Watkins v. State of Tennessee

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CEDRIC WATKINS, )

)

Petitioner, )

) No. 3:17-cv-01321

v. )

)

DARREN SETTLES, et al., )

)

Respondents. )

MEMORANDUM OPINION

Cedric Watkins, an inmate of the Bledsoe County Correctional Complex in Pikeville,

Tennessee, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging

his conviction in the Davidson County Criminal Court of first-degree premeditated murder.

Petitioner is serving a term of imprisonment for life in the Tennessee Department of Correction

for this offense. (Doc. No. 1).

Presently pending before the Court is the Warden’s answer to the habeas petition in which

he asks the Court to dismiss the petition. (Doc. No. 11).

The petition is ripe for review, and this Court has jurisdiction pursuant to 28 U.S.C. §

2241(d). Having fully considered the record, the Court finds that an evidentiary hearing is not

needed, and Petitioner is not entitled to relief. The petition therefore will be denied and this action

will be dismissed.

I. Procedural History

Petitioner’s first trial ended in a hung jury. (Doc. No. 9, Attach. 1 at PageID# 51). In 2013,

after a second jury trial, Petitioner was convicted of first degree murder, and the trial court imposed

a life sentence. (Doc. No. 1 at 1).

On direct appeal, the Tennessee Court of Criminal Appeals affirmed Petitioner’s judgment

on January 20, 2015. State v. Watkins, No. M2013-0212-CCA-R3-CD, 2014 WL 2547710 (Tenn.

Crim. App. June 4, 2014), perm. app. denied (Tenn. Aug. 18, 2016). However, due to a discrepancy

regarding Petitioner’s sentence, the court remanded to the trial court for it to consider whether the

judgment required correction of a clerical error. Id. at *8. The Tennessee Supreme Court denied

Petitioner’s application to appeal on Aug. 18, 2016. Id.

On January 20, 2015, Petitioner filed a timely pro se petition for state post-conviction relief.

(Doc. No. 9, Attach. 11 at PageID# 783-806). On June 22, 2015, Petitioner filed an amended

petition through counsel. (Doc. No. 9, Attach. 11 at PageID# 816-826). Following an evidentiary

hearing, the post-conviction court denied relief on April 4, 2016. (Doc. No. 9, Attach. 11 at

PageID# 830-859). The post-conviction court simultaneously granted Petitioner permission to file

a delayed Rule 11 application to the Tennessee Supreme Court due to appellate counsel’s failure

to file a Rule 11 application for permission to appeal. Watkins v. State, No. M2016-00681-CCA-

R3-PC, 2017 WL 1048130, at *4 (Tenn. Crim. App. Mar. 20, 2017), perm. app denied (Tenn. May

18, 2017). Petitioner’s delayed Rule 11 application was denied on August 18, 2016. (Doc. Nos.

9, 10).

Petitioner appealed the denial of his post-conviction petition, and the Tennessee Court of

Criminal Appeals affirmed on March 20, 2017. Watkins v. State, No. M2016-00681-CCA-R3-PC,

2017 WL 1048130 (Tenn. Crim. App. Mar. 20, 2017), perm. app denied (Tenn. May 18, 2017).

The Tennessee Supreme Court denied Petitioner’s application for discretionary review on May 18,

2017. Id.

On September 25, 2017,1 Petitioner filed the instant pro se petition for writ of habeas

corpus. (Doc. No. 1 at 15). On October 12, 2017, the Court ordered Respondent to respond to the

petition. (Doc. No. 5). Respondent filed its answer on December 31, 2017. (Doc. No. 11).

In his petition, Petitioner asserts four claims for relief: his conviction is not supported by

sufficient evidence because there was no physical evidence connecting him to the crime scene and

because many of the witnesses were not credible; he was denied due process of law when the trial

court erred by limiting the testimony of a defense witness; he was denied ineffective assistance of

counsel when trial counsel failed to adequately investigate the case, specifically in failing to

interview Lashona Wooten, and failed to consult with Petitioner prior to trial; and he was denied

effective assistance of counsel when trial counsel failed to (1) call Clifford Parrish to testify, (2)

properly cross-examine Deborah Cox, (3) object to Detective Corey Wall’s hearsay statements,

and (4) call Lashona Wooten to testify. (Doc. No. 1 at PageID# 5-11).

II. Summary of the Evidence

A. Trial Proceedings

The Tennessee Court of Criminal Appeals summarized the proof adduced at Petitioner’s

March 18-20, 2013 second jury trial as follows:

The victim's brother, Davis Turner, testified that the victim was fifty-two years old

when he died. The victim had been in the Air Force and had worked for various

defense industry firms. Mr. Turner testified that the victim had always had an

interest in computers. Mr. Turner first learned in 1995 that the victim had a drug

habit. He said that the victim had been living at InTown Suites and had owned a

white Ford Probe at the time of his death.

1 Under the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266, 270 (1988), and the Sixth Circuit's subsequent

extension of that rule in Richard v. Ray, 290 F.3d 810, 812 (6th Cir. 2002) and Scott v. Evans, 116 F. App'x 699, 701

(6th Cir. 2004), a prisoner's legal mail is considered "filed" when he deposits his mail in the prison mail system to be

forwarded to the Clerk of Court. Here, Plaintiff signed and dated his petition on September 25, 2017, although the

Clerk’s Office did not receive and file the complaint until September 29, 2017. Under the prison mailbox rule, the

Court considers September 25, 2017, as the date of filing.

William Ogden testified that he was working at InTown Suites on July 28, 2009.

When he was cleaning the parking lot, he smelled a distinct odor and notified his

manager that there was probably a dead body on the premises. He could not

determine from which room the smell was coming, so he waited for his manager to

arrive. Together, they searched several rooms until they found the victim's body in

room 135. Mr. Ogden knew the victim as “Bill.” Mr. Ogden testified that he and

the manager looked into the room but did not enter it. The manager, Kevin Moore,

also testified and corroborated Mr. Ogden's testimony.

Lynette Mace, a crime scene technician with the Metro Nashville Police

Department, testified that she processed the victim's room along with Sergeant John

Nicholson. She described the room as an efficiency apartment. The victim was

lying a few feet from the door. A chair was turned over, but there were no other

signs of disarray. She saw two computers in the room. Ms. Mace found three spent

nine millimeter shell casings and two projectile fragments. There was a “strike

mark” on one wall, and she found a projectile lodged inside the wall at that location.

Ms. Mace processed the room for fingerprints and “DNA touch evidence.” She also

used vacuum filters to collect any trace evidence.

Brianna Stanton testified that in 2009, she lived in various hotels with different

people and abused crack cocaine. She said that “[m]ost of the time,” she lived with

appellant, whom she knew as “Frank White.” Ms. Stanton said that she also lived

with Stephanie Littlejohn and “Hannah.” Other acquaintances included William

Carter (a/k/a “Will C.”), Bobby Gurley (a/k/a “B.O.”), and Chaz Ellis (a/k/a “Cuz”).

Mr. Carter was a barber and had a car. She was also acquainted with the victim,

whom she knew as “Bill Gates.” She recalled an occasion when the victim bought

drugs and wanted to try the drugs before he left, which was unusual behavior for

him. She and appellant later discussed the possibility of the victim's being a

“snitch.” Ms. Stanton testified that several days before she learned of the victim's

death, Mr. Carter had driven appellant somewhere. When they returned, appellant,

supposing that Ms. Stanton knew what had happened, said that they “were all

supposed to take it to the grave.” She said that she did not ask any questions. Ms.

Stanton learned about the victim's murder on the news. When his murder was

reported, appellant said, “‘[W]ell, there it is.’” Sometime later, she heard that Mr.

Carter had been “running around talking about” what appellant had done. Appellant

called Mr. Carter to come to their hotel room, and he “asked [Mr. Carter] why he

was running his mouth and smacked him for doing it.” Ms. Stanton agreed that she

had testified in a prior proceeding that appellant said something “along the lines of

[ ] they had to do what they had to do to somebody who was snitching” and that

“the four of us in the room would take it to the grave.”

Ms. Stanton recalled that the first time she talked to detectives about the victim's

murder, she denied any knowledge of what occurred. Detectives talked to her again

in December 2010, while she was in jail, and she told them what she knew. Ms.

Stanton and appellant spoke by telephone at least twice while she was in jail, on

November 14, 2010, and December 19, 2010. The State introduced recordings of

those telephone conversations into evidence. In the November conversation, Ms.

Stanton mentioned that she “hope[d] that [ ] everybody does what they said they

were going to do,” and appellant asked her whether she had heard from anyone

“with a badge.” Ms. Stanton testified that they were both referring to the victim's

murder. In the December 2010 conversation, appellant told Ms. Stanton to “[s]tick

to the script” and said that they would “fight this s* * * to the end.” Ms. Stanton

“guessed” that he was referring to the victim's murder. She agreed that she had

previously testified that “sticking to the script” meant that no one would say

anything.

Stephanie Littlejohn testified that in July 2009, she lived in hotel rooms and was

engaging in prostitution and drug sales. She lived with appellant, whom she knew

as Frank White. Ms. Stanton and “Hannah” also lived with her and appellant. Ms.

Littlejohn testified that she was acquainted with Chaz Ellis, Bobby Gurley, William

Carter, and the victim. She said that the victim was called “Bill Gates” because

“[h]e was smart[, and] he fixed computers.” Ms. Littlejohn recalled that the victim

came to her hotel room on July 23, 2009, to take her to buy marijuana. When they

returned to the hotel room, she gave the victim her laptop so that he could work on

it. After the victim left, the group present at the hotel discussed whether the victim

had “snitch[ed]” on Mr. Gurley and Mr. Ellis because they had been arrested. Ms.

Littlejohn testified that appellant and Mr. Carter left the hotel to visit the victim.

She said that she asked them to pick up her laptop while they were there. She further

said that she “had a feeling” about the purpose of their visit but that “[i]t was kind

of one of those things that [was] left unsaid.”

Ms. Littlejohn testified that appellant and Mr. Carter returned thirty to forty-five

minutes later. She recalled that appellant “was just in tears, and he said the Lord's

prayer.” Appellant had her laptop but would not let her have it. Ms. Littlejohn said

that she learned about the victim's murder approximately a week later when it was

reported on the news. She did not remember appellant's saying anything about the

murder immediately after it was on the news, but she testified that at some point

appellant told her that he had shot the victim three times. Ms. Littlejohn also

testified that appellant confronted Mr. Carter about Mr. Carter's telling his

girlfriend what had happened the day of the victim's murder. Appellant

“smack[ed]” Mr. Carter and took him into the bathroom. Ms. Littlejohn

remembered Mr. Carter's asking appellant not to kill him. Ms. Littlejohn testified

that she did not talk to the police about the victim's murder until September 2010.

At first, she denied any knowledge but eventually told the police the information

about which she testified at trial.

On cross-examination, Ms. Littlejohn clarified that appellant told her on the same

day of the murder that he had shot the victim, not at a later point in time. She also

stated that she did not remember telling Deborah Cox about a statement made by

appellant with regard to the victim's murder.

William Carter testified that he was acquainted with appellant, Ms. Littlejohn, and

Ms. Stanton. He also knew Mr. Gurley and Mr. Ellis, but he did not know the

victim. He said that he had heard “the women” talk about the victim and that he

knew the victim was a drug user. Mr. Carter testified that Mr. Gurley and Mr. Ellis

were both arrested in 2009 and that he subsequently heard a rumor that the victim

was “snitching.” He did not know whether the victim's alleged “snitching” was

related to the arrests of Mr. Gurley and Mr. Ellis. Mr. Carter testified that on July

23, 2009, appellant called him to cut his hair. He went to the hotel where appellant

was staying. After cutting his hair, appellant asked Mr. Carter to take him

somewhere to pick up something. Mr. Carter did not consider that an unusual

request. Mr. Carter drove appellant to InTown Suites at appellant's direction. When

they pulled into the parking lot, appellant pointed out the car for which he had been

looking. Mr. Carter identified a picture of that car, which had been previously

identified as belonging to the victim. Mr. Carter said that he saw a woman he knew

standing on the second or third level of the hotel. He spoke to the woman, and

appellant told him to leave. He drove to the end of the building, where appellant

got out of the car. Mr. Carter said that he turned his car around and then saw

appellant running toward him, carrying a laptop computer. Appellant got into Mr.

Carter's car, and they drove away. Mr. Carter testified that while in the car,

appellant said, “‘[T]wo shots to the head[;] he ain't talking no more.’” Mr. Carter

said he did not know what appellant meant and that he had heard similar phrases

“in some rap lyrics.” Appellant also took off his shirt and threw it out of the window

of the car. Mr. Carter did not see appellant with a gun that day.

Mr. Carter testified that when the news reported the victim's death, they showed a

photograph of the InTown Suites. Mr. Carter told his girlfriend that he had driven

appellant to that location, but he did not associate that incident with the victim's

murder. He testified that approximately one month later, appellant called him to cut

his hair. Mr. Carter went to appellant's hotel room and cut his hair. Subsequently,

appellant punched him in the jaw and said, “‘[B] * * * *, you been [sic] running

your mouth about taking me to the room.’” Appellant also pulled him into the

bathroom and told him that “if [he] ever said anything[,] someone would kill [Mr.

Carter] and [his] family.” Mr. Carter testified that the following day, he was

arrested for failing to pay his child support obligations. He was incarcerated for five

months. He was arrested on September 20, 2010, for a traffic violation and served

five days in jail. While he was in jail for the traffic violation, Detective Wall came

to speak with him about the victim's murder. He did not admit to knowing anything

at that point. In March 2011, Mr. Carter saw on the news that he was wanted for

first degree murder, so he turned himself in to the police. Detective Wall

interviewed him again, and he gave a full statement.

Dr. Bridget Eutenier, an associate medical examiner in Davidson County, testified

that the victim was shot in the front of his head three times: on his left eyebrow, in

front of his left ear, and below his right eye. Two of the bullets exited, but one was

recovered “from the posterior scalp.” The victim's body was in a state of

decomposition, making it difficult to determine the trajectory of the bullets. Dr.

Eutenier testified that “[a]ll three wounds would have been fatal.” Dr. Eutenier

estimated that the victim had died “a few days” prior to his discovery.

Metro Nashville Police Detective Corey Wall testified that he was the lead

investigator in this case. He said that the victim's brother, Davis Turner, provided

him with the victim's cellular telephone number. Subsequently, Detective Wall

obtained the victim's telephone records. The last call that the victim made was on

July 23, 2009, at 5:12 p.m. Detective Wall had the Identification Department

compare fingerprints from people with whom the victim had communicated with

the fingerprints lifted from his hotel room. There were no matches. In addition, no

DNA was found in the victim's hotel room other than his own. The computers from

the hotel room were also analyzed but contained no useful information.

Detective Wall testified that he also interviewed persons of interest identified

through the victim's telephone records. In particular, he interviewed Stevie Downs,

who suggested that he speak with Chaz Ellis. Detective Wall first spoke with Mr.

Ellis in August 2009, but he denied any knowledge of the victim's murder. In July

2010, Mr. Ellis's attorney contacted Detective Wall and told him that Mr. Ellis

wished to speak with him. When they met, Mr. Ellis suggested that Detective Wall

talk to Stephanie Littlejohn and Brianna Stanton. Detective Wall and his partner,

Detective Derry Baltimore, spoke with Ms. Littlejohn while she was incarcerated

in September 2010. She was reluctant to divulge any information at first, but after

they “leaned on” her, she told them about how she knew the victim and that the

victim had been working on her laptop. She also told them about appellant's

returning to their hotel room after having gone out with Mr. Carter. Ms. Littlejohn

said that appellant gave her back her laptop, said a prayer for the victim, and told

her that he had “shot the victim three times in the head.” From Ms. Littlejohn's

information, Detective Wall attempted to interview William Carter on September

30, 2010, but he refused to speak with the police. Detective Wall and Detective

Baltimore interviewed Ms. Stanton in December 2010. She gave a statement that

was consistent with Ms. Littlejohn's statement. Subsequently, Mr. Carter and

appellant were both charged with the victim's murder. After Mr. Carter was taken

into custody, he gave a statement that was consistent with Ms. Stanton's and Ms.

Littlejohn's statements. Thereafter, appellant was arrested.

Tennessee Bureau of Investigation Agent Alex Brodhag testified as an expert in

forensic firearms examination. He said that the police submitted the following

evidence to him for analysis: a fired bullet core; three fired nine millimeter Luger

cartridge cases; a fired jacketed bullet; a fired bullet core fragment; and a fired

hollow point bullet jacket. Agent Brodhag determined that the three nine millimeter

cartridges were fired from the same weapon. He further determined that the fired

bullet core, the fired jacketed bullet, and the fired hollow point bullet jacket were

consistent with nine millimeter bullets. The bullet core fragment was not useful for

comparison purposes. The markings on the jacketed bullet and hollow point bullet

jacket had the “same class characteristics,” but there were not enough markings to

conclude that they were fired from the same weapon. In addition, Agent Brodhag

could not determine whether the fired bullets were originally paired with the three

cartridge cases and, therefore, could not determine how many weapons were used.

Following Agent Brodhag's testimony, the State rested its case.

On behalf of appellant, Deborah Cox testified that Stephanie Littlejohn and Brianna

Stanton lived with her for a time after July 2009. Ms. Cox said that Ms. Littlejohn

told her, “ ‘I killed Bill Gates[;] I shot him in the back of the head[.][T]he gun will

never be found[;] it's in pieces all over this town.’ “

After the close of proof and deliberations, the jury found appellant guilty as

charged. Appellant's motion for new trial was unsuccessful.

Watkins, 2014 WL 2547710, at **1-5.

B. Post-Conviction Proceedings

The Tennessee Court of Criminal Appeals summarized the proof adduced at Petitioner’s

post-conviction evidentiary hearing as follows:

Clifford Parrish, a long-time boyfriend of the petitioner's aunt, testified that

Stephanie Littlejohn told him that she had committed the murder. He said he did

not impart that information to the petitioner's defense team because he thought Ms.

Littlejohn would take the initiative and tell them herself. On cross-examination, he

testified he later told the petitioner's aunt about Ms. Littlejohn's confession. He was

unsure, however, of when he divulged the information, testifying that it could have

possibly been during the first or the second trial.

Lashona Smith, previously known by the married name of Lashona Wooten,

testified that she gave testimony at the petitioner's first trial about having seen

William Carter driving away from the hotel with a passenger in his vehicle on the

day the victim was killed, but she was unable to see who the passenger was. She

stated that she was subpoenaed as a witness at the petitioner's second trial, but,

although the petitioner's trial counsel spoke to her outside the courtroom, she was

never called to testify.

Deborah Cox testified that she testified at both of the petitioner's trials. She said

that both trial counsel and his investigator interviewed her and that she was asked

at the second trial about Ms. Littlejohn's statement that she had killed the victim

and disposed of the gun.

The petitioner testified that his first trial ended in a mistrial after the jury was unable

to reach a verdict. He said his family retained a different attorney for his second

trial and trial counsel began representing him only twenty-one days before the

second trial began. He claimed trial counsel visited him only two times before trial,

in visits that lasted thirty minutes or less. According to the petitioner, trial counsel

never prepared him for testifying and never even discussed before trial whether or

not he would testify. He said he consequently felt unprepared to testify, which is

why he opted not to take the stand in his own defense. Had he been prepared and

testified, he would have told the jury that he did not kill the victim.

The petitioner also complained about trial counsel's failure to call Ms. Wooten and

Mr. Parrish as witnesses and his failure to effectively impeach Ms. Cox's testimony

with her testimony from the first trial. He said he wanted trial counsel to call Ms.

Wooten as a witness at his second trial because she had testified at his first trial,

which resulted in a hung jury, and he believed her testimony would have made a

difference in his second trial. He said counsel never explained to him why he failed

to call her as a witness.

The petitioner testified he had no knowledge before either of his trials about the

information Mr. Parrish provided at the evidentiary hearing, but also no knowledge

of what kind, if any, investigation trial counsel conducted or if counsel could have

discovered Mr. Parrish as a potential witness. As for Ms. Cox, he believed that

counsel should have impeached her testimony at his second trial with her testimony

from the first trial. He explained that in the first trial, Ms. Cox simply testified that

Ms. Littlejohn told her that she had committed the crime, while in the second she

testified that Ms. Littlejohn told her that she had shot the victim in the back of the

head. The petitioner said he thought trial counsel should have asked Ms. Cox to

read from her previous trial testimony to show the jury the discrepancies in her

accounts.

The petitioner also complained that trial counsel failed to object to hearsay

testimony by Detective Corey Wall about having been told by Chaz Ellis to speak

to Ms. Littlejohn about the crime. Lastly, he claimed that trial counsel fell asleep

during his trial, testifying that counsel was “supposed to have been taking notes,”

but his paper fell to the floor twice while he was sitting at the defense table.

On cross-examination, the petitioner denied that his family retained trial counsel

shortly before his second trial because he was not getting along with his former

counsel. Instead, he claimed that trial counsel “showed up alleging that he was his

attorney” and when he called his family to inquire, they told him that they had hired

him. The petitioner acknowledged that his first jury had voted 11 to 1 to convict

him. Because his first trial ended in a hung jury, he thought trial counsel should

have “follow[ed] the same platform [of the first trial] instead of subtracting from

what ha[d] already been laid out as a foundation.” He said he told trial counsel that

his words of “stick to the script” meant to tell the truth and that counsel told him he

would find someone from the African–American community to testify to that

effect. The petitioner disagreed that Ms. Wooten's testimony that someone else was

in the car with Mr. Carter helped the State's case. On redirect examination, he

reiterated his belief that Ms. Cox's testimony from the first trial that she was unable

to see who was in the car with Mr. Carter helped his defense in the first trial.

Trial counsel, called as a witness by the State, testified that he had been licensed to

practice law for approximately thirty-nine years. He said he was contacted by the

petitioner's aunt and other family members who indicated that the petitioner's

relationship with his former counsel was “strained” and asked him to take over the

case. During his appearance notice, three weeks before the scheduled trial, the trial

court addressed the fact that the trial had been set for a number of months and could

not be reset. Trial counsel stated that he thought his taking on the case was what

the petitioner needed and “a positive situation” due to the petitioner's strained

relationship with his former counsel. Former counsel was very cooperative,

furnishing him with “everything he had,” and trial counsel devoted all of his time

from the date he was retained until trial in preparing for the case.

Trial counsel testified that he met with the petitioner three different times, for a

total of over three hours, in his preparation for the case. He characterized their

meetings as “very productive,” testifying that he and the petitioner communicated

well and reviewed together the first trial transcript “line by line.” Among other

things, he and the petitioner discussed the State's evidence against the petitioner,

potential witnesses and theories of defense, and which factors in the first trial had

not been favorable to the petitioner. The petitioner was very interested in having

Ms. Littlejohn and Ms. Cox as witnesses, but he never mentioned Mr. Parrish. Trial

counsel said he also “zeroed in” on the petitioner's “stick to the script” statement,

spending “the better part” of one or two days trying through his connection with

the “Nashville Inner City Ministry” to find someone to testify that in the African–

American community the words could be interpreted as “tell the truth as opposed

to say what we had planned to say.” He could not, however, “find anyone that would

agree that they could do that in good conscience.”

Trial counsel testified that he considered calling Ms. Wooten as a witness at the

second trial. However, after talking with her, he “had ... chills” based on the way

she expressed herself and therefore believed that she would not “be anything but a

possible liability” for the petitioner if she testified. He said he spoke with Ms. Cox

twice before trial, provided her with gas money to travel to the trial from her home

in Kentucky, and called her as witness. He repeated that the petitioner never

mentioned Mr. Parrish at all.

Trial counsel further testified that he had extensive conversations with the petitioner

about the pros and cons of testifying in his own defense and that it was the

petitioner's ultimate decision. In addition, the trial court conducted a “very, very

thorough examination” with the petitioner about his decision not to take the stand.

On cross-examination, trial counsel testified he had never tried a first degree murder

case with only three weeks of preparation. He said he met with the petitioner either

the same day that the petitioner's aunt retained him, or the following day. He also

informed the petitioner, upon assumption of the case, “that it was [his]

understanding that the Court would not grant a continuance because [he] came into

the case.” Trial counsel testified that he “would have liked a little more latitude in

... developing Ms. Cox's testimony,” but he was limited by the trial court's rulings.

Trial counsel reiterated that Ms. Wooten's demeanor and body language on the day

of the trial led him to believe, based on his years of experience, that she would be

a liability if he called her as a witness. Finally, trial counsel categorically denied

that he at any point fell asleep during the trial.

The petitioner's aunt, Janice Gordon, called as a rebuttal witness by the petitioner,

testified that she noticed trial counsel drop his head and start to “drift off” at least

three times during the trial. On cross-examination, Ms. Gordon testified that the

petitioner was in agreement with the family's decision to hire trial counsel to replace

the petitioner's original counsel, whom they believed was not representing the

petitioner well.

On April 4, 2016, the post-conviction court entered an order denying the petition

for post-conviction relief based on the allegations of ineffective assistance of trial

counsel. The court, however, granted the petitioner a delayed appeal to the supreme

court due to appellate counsel's failure to file a Rule 11 application for permission

to appeal. That same day, the petitioner filed a timely notice of appeal to this court

in which he challenged the post-conviction court's finding that he received effective

assistance of trial counsel.

Waktins, 2017 WL 1048130, at **2-4.

III. Standard of Review

The petition in this case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). The AEDPA was enacted “to reduce delays in the execution of state and

federal criminal sentences . . . and to further the principles of comity, finality, and federalism.”

Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal citations and quotation marks omitted).

As the Supreme Court explained, the AEDPA “recognizes a foundational principle of our federal

system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571

U.S. 12, 19 (2013). The AEDPA, therefore, “erects a formidable barrier to federal habeas relief

for prisoners whose claims have been adjudicated in state court.” Id.

One of the AEDPA's most significant limitations on the federal courts' authority to issue

writs of habeas corpus is found in 28 U.S .C. § 2254(d). Under the AEDPA, the court may grant

a writ of habeas corpus on a claim that was adjudicated on the merits in state court if that

adjudication:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405 (2000).

The state court’s factual findings are presumed to be correct and they can be contravened

only if the petitioner can show by clear and convincing evidence that the state court’s factual

findings were erroneous. 28 U.S.C. § 2254(e)(1). As the Supreme Court has advised, “[t]he

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.”

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). Review under

§ 2254(d) (1) “is limited to the record that was before the state court that adjudicated the claim on

the merits.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011).

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available

state remedies, 28 U.S.C. § 2254(b), thereby giving the State the ‘opportunity to pass upon and

correct’ alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29

(2004) (citations omitted). “To provide the State with the necessary ‘opportunity,’ the prisoner

must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with

powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Id.

(citation omitted); Gray v. Netherland, 518 U.S. 152, 162–63 (1996) (the substance of the claim

must have been presented as a federal constitutional claim). This rule has been interpreted by the

Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and

every claim set forth in the federal habeas corpus petition must have been presented to the state

appellate court. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Pillette v. Foltz, 824

F.2d 494, 496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and factual

substance of every claim to all levels of state court review”).

Claims which are not exhausted are procedurally defaulted and “ordinarily may not be

considered by a federal court on habeas review.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002).

“In order to gain consideration of a claim that is procedurally defaulted, a petitioner must

demonstrate cause and prejudice for the failure, or that a miscarriage of justice will result from the

lack of review.” Id. at 386. The burden of showing cause and prejudice to excuse defaulted claims

is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman v.

Thompson, 501 U.S. 722, 754 (1991)).

A petitioner may establish cause by “show[ing] that some objective factor external to the

defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier,

477 U.S. 478, 488 (1986). Objective impediments include an unavailable claim or interference by

officials that made compliance impracticable. Id. Constitutionally ineffective assistance of trial or

appellate counsel may constitute cause. Murray, 477 U.S. at 488–89. Generally, however, if a

petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective assistance

claim must itself have been presented to the state courts as an independent claim before it may be

used to establish cause. Id. If the ineffective assistance claim is not presented to the state courts in

the manner that state law requires, that claim is itself procedurally defaulted and can only be used

as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with

respect to the ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

Petitioners in Tennessee also can establish “cause” to excuse the procedural default of a

substantial claim of ineffective assistance by demonstrating the ineffective assistance of post-

conviction counsel in failing to raise the claim in initial review post-conviction proceedings. See

Martinez v. Ryan, 566 U.S. 1, 5-6 (2012) (creating an exception to Coleman where state law

prohibits ineffective assistance claims on direct appeal); Trevino v. Thaler, 569 U.S. 413, 429

(2013) (extending Martinez to states with procedural frameworks that make meaningful

opportunity to raise ineffective assistance claim on direct appeal unlikely); Sutton v. Carpenter,

745 F.3d 787, 792 (6th Cir. 2014) (holding that Martinez and Trevino apply in Tennessee). The

Supreme Court's creation in Martinez of a narrow exception to the procedural default bar stemmed

from the recognition, “as an equitable matter, that the initial-review collateral proceeding, if

undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure

that proper consideration was given to a substantial claim.” Martinez, 566 U.S. at 13. In other

words, Martinez requires that the ineffective assistance of post-conviction counsel occur during

the “initial-review collateral proceeding,” and that “the underlying ineffective-assistance-of-trial-

counsel claim [be] a substantial one, which is to say that the prisoner must demonstrate that the

claim has some merit.” See id. at 13-15. Importantly, Martinez did not dispense with the “actual

prejudice” prong of the standard for overcoming procedural default first articulated by the Supreme

Court in Coleman.

To establish prejudice, a petitioner must demonstrate that the constitutional error “worked

to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995)

(quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “When a

petitioner fails to establish cause to excuse a procedural default, a court does not need to address

the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (citations omitted).

Because the cause and prejudice standard is not a perfect safeguard against fundamental

miscarriages of justice, the Supreme Court also has recognized a narrow exception to the cause

requirement where a constitutional violation has “probably resulted” in the conviction of one who

is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (citing

Murray, 477 U.S. at 496).

IV. Analysis

With these principles in mind, the Court will turn to the examination of the claims raised

in Watkins’s petition for habeas relief.

A. Sufficiency of Evidence claim

In his first claim, Petitioner alleges that the evidence was insufficient to sustain his

conviction. (Doc. No. 1 at PageID# 5). Specifically, Petitioner argues that “[t]here was no

physical evidence connecting him to the crime scene and that many of the witnesses were not

creditable [sic].” (Id.) In his answer, Respondent contends that the determination by the

Tennessee Court of Criminal Appeals that the evidence is legally sufficient to support Petitioner’s

conviction was not contrary to, or an unreasonable application of clearly established Supreme

Court precedent, nor was it based on an unreasonable determination of the facts, in light of the

evidence presented at trial. (Doc. No. 11 at PageID# 10).

Petitioner raised this claim on direct appeal. (Doc. No. 9, Attach. 6 at PageID# 672).

Therefore, this Court must presume the correctness of the state court’s factual determinations. 28

U.S.C. § 2254(e)(1). Petitioner may rebut this presumption only with clear and convincing

evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

On sufficiency of the evidence challenges, habeas relief is warranted “only where the court

finds, after viewing the evidence in the light most favorable to the prosecution, that no rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (internal quotation omitted); see Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (“Instead, the relevant question is whether, after reviewing 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”) (emphasis in original).

In considering Petitioner’s sufficiency of evidence claims in its opinion, the Tennessee

Court of Criminal Appeals began by setting forth the correct legal standard:

The standard for appellate review of a claim challenging the sufficiency of the

State's evidence is “whether, 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,

99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) (citing Johnson v. Louisiana, 406 U.S. 356,

362, 92 S. Ct. 1620, 32 L.Ed.2d 152 (1972)); see Tenn. R.App. P. 13(e); State v.

Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient

evidence, appellant must demonstrate that no reasonable trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson,

443 U.S. at 319. This standard of review is identical whether the conviction is

predicated on direct or circumstantial evidence, or a combination of both. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of

the evidence as well as all reasonable and legitimate inferences which may be

drawn therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d

850, 857 (Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State

v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving

the credibility of witnesses and the weight and value to be given the evidence, as

well as all factual disputes raised by the evidence, are resolved by the jury as trier

of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.1997); State v. Pruett, 788

S.W.2d 559, 561 (Tenn.1990). This court presumes that the jury has afforded the

State all reasonable inferences from the evidence and resolved all conflicts in the

testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-

evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835;

see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984). Because a jury conviction

removes the presumption of innocence that appellant enjoyed at trial and replaces

it with one of guilt at the appellate level, the burden of proof shifts from the State

to the convicted appellant, who must demonstrate to this court that the evidence is

insufficient to support the jury's findings. Davis, 354 S.W.3d at 729 (citing State v.

Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

Watkins, 2014 WL 2547710, at *5.

The court next considered the definition of the crime for which Petitioner was convicted:

Tennessee Code Annotated section 39–13–202(a) defines this category of first

degree murder as “[a] premeditated and intentional killing of another.”

“[P]remeditation” is an act done after the exercise of reflection and

judgment. “Premeditation” means that the intent to kill must have

been formed prior to the act itself. It is not necessary that the purpose

to kill pre-exist in the mind of the accused for any definite period of

time. The mental state of the accused at the time the accused

allegedly decided to kill must be carefully considered in order to

determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

Id. § 39–13–202(d).

Watkins, 2014 WL 2547710, at *6. The state appellate court considered the evidence adduced at

trial and determined that it was sufficient to meet each of the elements of the offense. Petitioner

believed the victim to be a “snitch,” went into the victim’s hotel room, and shot him three times in

the head. Id. Stephanie Littlejohn and Brianna Stanton both testified that Petitioner was concerned

that the victim had given information to the police. William Carter testified that he drove Petitioner

to the victim's hotel room, Petitioner left the car briefly and, when he returned, he commented,

“‘[T]wo shots to the head [;] he ain't talking no more.’” Id. Mr. Carter's testimony was

corroborated in part by Ms. Littlejohn's testimony. Ms. Littlejohn testified that the victim had her

laptop and, because she knew Petitioner was going to visit the victim, she asked him to bring her

laptop back when he returned. When Petitioner returned from his outing with Mr. Carter, he had

her laptop in his possession. Ms. Littlejohn also testified that Petitioner said a prayer for the victim

and told her that he had shot the victim three times in the head. The medical examiner confirmed

that the victim had three gunshot wounds to the front of his head.

In challenging the sufficiency of the evidence used to convict him, Petitioner argued that

the witnesses’s testimonies were not credible. The Tennessee Court of Criminal Appeals found

that this argument was without merit because all witnesses had been thoroughly cross-examined,

and the jury assessed the testimony of the witnesses and evidence at trial. Id. at *7. The court

ultimately concluded that the evidence was sufficient for a reasonable juror to find that Petitioner

committed first-degree murder. Id.

Here, the decision of the Tennessee Court of Criminal Appeals was not an unreasonable

application of the facts or contrary to law, even though there was no physical evidence linking

Petitioner to the crime scene.

The state appellate court’s finding that the State established that Petitioner committed the

intentional and premeditated killing of the victim beyond a reasonable doubt was not unreasonable.

A defendant's “state of mind is crucial to the establishment of the elements of the offense,” State

v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992); thus, the State may prove premeditation by

circumstantial evidence. Several factors support the existence of premeditation, including: “the

use of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defendant of an intent to kill; evidence of procurement of a weapon; preparations before the

killing for concealment of the crime, and calmness immediately after the killing.” State v. Bland,

958 S.W.2d 651, 660 (Tenn.1997) (citing Brown, 836 S.W.2d at 541–42; State v. West, 844

S.W.2d 144, 148 (Tenn.1992)). Here, the evidence adduced at trial provided circumstantial proof

that Petitioner acted with premeditation when he shot the victim. The evidence showed that

Petitioner went inside the victim’s hotel room concerned the victim he had given information to

the police about Chaz Ellis and Bobby Gurley. When he returned from the hotel room, Petitioner

told Mr. Carter, “‘[T]wo shots to the head[;] he ain’t talking no more’” and discarded the shirt

Petitioner had worn into the hotel room. Petitioner told Ms. Littlejohn that he had shot the victim

three times and said a prayer for him. This evidence supports the state appellate court’s finding

that the evidence was sufficient to support Petitioner’s conviction for first-degree premeditated

murder.

Although Petitioner urges here, as he did on direct appeal, that the witnesses were not

credible, Mr. Carter, Ms. Stanton, and Ms. Littlejohn all testified that Petitioner threatened Mr.

Carter after learning that Mr. Carter told his girlfriend about taking Petitioner to the victim's hotel.

In addition, Ms. Stanton testified that the victim's murder was the subject of the telephone

conversations she had with Petitioner. Detective Wall testified that Ms. Littlejohn, Ms. Stanton,

and Mr. Carter each gave statements during the investigation that were consistent with each other.

A reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses,

whose demeanor has been observed by the trial court. Marshall v. Lonberger, 459 U.S. 422, 434

(1983). It is the role of the factfinder to weigh the probative value of the evidence and resolve any

conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). This Court will not

second guess the jury’s credibility determinations. See Boyles v. Sherry, No. 2:06-cv-12207, 2008

WL 4793412, at *12 (E.D. Mich. Oct. 31, 2008 (reiterating that, on habeas review, the court must

defer to the jury’s findings).

The Court finds that the decision of the Tennessee Court of Criminal Appeals was not

based on an unreasonable determination of the facts in light of the evidence presented in the state

court proceedings. Furthermore, given the evidence and testimony adduced at trial, the Court finds

that the state court’s decision to reject Petitioner’s sufficiency of evidence claim was not an

unreasonable application of the law. Petitioner therefore is not entitled to habeas relief on this

claim.

B. Due process claim

Next, Petitioner alleges that he was denied due process of law under the Fourteenth

Amendment when the trial court limited the testimony of Deborah Cox, a defense witness. (Doc.

No. 1 at PageID# 7). Respondent contends that, because Petitioner did not raise a constitutional

claim of due process on direct appeal, this claim is barred by procedural default. (Doc. No. 11 at

PageID# 13).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must

be “fairly presented” to the state courts in a way that provides them with an opportunity to remedy

the asserted constitutional violation, including presenting both the legal and factual basis of the

claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 1506,

1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson

v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The

claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581

F.3d 410, 418 (6th Cir. 2009). In reviewing the state court proceedings to determine whether a

petitioner has “fairly presented” a claim to the state courts, courts look to the petitioner's: “(1)

reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases

employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or

in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging

facts well within the mainstream of constitutional law.” Slaughter v. Parker, 450 F.3d 224, 236

(6th Cir. 2006) (quoting Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005)).

“While a petitioner need not cite ‘chapter and verse’ of constitutional law, ‘general

allegations of the denial of rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present claims’

that specific constitutional rights were violated.” Slaughter, 450 F.3d at 236 (quoting Blackmon

v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)). “A lawyer need not develop a constitutional

argument at length, but he must make one; the words ‘due process' are not an argument.” Riggins

v. McGinnis, 50 F.3d 492, 494 (7th Cir.1995). If a petitioner's claims in federal habeas rest on

different theories than those presented to the state courts, they are procedurally defaulted. Williams

v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

Here, Petitioner raised on direct appeal a claim that the trial court improperly limited the

testimony of Deborah Cox regarding a prior inconsistent statement made to her by Stephanie

Littlejohn. He made the claim on state law evidentiary grounds, arguing that Ms. Littlejohn’s prior

inconsistent statement should have been admitted to impeach the credibility of the witness. (Doc.

No. 9, Attach. 6 at PageID# 673-75). Petitioner’s brief cited Tennessee Rules of Evidence 105

and 404(b). (Id. at PageID# 673). The brief relied on state court cases and did not cite a single

federal case. (Id.) In reviewing this claim, the Tennessee Court of Criminal Appeals cited

Tennessee Rule of Civil Procedure 36(a) and found that Petitioner had waived the claim because

his counsel acquiesced to the trial court’s ruling that only the first part of Ms. Cox’s testimony was

admissible. Watkins, 2014 WL 2547710, at *8. The court therefore denied relief on this claim.

Id. In issuing its ruling, the court made no reference to federal law and did not treat Petitioner’s

claim as one brought under federal law. (Id.)

Consequently, the Court finds that Petitioner did not fairly present his federal due process

claim to the state courts. The claim is now barred from presentation to the state courts by

Tennessee Rule of Appellate Procedure 4, the statute of limitations under Tennessee Code

Annotated § 40-30-102(a), and the “one petition” limitation of § 40-30-102(c). As a result, the

claim is deemed to be exhausted (because no avenue for raising the claim in state appellate court

remains) but procedurally defaulted for the purpose of federal habeas review.

Federal habeas review of Petitioner’s procedurally defaulted claim is barred unless

Petitioner can demonstrate that cause and prejudice will excuse the procedural default or that

failure to consider the claim will result in a fundamental miscarriage of justice. See Harris, 489

U.S. at 262; Coe, 161 F.3d at 329-30. Petitioner presents no argument establishing cause and

prejudice to excuse the default of his claim, and there is no evidence that failure to consider this

claim will result in a fundamental miscarriage of justice. Consequently, Petitioner’s procedurally

defaulted due process claim must be dismissed.

C. Ineffective Assistance of Counsel claims

Petitioner alleges that he was denied ineffective assistance of counsel when trial counsel

failed to adequately investigate the case, failed to interview witnesses who could have provided

testimony favorable to Petitioner, and failed to consult with Petitioner prior to trial, including

failing to prepare Petitioner to testify at trial. He also alleges that he was denied effective

assistance of counsel when trial counsel failed to (1) call Clifford Parrish to testify, (2) properly

cross-examine Deborah Cox, (3) object to Detective Corey Wall’s hearsay statements, and (4) call

Lashona Wooten to testify. (Doc. No. 1 at PageID# 5-11).

The Sixth Amendment to the United States Constitution, as applied to the states through

the Fourteenth Amendment, guarantees the right of a person accused of a crime to the effective

assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must

show (1) deficient performance of counsel and (2) prejudice to the defendant. See Bell v. Cone,

535 U.S. 685, 694-95 (2002). Trial counsel’s performance is deficient when it falls below an

objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 686-87 (1984);

Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000), cert. denied, 531 U.S. 1035 (2000). In

assessing performance, “strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91. Reasonable

attorneys may disagree on the appropriate strategy for defending a client. Bigelow v. Williams,

367 F.3d 562, 570 (6th Cir. 2004). The prejudice element requires a petitioner to show “that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694.

A court hearing an ineffective assistance of counsel claim must consider the totality of the

evidence. Strickland, 466 U.S. at 695. “The determinative issue is not whether petitioner’s counsel

was ineffective but whether he was so thoroughly ineffective that defeat was ‘snatched from the

jaws of victory.’” West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (quoting United States v.

Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc)). “Judicial scrutiny of counsel’s performance

must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable.” Strickland, 466 U.S. at 689.

As discussed above, however, federal habeas relief may not be granted under 28 U.S.C. §

2254 unless a petitioner shows that the earlier state court’s decision “was contrary to” federal law

then clearly established in the holdings of the United States Supreme Court, § 2254(d)(1); that it

“involved an unreasonable application of” such law; or that it “was based on an unreasonable

determination of the facts” in light of the record before the state court. 28 U.S.C. § 2254(d)(1),(2).

Thus, when a claim of ineffective assistance of counsel is raised in a federal habeas petition, such

as here, the question to be resolved is not whether the petitioner’s counsel was ineffective. Rather,

“[t]he pivotal question is whether the state court’s application of the Strickland standard was

unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011). As the Supreme Court clarified

in Harrington:

This is different from asking whether defense counsel's performance fell

below Strickland's standard. Were that the inquiry, the analysis would be no

different than if, for example, this Court were adjudicating a Strickland claim on

direct review of a criminal conviction in a United States district court. Under

AEDPA, though, it is a necessary premise that the two questions are different. For

purposes of § 2254(d)(1), an unreasonable application of federal law is different

from an incorrect application of federal law. A state court must be granted a

deference and latitude that are not in operation when the case involves review under

the Strickland standard itself.

Harrington, 562 U.S. at 101 (internal quotation marks and citation omitted).

1. Pre-Trial Investigation and Preparation

Petitioner contends that trial counsel was ineffective for failing to adequately investigate,

failing to interview witnesses who could have provided testimony favorable to Petitioner, and

failing to consult with Petitioner prior to trial including preparing Petitioner for testifying at trial.

(Doc. No. 1 at PageID# 8-9). In particular, Petitioner argues that counsel failed to interview a

potential witness, Lashona Wooten, who testified at Petitioner’s first trial. Petitioner believes that

“she could [have] identif[ied] an unidentified person” and “would have raised a doubt as to

Petitioner’s presence at the location where the victim was killed.” (Id. at PageID# 9).

Petitioner raised these claims in his petition for post-conviction relief. (Doc. No. 9, Attach.

11 at PageID# 817-18). He argued that counsel should have interviewed Ms. Wooten, who had

testified at Petitioner’s first trial, because her testimony would have raised a doubt as to Petitioner’s

presence at the location where the victim was killed. (Id. at 818). He also argued that, before trial,

trial counsel only met with Petitioner twice for less than thirty minutes each time and did not

prepare Petitioner for testifying at trial in his own defense. (Id.) According to Petitioner, he waived

his right to testify due to being unprepared and, had he testified, he would have told the jury that

he was not guilty, pointed out discrepancies in witness testimony, and the result of his trial would

have been different. (Id.)

During his post-conviction evidentiary hearing, Petitioner testified that trial counsel only

met with Petitioner twice for less than thirty minutes each time and did not prepare Petitioner for

testifying at trial in his own defense. (Doc. No. 9, Attach. 12 at PageID# 902). He testified that

that they did not discuss whether Petitioner would testify at trial. (Id. at PageID# 903). When

asked what he would have said had he been called as a witness, Petitioner responded that he would

have told the jury that he did not kill Thomas Turner. (Id.)

At Petitioner’s evidentiary hearing, trial counsel testified that, in preparing for trial, he

reviewed the transcript from the first trial, visited the crime scene, and spent approximately eight

hours reviewing records, exhibits, and photographs. (Doc. No. 9, Attach. 12 at PageID# 923-27).

He enlisted the help of a nurse who helped him interpret the medical records and who provided

insight on the photographs of the deceased victim; counsel filed a motion in limine to exclude

those photographs. (Doc. No. 9, Attach. 12 at PageID# 925). He worked with prior counsel’s

investigator and hired his own investigator. (Id. at 933-34). He interviewed all of the witnesses

himself, including Ms. Wooten. (Id. at 927-28). Counsel also testified that he advised Petitioner

that it would be to be advantage to testify if he could do so truthfully, but if he felt anything may

go wrong or that he may get crossed up, then to “think twice” about taking the stand. (Id. at 928-

29). Trial counsel emphasized that the decision to testify or not was left to Petitioner. (Id. at 938-

39).

The post-conviction court denied relief, explicitly accrediting trial counsel’s testimony at

the post-conviction hearing, finding that “Petitioner has not met his burden of establishing by clear

and convincing evidence that Trial Counsel was ineffective in his trial preparation or that Petitioner

was prejudiced by any alleged deficiency.” (Doc. No. 9, Attach. 11 at PageID# 848-49). The

court found that “[n]othing in the record indicates that Trial Counsel failed to meet with the

Petitioner and keep him informed of the proceedings.” (Id.)

On appeal of the denial of post-conviction relief, the Tennessee Court of Criminal Appeals

set forth the governing legal standard for claims of ineffective assistance of counsel. Id. at *5.

Applying Strickland to the facts of Petitioner’s case, the Tennessee Court of Criminal Appeals

agreed with the post-conviction court that trial counsel’s performance was not deficient or

prejudicial, finding that “[t]rial counsel was a very experienced trial attorney who conducted a

thorough investigation of the facts, reviewed the record from the first trial, and communicated with

the petitioner about the facts, defense theories, and the pros and cons of testifying in his own

defense.” Id. at *6. The court specifically accredited the testimony of trial counsel over that of the

petitioner, finding that trial counsel conducted a thorough investigation, adequately met with the

petitioner to review the previous trial transcript and the facts of the case, and effectively

communicated with the petitioner about the case, including his options regarding testifying at trial.

Id. at *5.

These findings were not unreasonable. With regard to Petitioner’s claim that trial counsel

failed to adequately investigate and prepare for trial, trial counsel testified at Petitioner’s post-

conviction evidentiary hearing that he had been practicing law in the state of Tennessee for about

thirty-nine years and roughly half of his practice had been dedicated to criminal defense work.

(Doc. No. 9, Attach. 12 at PageID# 920-21). Trial counsel testified that, despite having been hired

by Petitioner’s family only three weeks prior to his second trial, counsel was able to devote himself

entirely to Petitioner’s case from the date he was retained until the trial. (Doc. No. 9, Attach. 12

at PageID# 922-23). Counsel testified that he met with Petitioner three different times for about

an hour each time, during which time they reviewed the transcript from the first trial “line by line.”

(Id. at PageID# 923, 925). Counsel felt that the meetings were “very productive” and that he and

Petitioner “had no problems communicating.” (Id. at PageID# 924). Counsel spoke with Petitioner

about possible defenses and witnesses. (Id. at PageID# 925). Counsel filed three motions in limine

on Petitioner’s behalf and visited the crime scene before the trial as part of his preparation. (Id. at

PageID# 926). He spent approximately eight hours reviewing records and exhibits. (Id.) He

enlisted the assistance of a nurse who provided insight on the photographs of the deceased and

filed a motion in limine to exclude the photographs. (Id.) In addition to working with prior

counsel’s investigator, trial counsel retained the services of his own investigator.

With regard to Petitioner’s allegation that trial counsel failed to interview Lashona Wooten,

trial counsel testified that he interviewed all of the defense witnesses himself, including Ms.

Wooten. This Court must defer to the state court's credibility determinations of witnesses whose

demeanor has been observed by that court, unless Petitioner demonstrates the state credibility

determinations are not supported by the record. See Rice v. Collins, 546 U.S. 333, 339 (2006)

(“Reasonable mind reviewing the record might disagree about the prosecutor's credibility, but on

habeas review that does not suffice to supersede the trial court's credibility determinations”);

Bennett v. Mills, No. 1:06-cv-254, 2007 WL 2823324, at *6 (E.D. Tenn. Sept. 27, 2007) (in

determining whether the petitioner had submitted credible new evidence of actual innocence,

deferring to the state court’s credibility determinations). Petitioner has not demonstrated that the

state court’s credibility determinations are unsupported by the record.

With respect to Petitioner’s allegation that trial counsel failed to consult with him prior to

trial, the Tennessee Court of Criminal Appeals credited trial counsel’s testimony at the post-

conviction evidentiary hearing that he met with Petitioner three times for an hour each and that

those meetings very productive. This Court will not redetermine the credibility of witnesses

whose demeanor has been observed by the trial court. Marshall, 459 U.S. 422, 434.

The constitutional right of a defendant to testify at trial is well established and subject only

to a knowing and voluntary waiver by the defendant. Rock v. Arkansas, 483 U.S. 44, 49 (1987).

Defense counsel's role is to advise the defendant whether to take the stand; ultimately, the

defendant must decide for himself. See Pelzer v. United States, No. 96-1195, 1997 WL 12125, at

*2 (6th Cir. Jan. 13, 1997) (citation omitted). To the extent that Petitioner argues that trial counsel’s

failure to consult with him prior to trial resulted in Petitioner being unprepared to testify in his

own defense, counsel testified at the evidentiary hearing that he had extensive conversations with

Petitioner about the possibility of testifying. (Doc. No. 9, Attach. 12 at PageID# 928). Trial

counsel testified that he advised Petitioner that it would be to his advantage to testify at trial if he

could do truthfully, but if he felt anything may go wrong or he may get crossed up, then to “think

twice” about taking the stand. Trial counsel emphasized that the decision whether or not to testify

was left to Petitioner, who made his decision after being advised of his rights by the court and

executing a Moman waiver.

Even if Petitioner had established that counsel’s performance was deficient as alleged,

Petitioner has not established that he was prejudiced by it. Petitioner has failed to show how better

preparation for trial would have resulted in a reasonable probability of a different trial outcome

considering the evidence against him. See Kelley v. United States, No. 1:13-cv-70, 1:08-cr-51,

2014 WL 2921821, at *14 (E.D. Tenn. June 27, 2014) (holding that petitioner’s unsupported

claims of what counsel failed to do, without any evidence of what a more thorough investigation

would have revealed, was insufficient to demonstrate by a preponderance of the evidence that

counsel performed deficiently; moreover, even assuming that counsel performed deficiently,

petitioner failed to establish a reasonable probability, that had counsel conducted a more extension

investigation, the outcome of Petitioner’s case would have been different). Furthermore, Petitioner

does not provide any specifics as to, had he chosen to testify in his own defense, what his trial

testimony would have been. The Sixth Circuit has instructed that when “one is left with pure

speculation on whether the outcome of [the criminal proceeding] could have been any different,

[there is] an insufficient basis for a successful claim of prejudice.” Baze v. Parker, 371, F.3d 310,

322 (6th Cir. 2004), cert. denied, 544 U.S. 931 (2005).

As to Petitioner’s allegations of ineffective assistance based on counsel’s pre-trial

investigation and preparation, the Court finds that Petitioner has not shown he is entitled to relief

because the state appellate court’s determinations were not contrary to Strickland. Neither were

they based on an unreasonable application of the facts or an unreasonable application of

Strickland’s standard to those facts. Thus, Petitioner is not entitled to relief on those claims.

2. During Trial

Petitioner also claims that trial counsel provided ineffective assistance of counsel during

Petitioner’s second trial. In particular, Petitioner alleges that trial counsel (1) failed to call Clifford

Parish to testify; (2) failed to properly cross-examine Deborah Cox; (3) failed to object to Detective

Corey Wall’s alleged hearsay statements; and (4) failed to call Lashona Wooten to testify. (Doc.

No. 1 at PageID #9, 11). According to Respondent, the state court’s rejection of Petitioner’s claims

that he was denied effective assistance of counsel was not contrary to, or an unreasonable

application of Strickland, or based on an unreasonable determination of the facts in light of the

evidence before the state court. (Doc. No. 11 at PageID# 16).

a. Failure to call Clifford Parrish to testify

First, Petitioner alleges that trial counsel was ineffective in failing to call Clifford Parrish

to testify at trial. (Doc. No. 1 at PageID# 18). According to Petitioner, Mr. Parrish “would have

testified that Stephanie Littlejohn confessed to him that she committed the murder for which

Petitioner was charged.” (Id.)

In his post-conviction petition, Petitioner argued that trial counsel had provided ineffective

assistance by failing to locate Mr. Parrish as a witness. (Doc. No. 9, Attach. 11 at PageID# 819).

Petitioner posited that Mr. Parrish would have been a beneficial defense witness because he could

testify that Ms. Littlejohn had confessed to murdering Thomas Turner.

Mr. Parrish testified at Petitioner’s post-conviction hearing that he had known Petitioner

for over thirty years (id. at 877) and that Ms. Littlejohn had told him that she had committed the

murder, not Petitioner. (Doc. No. 9, Attach. 12 at PageID# 880). Mr. Parrish testified that he was

unaware Petitioner had been tried twice and stated on direct examination that he had not relayed

Ms. Littlejohn’s confession to the police or defense counsel. (Id. at 881-82). On cross-

examination, Mr. Parrish indicated it was possible he was confused about the time frame when he

conveyed Ms. Littlejohn’s statement to Petitioner’s aunt. (Id. at 882-83).

Trial counsel testified at Petitioner’s post-conviction evidentiary hearing that he and

Petitioner had discussed the witnesses he wanted to call and that Petitioner did not mention Mr.

Parrish. In fact, counsel testified that he had never heard of Mr. Parrish. (Id. at PageID# 925). The

post-conviction court denied relief, accrediting counsel’s testimony that he had never heard of Mr.

Parrish as a potential witness. (Doc. No. 9, Attach. 11 at PageID# 852).

Petitioner raised this claim on appeal of the denial of his post-conviction petition. The

Tennessee Court of Criminal Appeals affirmed the denial of relief, agreeing with the post-

conviction court that trial counsel “was a very experienced trial attorney who conducted a thorough

investigation of the facts, reviewed the record from the first trial, and communicated with the

petitioner about the facts, defense theories, and the pros and cons of testifying in his own defense.”

Watkins, 2017 WL 1048130, at *6. The Tennessee Court of Criminal Appeals applied Strickland

and affirmed, concluding that the evidence in the record supported the post-conviction court’s

conclusion that trial counsel’s performance was not deficient or prejudicial. Id. at *8.

The state courts’ findings were not unreasonable. Trial counsel testified at Petitioner’s

post-conviction evidentiary hearing that he had never heard of Mr. Parrish. This Court must defer

to the state court's credibility determinations of witnesses whose demeanor has been observed by

that court, unless Petitioner demonstrates the state credibility determinations are not supported by

the record. See Rice v. Collins, 546 U.S. 333, 339 (2006) (“Reasonable mind reviewing the record

might disagree about the prosecutor's credibility, but on habeas review that does not suffice to

supersede the trial court's credibility determinations”); Bennett v. Mills, No. 1:06-cv-254, 2007

WL 2823324, at *6 (E.D. Tenn. Sept. 27, 2007) (in determining whether the petitioner had

submitted credible new evidence of actual innocence, deferring to the state court’s credibility

determinations).

Neither has Petitioner shown prejudice resulting from trial counsel’s failure to offer Mr.

Parrish’s testimony. The record reflects that Mr. Parrish had some credibility issues. In addition,

Mr. Parrish’s testimony regarding Ms. Littlejohn’s confession would have been cumulative to the

testimony of Deborah Cox, who testified that Ms. Littlejohn confessed to her that Ms. Littlejohn-

-not Petitioner--killed the victim. (Doc. No. 9, Attach. 3 at PageID# 460). No prejudice accrues

to a petitioner when an attorney fails to offer cumulative evidence. See Beuke v. Houk, 537 F.3d

618, 645 (6th Cir. 2008) (“A petitioner does not establish prejudice if he shows only that his

counsel failed to present ‘cumulative’ mitigation evidence, that is, evidence already presented to

the jury .”); Allen v. Howes, 438 F. App’x 432, 435 (6th Cir. Aug. 25, 2011) (counsel's failure to

present cumulative testimony does not result in prejudice).

Accordingly, the Court finds that the state court’s decision was based on a reasonable

determination of the facts and that the state court’s application of the Strickland factors was

reasonable. Petitioner therefore is not entitled to relief on the basis of this claim.

b. Failure to effectively cross-examine Deborah Cox

Next, Petitioner alleges that trial counsel failed to effectively cross-examine Deborah Cox,

a defense witness. Specifically, Petitioner alleges that trial counsel should have pointed out

“discrepancies in her testimony between the first and second trial[s].” (Doc. No. 1 at PageID# 11).

The petitioner raised this claim in his petition for post-conviction relief. (Doc. No. 9,

Attach. 11 at PageID# 819). He argued that trial counsel should have brought to light

discrepancies in Ms. Cox’s testimony between the first and second trials. (Id.) During Petitioner’s

post-conviction hearing, counsel testified that he would have liked “a little more latitude in . . .

developing Ms. Cox’s testimony” but was limited by the trial court’s rulings. (Id. at PageID# 937).

On appeal of the denial of post-conviction relief, the Tennessee Court of Criminal Appeals

deferred to the post-conviction court’s accreditation of counsel’s testimony that he developed her

testimony to the best of his ability given the trial court’s rulings and found that counsel had not

provided ineffective assistance in this regard. Watkins, 2017 WL 1048130, at *5.

The state courts’ findings were not unreasonable. Cross-examination is the “principal

means by which the believability of a witness and the truth of [her] testimony are tested.” Davis

v. Alaska, 415 U.S. 308, 316 (1974). “Though a failure properly to cross-examine a witness could

form the basis for a finding of ineffective assistance, Jackson v. Houk, 687 F.3d 723, 742-43 (6th

Cir. 2012), typically, a decision as to ‘whether to engage in cross-examination, and if so to what

extent and in what manner, [is] ... strategic in nature.’” Miller v. Howerton, No. 1:12-cv-50-HSM-

WBC, 2015 WL 796310, at *11 (E.D. Tenn. Feb. 25, 2015) (quoting United States v. Nersesian,

824 F.2d 1294, 1321 (2d Cir.1987)); see Hodge v. Haeberlin, 579 F.3d 627, 641 (6th Cir. 2009)

(citing Cobb v. Perini, 832 F.2d 342, 347-48 (6th Cir. 1987)) (decisions regarding how to examine

or cross-examine a witness are strategic). Impeachment strategy is a matter of trial tactics, and

tactical decisions are not ineffective assistance of counsel because in retrospect better tactics might

have been available. Johnson v. Hofbauer, 159 F. Supp.2d 582, 607 (E.D. Mich. 2001).

Counsel’s performance did not constitute ineffective assistance of counsel. The record

shows that trial counsel questioned Ms. Cox, who was his own witnesses, and testified that he

would have liked to have asked more questions of her but was limited by the trial court’s rulings.

And, even if Petitioner could show deficient performance as required by the first prong of the

Strickland test, he cannot establish the necessary prejudice required by the second prong.

Petitioner’s claims related to these tactical matters simply do not support a claim of ineffective

assistance of counsel.

The Court finds that the state court’s determination was not contrary to Strickland. Neither

was the court’s ineffective assistance determination based on an unreasonable determination of the

facts or an unreasonable application of Strickland’s standards to those facts. Thus, Petitioner is

not entitled to relief on this claim.

c. Failure to object to the testimony of Detective Wall

Petitioner alleges that trial counsel was ineffective by failing to object to the testimony of

Detective Wall. Petitioner claims Detective Wall gave hearsay testimony during the trial which

“gave the impression to the jury that these witnesses had information that incriminated petitioner

and that this hearsay improperly bolstered their testimony at trial.” (Doc. No. 1 at PageID# 9).

Petitioner raised this claim in his petition for post-conviction relief. (Doc. No. 9, Attach.

11 at PageID# 819-20). He alleged that trial counsel failed to object to hearsay testimony by

Detective Wall as follows:

Specifically, Detective Wall testified to what Stevie Downs told him, which led to

his contacting another person, Chaz Ellis. Detective Wall then testified as to what

Mr. Ellis told him, specifically that he should contact Stephanie Littlejohn and

Brianna Stanton. Detective Wall then testified, without objection by trial counsel,

to what Ms. Littlejohn told him.

(Id.) Similar to his current argument, Petitioner asserted that the substance of these multiple

hearsay statements “gave the impression to the jury that these witnesses had information that

incriminated Petitioner, and that this hearsay improperly bolstered their testimony at trial” and,

“had this hearsay not been admitted, he would not have been convicted and the result of his case

would have been different.” (Id. at 820).

Petitioner testified at his post-conviction evidentiary hearing that trial counsel allowed

hearsay through witnesses which created a negative inference that Petitioner had confessed. (Doc.

No. 9, Attach. 12 at PageID# 908-09). The record does not provide any explanation as to why

defense counsel did not object to this testimony and Petitioner failed to question defense counsel

about this issue during the post-conviction hearing.

The post-conviction court denied relief, noting from its review of the trial transcript that

“[t]he majority of the testimony concerned how Detective Wall found individual[s’] names in the

deceased’s phone and went to speak to each one who directed him to the next individual.” (Doc.

No. 9, Attach. 11 at PageID# 856-57). The court further noted that the detective gave “general”

testimony and did not testify as to what each defendant told him, but instead as to what he actions

he took based on what each individual said. (Id. at PageID# 857). The court, therefore, concluded

that there was “no evidentiary error” in Detective Wall’s testimony and that Petitioner had not

established by clear and convincing evidence that trial counsel was ineffective or that Petitioner

was prejudiced by the alleged deficiency. (Id.)

On direct appeal of the denial of post-conviction relief on this claim, the Tennessee Court

of Criminal Appeals affirmed, finding that “[t]he record fully supports the findings and

conclusions of the post-conviction court.” Watkins, 2017 WL 1048130, at *6.

The state courts’ findings were not unreasonable. The jury heard directly from nearly all

of the witnesses who were mentioned by Detective Hall in his testimony. Petitioner has not

established that, had counsel objected to Detective Hall’s testimony, the court would have granted

the objection. Neither has Petitioner established that, even if counsel was deficient in failing to

object to Detective Hall’s testimony, Petitioner was prejudiced and that the outcome would have

been different in light of the overwhelming evidence against Petitioner.

The Court finds that the state court’s determination was not contrary to Strickland. Neither

was the court’s ineffective assistance determination based on an unreasonable determination of the

facts or an unreasonable application of Strickland’s standards to those facts. Thus, Petitioner is

not entitled to relief on this claim.

d. Failure to call Lashona Wooten to testify

In his final claim of ineffective assistance of trial counsel, Petitioner argues that counsel

failed to call Lashona Wooten, who testified at Petitioner’s first trial. (Doc. No. 1 at PageID# 9).

Petitioner believes that “she could [have] identif[ied] an unidentified person” and “would have

raised a doubt as to Petitioner’s presence at the location where the victim was killed.” (Id.).

Petitioner challenged the effectiveness of his trial counsel on this same ground during his

state post-conviction proceedings. (Doc. No. 9, Attach. 11 at PageID# 85). He argued that Ms.

Wooten would have testified that she did not see Petitioner at the scene of the crime and instead

saw “another individual she could identify and an unidentified person.” Watkins, 2017 WL

1048130, at *2. In denying relief, the post-conviction court found that trial counsel made a

strategic decision not to call Ms. Wooten at the second trial and Petitioner had not established by

clear and convincing evidence that trial counsel was ineffective or that Petitioner was prejudiced

by the alleged deficiency. The post-conviction court therefore denied relief. (Doc. No. 9, Attach.

11 at PageID# 88-89).

On appeal of the denial of post-conviction relief, the Tennessee Court of Criminal Appeals

affirmed, agreeing with the post-conviction court that trial counsel had made a strategic decision

not to call Ms. Wooten based on her demeanor and attitude on the day of the trial. Watkins, 2017

WL 1048130, at *6. The court found that trial counsel “offered a reasonable explanation for why

he did not call Ms. Wooten as a witness” and that Petitioner had not met his burden of

demonstrating any deficiencies in counsel’s performance or any resulting prejudice to his case.

Id.

The state courts’ findings were not unreasonable. Counsel testified at Petitioner’s post-

conviction evidentiary hearing that he was aware of Ms. Wooten’s testimony during Petitioner’s

first trial. After interviewing her, he “had . . . chills” based on her demeanor and body language

and determined believed she would not “be anything but a liability for the Petitioner if she were to

testify.” (Doc. No. 9, Attach. 12 at PageID# 927). Counsel therefore decided not to call her as a

witness.

With respect to trial counsel’s strategic decision not to call Ms. Wooten as a witness, it is

a “longstanding and sound principle that matters of trial strategy are left to counsel’s discretion.”

Dixon v. Houk, 737 F.3d 1003, 1012 (6th Cir. 2013). In order to fairly assess an attorney’s

performance, “every effort [must] be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at that time.” Strickland, 466 U.S. at 689. “[S]trategic choices made after a

thorough investigation of the law and facts relevant to plausible options are virtually

unchallengeable.” Id. at 690. Counsel made an informed, strategic decision not to call Ms.

Wooten because he believed her testimony would have been detrimental to Petitioner’s defense.

This decision was not outside of the professional norms for criminal defense attorneys.

Even if Petitioner could establish that counsel’s failure to call Ms. Wooten as a witness

was deficient, he cannot establish that he was prejudiced by it and that the outcome would have

been different in light of the overwhelming evidence against Petitioner. Consequently, the Court

finds that Petitioner has not shown that he is entitled to relief on this claim because the appellate

court’s determination was not contrary to Strickland. Neither was the appellate court’s

determination based on an unreasonable determination of the facts or an unreasonable application

of Strickland’s standards to those facts. This claim, like the others, will be dismissed.

V. Conclusion

For the reasons set forth herein, the petition filed by Cedric Watkins seeking relief under

Section 2254 will be denied, and this action will be dismissed with prejudice.

Federal Rule of Appellate Procedure 22 provides that an appeal of the denial of a habeas

petition may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §

2253. Rule 11 of the Rules Governing § 2254 Cases requires that a district court issue or deny a

COA when it enters a final order. A COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court's resolution

of his constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller—El, 537 U.S. at 327. The district court must

either issue a COA indicating which issues satisfy the required showing or provide reasons why

such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b).

Because jurists of reason would not disagree with the resolution of Petitioner’s claims, the

Court will deny a COA.

An appropriate Order will be entered.

WAVERLY as JR.

CHIEF UNITED STATES DISTRICT JUDGE

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