# Simmons v. Vantell (PSLC2)

> District Court, E.D. Tennessee · April 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10435785

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** April 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10435785

## How later opinions describe it (automated extraction)

- finding presentation of claim to TCCA sufficient to exhaust state remedies

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE

LAVONTE DOMINIQUE SIMMONS, )
)
Petitioner, )
)
v. ) No.: 3:23-CV-136-TAV-DCP
)
VINCENT VANTELL, )
)
Respondent. )

MEMORANDUM OPINION
Petitioner Lavonte Dominique Simmons is a Tennessee inmate proceeding pro se
on a federal habeas petition pursuant to 28 U.S.C. § 2254 in which he challenges the
constitutionality of his confinement under 2015 Knox County judgments of conviction for
one count of first-degree murder and two counts of aggravated assault [Doc. 1]. Having
considered the submissions of the parties, the State-court record, and the law applicable to
Petitioner’s claims, the Court will not hold an evidentiary hearing1, the petition will be
DENIED, and this action will be DISMISSED.

1 “If the petition is not dismissed, the judge must review the answer, any transcripts and
records of state-court proceedings, and any materials submitted under Rule 7 to determine whether
an evidentiary hearing is warranted.” Rule 8(a), Rules Governing Section 2254 Cases in the United
States District Courts (“§ 2254 Rules”); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(providing an evidentiary hearing not required where record refutes the petitioner’s allegations or
otherwise precludes habeas relief).
I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
A Knox County grand jury indicted Petitioner on one count of first-degree
premeditated murder and two counts of aggravated assault. State v. Simmon2, No. E2016-

01582-CCA-R3-CD, 2018 WL 1381786, at *1 (Tenn. Crim. App. Mar. 19, 2018), perm.
appeal denied (Tenn. July 19, 2018) (“Simmons I”). As relevant here, the indictment for
first-degree murder described the charge as: “On or about the 7th day of June, 2013, in the
State and County aforesaid, [Petitioner] did unlawfully, intentionally and with
premeditation kill Uniqua Brown, in violation of T.C.A. 39-13-202, and against the peace

and dignity of the State of Tennessee” [Doc. 14-1, p. 8]. The Tennessee Court of Criminal
Appeals (“TCCA”) summarized the trial evidence in its post-conviction appeal opinion as
follows:
The Petitioner’s convictions arose out of his role as the shooter in a June 7,
2013 drive-by shooting at the Knoxville home of Charles Maples and Uniqua
Brown, which the Petitioner carried out in retaliation for his younger
brother’s having been robbed the previous night. Id. at *1-4. At the time of
the shooting, siblings Jasmine and Akeem Hollingsworth were standing in
the driveway of the Brown-Maples residence on Nolan Avenue talking to
Ms. Brown, who was in the passenger seat of Mr. Maples’ Chevrolet Caprice.
Id. at *1. As the Petitioner’s Co-Defendant, Shawn O’Neill, drove the
Petitioner’s green Toyota Camry past the home, the Petitioner, who was in
the front passenger seat, made eye contact with Mr. Hollingsworth, whom
the Petitioner believed to have played a role in the robbery. Id. “The Camry
then stopped at ‘the neighbor’s driveway,’ and the [Petitioner] ‘pulled out’
an AK-47 and ‘opened fire’ on the group.” Id.

The Hollingsworth siblings both dropped to the ground when the shooting
started. Id. Ms. Hollingsworth was uninjured and Mr. Hollingsworth suffered
only a minor injury, but Ms. Brown died as a result of a severe gunshot

2 The Tennessee Court of Criminal Appeals acknowledged that Petitioner stated at trial that
his last name is “Simmons” but referred to Petitioner as “Simmon” in the direct appeal opinion
because his name appeared that way in the indictment. Simmons I, 2018 WL 1381786, at *33 n.1.
wound to her side. Id. Following a “be-on-the-lookout” or “BOLO” issued
for the Petitioner’s Camry, police officers located and arrested the Petitioner
and his co-defendant, who were hiding in the basement of the Moses Avenue
home of Ms. Teresa Williams and her three children: Braxton, Bronson, and
Blair Williams. Id. at *2. The Petitioner and Co-Defendant O’Neill were
subsequently indicted together for the first degree premediated murder of Ms.
Brown and the aggravated assaults of Mr. and Ms. Hollingsworth. Id. at *1.
Their cases were later severed, and Co-Defendant O’Neill testified against
the Petitioner at the Petitioner’s trial. Id. at *3.-5.

According to Co-Defendant O’Neill’s testimony, the Petitioner, the
Petitioner’s younger brother, Daquawn Simmons, and Co-Defendant O’Neill
had all lived together in the same household in Memphis as children. Id. at
*3. At the time of the shooting, Co-Defendant O’Neill and Daquawn still
lived in Memphis, but the Petitioner lived in Knoxville. Id. During the late
evening/early morning hours of June 5-6, 2013, Co-Defendant O’Neill drove
Daquawn to the Williams’ family residence on Moses Avenue. Id. The
Petitioner came to visit, and Co-Defendant O’Neill accompanied him when
he left and spent the night with the Petitioner at the Petitioner’s home. Id.
The next morning, the Petitioner awakened Co-Defendant O’Neill to tell him
that Daquawn had been robbed. Id. The Petitioner then drove Co-Defendant
O’Neill to the Moses Avenue residence, where a group of people, including
Daquawn and Ms. Hollingsworth, were talking about the robbery. Id.

Co-Defendant O’Neill testified that Daquawn told them that he had had been
forced to walk back naked to the Moses Avenue residence after the robbery
and that he thought Tony Dixson had something to do with the robbery. Id.
at *4. The Petitioner and Mr. Braxton Williams then went inside the Moses
Avenue residence and the Petitioner emerged carrying an AK-47. Id. Ms.
Hollingsworth, visibly frightened, left. Id. A short time later, Ms. Blair
Williams called Ms. Hollingsworth, and the Petitioner got up and, armed
with the AK-47, left alone in his Toyota Camry. Id. About five minutes later,
the Petitioner returned, telling them that he had not seen anybody. Id.

Later, Ms. Blair Williams was again talking with Ms. Hollingsworth over the
phone and put the conversation on speaker phone. Id. The Petitioner
recognized voices in the background and he and Co-Defendant O’Neill
reacted by immediately driving to the Brown-Maples residence, where the
Petitioner opened fire with his AK-47. Id. Our direct appeal opinion
summarizes this portion of Co-Defendant O’Neill’s trial testimony as
follows:
After that, [Ms. Williams] was on the phone with [Ms. Hollingsworth]
again, and she put [Ms. Hollingsworth] on speaker phone. According
to Mr. O’Neill, “all of the sudden ... there was [sic] voices heard over
the speaker phone[,] and somebody busted out and said, they’re over
there, they’re over there, because they’re telling [Ms. Hollingsworth]
to hang up the phone, hang up the phone.” Mr. O’Neill testified that, in
response, he and the [Petitioner] got in the Camry. Mr. O’Neill was
driving. Mr. O’Neill said that Daquawn tried to talk them out of going
to find Mr. Dixson, saying, “[D]on’t worry about it, I’ve already filled
out a police report.” They went anyway.

The [Petitioner], who had brought the AK-47 with him, gave directions
to Mr. O’Neill as he drove because Mr. O’Neill did not “know where
to go” being unfamiliar with the area. After turning onto Nolan Avenue,
they spotted [Ms. Hollingsworth]’s car. The [Petitioner] instructed Mr.
O’Neill “to go slow[,]” and he “pulled the gun out the window.” Mr.
O’Neill said that he then saw “movement out of [his] peripheral, but
[he] never looked directly at the house.” The [Petitioner] “opened fire”
just as they passed the Brown-Maples residence, according to Mr.
O’Neill. Mr. O’Neill did not see anyone else shooting and did not hear
any other shots being fired. The [Petitioner] then said “go, go[.]” Mr.
O’Neill “hit the gas,” and the [Petitioner] directed him back to 1605
Moses.
Id.

On cross-examination, Co-Defendant O’Neill testified that Daquawn
mentioned Mr. Hollingsworth’s name as another individual possibly
involved in the robbery. Id. at *5. Co-Defendant O’Neill saw “‘some
movement in [the] area’” of a GMC Envoy that was parked in the yard of the
residence, but he did not think anyone other than the Petitioner fired because
“all he ‘heard was rapid fire’ from the [Petitioner’s] weapon.” Id. He
acknowledged, however, that he previously told the prosecutor that he
believed someone else fired a shot at some point. Id. On redirect examination,
he said he also told the prosecutor that it was possible that what he thought
he heard was an initial shot fired by the Petitioner “‘before he sprayed.’” Id.

Mr. Maples, who had given statements to the police and to the Petitioner’s
trial counsel, refused to testify at trial, invoking his Fifth Amendment right
against self-incrimination. Id. at *6. As a result, an agreed-upon stipulation
as to what Mr. Maples’ trial testimony would have been was read to the jury
and entered as an exhibit. Id. Mr. Maples’ recorded police interview was also
admitted as an exhibit and played for the jury. According to the stipulation,
Mr. Maples would have testified that Mr. Dixson took his car sometime early
on the morning of June 7, 2013. Id. When he returned the vehicle, Mr. Dixson
told Mr. Maples that he and Shaquan Andrews had robbed Daquawn. Id. Mr.
Maples did not know if Mr. Hollingsworth was involved in the robbery. Id.
Later that day when Mr. Maples was shopping with Ms. Brown for strollers
for their twins, Ms. Hollingsworth called Mr. Maples to warn him that “‘the
Moses men were looking to shoot them.’” Id.

When Mr. Maples and Ms. Brown returned home, Mr. Maples saw parked
vehicles at his house that belonged to Mr. Dixson, Mr. Andrews’ girlfriend,
and Ms. Hollingsworth. Id. As he was getting one of his twins out of the car,
the Petitioner slowly drove past his home, asking “What’s up?” and then
continuing down the street. Id. Mr. Maples found Mr. and Ms.
Hollingsworth, Mr. Andrews, Mr. Dixson, and “Little Ty” inside his home,
and “told them they had to leave.” Id. At that time, Mr. Dixson was armed
with a .45 caliber handgun and Mr. Andrews with a 9mm. Id.

Mr. Maples went outside again approximately five to seven minutes later
after Mr. and Ms. Hollingsworth, Mr. Dixson, and “Little Ty” had already
exited the residence. Id. Mr. Maples was on the screened-in porch with Mr.
Andrews when the shooting occurred. Id. According to Mr. Maples, Mr.
Dixson had moved into the yard before the shooting began. Id. Mr. Maples
did not, however, see where he went. Id. Mr. Maples also did not see either
Mr. Dixson or Mr. Andrews holding a gun when they exited the house and
was unsure if anyone other than the passenger of the Camry fired a weapon.
Id. He identified Daquawn as the shooter but was not certain of his
identification. Id.

Other State’s witnesses included a neighbor who lived behind the
Brown-Maples residence, who reported hearing twenty-eight to thirty shots
from the AK-47 and, in the midst of those shots, “three or four more shots”
that sounded as if they came from a different gun “like an M-80 or
something[.]” Id. at *8. The police investigation uncovered multiple bullet
strikes to the Brown-Maples residence, to the next-door residence, to Mr.
Maples’ vehicle, to a Chevrolet Trailblazer parked in the driveway of the
next-door residence, and to a maroon Buick Park Avenue parked in front of
Mr. Maples’ vehicle. Id. at * 2-3. “The damage to these vehicles and
residences all came from an easterly direction.” Id. at *3. Investigators found
thirty-two spent 7.62 x 39mm shell casings in the road to the east of the
residence, a bullet hole in the right side of a GMC Envoy that was parked
diagonally across the Brown-Maples yard, four live 9mm rounds near the
rear bumper of the Envoy, and four spent .45 shell casings “‘to the right and
around [a] little doghouse area[.]’” Id.
Investigator Jason Booker of the Knoxville Police Department testified that
he learned during his investigation that Mr. Andrews’ aunt lived next-door
to the Brown-Maples residence. Id. at *9. “[D]uring a 9-1-1 call following
the shooting, a female said that she ‘saw someone carrying a gun from the
scene of the shooting[,]’ ” and Mr. Maples later admitted that he had hidden
an SKS rifle at Mr. Andrews’ aunt’s house before the police arrived at the
scene. Id. Another neighbor told Investigator Booker that “‘[Mr. Maples] ran
with a bad group of folks, and he said there’s actually been shootings over
there at the house before.’” Id.

The Petitioner, whose statement to police in which he denied any
involvement in the shooting was played for the jury during the State’s
case-in-chief, Id. at *5, testified in his own defense at trial. Id. at *10-11. The
Petitioner admitted that he was angry about his brother’s having been robbed
and that he retrieved the AK-47 and drove alone to the Brown-Maples
residence to search for the robbers. Id. at *10. He claimed that his intention
was only to get his brother’s money returned. Id. He admitted that he and
CoDefendant O’Neill returned to the residence after he heard voices in the
background of Ms. Hollingsworth’s phone conversation with Ms. Blair. Id.
He said that when they reached the residence, an African American man
wearing a white shirt came out of nowhere and pointed a gun at him. Id. The
Petitioner stated that he grabbed his AK-47 from the floorboard of his vehicle
and yelled to Co-Defendant O’Neill to drive away, but Co-Defendant O’Neill
accidentally put the vehicle in neutral for a moment before getting it in gear.
Id. The Petitioner said that he started shooting at the gunman in the white
shirt as Co-Defendant O’Neill was driving away. He was not certain that the
gunman fired at him, but he believed that he did. Id. On cross-examination,
the Petitioner “conceded that the bullet th[at] killed Ms. Brown ‘must’ have
come from his gun.” Id. at *11.

Simmons v. State, No. E2021-00819-CCA-R3-PC, 2022 WL 3226795, at *1–3 (Tenn.
Crim. App. Aug. 10, 2022), perm. appeal denied (Dec. 14, 2022) (“Simmons II”).
Petitioner proceeded to trial and was convicted as charged. Simmons I, 2018 WL 1381786,
at *1. The trial court sentenced Petitioner “to life imprisonment for the murder conviction
and to concurrent three-year sentences for the two aggravated assault convictions.” Id. at
*11.
Petitioner appealed his convictions to the TCCA arguing, among other things, “that
the evidence was insufficient to support his convictions because the State failed to prove
that the [Petitioner] was the person who shot the murder victim or that the [Petitioner] acted

with premeditation[.]” Id. at *1. The TCCA affirmed the trial court’s judgments. Id.
Petitioner subsequently applied for discretionary review [Doc. 14-26], but his application
was denied [Doc. 14-28].
Thereafter, Petitioner filed a pro se petition for post-conviction relief in the trial
court, which appointed post-conviction counsel. Simmons II, 2022 WL 3226795, at *4.

Petitioner filed two pro se amended petitions after counsel was appointed. Id. The TCCA
summarized the proof offered at Petitioner’s evidentiary hearing as follows:
At the June 23, 2001 evidentiary hearing, the Petitioner first complained
about trial counsel’s failure to cross-examine Mr. Maples about his refusal to
testify. The Petitioner stated that Mr. Maples was prepared to testify on the
Petitioner’s behalf until February 26, 2014, when Mr. Maples and Mr.
Dixson were transported to the same jail and housed in neighboring cells,
which gave Mr. Dixson the opportunity to threaten Mr. Maples. The
Petitioner testified that, had his trial counsel cross-examined Mr. Maples at
the hearing in which Mr. Maples invoked his Fifth Amendment right not to
incriminate himself, counsel could have elicited information from Mr.
Maples about the threat.

The Petitioner acknowledged that trial counsel filed a motion to withdraw in
the hope that they would be allowed to testify about Mr. Dixson’s threats,
but the trial court denied their motion. He agreed that after the motion to
withdraw was denied, trial counsel entered into a stipulation with the State
as to Mr. Maples’ testimony. The Petitioner expressed his belief that his right
to confront witnesses was violated by the stipulated testimony and that trial
counsel “should have objected and conducted a hearing[.]” The Petitioner
testified that relevant and essential evidence left out of the stipulation was
that Mr. Maples identified someone other than the Petitioner as the individual
who shot Ms. Brown. In addition, the stipulation hurt his case because it
included information that the Petitioner was “there shooting and being in
other criminal activities and things of that nature.”
The Petitioner also complained about trial counsel’s failure to combat the
ballistics evidence introduced by the State. Specifically, he believed that trial
counsel should have presented a ballistics expert and introduced photographs
that would have shown that the bullet that killed Ms. Brown did not come
from an AK-47. The Petitioner identified two photographs of bullets that,
according to the Petitioner, showed the difference between the bullets fired
by an AK-47 and the bullet that killed Ms. Brown. He said the bullets
depicted in the photographs appeared consistent with bullets fired by an
AK-47 because they had a coating, or jacket, on them, whereas, according to
the Petitioner’s interpretation of the medical examiner’s testimony, the bullet
recovered from Ms. Brown’s body did not. The Petitioner testified that he
discussed with his trial counsel the potential exculpatory nature of the
photographs but counsel never introduced them or talked about the issue at
trial.

On cross-examination, the Petitioner acknowledged that he told the trial court
that he was okay with the stipulation. However, “[t]he stipulation [he] agreed
to was not the stipulation that was actually presented at trial.” He said he
attempted to tell trial counsel that the stipulation was different from what he
agreed, but they told him to wait until the end of trial and that they would
raise it in the motion for new trial. The Petitioner conceded that he was not a
firearms or ballistics expert but said he had some familiarity with AK-47
bullets, had conducted online research, and had discovered “that a 7.62 by
39mm is a full metal jacket, FMJ, full metal jacket. It has a coating on it and
it has a jacket on it.” The Petitioner expressed his certainty that the bullet that
killed Ms. Brown was not from an AK-47 based on his online research about
AK-47 bullets having a full metal jacket and the medical examiner’s
testimony that the bullet fragments recovered from the victim’s body did not
have any particular coating that was discernible under a microscope.

The Petitioner acknowledged that his senior trial counsel was a very
experienced attorney and that he had filed and argued numerous motions on
his behalf, met with him a number of times, hired an investigator, and
assembled an entire team to work on his case. He believed, nevertheless, that
trial counsel made a mistake in not presenting what the Petitioner was
convinced was exculpatory ballistics evidence.

On redirect examination, the Petitioner explained his belief that photographs
of the bullet holes in Mr. Maples’ vehicle were exculpatory because they
showed that the trajectory of the bullet that killed Ms. Brown was from
somewhere other than the street:
It says in the autopsy report that she was hit from left to right, upwards.
Like, it travelled going up. So, basically, she would have had to have
been shot with somebody moving, going like -- trying to duck and
dodge and shoot up.

Senior trial counsel testified that he had been practicing law for over
forty-one years, having been the Public Defender for the South Judicial
District in Knoxville for approximately twenty-nine and one-half years, a
private criminal defense lawyer for eight years, and a prosecutor for
approximately two and one-half years. During that time, he had tried
approximately eighty cases, most of which were murder cases, and had
handled hundreds of other cases.

Senior trial counsel testified that his office was appointed to represent the
Petitioner. He said in a case of the Petitioner’s magnitude, an entire defense
team was assigned that would consist of two to four lawyers, a full-time
investigator, a social worker, and a secretary. If the case continued long
enough, law clerks and summer externs would be assigned as well. In the
Petitioner’s case, the attorney who handled the appellate work in their office
became involved early on as a sort of “de facto” member of the defense team,
assisting senior trial counsel and co-counsel with pretrial motions and
strategy decisions.

Senior trial counsel testified that their goal was to meet with the Petitioner at
least once a week, and he estimated that either he or co-counsel, or both of
them together, met with the Petitioner over a hundred times. Among other
things, they kept the Petitioner informed about what was happening in his
case, retained the services of an expert to explore the Petitioner’s mental
status and possible diminished mental capacity, investigated the background
of the State’s witnesses, and retained their own ballistics expert to review the
crime scene evidence. Senior trial counsel testified that their ballistics expert
ultimately reached the same conclusion as the State’s expert -- that the fatal
shot came from the AK-47 fired from the street. Senior trial counsel said that
he and his co-counsel attempted as best they could to develop the proof at
trial that there were other armed individuals at the scene. However, it would
have been very difficult for them to argue that the fatal shot came from
somewhere other than the AK-47 given their expert’s conclusions and senior
trial counsel’s own examination of the vehicle at the impound lot, which
convinced counsel “that the trajectory and the path came from back -- from
the back and struck [Ms. Brown].” Senior trial counsel stated that the
Petitioner was aware that they had retained a ballistics expert and was
informed of the expert’s conclusions.
Senior trial counsel testified that everyone at the residence at the time of the
shooting had pending criminal charges and was represented by counsel,
which made the process of interviewing witnesses more difficult. He said
Mr. Andrews’ attorney denied permission for counsel to talk to Mr. Andrews
but they ultimately received permission from the other individuals’
respective counsel. He and co-counsel were unable to locate Mr.
Hollingsworth, despite repeated attempts, but they spoke in the penitentiary
with Mr. Maples, who was cooperative and gave them a very favorable
statement, and with Mr. Dixson, who was hostile and threatening and “made
it very clear that Mr. Maples was in very grave danger if he . . . talked to
[counsel] or cooperated or testified[.]” Senior trial counsel recalled that Mr.
Dixson went so far as to threaten co-counsel if co-counsel did not relay Mr.
Dixson’s threat to Mr. Maples.

Senior trial counsel testified that when they interviewed Mr. Maples at the
penitentiary, Mr. Maples told them that Mr. Dixson, Mr. Hollingsworth, and
Mr. Andrews all exited the house before Mr. Maples, that all three of the men
were armed with, variously, a .45, an SKS, and a 9mm, that Mr. Dixson was
in the same position where spent .45 shell casings were found, and that Mr.
Maples believed Mr. Dixson was the one who killed Ms. Brown. Mr. Maples
additionally told them that the above three men were the ones who fired first.

Senior trial counsel testified that Mr. Maples, although initially willing to
testify for the Petitioner, expressed grave concerns about his personal safety,
informing counsel that Mr. Dixson had numerous fellow gang members in
prison who would be able to get to Mr. Maples. Senior trial counsel said he
assured Mr. Maples that counsel would go out of their way to protect him
and would seek an order from the trial court that Mr. Dixson and Mr. Maples
be transported separately and housed in different areas of the detention
center. Although trial counsel obtained the order, when it came time for trial,
Mr. Maples and Mr. Dixson were not only transported together on the same
van, but also forced to sit beside each other for a considerable length of time
due to weather delays. To make matters worse, they were then placed in
side-by-side cells at the detention center. After that, Mr. Maples adamantly
refused to testify.

Senior trial counsel testified that Mr. Maples refused to even go to the
courtroom and that, short of dragging him, there was nothing they could do.
Therefore, in a “Hail Mary” move, he and co-counsel filed a motion to
withdraw in the hopes that they would be allowed to testify about Mr.
Dixson’s threats and Mr. Maples’ statements to trial counsel. When the trial
court denied the motion, they came up with the agreed stipulation that
consisted of a combination of Mr. Maples’ statements to trial counsel and to
the police.

On cross-examination, senior trial counsel testified that they did not learn of
Mr. Maples’ refusal to testify until they visited him in the detention center
on the weekend before the Monday start of trial. He recalled that he and
co-counsel visited Mr. Maples a second time in an attempt to get him to
change his mind about testifying, to no avail. Therefore, after consulting with
the appellate expert in their office, they came up with the idea of withdrawing
from representation in order to become witnesses at the trial. Senior trial
counsel testified that their office’s appellate expert served as counsel on their
motion to withdraw. He said the trial court denied the motion on the basis
that the testimony they sought to present constituted inadmissible hearsay.

Senior trial counsel testified that he did not prepare the motion for new trial
and that his guess was that it was prepared by their office’s appellate expert.
He said a different lawyer eventually took over the Petitioner’s appeal, and
he assumed that appellate counsel and his office’s appellate expert consulted
with each other about which issues to include in the motion for new trial or
in an amended motion for new trial. Senior trial counsel believed that the trial
court’s denial of the motion to withdraw was included in the motion for new
trial but said that he was not certain and that the motion would speak for
itself.

Simmons II, 2022 WL 3226795, at *4–6. Following the hearing, the post-conviction court
denied relief. Id. at *7.
Petitioner appealed the denial of post-conviction relief to the TCCA. Id. at *1. He
specifically argued, in relevant part, that trial counsel was ineffective for “not raising the
trial court’s denial of trial counsel’s motion to withdraw as an issue in the motion for a new
trial, and . . . for not introducing ‘exculpatory photographs relating to bullet holes and
bullets from the scene of the shooting.’” Id. at *8. The TCCA affirmed the trial court’s
judgment. Id. at *9. The Tennessee Supreme Court denied Petitioner’s application for
discretionary review [Doc. 14-35; Doc. 14-45].
Thereafter, Petitioner filed a timely federal habeas petition [Doc. 1]. Respondent
subsequently filed the state-court record3 [Doc. 14] and his response to the petition [Doc.
16], to which Petitioner replied [Doc. 19]. This matter is now ripe for review.

II. LEGAL STANDARD
The Court’s review of the instant petition is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal
habeas relief on any claim adjudicated on the merits in state court unless that adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established United States Supreme Court precedent; or (2) resulted in a decision
based on an unreasonable determination of facts in light of the evidence presented. See 28
U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). When
evaluating the evidence presented in state court, a federal habeas court presumes the
correctness of the state court’s factual findings unless the petitioner rebuts the presumption

by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Federal habeas relief may be granted under the “contrary to” clause where the state
court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question
of law; or (2) decides a case differently than the Supreme Court on a set of materially
indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the

“unreasonable application” clause, a federal court may grant relief where the state court
applies the correct legal principle to the facts in an unreasonable manner. Williams, 529

3 The Court granted Respondent’s motion to waive filing of the physical exhibits
introduced at Petitioner’s trial [Docs. 15, 17; see also Docs. 23, 24].
U.S. at 407–08; Brown v. Payton, 544 U.S. 133, 141 (2005). 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.”); Williams, 529 U.S. at 410–11. Rather, this Court may grant relief for a claim
decided on its merits in state court only where the petitioner demonstrates that 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).
Federal habeas review is also limited by the doctrine of procedural default. See
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner’s procedural default
forfeits his federal habeas claim). A procedural default exists in two circumstances:
(1) where the petitioner fails to exhaust all of his available state remedies, and the state

court to which he would be required to litigate the matter would now find the claims
procedurally barred, and (2) where a state court clearly and expressly bases its dismissal of
a claim on a state procedural rule, and that rule provides an independent and adequate basis
for the dismissal. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729, 731–32, 735 n.1
(1991).

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. Ct. v. Lydon, 466 U.S. 294, 302–03 (1984)). In Tennessee,
presentation of the claim to the TCCA satisfies this requirement. Tenn. S. Ct. R. 39. But
if a prisoner never presented a claim to the TCCA and a state procedural rule now bars
presentation of the claim, because, for example, it is barred by Tennessee’s one-year statute

of limitation on post-conviction actions or its prohibition against second petitions, that
claim is technically exhausted but procedurally defaulted. Gray v. Netherland, 518 U.S.
152, 161–62 (1996); Coleman, 501 U.S. at 731–32, 750; Jones v. Bagley, 696 F.3d 475,
483 (6th Cir. 2012) (“When a petitioner has failed to present a legal issue to the state courts
and no state remedy remains available, the issue is procedurally defaulted”); see also Tenn.

Code Ann. § 40-30-102(a) (one-year limitation period) and Tenn. Code Ann.
§ 40-30-102(c) (“one petition” rule).
In some circumstances, a procedural default may be circumvented to allow federal
habeas review of a claim. But that is appropriate only where the prisoner can show cause
for the default and actual resulting prejudice, or that a failure to address the merits of the

claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749–50;
see also Wainwright v. Sykes, 433 U.S. 72, 87, 90–91 (1977). “Cause” is established where
a petitioner can show some objective external factor impeded defense counsel’s ability to
comply with the state’s procedural rules. See Coleman, 501 U.S. at 753. And the
“prejudice” sufficient to overcome a default must be actual, with the petitioner bearing “the

burden of showing, not merely that the errors [in the proceeding] created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his
entire [proceeding] with error of constitutional dimensions.” United States v. Frady, 456
U.S. 152, 170 (1982) (emphasis in original).
Generally, errors of post-conviction counsel cannot serve as “cause” to excuse a
procedural default. Coleman, 501 U.S. at 752. An exception to this rule was established
in Martinez v. Ryan, which held that the inadequate assistance of post-conviction counsel

or the absence of such counsel may, under certain circumstances, establish cause for a
prisoner’s procedural default of an ineffective assistance of trial counsel claim. Martinez
v. Ryan, 566 U.S. 1, 9 (2012). The Supreme Court has described the Martinez exception
as containing the following requirements:
[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) (citing Martinez, 566 U.S. at 13–14, 16–17).
This exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir.
2014).
Therefore, when considering an ineffective assistance of trial counsel claim under
Martinez, a petitioner must show the ineffectiveness of post-conviction counsel and “the
‘substantial’ nature of his underlying [ineffective assistance of trial counsel] claims.”
Woolbright v. Crews, 791 F.3d 628, 637 (6th Cir. 2015). A substantial claim is one that
“has some merit.” Martinez, 566 U.S. at 14. Conversely, a claim is insubstantial if it “does
not have any merit or. . . is wholly without factual support.” Id. at 15–16. And if the
petitioner can successfully demonstrate cause and prejudice of post-conviction counsel
under this preliminary review, the final step is for the district court to evaluate the
underlying ineffective assistance of trial counsel claims on the merits. Atkins v. Holloway,
792 F.3d 654, 659–60 (6th Cir. 2015).

However, 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, 383 (2022).

With these standards in mind, the Court turns to a consideration of Petitioner’s
claims.
III. ANALYSIS
A. Ground One
Petitioner raises the following claims in Ground One, as liberally construed and

paraphrased by Respondent:
(1) the prosecution violated Petitioner’s Fourth Amendment right by not
producing “key witnesses” at trial seemingly due to an evidentiary issue
related to the recovered bullets; (2) the first-degree-murder indictment was
defective because it did not allege that Petitioner shot Brown with an AK-47;
(3) ineffective assistance of post-conviction counsel for not retaining a
ballistics expert for the evidentiary hearing; and (4) the prosecution produced
insufficient evidence for the jury to find Petitioner guilty of first-degree
murder beyond a reasonable doubt.

[Doc. 16, p. 11].
1. Fourth Amendment
Petitioner maintains that the prosecutor violated his Fourth Amendment rights by
failing to produce crime scene witnesses to testify at trial [Doc. 1, p. 5]. While Petitioner
does not identify these witnesses, his claim appears to question expert testimony that
Petitioner shot the bullet that killed the victim [Id. at 5–6].
But Petitioner did not exhaust this Fourth Amendment claim to the TCCA during
his direct or post-conviction appeals [See Doc. 14-23, pp. 7–8; Doc. 14-32, p. 6]. See
Adams v. Holland, 330 F.3d 398 (6th Cir. 2003) (finding presentation of claim to TCCA
sufficient to exhaust state remedies); see also Tenn. S. Ct. R. 39 (establishing presentation
of claim to TCCA is sufficient to exhaust state remedies). Because Petitioner no longer

“has the right under the law” of Tennessee to properly exhaust this claim, the claim is
technically exhausted but procedurally defaulted. See 28 U.S.C. § 2254(c); Atkins, 792
F.3d at 657 (“[W]hen a petitioner fails to present a claim in state court, but that remedy is
no longer available to him, the claim is technically exhausted, yet procedurally
defaulted.”); see also Tenn. Code Ann. § 40-30-102(a) (one-year limitation period) and

§ 40-30-102(c) (“one petition” rule).
Therefore, the Court may review the merits of Petitioner’s claim only if he
establishes cause and prejudice to excuse the default, or that a fundamental miscarriage of
justice would result if the Court did not consider it. Petitioner does not establish any of
these exceptions. The Fourth Amendment’s “basic purpose” “is to safeguard the privacy
and security of individuals against arbitrary invasions by governmental officials.”
Carpenter v. United States, 585 U.S. 296, 303 (2018) (quoting Camara v. Mun. Ct. of City

and Cnty. of San Francisco, 387 U.S. 523, 528 (1967)). But Petitioner’s claim does not
allege a governmental intrusion into his “privacy and security.” And testimony was offered
at Petitioner’s trial that all the bullets that struck the victim’s car came from the street,
where Petitioner was the only shooter [See, e.g., Doc. 14-16, pp. 84–135; Doc. 14-18, pp.
155, 173]. Therefore, given the overwhelming evidence presented against him at trial,

Petitioner cannot establish prejudice or that his case meets the
fundamental-miscarriage-of-justice exception. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir.
1994) (“[T]he prejudice component of the cause and prejudice test is not satisfied if there
is strong evidence of a petitioner’s guilt and lack of evidence to support his claim.” (citing
Frady, 456 U.S. at 172)). Accordingly, Petitioner is not entitled to federal habeas relief on

this claim.
2. Indictment
Petitioner argues that his indictment for first-degree premeditated murder did not
provide constitutionally adequate notice of the charge because it did not allege that he
committed the murder with an AK-47 [Doc. 1, pp. 5–6]. But Petitioner did not present this

claim to the TCCA during either his direct or post-conviction appeal [See Doc. 14-23, pp.
7–8; Doc. 14-32, p. 6]. And Petitioner cannot now litigate this claim in state court due to
Tennessee’s statute of limitations and “one petition” rule. See Tenn. Code Ann.
§§ 40-30-102(a),(c). Therefore, this claim is technically exhausted but procedurally
defaulted. See Jones, 696 F.3d at 483.
Accordingly, the Court may review the merits of Petitioner’s claim only if he

establishes cause and prejudice to excuse the default, or that a fundamental miscarriage of
justice would result if the Court did not consider it. But, as set forth above, Petitioner
cannot claim a fundamental miscarriage of justice to defeat the procedural default.
Additionally, for the reasons set forth below, Petitioner cannot establish prejudice, because
the indictment against him provided him constitutionally sufficient notice of the charged

offense of premeditated first-degree murder. See Frady, 456 U.S. at 170.
Clearly established law holds that a defendant must have constitutionally sufficient
notice of the crimes with which he is charged. Hamling v. United States, 418 U.S. 87, 117
(1974). An indictment provides constitutionally sufficient notice if it (1) “contains the
elements of the offense charged and fairly informs a defendant of the charge which he must

defend” and (2) “enables him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Id. At the time of Petitioner’s crime, Tennessee
defined “first-degree premeditated murder” as “[a] premeditated and intentional killing of
another[.]” Tenn. Code Ann. § 39-13-202(a). Petitioner’s indictment charges him with
“unlawfully, intentionally, and with premeditation kill[ing] Uniqua Brown, in violation of

T.C.A. § 39-13-202” [Doc. 14-1, p. 8]. Using the statutory language to define a crime is
sufficient for notice purposes if “those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements necessary to constitute the
offence intended to be punished.” Russell v. United States, 369 U.S. 749, 765 (1962)
(citation omitted). Here, Petitioner’s indictment echoes the language of the statute, and it
clearly described the charged offense. Despite his protestations that the indictment did not
identify the weapon he used to kill the victim, Petitioner has no clearly established

constitutional right for his state indictment to include that level of particularity. Williams
v. Haviland, 467 F.3d 527, 534 (6th Cir. 2006) (holding “there is no constitutional right in
a state prosecution to a grand jury indictment with particular specificity”). Accordingly,
Petitioner’s indictment provided constitutionally sufficient notice, and he is not entitled to
federal habeas relief on this defaulted and meritless claim.

3. Ineffective Assistance of Post-Conviction Counsel
Petitioner maintains that post-conviction counsel rendered ineffective assistance
when he failed to retain a ballistics expert for the evidentiary hearing [Doc. 1, p. 6]. But
“[t]he inffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.” 28 U.S.C. § 2254(i). Therefore, this claim is not cognizable on federal
habeas review.
4. Sufficiency of the Evidence
Petitioner claims that the prosecution introduced insufficient evidence for the jury
to convict him of first-degree murder [Doc. 1, p. 6]. Petitioner exhausted this claim on

direct appeal to the TCCA. See Simmons I, 2018 WL 1381786, at *29–31.
Evidence is sufficient to support 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 v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original). This standard acknowledges the factfinder’s role
to resolve all conflicts in testimony, weigh the evidence, and “draw reasonable inferences
from basic facts to ultimate facts.” Id. And a habeas court reviewing a properly exhausted

Jackson claim affords it a doubly deferential standard of review. Coleman v. Johnson, 566
U.S. 650, 651 (2012). First, a court reviewing the verdict can set it aside “only if no rational
trier of fact could have agreed with the jury.” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2
(2011)). Second, a federal habeas court must account for the statutory deference under
§ 2254(d) allotted to the state-court’s review of the jury’s findings. Id. Thus, a habeas

court reviewing the state court may overturn the state court’s decision “only if the state
court decision was objectively unreasonable.” Id. (internal quotation marks omitted).
In evaluating the sufficiency of the evidence against Petitioner, this Court must
examine the “substantive elements of the criminal offense” under state law. Jackson, 443
U.S. at 324 n.16. At the time of the victim’s murder, Tennessee defined “first-degree

premeditated murder” as a “premeditated and intentional killing of another.” Tenn. Code
Ann. § 39-13-202(a)(1). A murder is “premeditated” when it is “done after the exercise of
reflection and judgment” with the intent to murder being “formed prior to the act itself.”
Tenn. Code Ann. § 39-13-202(e). The factual circumstances surrounding the killing inform
the jury’s decision as to whether a defendant killed with premeditation. Simmons I, 2018

WL 1381786, at *30.
On direct appeal, the TCCA cited and applied Jackson in its analysis of Petitioner’s
case. See id. at *29–31. And Petitioner does not establish how the TCCA unreasonably
applied Jackson. Nevertheless, the Court agrees with Respondent that the TCCA’s
application was sound considering “forensic evidence established that. . . Defendant was
the only shooter[,]” that he acknowledged during trial that “the bullet that killed [the
victim] must have come from his weapon[,]” that the jury was “free to reject [his]

self-defense claim[,]” and that Petitioner’s co-defendant, O’Neill, stated that he knew that
Petitioner was going “to shoot” when they went to the Brown-Maples home. Simmons I,
2018 WL 1381786, at *30–31. Additionally, testimony was presented that Petitioner
“waited until he believed the men who had robbed his brother the evening before were
present” before shooting 32 rounds at the victims, killing one. Id. at 31. The jury was

presented with evidence that Petitioner and O’Neill then fled, and Petitioner ordered
O’Neill “to hide the car” while Petitioner “disposed of the AK-47 [] and took off his shirt
and attempted to clean himself of gunshot residue.” Id. at 31. And because the evidence
presented at trial was sufficient for a rational factfinder to convict Petitioner of first-degree,
premeditated murder beyond a reasonable doubt, the TCCA’s adjudication was not based

on an unreasonable application of Jackson, or an unreasonable determination of facts in
light of the evidence presented in the state court proceeding. Petitioner is not entitled to
federal habeas relief on this claim.
B. Ground Two
Petitioner alleges that his trial, appellate, and post-conviction attorneys were

ineffective by holding “the true belief that challenging the indictment was not relevant and
that relief could not be granted as a matter of law” [Doc. 1, p. 7]. He argues that the
indictment was “fatally defective” because “the jury was led to presume and speculate that
the victim[’s] death occurred from any bullet” [Id.].
First, Petitioner cannot obtain relief based on post-conviction counsel’s alleged
ineffectiveness because the AEDPA bars this claim. 28 U.S.C. § 2254(i). Second,
Petitioner did not present the TCCA with a claim of trial or appellate attorney

ineffectiveness based on the failure to challenge the indictment [See generally Doc. 14-32,
p. 6]. See Simmons II, 2022 WL 32226795, at *8–9. State law would now bar any attempt
to litigate these allegations. See Tenn. Code Ann. §§ 40-30-102(a), (c). Therefore, these
allegations are technically exhausted but procedurally defaulted. See Jones, 696 F.3d at
483.

Petitioner cannot avail himself to the miscarriage-of-justice exception to excuse his
default, as the evidence introduced against him at trial was overwhelming. And Petitioner
cannot rely upon the equitable exception under Martinez to excuse appellate counsel’s
conduct, as Martinez does not extend to defaulted claims of ineffective assistance of
appellate counsel. See Davila v. Davis, 582 U.S. 521, 529 (2017).

Neither can Martinez provide an exception to trial counsel’s conduct, as Petitioner
cannot show that his claim of ineffectiveness is substantial. A determination of whether
an ineffective assistance of counsel claim is substantial requires a federal court to examine
the claim under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a petitioner must satisfy a conjunctive, two-pronged test to establish the

constitutionally ineffective assistance of counsel: (1) he must demonstrate constitutionally
deficient performance by counsel, and (2) he must demonstrate actual prejudice as a result
of such ineffective assistance. Id. at 687. Deficiency is established when a petitioner can
demonstrate that counsel’s performance falls below an objective standard of
reasonableness as measured by professional norms, such that counsel was not functioning
as the “counsel” guaranteed by the Sixth Amendment. Id. at 687–88. But a reviewing
court’s scrutiny is to be highly deferential of counsel’s performance, with an effort to

“eliminate the distorting effects of hindsight.” Id. at 689. In fact, counsel is to be afforded
a presumption that his actions were the product of “sound trial strategy” and undertaken
with the exercise of reasonable professional judgment. Id.
Prejudice is established when the petitioner can demonstrate to a reasonable
probability that the result of the proceedings would have been different but for the

challenged conduct, thereby undermining confidence in the reliability of the outcome. Id.
at 687, 694. However, an error, even if professionally unreasonable, does not warrant
setting aside the judgment if it had no effect on the judgment. Id. at 691.
Petitioner renews his argument from Ground One that the indictment was defective
because it did not name the “kind of bullet nor gun” that “caused the victim[’s] demise”

[Doc. 1, p. 7]. But, as discussed supra, the indictment did not need to describe the means
of the murder to pass constitutional muster. Using statutory words defining a crime is
sufficient for notice purposes if “those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements necessary to constitute the
offence intended to be punished.” Russell, 369 U.S. at 765. Because the indictment in

Petitioner’s case met this standard, trial counsel did not perform ineffectively in failing to
challenge it. See Jalowiec v. Bradshaw, 657 F.3d 293, 321–22 (6th Cir. 2011) (finding an
“attorney is not required to raise a non-meritorious claim”). And Petitioner cannot
establish any resulting prejudice from the failure to challenge the indictment, as he has not
established a reasonable probability that the trial court would have dismissed the
indictment if trial counsel had so moved. See Strickland, 466 U.S. at 694. Accordingly,
this defaulted claim of ineffective assistance of trial counsel is not substantial.

In sum, Petitioner is not entitled to federal habeas relief on Ground Two.
C. Ground Three
In Ground Three, Petitioner alleges that he “talked about the 911 callers to the
operator that the post-conviction did not address issues at hand[.] [T]he 911 caller stated
that there was other people with guns in the year [sic] shooting and the other 911 callers

stated after the shooting black guys took a bunch of guns to the house next door” [Doc. 1,
p. 8]. He also maintains that there “are exhibits as (exhibit 1) (exhibit 8) of the calls to the
operator on the CD that Petitioner don’t have d[ue] to the court won[’]t send it to me” [Id.].
“A petition for a writ of habeas corpus must set forth facts that give rise to a cause
of action under federal law or it may summarily be dismissed.” Edwards v. Johns, 450

F. Supp. 2d 755, 756 (E.D. Mich. 2006) (citation omitted). A claim “must include
reference to a specific federal constitutional guarantee, as well as a statement of facts which
entitle the Petitioner to relief.” Id. (quoting Gray v. Netherland, 518 U.S. at 162–63)
(internal citations omitted); see also Rule 2(c)(1)-(3), § 2254 Rules. Petitioner has alleged
neither a “reference to a specific constitutional guarantee” nor “a statement of the facts

which entitle [him] to relief.” Edwards, 450 F. Supp. at 756. Therefore, this ground pleads
no constitutional claim.
However, under the most liberal construction, the Court may infer that Petitioner is
alleging that he did not receive adequate due process during his post-conviction hearing.
But the Sixth Circuit “has consistently held that errors in post-conviction proceedings are
outside the scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853
(6th Cir. 2007). This is because “the essence of habeas corpus is an attack by a person in

custody upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.” Id. (internal quotation marks and citation omitted).
But “[a] due process claim related to collateral post-conviction proceedings, even if
resolved in a petitioner’s favor, would not result [in] . . . release or a reduction in . . . time
to be served or in any other way affect his detention because we would not be reviewing

any matter directly pertaining to his detention.” Id. (internal quotation marks and citation
omitted). Therefore, even if Petitioner did intend to plead a due process claim related to
his post-conviction proceedings, it is not cognizable. Accordingly, Petitioner is not entitled
to federal habeas relief on Ground Three.
IV. CERTIFICATE OF APPEALABILITY

A petitioner must obtain a certificate of appealability (“COA”) before he may appeal
this Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will
not issue unless a petitioner makes “a substantial showing of the denial of a constitutional
right” of any claim rejected on its merits, which a petitioner may do by demonstrating that
“reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484
(2000). To obtain a COA on a claim that has been rejected on procedural grounds, a
petitioner must demonstrate “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484 (emphasis added). Applying this standard, the Court concludes that
a COA should be denied in this case.

V. CONCLUSION
For the reasons set forth above, Petitioner has failed to demonstrate an entitlement
to federal habeas relief. Therefore, the instant petition [Doc. 1] will be DENIED, and this
action is DISMISSED WITH PREJUDICE. A certificate of appealability from this
decision will be DENIED.

Further, 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10435785. Public record. Not legal advice.