Jennings v. Paris

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

RODNEY JENNINGS, )

)

Petitioner, )

)

v. ) No. 1:19-CV-00360-JRG-CHS

)

TONY MAYS,1 )

)

Respondent. )

MEMORANDUM OPINION

One evening after Petitioner went to the residence of Cheslei Thompson, the mother of his

children, to try to see his children, Petitioner and Ms. Thompson had a verbal dispute and Petitioner

then shot Raphael White (“the victim”), as Petitioner was leaving the residence. State v. Jennings,

No. E2017-00330-CCA-R3-CD, 2018 WL 1168723, at *1–5 (Tenn. Crim. App. March 6, 2018),

perm. app. denied (Tenn. June 6, 2018) (“Jennings I”). A Hamilton County jury convicted

Petitioner of second-degree murder based on this incident. Id. at *1. Petitioner, a state prisoner,

filed a pro se petition for habeas corpus relief under 28 U.S.C. § 2254 challenging this conviction

by asserting that the evidence was insufficient to support it, the prosecution wrongly questioned

him about his invocation of his Fifth Amendment right to remain silent at trial, and his counsel

provided ineffective assistance at trial in various ways [Doc. 1], that is now before the Court.2

Respondent filed a response in opposition to the petition [Doc. 8] and the state court record [Docs.

6, 10].

1 The Court takes judicial notice that Tony Mays is the current Warden of Riverbend Maximum Security

Institution, which is where Petitioner is incarcerated [Doc. 26 at 2]. https://www.tn.gov/correction/sp/state-prison-

list/riverbend-maximum-security-institution.html (last visited September 15, 2022). Thus, he is the proper

Respondent herein. Rule 2(a) of the Rules Governing 2254 Cases.

2 Petitioner also filed a motion for summary judgment [Doc. 13] and a motion regarding amendment of his

petition [Doc. 23], both of which the Court denied [Docs. 15, 25].

After reviewing the parties’ filings and the state court record, the Court finds that Petitioner

is not entitled to relief under § 2254, no evidentiary hearing is warranted, see Rules Governing §

2254 Cases, Rule 8(a) and Schriro v. Landrigan, 550 U.S. 465, 474 (2007), and the habeas corpus

petition will be DENIED. Accordingly, this action will be DISMISSED.

I. BACKGROUND

Petitioner appealed his second-degree murder conviction to the Tennessee Court of

Criminal Appeals (“TCCA”), which described the evidence from Petitioner’s trial, including an

evidentiary hearing regarding admission of evidence under Rule 404(b) of the Tennessee Rules of

Evidence during the trial, as follows:

A. 404(b) Hearing

The State sought to introduce proof of a June 2013 domestic assault conviction,

involving Ms. Thompson and [Petitioner]’s children. The State submitted that the

evidence was relevant to show [Petitioner]’s intent related to the second degree

murder charge, demonstrating similarities between the 2013 episode and the 2014

shooting. The State, through Jean Rogers, a Hamilton County 911 Record

Specialist, introduced two 911 calls made from a neighbor’s residence recorded at

1:11 a.m. on June 5, 2013. The defense, through the same witness, introduced two

911 calls placed from Waffle House on East 23rd Street. These calls were made by

a man who identified himself as “Rodney” at 4:22 a.m. and 5:02 a.m. on June 5,

2013.

Brian Angel, a Chattanooga Police Department officer, testified that, in June 2013,

he was dispatched to a residence on 6th Avenue in Chattanooga, Tennessee, at

approximately 1:30 a.m. When he arrived, he observed a female, Ms. Thompson,

outside who appeared “very hysterical.” There was blood “all over her,” and he

noticed a broken window on the front of the apartment. Ms. Thompson explained

to the officer that her “child’s father,” later identified as [Petitioner], had broken

the window and there was “some kind of struggle” during which she was cut on the

broken glass. [Petitioner] made entry but fled prior to the officer’s arrival. Officer

Angel testified that Ms. Thompson had cuts on her forearms. He also observed two

small children inside the residence.

Officer Angel testified that, within a couple hours of his initial contact with Ms.

Thompson, [Petitioner] arranged to turn himself in to the police at a Waffle House

parking lot located on 23rd Street. On cross-examination, Officer Angel was asked

about whether there was “a lot of gang activity” in the 6th Avenue apartment

complex, and he replied, “Sure.”

Ms. Thompson testified that she and [Petitioner] had been in a relationship and had

two children together. The couple had never married but had lived together

intermittently. Ms. Thompson explained that [Petitioner] lived with her at the

6th Avenue residence for “a couple of months” before he moved out due to an

argument. In June 2013, after [Petitioner] had moved out, he returned to “visit.”

During the visit, a Chattanooga Housing Authority employee appeared at the

residence and issued [Petitioner] a citation for “yelling in [Ms. Thompson’s] face”

and banned [Petitioner] from the property.

Ms. Thompson testified that several days later, on June 5, 2013, a friend of hers

was spending the night. She recalled that Kionna Glenn and Ms. Thompson’s two

children were at the residence that night when [Petitioner] came to the door. Ms.

Glenn let [Petitioner] inside and, once inside, he instigated an argument with Ms.

Thompson. [Petitioner] and Ms. Thompson were in an upstairs bedroom with their

children, and [Petitioner] accused Ms. Thompson of engaging in a sexual

relationship with Kionna. The argument escalated to an assault during which

[Petitioner] hit and pushed Ms. Thompson. The [Petitioner] and Ms. Thompson

moved their altercation downstairs where [Petitioner] hit Kionna. The children

began crying, and [Petitioner] grabbed their older son, then four years old, and

pushed him against the wall. “[F]inally” [Petitioner] exited out the front door.

Ms. Thompson testified that [Petitioner] could not re-enter the residence because

she quickly locked the front and back door after his departure. Because he was

unable to enter through a door, [Petitioner] broke the kitchen window. As

[Petitioner] entered through the window, Ms. Thompson tried to push him back out,

cutting her hands and arms on the broken glass in the process. [Petitioner] entered

through the window and hit Ms. Thompson in the kitchen before walking to the

living room area where he paced. According to Ms. Thompson, [Petitioner]

dropped his phone, told Ms. Thompson to call the police, and then left. Ms.

Thompson used [Petitioner]’s cell phone to call the police. Ms. Thompson was

transported by ambulance to the hospital where she was treated for her injuries.

[Petitioner] was later arrested and served six months in jail for this incident.

Ms. Thompson testified that [Petitioner] was released from jail in December 2013.

He contacted her approximately two weeks after his release via Facebook to ask if

he could see the children. Ms. Thompson agreed, and [Petitioner] picked up the

children at Ms. Thompson’s mother’s residence. Later that night, Ms. Thompson

retrieved the children from [Petitioner]. Approximately two weeks before the

shooting in this case, she again allowed [Petitioner] to take the children for a few

hours. [Petitioner] picked up the children from her 6th Avenue residence and

returned them there.

On January 28, 2014, [Petitioner] appeared at her front door asking to see the

children. The older child was at Ms. Thompson’s mother’s residence, and the two-

year-old was upstairs sleeping. Ms. Thompson explained this to [Petitioner] and

told him she would not wake up their younger child. She told him he should come

back another time. [Petitioner] continued asking to see the sleeping child. Raphael

White, the victim, told [Petitioner] “we don’t want any problems,” and [Petitioner]

“said the same.” [Petitioner] backed out the door, put his hand into his pocket when

he was out in the hall. As the victim was shutting the door, Ms. Thompson heard a

gunshot. Ms. Thompson testified that the victim did not have a gun and that she

did not see the gun that shot the victim. After shooting the victim, [Petitioner] fled.

On cross-examination, Ms. Thompson testified that on the night of the June 2013

assault [Petitioner] was “out of control,” but on the night of the January 28, 2014

shooting [Petitioner] was calm and there was no “fight.”

After hearing this evidence, the trial court granted [Petitioner]’s motion seeking to

exclude any testimony about the June 2013 domestic assault. In further discussions

about potential testimony, the trial court advised defense counsel that, if the defense

“open[ed] the door to the [2013] domestic assault, the rest of it comes in.”

B. Trial Testimony

During the trial, the parties presented the following evidence: Larry Ellis and

Matthew Bond, Chattanooga Police Department (“CPD”) officers, were the first

responders to a homicide scene located at East Lake Court housing project on

6th Avenue. As Officer Ellis approached the entryway to the unit, he saw the victim

lying on the floor near the door, and three females and one male who were “very

emotional and screaming.” The officers separated the witnesses from the victim by

moving the witnesses into the living room area. The officers also conducted a

protective sweep of the unit and other than the previously mentioned adults and one

child, found no one else present. Officer Ellis testified that the witnesses identified

the shooter and described the truck that he left in. The victim was transported to

the hospital, and the witnesses were transported to the police station for

questioning.

James Metcalfe, the Hamilton County Chief Medical Examiner and Forensic

Pathologist, testified as an expert witness in the field of forensic pathology. After

examining the victim’s body, Dr. Metcalfe concluded that the victim’s manner of

death was homicide and that the cause of death was a gunshot wound to the chest.

Dr. Metcalfe explained that the “main injury” was caused by a bullet that traveled

through the victim’s left ventricle and left lung. He stated that this type of wound

was fatal. Dr. Metcalfe collected the bullet from the victim’s back just under the

skin. The Chattanooga Police Department collected the bullet as part of the

investigation.

Tirrea Tony testified that she was present in Ms. Thompson’s apartment

(“6th Avenue unit”) at the time of the shooting. She said she was in the living room

when [Petitioner] knocked on the door. Ms. Thompson opened the door to him,

and the two argued in the kitchen about [Petitioner] seeing the children. Ms. Tony

recalled that the younger child was asleep in the apartment, but the older child was

not there. According to Ms. Tony, Ms. Thompson told [Petitioner] he should leave.

The victim came into the kitchen and reiterated that [Petitioner] needed to leave,

saying “I don’t want no problems.” [Petitioner] responded that he did not want “no

problems” either and walked out the door. The victim walked to the door to shut

it, and [Petitioner] shot the victim in the chest. Ms. Tony testified that she did not

see the victim with any weapon that night and did not hear him threaten [Petitioner].

On cross-examination, Ms. Tony confirmed that [Petitioner] was “aggressive”

toward Richard Morris at Ms. Thompson’s residence on the day of the shooting.

When presented with her testimony from the preliminary hearing, Ms. Tony agreed

that at the preliminary hearing she said that [Petitioner] showed no signs of

aggression but maintained that her trial testimony was more accurate. Ms. Tony

reiterated that [Petitioner] and Ms. Thompson were in the kitchen where he was

talking like he was “mad at her” when the victim entered and told [Petitioner] to

leave. Ms. Tony said [Petitioner] was pacing back and forth at the time and then

walked out the door into the “public hall.” Ms. Tony confirmed that she did not

see the gun or the gunfire.

Ms. Tony testified that, at the time of the shooting, the victim had “[h]is flag” in

his pocket and his cell phone. After playing the 911 recording again, Ms. Tony

agreed that she did not tell the 911 operator, when asked, who shot the victim and

that she also denied knowing where the victim was shot. Ms. Tony, however,

maintained that she was certain it was [Petitioner] who shot the victim.

On redirect examination, Ms. Tony testified that she knew [Petitioner] as “Roscoe”

and was unaware of his full name on the day of the shooting. She identified

[Petitioner] in court as the man who shot the victim on January 28, 2014.

Ronald White testified that Ms. Thompson was his sister and that the victim was

his cousin. Mr. White recalled that he had stayed at his sister’s residence the night

of January 27, 2014, and was still there on January 28 when [Petitioner] came by

asking to see his children. [Petitioner] knocked on the door, and Ms. Tony called

upstairs to Ms. Thompson, who was in her bedroom with a “male friend . . .

[Richard Morris].” Ms. Thompson went downstairs and opened the door to

[Petitioner]. The victim knocked on the door of the room Mr. White was in and

“told him to come down the steps” with the victim. The victim and Mr. White went

downstairs and into the living room.

Mr. White testified that he overheard [Petitioner] and Ms. Thompson talking about

their children. At some point, Mr. Morris came downstairs, and [Petitioner] asked

Mr. Morris if he “was [ ] messing with [Ms. Thompson] now.” Mr. Morris denied

“messing with” Ms. Thompson, stating that she was “[j]ust [his] home girl.”

[Petitioner] told Mr. Morris that he had “no problem” with him, Mr. Morris left,

and [Petitioner] and Ms. Thompson resumed their conversation about their

children. The conversation between the two turned “loud,” and Mr. White urged

[Petitioner] and Ms. Thompson to “calm down” for the sake of their children.

Mr. White testified that the conversation between [Petitioner] and Ms. Thompson

again escalated, so the victim walked into the room, opened the door for

[Petitioner], and said, “we don’t want no problems.” [Petitioner] said that he did

not want “no problems either” and then the shooting occurred. Mr. White said he

was standing behind the victim and did not see [Petitioner] fire the gun but noted

that [Petitioner] was the only person standing in the doorway. After the gunfire,

the victim fell backward toward Mr. White, and Mr. White “pulled him in.” Mr.

White said that the victim grabbed his chest and was shaking. When Mr. White

lifted the victim’s shirt, he saw the gunshot wound and immediately ordered the

others to call 911. He said that everyone was in shock and “flipping out,” so he

grabbed a phone and called 911.

Mr. White testified that, before the shooting, the victim did not threaten [Petitioner]

or make any threatening gestures toward [Petitioner]. He said that the victim was

closing the door when [Petitioner] shot him.

On cross-examination, Mr. White said that he used the victim’s cell phone to call

911 and that he retrieved the cell phone from the counter. Upon review of the

transcript from the preliminary hearing, Mr. White agreed that he had previously

testified that the cell phone had been in the victim’s pocket but that someone had

handed it to him to call 911. Mr. White explained that the circumstances were very

stressful, and he was unsure of whose phone he had used to place the 911 call. Mr.

White stated that the victim’s “child mother” retrieved the victim’s phone several

days after the shooting. Mr. White confirmed that in November 2009, he was

convicted of burglary and theft.

Ms. Thompson testified that in January 2014 she lived in the 6th Avenue unit with

her two children, who were two and four years old at the time. Ms. Thompson

explained that the victim was her cousin and Mr. White was her brother.

Ms. Thompson testified that she and [Petitioner] had been in a relationship for six

years and, at one point, [Petitioner] had lived in the 6th Avenue unit with her but

had moved out in June 2013. In the late afternoon of January 28, 2014, Ronald

White, Raphael White, Ms. Tony, Mr. Morris, and “Lanesha” were present at the

apartment. [Petitioner] came to the residence to “chill.” She recalled that Ms. Tony

heard the knock at the door and yelled upstairs to Ms. Thompson that [Petitioner]

was at the door. Ms. Thompson was in her upstairs bedroom with her youngest son

and Mr. Morris.

Ms. Thompson testified that she went downstairs and opened the door for

[Petitioner]. Around that time, Mr. Morris was leaving. [Petitioner] and Mr. Morris

exchanged a few pleasantries and then Mr. Morris left. [Petitioner] asked to see

their youngest child, and Ms. Thompson explained that he was sleeping.

[Petitioner] urged Ms. Thompson to go and wake the child so he could see him, but

Ms. Thompson declined, suggesting [Petitioner] come over to see their children

another time. [Petitioner] asked Ms. Thompson for a cigarette, and she told him

she did not have any. She continued to encourage him to leave, acknowledging that

as she did so, she became “kind of loud.” The victim then approached [Petitioner]

saying “we don’t want no problems,” and [Petitioner] reiterated the same and began

walking toward the door with his “hands up.” As he walked out the door, he put

his hand back in his pocket. The victim took hold of the door to shut it, and then

Ms. Thompson heard gunfire. Ms. Thompson said that she did not see the gun but

that [Petitioner] was the only person in the public hallway. After the gunfire,

[Petitioner] took off running. Initially, she did not realize that the victim had been

shot, but when the victim’s shirt was lifted, she saw a gunshot wound.

Ms. Thompson testified that while Mr. White and Ms. Tony called 911, she checked

to see if the victim had a pulse. Police officers arrived first, followed by the

ambulance that transported the victim to the hospital. Everyone else in the

residence was taken to the police station. Ms. Thompson stated that, before the

shooting, she did not hear the victim threaten [Petitioner] nor did the victim have a

gun on his person.

Caleb Brooks, a CPD crime scene investigator, testified that on January 28, 2014,

he responded to Erlanger Hospital about a potential homicide. Once he arrived, he

learned that the victim had died. Officer Brooks collected evidence and then

proceeded to the crime scene. At the crime scene, Officer Brooks took photographs

and then placed evidence markers where there were items to be collected and video-

recorded the scene. Officer Brooks observed what appeared to be a blood stain on

a window seal [sic] and on the porch. He collected samples of both substances and

swabbed the door handle for DNA testing. Officer Brooks stated that he and

another officer searched the residence and found no firearms.

Steve Scott, a Tennessee Bureau of Investigation (“TBI”) forensic scientist,

testified as an expert witness in firearms identification. Special Agent Scott stated

that he had received a bullet for forensic examination. His examination revealed

characteristics consistent with Winchester brand ammunition and generally

associated with a .38 or .357 caliber bullet. Special Agent Scott stated that

“typically” a .38 Special caliber revolver left residue within a four to five foot range

from the muzzle of the gun. Nonetheless, he stated that if he did not find any

residue, he could not “really form an opinion.”

Kendall Stoner, a TBI forensic scientist, testified as an expert witness in forensic

biology, specifically DNA testing. Special Agent Stoner tested potential blood

samples taken from the front porch of the building and from the window seal [sic].

Both swabs tested negative for the presence of blood. She also tested a swab for

“touch DNA” taken from the interior door handle of the “main entrance door.” The

results did not indicate the presence of human DNA. The results from a swab of

the front exterior door handle did not reveal a DNA profile.

Tim Pickard, a Chattanooga Police Department officer, testified that he was

assigned to the fugitive unit and became involved in this case in February 2014

after other officers were unable to locate [Petitioner]. Officer Pickard said that

typically, members of the unit will conduct interviews with relatives, close family

members, or other people associated with a suspect in order to gain information on

the suspect’s location. After investigating numerous possible connections to

[Petitioner], the fugitive unit obtained information that [Petitioner] was no longer

in the Chattanooga area. Information about [Petitioner] was provided to the U.S.

Marshals and subsequently Officer Pickard learned that [Petitioner] was found and

arrested in Memphis, Tennessee on March 17, 2014.

James Plumlee, a CPD homicide detective, testified that, on January 28, 2014, he

arrived at the crime scene at approximately 8:30 p.m. All potential witnesses had

been transported to the police station for questioning, and the crime scene area had

been “taped off” to protect any potential evidence. Detective Plumlee conducted

the recorded interviews with Ms. Tony and Ms. Thompson. After officers had

interviewed all the witnesses, they met to share the information learned and

developed [Petitioner] as a suspect. The police department issued a “Be On The

Lookout” (“BOLO”) for [Petitioner]. Further, patrol officers were sent to addresses

of some of [Petitioner]’s relatives in an attempt to locate [Petitioner].

Detective Plumlee testified that he went to [Petitioner]’s father’s residence and

spoke with [Petitioner]’s father and searched the residence for [Petitioner].

[Petitioner]’s father said that [Petitioner] had contacted him from a blocked number

and that he had tried to convince [Petitioner] to turn himself in and talk with the

police. [Petitioner]’s father also disclosed that [Petitioner] “hangs out” with

Prentice Barnette. Police followed this lead but were unable to locate [Petitioner].

On February 9, 2014, the police department issued a video about the homicide on

Crime Stoppers. The police received tips about [Petitioner]’s possible location as

a result of the video but still [Petitioner] was not located. In February, the search

for [Petitioner] was transferred to the fugitive unit. In March, [Petitioner] was

located in Memphis, Tennessee and transported to the Hamilton County jail.

Detective Plumlee confirmed that the weapon used in the shooting was not

recovered.

[Petitioner] testified that he had two children with Ms. Thompson. He said that he

stood five feet three inches tall and weighed 138 pounds in January 2014. About

visitation with his children, [Petitioner] said that, following the end of his romantic

relationship with Ms. Thompson, on the day he wanted to see the children he would

contact Ms. Thompson via Facebook or call Ms. Thompson’s mother, Marylyn

Thompson.3 [Petitioner] stated that he was “homeless” but, when he had time with

his children, he would go to a family member’s or friend’s house. He usually had

the children in six or seven hour increments and would make arrangements for “a

ride” to return the children to Ms. Thompson at East Lake Courts.

[Petitioner] recalled the week before the shooting. He said that he had picked up

the children from Marylyn Thompson’s house. At the end of his time with the

children, however, he could not obtain a ride to take the children home so he called

Ms. Thompson asking if she would come get the children. Ms. Thompson agreed,

and [Petitioner] told her to meet him at “54th and St. Elmo Avenue” because he did

not want the victim and Mr. White to know where he stayed. Ms. Thompson

arrived, with Mr. White driving, later than expected and appeared “all mad” and

“agitated.” She rushed the children into the car and would not speak to [Petitioner].

[Petitioner] testified that he had known the victim and Mr. White for many years.

He explained that the victim and [Petitioner]’s younger brother, Nathan Jennings,

had gone to school together. [Petitioner] recalled that approximately two years

before the shooting, in 2012, [Petitioner] and the victim had engaged in an argument

at Marylyn Thompson’s residence. [Petitioner] said that he had gone to Marylyn

Thompson’s residence to see Ms. Thompson. While still outside, the victim

approached [Petitioner] and accused him of “disrespecting Mar[y]lyn Thompson.”

The two began to argue and “tussle,” but no one was hurt during the exchange. He

described the victim as six feet one inch tall and weighing approximately 175

pounds in comparison to [Petitioner]’s smaller stature.

[Petitioner] confirmed that he was convicted of robbery in 2006 and domestic

violence and vandalism. As to the latter two offenses, [Petitioner] explained that

he was “staying with” Ms. Thompson at her 6th Avenue unit. Ms. Thompson had a

friend over at the time, and [Petitioner] wanted the friend, Kionna Glenn, to leave

because he felt that Ms. Thompson “act[ed] funny toward[ ] [him]” in Ms. Glenn’s

presence. Ms. Thompson refused to ask Ms. Glenn to leave, so [Petitioner] left to

“drink” and “stuff like that.” When [Petitioner] returned, he again raised the issue

of Ms. Glenn leaving, and Ms. Thompson “just went off.” The two began to argue

and “stuff.” He felt badly about the exchange, so he left his cell phone with her to

call the police and walked to Waffle House.

[Petitioner] testified that, while he was incarcerated for the domestic assault

conviction, he spoke with his brother on the phone. His brother told him to be

careful because the victim had threatened to “get” [Petitioner] when he saw him

next. [Petitioner] and victim were incarcerated at the same facility for a period of

time, and the victim confronted [Petitioner] verbally about the incident with Ms.

Thompson but initiated no physical contact. [Petitioner] avoided the victim after

that.

3 Like the TCCA, the Court will refer to this individual as “Marylyn Thompson” and to Cheslei Thompson

as Ms. Thompson. Jennings I, at *6 n.3 and 4.

[Petitioner] testified that he had seen the victim before with a gun at Marylyn

Thompson’s residence. He recalled that he was on the front porch of the residence

when the victim arrived. The victim’s eye was swollen and bleeding, and

[Petitioner] saw a gun in the victim’s back pocket as the victim paced back and

forth angrily while ranting. [Petitioner] said that Mr. White prevented [Petitioner]

from getting involved saying that his brother was “crazy.”

[Petitioner] testified that on January 28, 2014, he was staying at a hotel on Broad

Street. He contacted Marylyn Thompson to arrange to see his children. He was

unable to contact Marylyn Thompson until 3:00 or 4:00 p.m. Marylyn Thompson

told [Petitioner] that Ms. Thompson and the older child had gone home. At around

5:15 p.m. [Petitioner] rode with a friend, Prentice Barnette, to East Lake to try to

see his children. [Petitioner] confirmed that the Chattanooga Housing Authority

had placed him on a no trespass list for East Lake Courts but that he had told his

oldest child that he would spend time with him that week, so he planned to pick up

the children and leave.

[Petitioner] testified that Mr. Barnette dropped him off outside the 6th Avenue unit

and left. He knocked on the door and Ms. Tony called out asking who it was and

then told Ms. Thompson that [Petitioner] was at the door. He waited a few minutes,

and then Ms. Thompson opened the door holding a “blunt in her hand.” [Petitioner]

asked to see the children, and Ms. Thompson said that their older son was at her

mother’s residence and their younger child was upstairs asleep. [Petitioner] said he

did not believe her because he had just spoken with Marylyn Thompson who said

that the children were at home. [Petitioner] offered to get the children “ready” if

she would “go get them,” and Ms. Thompson agreed. She stepped back inside, and

[Petitioner] asked if he could wait inside due to the cold. Ms. Thompson agreed,

and he stepped inside and closed the door before asking Ms. Thompson for a

cigarette. Ms. Thompson stated she did not have one, and [Petitioner] walked into

the kitchen area where he waited alone for about seven minutes.

[Petitioner] testified that the victim, Mr. White, and Ms. Thompson came down the

stairs, and the victim walked down a “little hallway,” making no eye contact with

[Petitioner]. [Petitioner] observed a “black flag” hanging out of the victim’s back

pocket with a firearm. The victim walked out the door and shut it behind him.

[Petitioner] explained that he became nervous as soon as he saw the victim. Ms.

Thompson and Mr. White walked into the kitchen where [Petitioner] was waiting.

Mr. White was holding a cell phone and “snickering” while looking at [Petitioner],

and Ms. Thompson looked paranoid “like something was about to happen.”

Richard Morris then came downstairs and into the kitchen. [Petitioner] stated that

he had been unaware that Mr. Morris was in the residence. [Petitioner] asked Mr.

Morris if he was “over here with my baby mama,” and Mr. Morris responded, “no,

we cool.” Mr. Morris walked over to Ms. Thompson, asked if she was okay, and

then “hurried up and got up out of there like something bad was going to happen.”

About a minute later, the victim re-entered the apartment.

[Petitioner] testified that he, Ms. Thompson, Mr. White, and the victim were all in

the kitchen within close proximity to one another. He testified about the

interactions leading up to the shooting as follows:

[The victim’s] in my face like this. Just looking at me. So I was

like all right, where [was my child] at. And my baby mamma looked

at me and she was like, I don’t know. Then I was like, all right.

Before I leave why did you do the kids like that the other day. And

when she came and got the kids she was being rough with them and

hurried them up in the car. And the moment I said that [the victim]

was like because I told her to. Ain’t no mother f**kin 50th Street in

St. Elmo. I was like it is a 50th Street in St. Elmo. You

misunderstood what I said. But as I’m saying this I’m not looking

at him. I’m looking at [Ms. Thompson]. You know what I’m

saying, talking to [Ms. Thompson]. And I said—I put my hands up,

I said look, I don’t want no trouble. And when I said I don’t want

no trouble he said, well, if you don’t want no problems it’s going to

be some problems and went to reach for his firearm and that’s when

I jumped out—before I did that I put my hands up, I put my hands

in my pocket and he said well, you don’t want no problems there’s

going to be some problems and when he went to reach for his firearm

I jumped back out the way like towards the left because as he’s

saying I don’t want no—as he’s saying if you don’t want no

problems there’s going to be some problems he moves from right

there where he at to in front of me.

[I thought] my life was fixin [sic] to end or I was going to get

seriously injured. Because [the victim] is like way taller and bigger

than me. And if he was to grab em it ain’t nothing [sic] I can do

with it.

[Petitioner] testified that when the victim reached for his firearm, “a .38 Special

double action,” he took a “quick side step to the left” and then took out his gun “all

in one motion.” [Petitioner] said he raised his hand up and then pulled the trigger.

At the time [Petitioner] fired his gun, he estimated that he and the victim were about

three or four feet apart. [Petitioner] admitted that he was not allowed to have a gun

on Chattanooga Housing Authority property. [Petitioner] recalled that, after he

fired his gun, the victim fell straight back on the ground and began “scooting”

backward. He said that Ms. Thompson was standing behind the victim and that Mr.

White was on his cell phone at the time. He said that he began to pace, considering

whether he should offer help but felt that he would then have to “wrestle” with Mr.

White. He believed it was safer to leave. As he left, he saw Ms. Tony standing at

the end of the public hallway.

[Petitioner] testified that, following the shooting, he ran down to the parking lot and

crossed 4th Avenue. At some point he threw the gun out because he was concerned

that if he encountered the police “they would deal with [him] violently.” As he

fled, he was in shock that he had shot someone because he had never “had to use

that kind of force to defend.” He was also concerned that the witnesses would lie

about what had occurred because “they didn’t like [him].” [Petitioner] ran to the

Lookout Mountain Suites and smoked “marijuana to calm down.” The following

morning he left for Memphis. [Petitioner] stated he did not believe he had done

anything “wrong,” but he was afraid to contact the police because he did not know

“who [he] could trust at the time.”

[Petitioner] testified about the black bandana he had seen tied to the gun in the

victim’s pocket. He said a black bandana is the type of bandana worn by members

of the Gangster Disciples, a gang “out of Chicago, Illinois.” [Petitioner] described

the presence of Gangster Disciples as “the deepest gang in Chattanooga as far as

numbers.” He said there were members in every area of the city. He said the

bandanas are tied with “the knot part . . . on the gun.” The black “flag” was tied in

this manner on the victim’s gun and, when [Petitioner] saw it, he believed it

“mean[t] war time.” When [Petitioner] saw the “black flag,” he “began to fear for

[his] life” and tried to determine how to escape safely. [Petitioner] explained that

he fled to Memphis in an attempt to avoid gang retaliation against him and his

family.

[Petitioner] testified that he felt “bad” about the shooting but, at the time, felt he

had no other choice. He said if he had not shot the victim, he would have been

killed.

On cross-examination, [Petitioner] agreed that in June 2013, he and Ms. Thompson

argued and, after the argument, he was issued a no trespassing notification. Despite

the notification, two days later he returned to the property heavily intoxicated. He

engaged in another argument with Ms. Thompson and punched Ms. Thompson in

the face one time. [Petitioner] denied breaking a window to try to re-enter Ms.

Thompson’s residence, and he denied shoving his son. [Petitioner] agreed that he

pleaded guilty to domestic assault and vandalism for this incident, served six

months in jail, and was released in December 2013. Two weeks after his release

from jail, [Petitioner] contacted Ms. Thompson via Facebook and arranged to pick

his children up at Ms. Thompson’s residence. [Petitioner] agreed that both the

victim and Mr. White were aware that [Petitioner] had “beaten up” Ms. Thompson

and that “they didn’t like that.” [Petitioner] admitted that he shot and killed the

victim but maintained that he did so in self-defense.

[Petitioner] testified that he purchased the gun he shot the victim with from a

“junkie” three weeks after he was released from jail. He admitted that he was not

allowed to carry a gun because he was a convicted felon. [Petitioner] agreed that

when he went to Ms. Thompson’s residence on the night of January 28, 2014, he

knew that he was not allowed to be there due to the no trespass notification and he

knew that he was breaking the law by carrying the gun. [Petitioner] denied

rehearsing for his testimony at trial. He agreed that the trial was the first time he

had claimed self-defense and that he did not contact the police or speak with the

police following the shooting about his claim of self-defense. When asked about

his refusal to speak with Detective Plumlee following his arrest in Memphis,

[Petitioner] stated that he had “invoked [his] right to remain silent.”

[Petitioner] agreed that he knew “a lot” about gangs but denied being a member of

the Traveling Vice Lords. He denied that two of his tattoos had any relationship to

gang affiliation. He agreed, however, that he had made posts on Facebook about

“King Neal” who is “head of Vice Lord.” The post read “long live King Neal.”

Curtis Penney, a CPD officer, testified that he was assigned to the organized crime

division, criminal intelligence unit. He explained that this unit identifies and

monitors chronic offenders such as gangs or “large scale drug dealings.” As part

of his job, he gathers “intelligence” through social medial [sic], digital surveillance,

interviews, and interrogations. Officer Penney confirmed that in his sixteen year

career with the police department he had “worked a lot” with gang-related crime

and had become familiar with the gang presence in Chattanooga. Officer Penney

testified that gang members identify themselves by “flagging,” which means that

they carry a specific color bandana or certain tattoos.

Officer Penney stated that, at that time, gangs were the “biggest threat” to

Chattanooga. He said that one of the difficulties with prosecuting cases involving

gang members was witness intimidation. Officer Penney confirmed that he was

familiar with the East Lake Courts area and said that there were two gangs that were

prominent in that area: “[t]he Gangster Disciples, and some of our Crip sets.” He

said that one of the Gangster Disciples’ rivals was the Vice Lords, both gangs

originating in Chicago. Defense counsel asked Officer Penney what it would mean

if a member of the Gangster Disciples displayed a gun tied with a black flag for a

member of the Vice Lords. Officer Penney responded that the Vice Lord member

would view this as a sign of disrespect.

Ms. Thompson testified that she could not remember when it occurred, but she

recalled talking on the telephone with [Petitioner] while at her mother’s house.

While talking with [Petitioner], the victim entered the room and began talking to

Ms. Thompson about [Petitioner]’s disrespectful conduct toward Marylyn

Thompson. [Petitioner] overheard the victim and said he was going to “come over

there.” Ms. Thompson said she urged [Petitioner] not to come over saying, “we

don’t need those problems.” [Petitioner] came to Marylyn Thompson’s residence

anyway but arrived as the victim was leaving. Ms. Thompson said there might have

been “words exchanged,” but the victim got into his truck and left. Ms. Thompson

agreed that her family was “pretty angry” with [Petitioner] because of the 2013

domestic assault. She agreed that the victim was upset that [Petitioner] had hurt

her but denied that the victim made any threats of retaliation against [Petitioner].

The State then called Ms. Thompson in rebuttal. The State asked Ms. Thompson if

she recalled an occasion at her mother’s residence when Mr. White, Ms.

Thompson’s father, Marylyn Thompson, Anthony Washington, the victim, and she

were all there and the victim’s eye was swollen. Ms. Thompson confirmed that she

recalled that occasion, agreeing that the victim’s eye was swollen but denied that

the victim was “ranting,” had a gun in his back pocket, or had “words” with

[Petitioner].

Ms. Thompson confirmed that in June 2013 [Petitioner] received a trespass

notification because the two were arguing at her 6th Avenue unit. Two days later,

[Petitioner] returned late at night between 11:00 p.m. and 12:00 a.m. [Petitioner]

and Ms. Thompson began arguing upstairs over the presence of Ms. Thompson’s

friend, Ms. Glenn. The argument escalated and [Petitioner] hit Ms. Thompson from

behind with a closed fist and then repeatedly hit her with both fists on her face and

arms. [Petitioner] walked downstairs and began hitting Ms. Glenn, who was sitting

on the couch. After hitting Ms. Glenn, [Petitioner] angrily grabbed their then four-

year-old son and “pushed him down.” [Petitioner] paced back and forth and then

walked out the front door. Ms. Thompson locked the front door and the public hall

door, so [Petitioner] could not return. [Petitioner] beat on the door and then went

“around to the back” and broke the kitchen window for entry to the apartment. Ms.

Thompson ran into the kitchen and was pushing on [Petitioner] to prevent him from

entering. While doing so she cut her arms on the broken glass. [Petitioner]

successfully entered the apartment and hit Ms. Thompson once again before

running into the living room while Ms. Thompson remained in the kitchen attending

to the cuts on her arms. [Petitioner] left for a second time, this time he dropped his

cell phone, and Ms. Thompson used the phone to call the police. She was later

transported to the hospital and received stitches.

The defense then presented testimony from Christopher Robinson, a private

forensic consultant, who testified as an expert in the field of firearms analysis,

ballistics, shooting reconstruction, and “policies and procedures for testing of

DNA.” Mr. Robinson stated that he was “certified in the disciplines of firearms

analysis, gunshot residue analysis, crime scene reconstruction, shooting

reconstruction, and gunshot wound analysis.” In evaluating [Petitioner]’s case, Mr.

Robinson had reviewed the discovery including materials from the police

department, the crime lab reports, photographs, any video and audio recordings.

Mr. Robinson visited the crime scene, spoke with the medical examiner, spoke with

[Petitioner], and had sat through the entirety of the trial listening to all the

witnesses.

Mr. Robinson testified that he found the results of the DNA testing “unusual” in

that areas tested with “a strong appearance of blood” failed to reveal blood. He

attributed this to the possibility that there may have been a cleaner used on the spots

that would have diluted the blood evidence, referencing a photograph of the kitchen

where a mop and bucket could be seen.

Mr. Robinson also took issue with Agent Scott’s testimony that, “the powder could

travel four to five feet only on high powered rifles.” Mr. Robinson stated that in

his own testing with .38 Special cartridges, the cartridges believed to be used in the

shooting, the powder had never traveled farther than three feet. Mr. Robinson also

examined the victim’s shirts and the gunshot hole in the shirts. He found no

gunpowder particles on the shirts, which indicated that the gun muzzle was two to

three feet or greater when fired. He then discussed alternative testing that could

have been conducted on the shirts to detect gunpowder particles. Mr. Robinson

noted that the victim’s shirts were also packaged together which is problematic

based upon the possibility of the transfer of particles between the items.

Mr. Robinson testified that when he visited the crime scene he entered an adjacent

unit with the same measurements as Ms. Thompson’s unit. He described the

kitchen area of the unit as “extremely tight” and “very close quarters.” The medical

examiner told Mr. Robinson during their meeting that the trajectory of the bullet

had no upward or downward deviation but was a straight path through the chest.

Mr. Robinson stated that, given the [Petitioner]’s height versus the victim’s height,

there should have been an upward deviation in the bullet path unless the victim was

moving toward [Petitioner] in a downward motion, causing a straight path through

the body. Mr. Robinson opined that this was consistent with [Petitioner]’s assertion

that he acted in self-defense.

On cross-examination, Mr. Robinson agreed that the blood tested that came back

as either not human DNA or “a failure to reveal” came from outside on the porch

and on a window s[ill]. It did not come from the kitchen.

The Defense recalled Ms. Tony, who testified that she and the victim had dated for

two and a half years. She stated that, in her opinion, the victim was not a violent

person. Ms. Tony agreed that “Brandon” had told her that, prior to the shooting,

[Petitioner] and the victim had “a fight.”

Alicia Merriwether testified that she was a record keeper for the Hamilton County

general sessions court. Ms. Merriwether identified four judgments of conviction

against the victim. The convictions were for: two separate judgments in 2008 for

domestic assault, a 2012 domestic assault, and a 2013 assault.

On cross-examination, Ms. Merriwether confirmed that the judgment for the 2013

assault indicated “[c]ase dismissed without hearing proof.”

Lajuane Elston, a Hamilton County criminal clerk’s office employee, identified a

certified copy of the victim’s 2008 conviction for robbery.

In rebuttal, the State called Russ Davis, a TBI forensic scientist. Mr. Davis testified

as an expert witness in the field of gunshot primer residue. In relation to this case,

Mr. Davis tested a black bandana collected from the victim for gunshot primer

residue at [Petitioner]’s request. Mr. Davis did not find gunshot primer residue on

the bandana.

Eric Qualls, a Hamilton County Sheriff’s Office security intelligence officer,

testified that he had received special training in gang intelligence and validating

gang members. Officer Qualls confirmed that, in the course of his work, he had

come into contact with [Petitioner] and observed a tattoo of a crescent moon with

a five point star on [Petitioner]’s stomach. Based upon his experience with and

training about gangs, he stated that the crescent moon with a five point star was a

common symbol for the Vice Lords. Officer Qualls had also seen a tattoo on

[Petitioner]’s left forearm of a pistol with a “‘T’ behind it.” Officer Qualls opined

that the “T” stood for “TVO” or Traveling Vice Lord. Officer Qualls had also

observed a post on [Petitioner]’s Facebook page that stated, “long live King Neal.”

He believed this was a reference to Neal Wallace, “a founding member of the

Traveling Vice Lords.”

Jennings I, at *1–12 (footnotes omitted). The TCCA affirmed Petitioner’s conviction, and the

Tennessee Supreme Court (“TSC”) denied review. See generally id.

Petitioner then filed a pro se petition for post-conviction relief and two amended petitions

[Doc. 6-30 at 39–54, 63–67, 76–82]. After holding a hearing [Doc. 6-31], the post-conviction

court denied Petitioner post-conviction relief [Doc. 6-30 at 88–130]. Petitioner appealed this

denial to the TCCA, which summarized Petitioner’s post-conviction proceedings as follows:

In the petitions, the petitioner alleged trial counsel was ineffective for failing to

object to: “the State eliciting testimony about Christopher Robinson’s job related

reprimands;” “the State asserting [its] personal opinion as to the truth or falsity of

[the petitioner’s] testimony during the State’s closing argument;” “the prosecutor

stating that [the petitioner] was agitated about not being able to see [his] son during

the State’s opening statements;” “the introduction of inflammatory 911 calls;” and

“the prosecution’s exploitation of [the petitioner’s] pre-trial exercise of the right to

remain silent.” The petitioner also alleged trial counsel erred by questioning him

during trial about his 2013 domestic assault conviction and gang affiliation, thus

opening the door to evidence of his bad character which trial counsel also did not

object to as the State cross-examined the petitioner. Both the petitioner and trial

counsel testified at the evidentiary hearing held on January 25, 2019.

Trial counsel explained she intended to present a theory of self-defense at trial while

also avoiding opening the door to evidence of the petitioner’s character for violence

or bad acts. To that end, trial counsel filed a motion in limine to exclude the

petitioner’s 2013 domestic assault conviction from evidence. Though the trial court

granted the motion, trial counsel believed the petitioner opened the door to evidence

of the domestic assault during his testimony. Specifically, trial counsel asked the

petitioner “something to the effect of why did [he] not want the victim to know

[his] address or know where [he] lived.” Trial counsel expected the petitioner to

state he feared the victim, but she “was surprised because [the petitioner’s] answer

alluded to that 2013 domestic assault.” Based upon the petitioner’s answer, trial

counsel believed the petitioner opened the door to the admissibility of character

evidence which she chose to “deal with [ ] on direct rather than letting the State

hammer it in front of the jury for the first time.” Trial counsel admitted a better

practice would have been to obtain a ruling from the trial court as to whether the

petitioner opened the door to evidence of his character. However, she maintained

“that the door was opened at that point and there was nothing that [she] could do

except to try to minimize it.”

Consequently, trial counsel also did not object to the State questioning the petitioner

about the June 3, 2013 trespass notice. Because she did not specifically recall the

incident, trial counsel reviewed a “trespass notice from C[hattanooga] H[ousing]

A[uthority] Officer James Avery.” She recalled Officer Avery testified on behalf

of the State “to negate a self-defense argument and a self-defense jury instruction .

. . to show that [the petitioner] [was] not allowed to be [at the apartment] on the day

in question.” Trial counsel did not recall the State questioning the petitioner about

the details of the trespass notice, when the trespass notice was entered into

evidence, or why she would or would not have objected to the same. As a result,

she could not opine as to whether the facts of the incident prejudiced the petitioner’s

case. Trial counsel noted the petitioner’s trespass status was relevant to the State’s

rebuttal of the petitioner’s self-defense theory and as such, she did not object to its

introduction.

Trial counsel also addressed the defense’s approach to the introduction of evidence

of both the petitioner’s and the victim’s gang affiliations. According to trial

counsel, she and the petitioner discussed the petitioner’s knowledge of the victim’s

prior violence “at length.” Trial counsel recalled a question in which the petitioner

sought to explain the significance of the bandana he saw on the victim’s firearm

prior to the shooting and why he was afraid of the victim as a result. Because the

petitioner’s answer called on his knowledge of the victim’s gang affiliation, before

he provided the same, the trial court limited the petitioner’s testimony about his

knowledge of the victim’s gang affiliation to the petitioner’s reasonable perceptions

and his reason for fleeing the scene.

The trial court noted if the petitioner discussed the victim’s gang affiliation, “[the

petitioner] would be subject to the same thing,” and trial counsel agreed that by

opening the door to the victim’s character, the petitioner’s character could also be

attacked. According to trial counsel, she and the petitioner weighed the

consequences of opening the door “a lot,” noting “we talked about that at length.

But with the defense theory of self-defense and [the petitioner’s] apprehension of

the victim, it was almost impossible to avoid that, if not impossible.” Trial counsel

agreed it would have been best to avoid the victim’s gang affiliation altogether

based upon the petitioner’s character for violence. But, because the petitioner

opened the door to the introduction of the evidence during his testimony, trial

counsel did not object when the State questioned the petitioner about his own gang

affiliation.

Trial counsel next addressed several evidentiary decisions made during trial.

Regarding the State’s cross-examination of defense expert, Christopher Robinson,

trial counsel stated she did not object when the State questioned Mr. Robinson

about his job-related reprimands because she believed “the State had a right to ask

him about those issues . . . because it was relevant to his credibility.” Regarding

the State’s opening and closing arguments, trial counsel stated she did not recall the

State opining on the truth or falsity of the petitioner’s testimony during closing

arguments. After reviewing the trial transcript, trial counsel explained she did not

object to the State’s closing argument because “I didn’t think the affirmative

statement of the prosecutor saying [the petitioner] lied was him inserting his

personal opinion about [the petitioner’s] credibility.” Similarly, trial counsel also

did not find the State’s opening statement, wherein it claimed the petitioner was

agitated about not being able to see his son, objectionable as she believed the

petitioner made statements supporting this claim, though she could not recall any

specifics. Finally, trial counsel admitted she “probably should have” objected when

the State questioned the petitioner about his decision not to speak with Detective

Plumlee prior to trial, and she did not remember why she did not object to the State

questioning the petitioner about the petitioner’s waiver of rights.

The petitioner entered three 911 phone calls into evidence at the hearing. After

playing the three phone calls, trial counsel stated she did not object to the

introduction of the evidence because she “didn’t think [the calls] were

objectionable.” Regarding the 911 call made by Penny Collier, wherein Ms. Collier

stated she heard someone say he was going to kill everybody, trial counsel admitted

she did not know whether Ms. Collier had personal knowledge of the statement but

remembered she attempted to “get in touch with [Ms. Collier]” prior to trial. Trial

counsel could not recall why she did not redact Ms. Collier’s 911 call. Trial counsel

also did not recall why she did not object to Tirrea Tony identifying her 911 call or

the State’s questioning of Ms. Tony regarding the call. The petitioner also entered

into evidence the 911 call made by Cheslei Thompson on June 5, 2013, during the

domestic assault incident. After doing so, trial counsel explained she did not object

to the introduction of the same because she “believed [the petitioner] opened the

door.”

During cross-examination, trial counsel explained she was appointed to the

petitioner’s case in July 2015, and she tried the case in April 2016 with the

assistance of co-counsel. Trial counsel met with the petitioner before trial and

discussed his decision to testify. Trial counsel understood from the beginning

stages of the case that the petitioner intended to testify, but explained the petitioner

“didn’t want to prepare for his testimony because he didn’t want to seem coached.”

Trial counsel indicated she “would have liked to have gone through the topics that

we were going to address,” but she did not believe the petitioner “wanted to do that

with [her].” Despite the fact she and the petitioner did not fully prepare for his

testimony, trial counsel “remember[ed] telling [the petitioner] that any time a

defendant testifies that it’s going to put him at risk of opening the door for character

evidence.” Trial counsel conducted a Momon hearing and discussed the potential

pitfalls of testifying with the petitioner after which the petitioner chose to testify.

Despite the inherent risks, trial counsel did not know how to raise the theory of self-

defense absent the petitioner’s testimony.

Regarding the introduction of evidence of the domestic assault, trial counsel

explained she did not intend on introducing that evidence as its inadmissibility was

fully litigated prior to trial. However, the defense planned to introduce evidence of

the victim’s gang affiliation “because of the bandana that was tied to the gun in the

victim’s pocket.” Trial counsel and the trial court both explained to the petitioner

that “if we explored [the victim’s gang affiliation] that [the petitioner’s] affiliation

or his character to that extent could be attacked.” Trial counsel believed the

petitioner understood the options he faced regarding this issue.

Trial counsel met with Mr. Robinson several times before trial and obtained expert

funds to retain him. Trial counsel did not recall the specific job-related issues

addressed by the State during Mr. Robinson’s cross-examination, but remembered

Mr. Robinson discussed his issues with her and they were “all about political

funding basically.” She did not remember that Mr. Robinson shot himself in the

hand while working.

Turning again to the petitioner’s direct examination, trial counsel explained the

petitioner surprised her with his answer to her question of “why [the petitioner] did

not want the victim to know where he lived or to know his address.” When trial

counsel asked the petitioner the same question during a jail visit, the petitioner

answered that he was afraid of the victim. At trial, however, the petitioner answered

the question by referencing the domestic assault incident with Ms. Thompson. Trial

counsel believed the petitioner’s answer at trial “opened the door to [the domestic

assault conviction]; and so [she] thought at that point [she] had to deal with it on

direct.” In order to diminish the impact of the testimony, trial counsel asked the

petitioner to explain what he was talking about. During re-direct examination, trial

counsel again confirmed she did not intend to open the door to the petitioner’s

character for violence in support of their theory of self-defense, but noted their

defense theory “kind of morphed” from apprehension-of-the-victim to first-

aggressor after “all the character evidence came in.”

The petitioner then testified, stating he met with trial counsel approximately four

or five times before trial, but they “never discussed the gang affiliation.” According

to the petitioner, they “only discussed what happened leading up to the shooting,

and I stressed to her that I wanted to pursue an apprehension-of-the-victim self-

defense theory because I had a character for violence myself,” and he did not want

to open that door. However, the petitioner knew “[t]hat if I testified that I would

be waiving my rights, and I totally understood that. And I signed my waiver -- my

rights waiver form, and I took the stand and testified.” The petitioner planned to

testify at trial to support the defense theory of apprehension-of-the-victim,

believing this theory would “avoid opening the door to [his] character for violence.”

Regarding his understanding of how he planned to use his knowledge of the

victim’s character at trial, the petitioner stated, “I never discussed with [trial

counsel] using evidence of my knowledge of the victim’s gang affiliation to prove

my fear. I only discussed prior incidents that I had with [the victim]. One being

the prior fight, and, two, [ ] where I seen him have a firearm in his right back

pocket.” The petitioner reviewed a portion of the trial transcript wherein the trial

court, trial counsel, and the State discussed the introduction of gang-related

evidence. The petitioner summarized the arguments, noting the State argued gang-

related evidence should be excluded based upon its prejudicial nature and its

potential to open the door to the domestic assault conviction while trial counsel

argued the defense should be allowed “to put forth [the petitioner’s] knowledge of

[the victim’s] gang affiliation to show how [the petitioner] perceived the flag in his

back pocket” in order to “prove [the petitioner’s] state of mind.” By doing so,

however, the petitioner did not believe he was “opening the door to [his] gang

affiliation.”

The petitioner also stated he invoked his right to remain silent prior to trial, and

trial counsel did not object to the State’s questioning of the petitioner’s decision

during his trial testimony. In conclusion, the petitioner stated:

. . . I wish [trial counsel] had of stuck to our original plan and

objected to the Fifth Amendment right, my Fifth Amendment rights

being violated, and the 911 tapes being played throughout the trial.

And had [trial counsel] done those things, the outcome of the trial

would have been different. And due to all the prejudice I sincerely

feel that the jury’s attention was directed toward the prejudice and

not the real evidence at trial. Convicted me based on my bad

character.

Jennings v. State, No. E2019-00343-CCA-R3-PC, 2019 WL 6216350, at *9–12 (Tenn. Crim. App.

Nov. 20, 2019) (“Jennings II”). The TCCA affirmed the denial of the post-conviction petition.

See generally Jennings II, at *12–17.

Petitioner next filed the instant § 2254 petition.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) allows a federal

court to grant habeas corpus relief on any claim adjudicated on the merits in a state court only

where 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 that was based on an unreasonable determination of facts in light of the evidence

presented.” See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

This Court may grant habeas corpus relief under the “contrary to” clause where the state

court (1) “arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question

of law; or (2) decide[d] a case differently than the Supreme Court on a set of materially

indistinguishable facts.” See Williams v. Taylor, 529 U.S. 362, 405 (2000). The Court may grant

habeas corpus relief under the “unreasonable application” clause where the state court applied the

correct legal principle to the facts in an unreasonable manner. Id. at 407.

But even an incorrect state court decision is not necessarily unreasonable. 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”) (citing Williams, 529 U.S. at 410). Rather, this Court may grant relief for a

claim decided on its merits in state court only where the state court ruling “was so lacking in

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

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

III. ANALYSIS

The Court will address Petitioner’s claims challenging the sufficiency of the evidence and

the propriety of the prosecution’s trial questions regarding his invocation of his Fifth Amendment

right to remain silent before addressing his ineffective assistance of counsel claims.

A. Sufficiency of the Evidence

Petitioner first challenges the sufficiency of the evidence to support his second-degree

murder conviction by asserting that “[t]he state failed to prove the knowing element beyond a

reasonable doubt because there is no evidence that the shooting was done deliberately” [Doc. 1 at

5]. In its opinion affirming this conviction, the TCCA described the elements of second-degree

murder under Tennessee law as follows:

“Second degree murder is . . . [a] knowing killing of another.” T.C.A. § 39–13–

210. “A person acts knowingly with respect to a result of the person’s conduct

when the person is aware that the conduct is reasonably certain to cause the

result.” T.C.A. § 39–11–302(b).

Jennings I, at *18.

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

provides the controlling rule for Petitioner’s claim challenging the sufficiency of the evidence to

support his second-degree murder conviction under § 2254. See Gall v. Parker, 231 F.3d 265,

287–88 (6th Cir. 2000), superseded by statute on other grounds, as recognized in Parker v.

Matthews, 567 U.S. 37 (2012). In Jackson, the Supreme Court held that the evidence is sufficient

to sustain a conviction if, 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 proven beyond a

reasonable doubt. Jackson, 443 U.S. at 319. In making this determination, the district court may

not “reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for

that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

A federal habeas court reviewing the sufficiency of the evidence must apply two levels of

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

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

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

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

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

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

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

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

of the verdict under the AEDPA’s highly deferential standards. Cavazos, 565 U.S. at 6 (noting the

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

already deferential review”). As such, a petitioner challenging the evidence against him “bears a

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

Petitioner raised a claim challenging the sufficiency of the evidence to support his second-

degree murder conviction in his direct appeal to the TCCA, which cited Jackson and various state

court cases before analyzing this claim as follows:

The evidence, considered in the light most favorable to the State, proves that

[Petitioner], unlawfully armed with a gun, went to Ms. Thompson’s 6th Avenue unit

unannounced and in violation of a trespass notification. He wanted to see his

children and engaged in an argument with Ms. Thompson, insisting she awaken

their sleeping two-year-old child. She declined to do so and asked [Petitioner] to

leave. The victim entered the kitchen area where [Petitioner] and Ms. Thompson

were arguing and told [Petitioner] they did not want any “trouble.” [Petitioner]

agreed and exited. As the unarmed victim went to close the door behind

[Petitioner], [Petitioner] fired his gun at the victim’s chest. [Petitioner] then fled

the scene, disposed of the weapon, and hid from police. As a result of [Petitioner]’s

conduct, the victim died of a gunshot wound.

The evidence at trial showed that [Petitioner] shot the victim in the chest, ultimately

causing his death. Although there was evidence that [Petitioner] was fearful and

acted in self-defense, the jury rejected this theory, which is within its

province. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

Thus, the evidence is sufficient to sustain [Petitioner]’s conviction for second

degree murder.

Jennings II, at *18.

Petitioner bases his claim challenging the sufficiency of the evidence to support his second-

degree murder conviction in his § 2254 petition on his assertion that the state failed to prove

beyond a reasonable doubt that he knowingly killed the victim [Doc. 1 at 5]. But this assertion is

without merit. As set forth above, multiple witnesses at trial testified that after Petitioner engaged

in a verbal dispute with Ms. Thompson over their children at Ms. Thompson’s residence, he shot

the unarmed victim in the chest as the victim went to close the door behind Petitioner as he was

leaving.

While Petitioner presented evidence that he shot the victim as an act of self-defense because

the victim had reached for a firearm [Doc. 6-8 at 73–85], he points to no evidence in the record

indicating that he did not shoot the victim deliberately. And while the prosecution did not offer

direct proof that Petitioner knew his act of shooting the victim was reasonably certain to kill the

victim, it is apparent that the jury determined that this was the case based on the direct and

circumstantial evidence presented at trial. As the TCCA noted, this was proper under Tennessee

law. Jennings II, at *17 (noting that a jury may base a finding of guilt “on direct evidence,

circumstantial evidence, or a combination of both direct and circumstantial evidence”) (citing State

v. Pendergrass, 13 S.W. 3d 389, 392–93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.

250, 253 (Tenn. Crim. App. 1990)).

In short, the record supports the TCCA’s finding that the evidence was sufficient to support

Petitioner’s conviction. Accordingly, Petitioner has not established that this holding was an

unreasonable determination of the facts in light of the evidence presented, or an unreasonable

application of federal law, and he is not entitled to habeas corpus relief for this claim.

B. Questions Regarding Fifth Amendment Silence

Petitioner next claims that “[t]he state improperly commented on [his] [F]ifth Amendment

right to remain silent . . . . during cross examination” [Id. at 6]. 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). And a

defendant’s silence during custodial interrogation may not be used to impeach the defendant’s

testimony at trial. Doyle v. Ohio, 426 U.S. 610, 619 (1976).

Petitioner raised this claim to the TCCA in his appeal of his conviction, and the TCCA

addressed it in relevant part as follows, after citing Doyle:

[Petitioner] testified at trial that his act of shooting the victim was in self-defense.

Throughout the trial the defense repeatedly questioned witnesses about the victim’s

aggressive actions toward [Petitioner] both on the night of the shooting and prior to

the shooting. These questions were phrased in a manner that implied that the victim

was the first aggressor, and [Petitioner] feared the “crazy” victim who was a gang

member. The State, in response[] to the defense theory, questioned [Petitioner]

about his actions following the shooting in light of his testimony that he acted in

self-defense.

State: You’ve listened to all the testimony; is that right?

[Petitioner]: That the witnesses testified to, yes. That’s right.

State: And now you’re ready to tell the jury your story.

[Petitioner]: I’ve already told them my story.

State: Two years later.

[Petitioner]: Two years later, the same way it happened on that night. I’ve told the

jury how it happened that night right here in this courtroom.

State: That you were—as this is as close as I can get, you were in imminent threat

of bodily injury; right?

[Petitioner]: Yes.

State: And you couldn’t retreat?

[Petitioner]: No, sir. Not safely.

State: And those are your words; right?

[Petitioner]: Yes.

State: Those are your words.

[Petitioner]: Yes.

State: Not rehearsed.

[Petitioner]: No.

State: Nobody else’s words.

[Petitioner]: No, sir.

State: This is the first time you’ve ever really public[]ly said that it’s self-defense,

is that right?

[Petitioner]: Yes.

State: You didn’t call the police or 911 that night.

[Petitioner]: No, sir.

State: You didn’t wait around for the police.

[Petitioner]: No, sir.

State: You didn’t go to a safer place and contact the police and let them know what

happened.

[Petitioner]: No, sir, I was afraid to.

State: You didn’t tell them, hey, I just shot a guy because I was in imminent threat

of bodily injury and I couldn’t retreat.

[Petitioner]: No, sir.

State: You didn’t tell them that.

[Petitioner]: No, sir. I mean, it’s not wise to talk to the police without counsel, and

I didn’t have counsel at that time. If I told the police that, I would like to tell the

police that with counsel.

State: And you refused to talk to Detective Plumlee; is that correct?

[Petitioner]: I’m trying to think of a good way to say this. I invoked my right to

remain silent.

State: You refused to give a statement to Detective Plumlee; is that correct?

[Petitioner]: I invoked my right to remain silent.

State: You refused to tell him your story.

During closing argument, the State only once referenced this line of questioning

saying, “Someone who acts in self-defense and has no reason to think that anything

is going to happen to them doesn’t run off and destroy evidence.”

* * *

[I]n our view, the prosecutor, having heard [Petitioner]’s testimony characterizing

the victim as a violent gang member, did not err by asking [Petitioner] on cross-

examination about his actions following the shooting that he claimed was in self-

defense. For the most part, the questions asked were a fair response to the defense

theory and questioning throughout the trial to that point. We do note, however, that

the prosecutor’s last two questions and the statement, “You refused to tell him your

story,” were improper comments on [Petitioner]’s invocation of his right to remain

silent and w[ere], in our view, clearly outside the scope of a “fair response” to the

defense theory. See United States v. Robinson, 485 U.S. 25, 32 (1988) (holding

that prosecutors are not prohibited from commenting upon a defendant’s decision

not to testify at trial so long as the prosecutorial comment is simply a “fair response”

to defense claims and the prosecutorial comment does not treat [Petitioner]’s

silence as “substantive evidence of guilt”); State v. Cazes, 875 S.W.2d 253, 267

(Tenn. 1994) (applying Robinson to reject a Griffin claim). W[e] conclude it was

error for the prosecutor to ask the last two questions and make the statement “you

refused to tell [Detective Plumlee] your story.” Nonetheless, any error, given the

weight of the evidence against [Petitioner], the prosecutorial error was harmless

beyond a reasonable doubt. See State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014).

[Petitioner] is not entitled to relief as to this issue.

Jennings I, at *15–16.

Petitioner has not established that this was an unreasonable application of federal law, or

an unreasonable determination of the facts in light of the evidence presented. As set forth above,

the majority of the prosecutor’s relevant questions concerned Petitioner’s pre-arrest silence and

fairly rebutted Petitioner’s direct examination testimony and defense. As such, they were proper.

Jenkins v. Anderson, 447 U.S. 231, 238–39 (1980) (providing that the use of pre-arrest silence for

impeachment does not violate due process). And the Court agrees with the TCCA that while the

prosecutor’s last two questions and comment about Petitioner refusing to speak to Detective

Plumlee improperly commented on Petitioner’s invocation of his Fifth Amendment rights, they do

not entitle Petitioner to relief, as the substantial evidence of Petitioner’s guilt from multiple other

witnesses presented at trial leaves the Court with no doubt that the prosecution’s improper

commentary about Petitioner’s post-arrest silence did not affect the jury’s verdict. Lundgren v.

Mitchell, 440 F.3d 754, 780 (6th Cir. 2006) (noting that while prosecutorial commentary on a

defendant’s silence “is improper and may rise to the level of prosecutorial misconduct requiring

reversal on appellate review,” reversal is not needed where “the comment amounted to harmless

error beyond a reasonable doubt,” such as where the other evidence of the defendant’s guilt is

compelling and the record establishes the improper commentary did not affect the jury’s verdict)

(citations omitted).

Thus, Petitioner is not entitled to relief under § 2254 for this claim.

C. Ineffective Assistance of Counsel

Petitioner next asserts that his counsel was ineffective in five different ways at trial,

specifically by (1) eliciting “testimony about [his] prior domestic assault conviction and it[]s

underlying facts”; (2) eliciting testimony regarding the facts underlying his trespass notification;

(3) eliciting testimony about the victim’s gang affiliation; (4) failing to redact Penney Collier’s

911 phone call; and (5) failing to “thoroughly investigate Christopher Robinson’s background

before calling him to testify [Doc. 1 at 8]. The Court will set forth the applicable standard of

review before addressing each of these claims in turn.

i. Standard of Review

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 for 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 that his counsel provided

ineffective assistance. 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.

A party asserting an ineffective-assistance-of-counsel claim must “identify the acts or omissions

of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at

690. 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 her burden, and if either prong is not satisfied, the

claim must be rejected. Strickland, 466 U.S. at 69. 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).

ii. Petitioner’s Domestic Assault Conviction

Petitioner first claims that his trial counsel erred in eliciting testimony from him about his

prior domestic assault petition [Id.]. The TCCA addressed this claim as follows:

At the post-conviction hearing, trial counsel explained that both prior to and during

trial she asked the petitioner why he did not want the victim to know where he lived.

Each time she asked the question, the petitioner provided different answers. Prior

to trial, the petitioner answered by stating he was afraid of the victim. However, at

trial, the petitioner answered by stating “[i]n retaliation for something that I did in

the past that I’[m], very regretful for.” Trial counsel was surprised by the

petitioner’s trial answer and believed he opened the door to the introduction of

evidence about his domestic assault conviction. As such, trial counsel decided to

address the damaging evidence during direct examination rather than wait for the

State to impeach the petitioner with evidence of the conviction during cross-

examination.

Accordingly, the record shows trial counsel made a strategic decision to address the

petitioner’s domestic assault conviction during his direct examination after the

petitioner opened the door to the same. “The fact that a particular strategy or

tactical decision failed does not by itself establish deficiency.” Nesbit v. State, 452

S.W.3d 779, 796 (Tenn. 2014) (citing Goad, 938 S.W.2d at 369). In denying relief

on this issue, the post-conviction court accredited the testimony of trial counsel and

found “it was a reasonable tactical decision by [t]rial [c]ounsel to ‘steal the State’s

thunder’ by discussing the prior offense on direct examination.” We agree. The

petitioner has failed to demonstrate trial counsel’s defense strategy was

unreasonable, fell below professional norms, or that it prejudiced the outcome of

his case. Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 687, 688; Baxter,

523 S.W.2d at 936). Instead, the record indicates trial counsel attempted to

diminish the damaging evidence of the petitioner’s prior conviction by addressing

it during his direct examination rather than allowing the State to reveal the evidence

to the jury during cross-examination. The petitioner is not entitled to relief.

Jennings II, at *13–14. The TCCA also noted that, in its opinion affirming Petitioner’s second-

degree murder on direct appeal, it “determined ‘the defense had already elicited testimony about

the 2013 domestic assault, which opened the door to the prosecution's line of questioning’ and

‘there is no dispute that the [petitioner] placed the 2013 domestic assault at issue during his proof.’”

Id. at *14 n.7 (quoting and citing Jennings I at *13, 14).

Petitioner has not established that the TCCA’s denial of this claim was an unreasonable

application of federal law, or an unreasonable determination of the facts in light of the evidence

presented. As the TCCA correctly noted, Petitioner’s response to his counsel’s question asking

why he did not want the victim to know where he lived, in which Petitioner stated that he had done

something for which he was “regretful” and which the record as whole establishes was a clear

reference to the June 2013 domestic violence incident, surprised his counsel, who had expected

Petitioner to answer that he feared the victim [Doc. 6-31 at 8–12]. Petitioner’s counsel interpreted

this statement to open the door to evidence of Petitioner’s domestic violence conviction and

therefore decided to confront the evidence of that domestic violence conviction head-on, rather

than allow the prosecution to introduce it first [Id.]. But Petitioner’s counsel acknowledged at the

post-conviction hearing that it would have been better for her to stop the trial proceeding to ask

the Court to determine whether Petitioner had opened the door to such evidence and stated that, in

hindsight, she would have done things differently with regard to this issue [Id.].

First, to the extent that Petitioner challenges his counsel’s decision to ask him why he did

not want the victim to know where he lived, which he characterizes as eliciting testimony about

the domestic violence conviction, Petitioner has not established that this was deficient

performance, as the record establishes that Petitioner’s counsel did not expect this question to elicit

testimony about the domestic violence conviction. And the record establishes that it was

reasonable for Petitioner’s counsel’s not to foresee that this question would elicit such testimony

from Petitioner, as (1) Petitioner answered this question differently prior to trial [Id. at 8–12],4 (2)

4 Additionally, to the extent this claim could be liberally construed to challenge Petitioner’s counsel’s failure

to properly prepare Petitioner for this question at trial, Petitioner’s trial counsel testified at the post-conviction hearing

the trial court had previously ruled during the trial, and in Petitioner’s presence, that evidence of

the domestic violence conviction could not come in as evidence at trial [Doc. 6-6 at 139], and (3)

the record establishes that Petitioner and his trial counsel had discussed keeping evidence of the

domestic violence conviction out of the trial [Doc. 6-31 at 9–10].

Moreover, to the extent that Petitioner challenges his counsel’s decision to elicit additional

testimony from him about the domestic violence conviction after he unexpectedly brought up the

incident without first asking the Court to determine whether he had opened the door to such

evidence, Petitioner also has not established that this was deficient performance. To the contrary,

Petitioner’s counsel’s decision to go ahead and introduce evidence regarding the domestic violence

incident based on her belief that Petitioner had opened the door to that evidence was reasonable in

light of, among other things, the manner in which the trial court had addressed this issue during

prior trial discussions [See, e.g., Doc. 6-6 at 144 (trial court statement that “if [the defense] open[s]

the door to the domestic assault, the rest of it comes in” and Doc. 6-7 at 141–42 (trial court

statement that if the defense brings in evidence that Petitioner feared the victim due to the domestic

violence incident, then the defense “open[s] the door to admission of that. And quite possibly the

underlying facts . . .”)], as well as the manner in which the trial court had treated another issue

previously in the trial [See, e.g.. Doc. 6-7 at 72–85 (trial court ruling that he would allow the

prosecution to introduce evidence that Petitioner was found in a closet after the defense offered

evidence that Petitioner was not charged with resisting or evading arrest after United States

Marshals found him in Memphis)]. Thus, while Petitioner’s counsel’s decision to introduce

evidence regarding the domestic violence conviction without first asking the Court to rule that

that while she wanted to prepare for trial by going through the topics she was going to address with Petitioner on direct

examination with Petitioner, Petitioner did not want to do so because he did not want to seem coached [Doc 6-31 at

53–54].

Petitioner had opened the door to that evidence may have “deviated from best practices or [the]

most common custom,” Petitioner has not demonstrated that it “amounted to incompetence.”

Harrington v. Richter, 562 U.S. 86, 105 (2011). As such, the Court must defer to that decision.

Id.

Petitioner therefore has not established that the TCCA’s determination that Petitioner was

not entitled to relief for this claim was an unreasonable application of Strickland, or that the

Supreme Court has found that a materially similar decision of counsel amounted to ineffective

assistance of counsel. Accordingly, Petitioner is not entitled to habeas corpus relief for this claim.

iii. Trespass Notification

Petitioner next asserts that trial counsel was ineffective for “elicit[ing] testimony about

facts leading up to the trespass notification” [Doc 1 at 8]. The TCCA addressed this claim as

follows:

Similarly, the petitioner claims trial counsel was ineffective “by failing to object

to the State’s improper questions concerning facts leading up to the trespass

notification” because “[t]he door was not opened to the June 3, 2013 disorderly

conduct incident by the defense.” The petitioner asserts he was prejudiced by this

evidence as it again “shows that [he] has a propensity to commit a crime.” At the

post-conviction hearing, trial counsel explained she did not object to questions

regarding the trespass notice because it was relevant to the State’s rebuttal of the

defense’s theory of self-defense and, as a result, she did not believe it was

objectionable. Our review of the record supports trial counsel’s testimony as

evidence of the trespass notice was clearly admissible. Accordingly, the petitioner

cannot prove prejudice regarding trial counsel’s handling of this evidence at

trial. Strickland, 466 U.S. at 687, 694; see also Goad, 938 S.W.2d at 370. The

petitioner is not entitled to relief.

Jennings II, at *14.

The Court agrees with the TCCA. Specifically, it is apparent from the jury instructions in

the record that the issue of whether Petitioner was in a place where “he . . . had a right to be” was

relevant to whether the jury could find that Petitioner was entitled to use force that was “intended

or likely to cause death or serious bodily injury” on the victim [Doc. 6-10 at 148–49]. See also

Tenn. Code Ann. 39-11-611(b)(1)(2). As such, Petitioner has not established that the TCCA

unreasonably applied Strickland in determining that Petitioner was not entitled to relief for this

claim, or that the Supreme Court has found that counsel provided ineffective assistance of counsel

based on substantively similar facts. Accordingly, Petitioner is not entitled to habeas corpus relief

for this claim.

iv. Gang Affiliation

Petitioner also claims that his counsel was ineffective for “elicit[ing] testimony about the

victim’s gang affiliation” [Doc. 1 at 8]. The TCCA addressed this claim as follows:

Finally, the petitioner asserts trial counsel “was ineffective by eliciting testimony

about the victim’s gang affiliation” in an effort to prove the petitioner’s state of

mind “because there was [also] proof of [the petitioner] being a gang member.”

The petitioner argues once again that the jury convicted him based upon his bad

character and that trial counsel’s handling of this evidence “was not based on the

law and facts of the case.” The State asserts trial counsel utilized this evidence to

support the defense theory of self-defense, a strategy accredited by the post-

conviction court. We again agree with the State.

The record makes clear the petitioner and trial counsel pursued a self-defense

theory at trial. Trial counsel explained she wanted to discuss the victim’s gang

affiliation in order to show the petitioner acted in self-defense based upon his fear

of the victim. However, trial counsel did not know how to present the defense

absent the petitioner’s testimony. As a result, trial counsel attempted to prepare the

petitioner for the inherent risks of testifying, including the risks he faced in

discussing the victim's gang affiliation, but the petitioner wanted to testify absent

much direction from trial counsel. Regardless, after the petitioner waived his rights

and began testifying at trial, both the trial court and trial counsel warned him if he

opened the door to the victim’s gang affiliation he would be subject to the same

attack by the State. The petitioner proceeded with his testimony, explaining he saw

a bandana tied to the victim’s firearm which led him to fear the victim based upon

his known gang affiliation which opened the door for evidence of the petitioner’s

gang affiliation to come into trial.

It is evident trial counsel made a strategic decision to address the victim’s gang

affiliation during the petitioner’s testimony in order to support the theory of self-

defense. Though the jury rejected the theory, the jury’s rejection is not evidence of

deficiency. Nesbit, 452 S.W.3d at 796. The post-conviction court determined, “[a]t

the point in time where the decision was made to explain [the petitioner’s]

perception of the victim further, [t]rial [c]ounsel had considered the consequences

of doing so and believed this to be the best course in which to pursue the claim of

self-defense.” Additionally, the post-conviction court held, “[f]rom the perspective

of [t]rial [c]ounsel, it was reasonable to believe that without additional proof that

the victim intended to harm [the petitioner] in the moment, the claim of self-defense

would have been substantially weakened.” We agree. Nothing in the record

demonstrates trial counsel’s strategy regarding gang-affiliation evidence was not

sound and the petitioner has failed to show that trial counsel’s strategy regarding

the evidence amounted to deficient performance. Strickland, 466 U.S. at

689; see Tenn. Code Ann. § 40-30-110 (f); Goad, 938 S.W.2d at 369. Instead, the

record shows trial counsel made a strategic decision to use the victim’s gang

affiliation to support the theory of self-defense, a strategy which was supported by

the petitioner and for which he was fully advised. The petitioner is not entitled to

relief.

Jennings II, at *14–15 (footnote omitted).

Petitioner has not established that this was an unreasonable application of federal law, or

an unreasonable determination of the facts. The record establishes that before the relevant gang

affiliation testimony came in at Petitioner’s trial, the trial court had lengthy, in-depth discussions

with the parties about the probative value of this evidence and the fact that admission of the

evidence would open the door to Petitioner’s own gang affiliation [Doc. 6-8 at 86–99]. The record

also indicates that prior to and/or during trial, Petitioner and his counsel had lengthy discussions

about the risks inherent in introduction of this evidence, and Petitioner understood those risks

[Doc. 6-31 at 26–31, 55-56]. Thus, it is apparent that Petitioner’s counsel’s strategic decision to

introduce the gang affiliation evidence was well-informed, and the Court will not second guess it

with the benefit of hindsight. See Strickland v. Washington, 466 U.S. 668, 690–91 (1984) (noting

that counsel’s “strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable”); Burton v. Renico, 391 F.3d 764, 774 (6th Cir.

2004) (holding that “strategic choices by counsel, while not necessarily those a federal judge in

hindsight might make, do not rise to the level of a Sixth Amendment violation”).

Thus, Petitioner is not entitled to relief under § 2254 for this claim.

v. Penney Collier’s 911 call

Petitioner next claims that his trial counsel was ineffective for not redacting Penney

Collier’s 911 call [Doc. 1 at 8]. The TCCA addressed this claim as follows:

The petitioner argues trial counsel was ineffective for failing to redact portions of

Ms. Collier’s 911 phone call based upon unreliable hearsay statements made during

the call. The petitioner further asserts Ms. Collier’s statements “did not qualify as

an excited utterance because her 911 call does not indicate that she saw the

shooting” and her statements were “detrimental to [the petitioner’s] self-defense

theory.” The State contends trial counsel’s handling of Ms. Collier’s call was not

deficient as she objected to the introduction of the same based upon a violation of

the Confrontation Clause.

Though trial counsel lacked a precise recollection of her handling of this evidence,

the record demonstrates trial counsel objected to the introduction of Ms. Collier’s

911 call as a violation of the Confrontation Clause while the State argued the call

fell under the excited utterance exception to the hearsay rule. The trial court agreed

with the State and overruled trial counsel’s objection. Upon its review, the post-

conviction court explained the issue, as follows:

The [c]ourt does not believe that the phone call was subject to an

objection on the basis of a lack of personal knowledge . . . .

In this case of Ms. Collier’s 911 call, she stated that she “heard”

someone make a statement that [the petitioner] contests . . . . The

fact that Ms. Collier acknowledged that she heard the statement was

sufficient to establish her personal knowledge of the statement itself.

As such, the [c]ourt disagrees that [t]rial [c]ounsel’s failure to object

to this phone call on the basis of a lack of personal knowledge was

deficient performance.

The [c]ourt also finds that [t]rial [c]ounsel’s performance in failing

to object to the admission of this call based on other grounds, or

[t]rial [c]ounsel’s failure to request redactions, was not deficient.

The statement overheard by Ms. Collier was relevant to establish (or

to confirm) [the petitioner’s] anger prior to, or during, the shooting

of [the victim] and to rebut his claim of self-defense. Moreover, the

[c]ourt does not find that anything in the 911 call was unfairly

prejudicial to [the petitioner], as the evidence did not have “an undue

tendency to suggest a decision on an improper basis, frequently,

though not necessarily, an emotional one.” As such, [the petitioner]

has failed to show that Rule 403’s balancing test would [] have

excluded the evidence at trial.

Finally, although [the petitioner] was able to contradict this

statement with other proof at trial -- at least one of the witnesses

denied hearing such a statement -- and although [the petitioner]

denied making the statement at the post-conviction hearing, the

contested nature of the evidence did not render its admission

“unfairly prejudicial.” Indeed, while the contested nature of the

evidence may have impacted the weight of the evidence in the

balance, it did not affect its admissibility. Consequently, [the

petitioner] has failed to show that [t]rial [c]ounsel rendered

deficient performance in not raising objections to Ms. Collier’s

phone call. Accordingly, the [c]ourt respectfully declines to grant

post-conviction relief with respect to this issue.

Upon our review, we agree with the post-conviction court’s assessment of trial

counsel’s handling of Ms. Collier’s 911 phone call. Trial counsel objected to the

introduction of the call based upon the Confrontation Clause, but the trial court

determined the call was admissible as an excited utterance, thus eliminating any

confrontation arguments. Though trial counsel’s objection was unsuccessful,

per Davis v. Washington, any objection made on the basis of the Confrontation

Clause or hearsay would have been unsuccessful. 547 U.S. 813, 828 (holding,

generally, that 911 calls are nontestimonial in nature as the interrogation that arises

during such calls “objectively indicate[s] its primary purpose was to enable police

assistance to meet an ongoing emergency”). Therefore, the petitioner cannot show

that trial counsel was deficient or that he was prejudiced by trial counsel’s handling

of Ms. Collier’s 911 phone call as it was clearly admissible evidence. Id. The

petitioner is not entitled to post-conviction relief as to this issue. Strickland, 466

U.S. at 694.

Jennings II, at *15–16.

The Court agrees with the TCCA. Petitioner does not specify in his petition why he asserts

that his counsel was ineffective for not redacting Ms. Collier’s 911 call, but to the extent that he

raises the same arguments he did with the TCCA [Doc. 6-40 at 17], he has not established that the

TCCA’s denial of this claim was an unreasonable application of federal law, or an unreasonable

decision based on the facts.

In her 911 call, Ms. Collier first asks the operator to have the police “come on now” because

someone has been shot, provides the address of her location, and states that she hears an ambulance

and therefore someone else may have called [Doc. 10, Collier 911 Call Exhibit at 00–00:48]. Ms.

Collier then indicates that she “heard the gunshot” while she and others were in the kitchen [Id. at

00:48–55]. Ms. Collier further states that she heard people “hollering over here next door” and that

she is not opening her door “to nobody” because “a dude talking about he gonna kill everybody in

here” [Id. at 00:56–1:07]. Ms. Collier also affirms that she has her door locked and states that she

is worried about her “grandbabies” before repeating that she heard “some dude talking about he

going to shoot everybody. . . .” in response to the operator’s question about what she had heard [Id.

at 1:08–1:30]. Ms. Collier then repeats her request for the operator to “get the police over here

quick,” provides her name, and states that she refused to open the door when someone knocked and

tried to get her to open her door because she was not going to open her door to anybody [Id. at

1:31–2:00]. Ms. Collier next repeats her name and provides her phone number, and the 911 operator

repeats the address of Ms. Collier’s location and states officers are enroute [Id. at 2:00–2:33]. The

call ends after Ms. Collier tells the operator that the police have arrived, and the operator tells her

to talk to them [Id. at 2:33–3:02]. Throughout the call, Ms. Collier sounds distressed, breathes

heavily, and repeats “oh Lord” [See generally id.].

As the TCCA noted, Petitioner’s counsel objected to admission of Ms. Collier’s phone call

based on the Confrontation Clause, but the trial court overruled that objection [Doc. 6-4 at 146].

And Petitioner has not established the TCCA’s decision that the statements in Ms. Collier’s 911

call were “clearly admissible,” and therefore not otherwise objectionable, was erroneous. To the

contrary, it is apparent that Ms. Collier’s statements in her 911 phone call fell within the excited

utterance hearsay exception under Tennessee law, as the contents of the call establish that (1) this

call resulted from startling events, specifically Ms. Collier hearing a gunshot at her neighbor’s home

soon before someone knocked on her door and tried to get in and she heard a “dude” make a

statement indicating his intention “to kill everybody”; (2) Ms. Collier’s relevant statements in the

911 phone call relate to those startling events; and (3) Ms. Collier made the 911 call while she was

under the stress or excitement of those events. State v. Franklin, 308 S.W. 3d 799, 823 (Tenn.

2010) (noting that the requirements for the excited utterance exception to apply under Tennessee

law are (1) “a startling event or condition that suspend[s] the normal reflective processes of the

declarant,” (2) that the statement relates to the startling event or admission; and (3) that the declarant

made the statement “under the stress or anxiety from the event or admission”) (quotations and

citations omitted).

While Petitioner asserted in his TCCA appellate brief that the statements in the 911 call did

not fit within the excited utterance exception because Ms. Collier did not state during this call that

she saw the shooting, Petitioner supported this assertion only by stating that “[a] bystander’s

declaration must relate to that which has come under his observation” [Doc. 6-40 at 17 (citing

Montesi v. State, 417 S.W.2d 554 (Tenn. 1967)]. But it is apparent from the contents of the 911

call that Ms. Collier observed the shooting by hearing the gunshot [Doc. 10 Collier 911 Call at

00:48–1:07]. Thus, this argument is without merit.

Accordingly, Petitioner is not entitled to relief under § 2254 for this claim.

vi. Failure to Investigate Christopher Robinson

As set forth above, Petitioner also claims that his trial counsel was ineffective for not

“thoroughly investigat[ing] Christopher Robinson’s background before calling him to testify”

[Doc. 1 at 22–23]. The TCCA addressed this claim as follows:

The petitioner asserts “[p]roof of Christopher Robinson’s reprimands were

detrimental to [his] self[-]defense theory” and “[d]eference cannot be made to [trial

counsel’s] choice of calling Christopher Robinson to testify because she did not

thoroughly investigate [his] background.”

* * *

The defense offered Christopher Robinson as an expert at trial, and the State

questioned Mr. Robinson regarding job-related reprimands he received in an effort

to attack his credibility. Trial counsel explained she did not object to the State’s

impeachment efforts because she believed “the State had a right to ask him about

those issues . . . because it was relevant to his credibility.” The post-conviction

court agreed, noting “the State’s impeachment of Mr. Robinson here was entirely

permissible.” The post-conviction court determined “because [the petitioner] has

failed to show that the State’s questions were objectionable, he has also failed to

show that [t]rial [c]ounsel rendered deficient performance in not raising

objections.” We agree with the post-conviction court. Nothing in the record

indicates trial counsel rendered deficient performance in this regard. Goad, 938

S.W.2d at 369. Furthermore, we note that the petitioner failed to present an expert

during the post-conviction hearing in order to show there was another more

“credible” expert available to trial counsel. Thus, the petitioner cannot establish

prejudice. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.

1990) (“When a petitioner contends that trial counsel failed to discover, interview,

or present witnesses in support of his defense, these witnesses should be presented

by the petitioner at the evidentiary hearing.”). The petitioner is not entitled to relief.

Jennings II, at *16.

Petitioner has not established that this was an unreasonable application of federal law, or

an unreasonable determination of the facts in light of the evidence presented. At the post-

conviction hearing, Petitioner questioned his counsel regarding her failure to object to the

prosecution’s questions regarding Mr. Robinson’s reprimand [Doc. 6-31 at 32–33], and his counsel

admitted on cross-examination that she was unsure whether she knew at trial that Mr. Robinson

had shot himself in the hand during an analysis [Id. at 60–61]. But counsel also testified that she

knew of certain issues in Mr. Robinson’s history, that Mr. Robinson carried paperwork to explain

those issues, and that she visited the scene with Mr. Robinson in preparation for trial [Id. at 60].

Counsel’s lack of memory regarding whether she was aware at the time of trial that Mr. Robinson

had shot himself in the hand during an analysis is not evidence that her investigation of Mr.

Robinson was insufficient, and Petitioner points to no evidence establishing that his counsel’s

investigation of Mr. Robinson was insufficient.

Moreover, as the TCCA pointed out, Petitioner has never presented evidence that another

expert without Mr. Robinson’s employment issues was available and willing to provide testimony

favorable to Petitioner at trial. See, e.g., Stewart v. Wolfenbarger, 468 F.3d 338, 353 (6th Cir.

2006) (finding that the state courts’ conclusion that a petitioner had failed to present proper

evidence of what a witness’s testimony would have been if he testified “was not contrary to or an

unreasonable application of clearly established law”).

Accordingly, Petitioner is not entitled to relief under § 2254 for this claim.

IV. CONCLUSION

For the reasons set forth above, the petition for § 2254 relief [Doc. 1] will be DENIED,

and this action will be DISMISSED.

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

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

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

issue only where a Petitioner has made a substantial showing of the denial of a constitutional right.

28 U.S.C. § 2253(c)(2). 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 v. McDaniel, 529 U.S. 473, 484 (2000). 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 and

thus a COA should issue. See Miller-El, 537 U.S. at 327, 336; Slack, 529 U.S. at 484.

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

denial of a constitutional right with regard to his claims challenging the sufficiency of the evidence,

alleging prosecutorial misconduct, or alleging ineffective assistance of counsel, such that they

would be adequate to deserve further review. Accordingly, a COA SHALL NOT ISSUE. Also,

the Court CERTIFIES that any appeal from this action would not be taken in good faith and

would be totally frivolous. Fed. R. App. P. 24.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

ENTER:

s/J. RONNIE GREER

UNITED STATES DISTRICT JUDGE