Ground One, Petitioner claims that he was denied the right to a correct and complete

jury charge because the jury instruction on aggravated sexual battery misstated an element of the

offense, and thus, lessened the State’s burden of proof [Doc. 1 p. 5]. Petitioner argues that the

statutory definition of aggravated sexual battery requires an intentional touching, but that his jury,

however, was instructed that he could be found guilty provided he “acted intentionally, knowingly,

or recklessly” [Doc. 18 p. 13-14].

The Court notes that there is no general federal right to a properly instructed jury; jury

instructions are ordinarily a state-law issue. See Estelle v. McGuire, 502 U.S. 62, 70-72 (1991).

Generally, “a state court’s interpretation of state law, including one announced on direct appeal of

the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey,

546 U.S. 74, 76 (2005) (citing Estelle, 502 U.S. at 67-68). As such, errors in a state-court’s jury

instructions do not warrant federal habeas relief unless they deprive a petitioner of a fundamentally

fair trial. Estelle, 502 U.S. at 72-73; Cupp v. Naughten, 414 U.S. 141, 147 (1973) (holding error

in instruction does not warrant reversal unless “the ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process”).

The TCCA noted that in order to convict Petitioner of aggravated sexual battery, “the State

had to demonstrate that the Defendant had unlawful sexual conduct with the victim and caused the

victim bodily injury.” Canales I, 2018 WL 2084957, at *7 (citing Tenn. Code Ann. § 39-13-

504(a)(2)). It further noted that “[s]exual contact ‘includes the intentional touching of the victim’s

. . . intimate parts, or the intentional touching of the clothing covering the immediate area of the

victim’s . . . intimate parts, if that intentional touching can be reasonably construed as being for

the purpose of sexual arousal or gratification.’” Id. (citing Tenn. Code Ann. § 39-13-501(6)).

Petitioner’s jury was instructed on the crime of aggravated sexual battery as follows, in

relevant part:

For you to find the defendant guilty of this offense, the state must have proven

beyond a reasonable doubt the existence of the following essential elements:

(1) that the defendant had intentional unlawful sexual contact with

the alleged victim in which the defendant intentionally touched the

alleged victim’s intimate parts, or the clothing covering the

immediate area of the alleged victim’s intimate parts[;] that the

alleged victim had intentional unlawful sexual contact with the

defendant in which the victim intentionally touched the defendant’s,

or any other person’s intimate parts, or the clothing covering the

immediate area of the defendant’s, or any other person’s intimate

parts; and

(2) that the defendant caused bodily injury to the alleged victim; and

(3) that the defendant acted intentionally, knowingly or recklessly.

“Sexual contact” means the intentional touching of the alleged

victim’s, the defendant’s, or any other person’s intimate parts, or the

intentional touching of the clothing covering the immediate area of

the alleged victim’s, the defendant’s, or any other person’s intimate

parts, if that intentional touching can be reasonably construed as

being for the purpose of sexual arousal or gratification.

[Doc. 12-1 p. 45-46].

Petitioner denied any sexual contact with the victim at trial, [Doc. 12-3 p. 132-33] but

informed Detective Bush during an interview that he intentionally unzipped the victim’s pants

[Doc. 12-2 p. 28; Doc. 12-3 p. 106]. The Court finds, as the TCCA noted, that there was no

evidence presented from which the jury could have concluded that Petitioner had knowingly or

recklessly touched the victim, as all of the evidence established that Petitioner’s touching of the

victim’s intimate parts was intentional. See Canales I, 2018 WL 2084957, at *8. Therefore, even

if there was ambiguity in the instruction, it did not by itself have a constitutionally injurious effect

on the fundamental fairness of the trial. See Cupp, 414 U.S. 141 at 147.

Moreover, even assuming that this State-law claim is cognizable in these proceedings, it is

procedurally defaulted. The TCCA held that Petitioner waived this issue by failing to raise the

issue in a motion for a new trial. Canales I, 2018 WL 2084957, at *6. The TCCA enforced and

unambiguously relied on Tennessee Rule of Appellate Procedure 3(e), which requires presentation

of a claim in the motion for a new trial before it may be raised on appeal. Id. This is an adequate

and independent state law ground for denying review. See Moutry v. Mays, No. 3:19-cv-266, 2019

WL 6255852, at *6-7 (E.D. Tenn. Nov. 22, 2019) (citing cases). The plain error analysis does not

overcome the procedural default’s application. See Lundgren v. Mitchell, 440 F.3d 754, 765 (6th

Cir. 2006) (citing Scott v. Mitchell, 209 F.3d 854, 866 (6th Cir. 2000)). Therefore, this claim is

otherwise procedurally defaulted.

Petitioner appears to argue that his procedural default of this claim may be excused due to

the error of post-conviction counsel [Doc. 1 p. 12]. However, Martinez is applicable only to claims

of counsel’s ineffectiveness at trial. Atkins v. Holloway, 792 F.3d 654, 662 (6th Cir. 2015). There

is no constitutional right to counsel in a state post-conviction proceeding, and therefore, the

ineffective assistance of post-conviction counsel cannot constitute cause. See, e.g., Davila v.

Davis, 137 S. Ct. 2058, 2065 (2017) (declining to extend Martinez to substantial, defaulted claims

of ineffective appellate counsel); Coleman, 501 U.S. at 752 (providing that “[t]here is no

constitutional right to an attorney in state post-conviction proceedings” and that, therefore, “a

petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings”)

(citations omitted). Thus, Martinez is not applicable to this claim, and any claim for ineffective

assistance of post-conviction counsel is not cognizable in this action.

IV. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability (“COA”) before he may appeal this

Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue

unless a petitioner makes “a substantial showing of the denial of a constitutional right” of any

claim rejected on its merits, which a petitioner may do by demonstrating that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or wrong.” 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on claims

rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. To

obtain a COA on a claim that has been rejected on procedural grounds, a petitioner must

demonstrate “that jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Applying this standard,

the Court concludes that a COA should be denied in this case.

V. CONCLUSION

Petitioner has failed to demonstrate an entitlement to federal habeas relief. Therefore, his

petition for a writ of habeas corpus will be DENIED, and this action will be DISMISSED WITH

PREJUDICE. A certificate of appealability from this decision will be DENIED.

Finally, 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 JUDGMENT ORDER WILL ENTER.

ENTER:

s/ Leon Jordan

United States District Judge