Stackhouse v. State of Tennessee (PSLC1)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

KANE STACKHOUSE, )

)

Petitioner, )

)

v. ) No. 3:21-CV-017-TAV-JEM

)

STATE OF TENNESSEE, )

)

Respondent. )

MEMORANDUM OPINION

After Petitioner used a gun to take money and car keys from David Lindsey (“the

victim”), shot the victim in the leg and in the head in a manner that resulted in the victim’s

death, and made recorded statements to police incriminating himself in this incident, a jury

convicted Petitioner of first-degree felony murder and especially aggravated burglary [Doc.

7-20, pp. 20–24, 37–45]. State v. Stackhouse, No. E2009-01669-CCA-R3-CD, 2010 WL

4545580, at *1–2 (Tenn. Crim. App. Nov. 12, 2010) (“Stackhouse I”); Stackhouse v. State,

No. E2019-01651-CCA-R3-PC, 2020 WL 3968099, at *1 (Tenn. Crim. App. July 14,

2020) (“Stackhouse II”). Petitioner does not deny using a gun to take the victim’s money

and property before shooting the victim twice but insists that the shooting was accidental,

and that he was “not in [his] right mind and . . . a child” [Doc. 7-20, pp. 21–23].

Now before the Court is Petitioner’s pro se petition for habeas corpus relief under

28 U.S.C. § 2254 in which Petitioner, a state prisoner, seeks relief from his first-degree

felony murder and especially aggravated burglary convictions based on his claims that

(1) his counsel were ineffective [Doc. 1, pp. 5–7]; and (2) his trial judge, Judge Richard

Baumgartner was addicted to prescription drugs and alcohol during and after his trial,

which Petitioner claims violated his rights to due process and a fair and impartial trial and

amounted to structural error [Id. at 8–9]. Respondent filed a response in opposition to the

petition [Doc. 14] and the state court record [Doc. 7]. Petitioner did not file a reply, and

his time for doing so has passed [Doc. 6, p. 1].

After reviewing the relevant filings and the state court record, the Court finds that

Petitioner is not entitled to relief under § 2254. Accordingly, the Court will not hold an

evidentiary hearing, see Rules Governing § 2254 Cases, Rule 8(a) and Schriro v.

Landrigan, 550 U.S. 465, 474 (2007), the habeas corpus petition will be DENIED, and

this action will be DISMISSED.

I. BACKGROUND1

Petitioner robbed and shot the victim in the early morning hours of November 11,

2006. Stackhouse I, at *3. On November 12, 2006, police took Petitioner into custody for

an attempted aggravated robbery charge arising from a separate incident that occurred a

few hours after the incident between Petitioner and the victim at a used car lot located near

the site of the incident between Petitioner and the victim. Id. at *1.

Soon after police took Petitioner into custody he told jail officials that he wanted to

commit suicide, had previously had suicidal thoughts and panic attacks, had tried to hang

1 The Court has reviewed the entirety of the state court record [Doc. 7], including the

transcripts of the suppression hearing [Docs. 7-3, 7-4, 7-4] and Petitioner’s trial [Docs. 7-6, 7-7,

7-8]. Nevertheless, the Court takes the majority of the relevant background facts for Petitioner’s

claims in this action from the Tennessee Court of Criminal Appeals’ opinions, Stackhouse I and

Stackhouse II, as Petitioner does not dispute the recitations of facts from those opinions.

himself and taken pills in the prior days, and wished that the victim, who was armed, had

shot him. Stackhouse I, at *1–2. Accordingly, at 8:30 a.m. on November 12, 2006, jail

officials placed Petitioner on a “therapeutic bench” for observation. Id. at *2. Other than

three periods of time when detectives questioned him about the murder of the victim on

November 12 and 13, and times when he was allowed to eat, drink, and use the restroom,

Petitioner remained on this therapeutic bench until 3:30 p.m. on November 14, 2006, when

he moved to a therapeutic cell [Doc. 7-3, p. 16]. Id. at *2–3. Testimony from jail medical

providers indicates that Petitioner should have been offered a “no harm contract,” which

would have been a step toward him leaving the bench, within his first 24 hours on the

bench, but this did not occur due to (1) an order from the chief of detectives stating that

Petitioner should remain on the bench, even though the chief of detectives did not have

authority to determine Petitioner’s placement in the medical unit; and/or (2) a note on a

board in the medical unit indicating that medical providers should not speak to Petitioner

without permission. Id. at *2–3.

On November 15, 2006, Petitioner was arraigned for the used car lot aggravated

robbery charge. Id. at *3. While Petitioner was in the courthouse hallway after this

arraignment, he indicated that he wanted to talk to a police detective again. Id. at *3–4.

Accordingly, on that same day, police again questioned Petitioner about the incident

between himself and the victim, at which point Petitioner gave police a statement

incriminating himself in the armed robbery and shooting incident with the victim before

leading police to a bag of items he had left near the scene of the incident with the victim.

Id. Prior to questioning Petitioner, police read Petitioner his Miranda rights, and Petitioner

initialed and signed waivers of those rights. Id.

A grand jury indicted Petitioner for charges based on the incident between him and

the victim [Doc. 7-1, pp. 7–10]. Petitioner claims that, on an unspecified date before the

indictment, and before the case was assigned to Judge Baumgartner, his mother had a

phone call lasting approximately 45 minutes with Judge Baumgartner’s secretary [Doc.

7-19, p. 12].

Petitioner’s counsel filed a motion to suppress Petitioner’s incriminating statement

to police regarding the incident between Petitioner and the victim on various grounds,

including Rule 5(a) of the Tennessee Rules of Criminal Procedure [Doc. 7-1, pp. 60–64].

After holding an extensive hearing on the motion to suppress, during which Petitioner’s

counsel did not raise the Rule 5(a) argument [Docs. 7-3, 7-4, 7-5], the trial court denied the

motion [Doc. 7-2, p. 59].

Petitioner then proceeded to trial [Docs. 7-6, 7-7, 7-8], and the jury convicted him

of various crimes, including first-degree felony murder and especially aggravated burglary

[Doc. 7-2, pp. 85–86]. Petitioner appealed, and the Tennessee Court of Criminal Appeals

(“TCCA”) affirmed his first-degree felony murder and especially aggravated burglary

convictions. Stackhouse I.

Petitioner then filed a pro se petition for post-conviction relief [Doc. 7-19, pp. 5–23].

Counsel filed an amended petition incorporating the pro se petition [Id. at 37–43] before

filing an amended petition stating that it contained all grounds for post-conviction relief

[Id. at 52–54]. After a hearing [Doc. 7-20], the post-conviction court denied Petitioner

relief [Id. at 61–63], and the TCCA affirmed. Stackhouse II.

Petitioner then filed the instant petition for relief under § 2254 [Doc. 1].

II. STANDARD OF REVIEW

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

Effective Death Penalty Act of 1996 (“AEDPA”), which 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.” 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 the state court decided on its merits 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).

Also, before a federal court may grant habeas corpus relief, the petitioner must have

first exhausted his available state remedies for the claim. 28 U.S.C. §2254(b)(1);

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to have

“fairly presented” each federal claim to all levels of the state appellate system to ensure

that states have a “full and fair opportunity to rule on the petitioner’s claims.” Manning v.

Alexander, 912 F.2d 878, 881 (6th Cir. 1990) (citing Justices v. Boston Mun. Court v.

Lydon, 466 U.S. 294, 302–03 (1984)). Fair presentation means that “the substance of a

federal habeas corpus claim must first be presented to the state courts.” Picard v. Connor,

404 U.S. 270, 278 (1971). “It is not enough that all the facts necessary to support the

federal claim were before the state courts, or that a somewhat similar state-law claim was

made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal citations omitted). Instead, the

doctrine of exhaustion requires a petitioner to present “the same claim under the same

theory” to the state and the federal courts. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir.

1987); see also Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009) (finding constitutional

claim must be presented in federal court under the same theory as presented in state

appellate process). Tennessee has determined that presentation to the TCCA will satisfy

the requirement of presentation to the state’s highest court. Tenn. S. Ct. R. 39.

If a prisoner never presented a claim to the highest available state court and a state

procedural rule now bars presentation of the claim, the petitioner procedurally defaulted

that claim. Coleman v. Thompson, 501 U.S. 722, 731–32, 750 (1991). In such

circumstances, the claim is technically exhausted but procedurally defaulted. Gray v.

Netherland, 518 U.S. 2074, 2080 (1996); Coleman, 501 U.S. at 732; Jones v. Bagley, 696

F.3d 475, 483 (6th Cir. 2012) (“When a petitioner has failed to present a legal issue to the

state courts and no state remedy remains available, the issue is procedurally defaulted”).

Tennessee petitioners may generally proceed through only one full round of the

post-conviction process, and Tennessee imposes a one-year statute of limitation on such

actions. Tenn. Code Ann. § 40-30-102(a) (one-year limitation period), § 40-30-102(c)

(“one petition” rule).

A federal district court may review a procedurally defaulted habeas corpus claim

only where the petitioner shows cause for his default and actual resulting prejudice, “or . . .

that failure to consider the claim[] will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 749–50. Errors of post-conviction counsel generally are

not “cause” to excuse a procedural default. Id. at 753–53. But the Supreme Court

established an equitable exception to this rule in Martinez v. Ryan, holding that the

inadequate assistance of post-conviction counsel or the absence of such counsel may

establish cause for a prisoner’s procedural default of an ineffective assistance of trial

counsel claim under certain circumstances. 566 U.S. 1, 9, 17 (2012). The Supreme Court

has described the Martinez exception as follows:

[The exception] allow[s] a federal habeas court to find “cause,” thereby

excusing a defendant’s procedural default, where (1) the claim of “ineffective

assistance of trial counsel was a “substantial” claim; (2) the “cause” consisted

of there being “no counsel” or only “ineffective” counsel during the state

collateral review proceeding; (3) the state collateral review proceeding was

the “initial” review proceeding in respect to the

“ineffective-assistance-of-trial-counsel claim;” and (4) state law requires that

an “ineffective assistance of trial counsel [claim] . . . be raised in an

initial-review collateral proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 13–14, 16–17).

The Martinez exception, applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792–95

(6th Cir. 2014).

An ineffective assistance of counsel claim is substantial where it “has some merit

and is debatable among jurists of reason.” Abdur’Rahman v. Carpenter, 805 F.3d 710, 713

(6th Cir. 2015) (citing Martinez, 566 U.S. at 14). Conversely, “a claim is insubstantial

when ‘it does not have any merit,’ ‘is wholly without factual support,’ or when ‘the attorney

in the initial-review collateral proceeding did not perform below constitutional standards.’”

Porter v. Genovese, 676 F. App’x 428, 432 (6th Cir. 2017) (quoting Martinez, 566 U.S. at

15–16).

The Martinez exception does not apply to a claim of ineffective assistance of trial

counsel that a petitioner raised in the initial-review collateral stages and defaulted on

appeal. See, e.g., Middlebrooks v. Carpenter, 843 F.3d 1127, 1136 (6th Cir. 2016) (stating

that Martinez did not apply “because those claims were raised and rejected on the merits

by the initial postconviction court, and ineffective assistance of counsel on post-conviction

appeal cannot establish ‘cause’ to excuse [petitioner]’s procedural default, which occurred

only in the Tennessee Court of Criminal Appeals”). And Martinez does not excuse a

petitioner’s failure to develop a factual record for a claim, even where he attributes that

failure to the ineffective assistance of his post-conviction counsel. Shinn v. Ramirez, 596

U.S. 366, 384 (2022).

III. ANALYSIS

A. Ineffective Assistance of Counsel Claims

In his § 2254 petition, Petitioner sets forth a number of ineffective assistance of

counsel claims, which the Court summarizes as follows:

(1) Counsel Mark Stephens was ineffective for not having Judge Baumgartner

recused due to a conflict of interest;

(2) Trial counsel was ineffective for waiving appellate challenge to admission of

Petitioner’s confession under Rule 5(a);

(3) Trial counsel was ineffective for not advising Petitioner that the TCCA had

denied his appeal;

(4) Trial counsel was ineffective for:

(a) not arguing “official latent print results to the jury”;

(b) not arguing that two lead fragments were not linked to

Petitioner’s weapon;

(c) failing to object to a “leading statement by [the] prosecutor”;

(5) Trial counsel “failed to argue that the official serology/DNA report indicated

that there was ‘no evidence of close range firing’”;

(6) Trial counsel failed to object to the testimony of Michael McMahan and

Aaron Allen, and/or evidence introduced during their testimony;

(7) Trial counsel was ineffective for “fail[ing] to have Mr. Parks[’s] testimony

redacted from the record[] or for failing to have the judge instruct the jury to

disregard testimony regarding the blood spatter in Exhibit #12”;

(8) Trial counsel was ineffective for not challenging the sufficiency of the

evidence to support his convictions;

(9) Trial counsel was ineffective for failing to seek to suppress “[P]etitioner’s

statement because it was obtained in violation of the Fourth and Fifth

Amendment, thus being the product of the fruit of the poisonous tree”;

(10) Trial counsel was ineffective for not having Petitioner testify at trial;

(11) Trial counsel was ineffective for not exploring a defense based on

Petitioner’s “mental condition”;

(12) Trial counsel failed to ensure that Petitioner was able to have meaningful

participation in his own defense; and

(13) The cumulative effect of counsel’s errors entitles him to a new trial.

[Doc. 1, pp. 5–7].

1. Martinez and Waiver

In his petition for § 2254 relief, Petitioner seeks to bring many ineffective assistance

of counsel claims that he did not raise or incorporate by reference in either (1) his second

amended petition for post-conviction relief [Doc. 7-19, pp. 52–54], which was the final

petition that the post-conviction court addressed on the merits, or (2) his appeal of the

post-conviction court’s denial of his petition [Doc. 7-21]. However, Petitioner raised most,

if not all, of these claims in his initial pro se petition for post-conviction relief [Doc. 7-19,

pp. 5–23].

In his response, Respondent claims that Petitioner procedurally defaulted the

ineffective assistance of counsel claims he raised in any of his post-conviction petitions,

did not withdraw, and did not raise to the TCCA, and that Martinez cannot excuse this

default, because the state courts still could have addressed the claims, and the default

occurred on appeal [Doc. 41, pp. 41–42]. In support of this argument, Respondent cites

Garrett v. State, No. M2001-333-CCA-R3-PC, 2012 WL 3834898, at *17 (Tenn. Crim.

App. Sep. 5, 2012). However, Garrett does not support Respondent’s argument.

First, as the Court noted above, Martinez provides in relevant part that the

ineffective assistance of post-conviction counsel can excuse a procedural default of a

substantial ineffective assistance of counsel claim. Trevino, 569 U.S. at 423. However,

Martinez does not excuse a procedural default of an ineffective assistance of trial counsel

claim where the petitioner raised the claim in a post-conviction petition but failed to raise

it on appeal. Middlebrooks, 843 F.3d at 1136.

In Garrett, the TCCA found in relevant part that the post-conviction petitioner had

not waived a claim for purposes of his TCCA appeal where (1) the petitioner had raised

that same claim in a pro se petition, and (2) the amended petition that the post-conviction

court addressed on the merits incorporated the earlier pro se petition. Id. But this finding

does not address or support Respondent’s argument in the case at bar that Middlebrooks

bars Martinez from applying to Petitioner’s ineffective assistance of counsel claims that

his post-conviction counsel did not include or incorporate in his second amended

post-conviction petition because Petitioner only defaulted those claims on appeal.

Moreover, the Tennessee Supreme Court has held that “Tennessee appellate courts may

only consider issues that were not formally raised in the post-conviction petition if the issue

was argued at the post-conviction hearing and decided by the post-conviction court without

objection.” Holland v. State, 610 S.W. 450, 458 (Tenn. 2020).

Accordingly, based on Holland and Middlebrooks, the Court finds that Petitioner

abandoned on appeal only his ineffective assistance of counsel claims that (1) he raised in

the post-conviction hearing without objection; (2) the post-conviction court addressed on

the merits; and (3) he did not raise to the TCCA. Middlebrooks, 843 F.3d at 1136; Holland,

610 S.W. at 458. Thus, Martinez could still excuse Petitioner’s default of the claims he

raised in his pro se and first amended petitions for post-conviction relief but did not raise

or incorporate in his second amended petition for post-conviction relief, if those claims met

all the other Martinez requirements.

However, Petitioner has not demonstrated that his claims meet the other Martinez

requirements. Specifically, the Court notes that, in his petition, Petitioner does not allege

or set forth any facts indicating that the ineffective assistance of his post-conviction counsel

caused his default of the ineffective assistance of counsel claims that he raises in his § 2254

petition but did not raise in his second amended petition for post-conviction relief. As

such, he has not set forth any cause for the Court to excuse his procedural default of these

claims. Hugueley v. Mays, 964 F.3d 489, 498–99 (6th Cir. 2020) (providing that a

petitioner relying on the Martinez exception “must still demonstrate that the ineffectiveness

of his post-conviction counsel was the ‘cause’ of his default” (quoting Trevino, 569 U.S.

at 423)). Thus, Petitioner procedurally defaulted the ineffective assistance of counsel

claims he did not raise in his second amended petition for post-conviction relief and in his

post-conviction appeal, and he has not shown cause for the Court to excuse that procedural

default. As such, these claims are DENIED on this ground.

Nevertheless, the Court will briefly address the merits of all of Petitioner’s

ineffective assistance of counsel claims below, including those that he procedurally

defaulted, as long as Middlebrooks does not bar the procedurally defaulted claims from the

Court’s review.

2. 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 of ineffective

assistance of counsel:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made errors

so serious that counsel was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable. Unless a defendant makes both

showings, it cannot be said that the conviction . . . resulted

from a breakdown in the adversary process that renders the

result unreliable.

Strickland, 466 U.S. at 687. A petitioner has the burden of proving ineffective assistance

of his counsel. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).

In considering the first prong of Strickland, the appropriate measure of attorney

performance is “reasonableness under prevailing professional norms.” Strickland, 466

U.S. at 688. 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 his burden, and if either prong is not

satisfied, the claim must be rejected. Strickland, 466 U.S. at 687. Moreover, a habeas

petitioner alleging ineffective assistance of counsel bears a heavy burden, given the

“doubly deferential” review of a such a claim under § 2254(d)(1). Knowles v. Mirzayance,

556 U.S. 111, 123 (2009).

3. Recusal

As set forth above, Petitioner first claims that he is entitled to relief under § 2254

because his counsel was ineffective for not having Judge Baumgartner recused from his

trial based on a conflict of interest [Doc. 1, p. 5]. In his response, Respondent contends

that this allegation is not substantial and fails to state a cognizable claim, and further notes

that Petitioner did not present any evidence to support this allegation in the state court

proceedings [Doc. 14, pp. 44–45].

First, Petitioner does not set forth any facts to support this claim in his petition. As

such, it does not comply with Rule 2(c) of the Rules Governing Section 2254 Cases, which

requires a § 2254 petition to, among other things: “state the facts supporting each ground

[for relief]. . . .”

Additionally, even if the Court liberally construes this claim to set forth the same

claim Petitioner pursued in his pro se petition for post-conviction relief, in which Petitioner

asserted that his trial counsel should have sought recusal of Judge Baumgartner due to

Petitioner’s mother having a 45-minute phone call with Judge Baumgartner’s secretary

prior to the grand jury indicting Petitioner or the case being assigned to Judge Baumgartner

[Doc. 7-19, pp. 12–13], Petitioner does not point to, nor did the Court discover, any

evidence in the record to support this claim, including any evidence of the contents of this

phone call, or that Petitioner’s counsel was aware of this phone call. Thus, the Court cannot

find that Petitioner’s counsel was deficient for not filing a motion for recusal of Judge

Baumgartner, or that counsel not filing this motion caused Petitioner any prejudice.

Accordingly, Petitioner is not entitled to relief under § 2254 for this claim.

4. Rule 5(a)

Petitioner next claims that his trial counsel was ineffective for waiving his ability

challenge the admission of his confession under Rule 5(a) of the Tennessee Rules of

Criminal Procedure on appeal [Doc. 1, p. 5]. In response, Respondent contends that this

claim is not substantial, as the TCCA also noted in its opinion on Petitioner’s direct appeal

that no violation of Rule 5(a) occurred, and the record demonstrates that Petitioner’s

statements to police were voluntary [Doc 14, pp. 45–46]. The Court agrees with

Respondent that Petitioner is not entitled to relief because Petitioner has not shown that the

TCCA’s determination that Petitioner had not shown a violation of Rule 5(a) was an

unreasonable application of federal law or an unreasonable determination of the facts in

light of the evidence presented.

As set forth above, in his motion to suppress Petitioner’s statements to police,

Petitioner’s counsel cited Rule 5(a) as one ground for the motion [Doc. 7-1, pp. 61–63].

Specifically, Petitioner’s counsel essentially argued that Petitioner’s incriminating

statements to police should be suppressed because he had not been arraigned for the used

car lot aggravated robbery charge for which he was in custody when he made those

statements within 48 hours of his arrest, and this delay in his arraignment for the used car

lot aggravated robbery charge violated Rule 5(a) [Id. at 63]. But his counsel did not present

this argument at the suppression hearing [Docs. 7-3, 7-4, 7-5].

Petitioner raised this claim to the TCCA in his direct appeal [Doc. 7-13, p. 18].

While the TCCA first found this claim waived, it also addressed this claim as follows:

Furthermore, as correctly noted by the State, the defendant’s allegation of

a Rule 5(a) error is misplaced because the defendant was arrested for the

attempted aggravated robbery pursuant to a warrant. See

generally Huddleston, 924 S.W.2d 666 (the defendant’s rights were violated

under both Rule 5(a) and the Fourth Amendment by inordinate delay in

taking defendant to arraignment following a warrantless arrest).

Stackhouse I, at *6.

Thus, the TCCA found that this argument had no merit under Tennessee law. It is

not the role of this Court to reexamine this state law finding. See Estelle v. McGuire, 502

U.S. 62, 67–68 (1991) (holding “it is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions”). Thus, the Court cannot find

that Petitioner’s counsel was deficient for not raising this claim at the suppression hearing,

or that his failure to do so caused Petitioner any prejudice.

Accordingly, Petitioner is not entitled to relief under § 2254 for this claim.

5. Denial of Appeal

Petitioner next argues that his counsel was ineffective for not providing him notice

that the TCCA had denied his appeal [Doc. 1, p. 5]. However, as Respondent correctly

notes [Doc. 14, p. 46], the record demonstrates that Petitioner was able to file a delayed

application for the Tennessee Supreme Court to review his case [Doc. 7-17], which the

Tennessee Supreme Court denied [Doc. 7-18]. Accordingly, the Court cannot find that

Petitioner suffered any prejudice due to his counsel’s failure to inform him of the TCCA’s

denial of his appeal, and he is not entitled to relief under § 2254 for this claim.

6. Evidentiary Arguments

In Petitioner’s ineffective assistance of counsel claims numbered (4) through (7), he

challenges his trial counsel’s failure to challenge certain evidence and testimony.

Specifically, in claims (4) and (5), Petitioner sets forth general arguments his counsel

should have made regarding certain evidence and states that his counsel should have

objected to a leading statement by the prosecutor but does not specify which statement

[Doc. 1, p. 5]. In claim (6), Petitioner challenges his counsel’s failure to challenge

testimony and evidence from witnesses but does not specify which parts of the witnesses’

testimony and/or evidence counsel should have challenged, other than to state that some of

the testimony and evidence was “irrelevant.” In claim (7), Petitioner asserts that his

counsel should have either (1) had testimony from a witness about blood spatter redacted

from the record, or (2) had the judge instruct the jury to disregard that evidence [Id.].

But even if the Court disregards Petitioner’s lack of specificity in some of these

claims and/or liberally construes them to raise the similar claims Petitioner raised in his

pro se petition for post-conviction relief [Doc. 7-19, pp. 12–17], Petitioner cannot show

that he was prejudiced due to any of these incidents. To the contrary, the record contains

overwhelming evidence of Petitioner’s guilt for the offenses underlying his first-degree

felony murder and especially aggravated robbery convictions, including Petitioner’s

incriminating statements to police about the incident. As such, the Court cannot find that

Petitioner’s counsel’s failure to make the evidentiary objections and arguments Petitioner

sets forth in these claims prejudiced Petitioner.

Accordingly, Petitioner is not entitled to relief under § 2254 for these claims.

7. Sufficiency of the Evidence

Petitioner next claims that his trial counsel was ineffective for not raising a claim

challenging the sufficiency of the evidence [Doc. 1, p. 5]. In response, Respondent

contends that this claim is not substantial, especially in light of Petitioner’s recorded

confession [Doc. 14, pp. 48–49]. The United States Supreme Court’s decision in Jackson

v. Virginia, 443 U.S. 307 (1979), provides the controlling rule for this claim. 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, “after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.

As the Court noted above, the evidence of Petitioner’s guilt for his first-degree

felony murder and especially aggravated robbery convictions was overwhelming,

including Petitioner’s own incriminating statement to police. As such, the Court cannot

find that Petitioner’s counsel was deficient for not challenging the sufficiency of the

evidence to support his convictions, or that there is any reasonable probability of prejudice

to Petitioner from his counsel’s failure to make such an argument. Thus, this argument has

no merit, and Petitioner is not entitled to relief under § 2254 for this claim.

8. Fourth and Fifth Amendment Suppression

Petitioner also claims that his counsel should have challenged his statement to police

“because it was obtained in violation of the Fourth and Fifth Amendment, thus being the

product of the fruit of the poisonous tree” [Doc. 1, p. 5]. In his response, Respondent

contends in relevant part that this claim is unclear and not substantial [Doc. 14, pp. 49–50].

The “fruit of the poisonous tree” doctrine provides that evidence is inadmissible in

a criminal prosecution if it is “obtained as a direct result of an unconstitutional search or

seizure,” or if it is “later discovered and found to be derivative of any illegality or fruit of

the poisonous tree.” Segura v. United States, 468 U.S. 796, 804 (1984) (internal quotation

marks and citations omitted); see also Wong Sun v. United States, 371 U.S. 471, 485 (1963)

(evidence, either direct or indirect, which is gleaned from an unlawful search must be

excluded).

The Court finds that this claim is unclear, as Petitioner does not set forth any facts

to support the Court finding that the “fruit of the poisonous tree” doctrine applies in this

case. And the Court declines to speculate about which of Petitioner’s statements to police

Petitioner alleges fall under the “fruit of the poisonous tree” doctrine, or the reason(s) that

Petitioner alleges that this doctrine applies. Accordingly, Petitioner is not entitled to relief

under § 2254 for this claim.

9. Testify

Petitioner next claims counsel should have allowed him to testify [Doc. 1, p. 6].

However, Petitioner raised this claim in his second amended petition for post-conviction

relief [Doc. 7-19, pp. 53–54] but not in his post-conviction appeal to the TCCA [Doc.

7-21]. Thus, Petitioner’s procedural default of this claim occurred on appeal, and Martinez

cannot excuse it. Middlebrooks, 843 F.3d at 1136. Accordingly, the Court will not address

this claim on the merits, and Petitioner is not entitled to relief under § 2254 for this claim.

10. Mental Health Evaluation and Preparing Petitioner for Trial

Petitioner’s next two claims allege that his counsel was ineffective for (1) not

pursuing a mental evaluation for Petitioner and (2) not allowing Petitioner to have

meaningful participation in his trial [Doc. 1, p. 6]. The Court liberally construes these

claims to raise the same arguments Petitioner raised in his post-conviction brief to the

TCCA [Doc. 7-21, p. 15].

The TCCA addressed these claims as follows:

In our view, the record supports the denial of post-conviction relief. Trial

counsel’s accredited testimony established that he met with the petitioner

several times and that he reviewed the discovery materials with the

petitioner, even though he did not play the audio and video recordings for the

petitioner. No evidence suggests that, had the petitioner had hard copies of

all the discovery materials or reviewed the recorded evidence, the result of

the proceeding would have been different. Additionally, although trial

counsel expressed regret at not having the petitioner evaluated prior to trial,

his testimony was clear that he did not actually believe an evaluation was

necessary and that he would have been doing it “to cross a T.” Importantly,

the petitioner presented no evidence to suggest that he suffered from any

mental disease or defect, much less any evidence that would have called into

question the outcome of the trial.

Stackhouse II, at *5.

Petitioner has not alleged or established that the TCCA’s denial of these claims was

an unreasonable application of federal law or an unreasonable determination of the facts in

light of the evidence presented. And the record supports the TCCA’s denial of these

claims. Petitioner has never presented any expert testimony that he suffered from a mental

condition at the time of the incident underlying his convictions, such that Tennessee law

would have permitted expert testimony regarding that condition at trial. State v. Hall, 958

S.W.2d 679, 689, 690 (Tenn. 1997) (providing that under Tennessee law, expert testimony

regarding a defendant’s mental state is only admissible where it establishes “that the

defendant lacks the capacity, because of a mental disease or defect, to form the requisite

culpable mental state to commit the offense[]” and that expert evidence regarding a

defendant’s mental state “should not be offered as proof of ‘diminished capacity’” or “a

particular emotional state or mental condition” but only “to negate the existence of the

culpable mental state required to establish the criminal offense for which the defendant is

being tried.”). Moreover, nothing in the record suggests that, had Petitioner had more

access to discovery materials or more information about the trial process to allow him to

have more meaningful participation in the trial, this would have changed the result of his

trial.

Accordingly, Petitioner is not entitled to relief under § 2254 for these claims.

11. Cumulative Effect of Counsel Errors

Petitioner also alleges that he is entitled to relief under § 2254 due to the cumulative

effect of his counsel’s errors. However, as set forth in this opinion, Petitioner has not

demonstrated that he received ineffective assistance of counsel. See Getsy v. Mitchell, 495

F.3d 295, 317 (6th Cir. 2007) (holding that in absence of existence of constitutional error

at trial, “there are simply no errors to cumulate”). As such, Petitioner is not entitled to

relief under § 2254 on this ground.

B. Structural Error

Petitioner lastly claims that Judge Baumgartner’s addictions “before, during, and

after” the time of his trial amounted to structural error that violated his due process rights

and his right to a fair and impartial trial [Doc. 1, pp. 8–9]. While Petitioner did not raise

this claim in his second amended petition for post-conviction relief, he presented some

evidence about the issue of Judge Baumgartner’s behavior during his trial at the evidentiary

hearing on his post-conviction petition [Doc. 7-20, pp. 9–14, 70–71]. And in its order

denying the post-conviction petition, the post-conviction court specifically accredited trial

counsel’s testimony that “there existed no issue with the trial court’s fitness to preside”

[Doc. 7-19, p. 62 (footnote omitted)]. But Petitioner did not raise this issue in his

post-conviction appeal to the TCCA [Doc. 7-21]. Accordingly, to the extent that Petitioner

raises the same claim that he raised regarding Judge Baumgartner in his post-conviction

proceeding, Petitioner procedurally defaulted that claim in his post-conviction appeal, and

Martinez cannot excuse it. Middlebrooks, 843 F.3d at 1136.

Moreover, even if the Court assumes that Petitioner is presenting a different claim

herein than he brought in his post-conviction petition, such that Martinez could conceivably

excuse the default, Petitioner has not alleged that the ineffectiveness of his post-conviction

counsel caused this procedural default, as required for Martinez to apply. Hugueley, 964

F.3d at 498–99. But even if Petitioner attributed this omission to the ineffective assistance

of his post-conviction counsel, the record would not support such the Court finding that his

post-conviction counsel’s decision not to pursue this claim amounted to deficient

performance.

Specifically, at the post-conviction evidentiary hearing, Petitioner generally

testified that he disagreed with the manner in which Judge Baumgartner handled some

objections and evidentiary issues, noted that Judge Baumgartner had taken “rests,” which

he assumed were bathroom breaks, and stated that he felt that Judge Baumgartner had not

paid attention and that the evidence was not sufficient to support his convictions [Doc.

7-20, pp. 8–14]. But contrary to Petitioner’s testimony, Petitioner’s counsel testified that

Judge Baumgartner was “clear as a bell” and “on his A game” during the relevant portions

of Petitioner’s underlying criminal proceedings [Id. at 70–71]. And in its order denying

the post-conviction petition, the post-conviction court specifically accredited Petitioner’s

trial counsel’s testimony on this issue [Doc. 7-19, p. 62].

Moreover, the Court’s independent review of the transcripts of the suppression

hearing [Docs. 7-3, 7-4, 7-5] and Petitioner’s trial [Docs. 7-6, 7-7, 7-8] supports

Petitioner’s trial counsel’s testimony regarding Judge Baumgartner and reveals no basis

for Petitioner’s claim that Judge Baumgartner’s addictions amounted to structural error that

violated his due process rights and his right to a fair and impartial trial. In fact, those

transcripts indicate that Judge Baumgartner was highly engaged in Petitioner’s criminal

proceedings and knowledgeable about the issues therein.

Based on all of this, the Court cannot fault Petitioner’s counsel for not challenging

Judge Baumgartner’s behavior during Petitioner’s criminal proceedings in Petitioner’s

post-conviction proceeding. Accordingly, Petitioner is not entitled to relief under § 2254

for this claim.

IV. CONCLUSION

For the reasons set forth above, Petitioner’s petition for § 2254 relief 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. See Miller-

El v. Cockrell, 537 U.S. 322, 327, 336 (2003); Slack, 529 U.S. at 484.

Reasonable jurists could not debate the Court’s conclusion that Petitioner

procedurally defaulted the claims that the Court denied on a procedural basis. Additionally,

reasonable jurists could not conclude that Petitioner has made a substantial showing of a

denial of a constitutional right with regard to any of his claims that the Court addressed on

the merits, 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.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE