Cross v. Lee

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

SHAUN CROSS, )

)

Petitioner, ) NO. 1:17-cv-00066

)

v. ) JUDGE CAMPBELL

) MAGISTRATE JUDGE

RANDY LEE, WARDEN, ) BROWN

)

Respondent. )

ORDER

Pending before the Court is a Report and Recommendation from the Magistrate Judge

(Doc. No. 26) recommending (1) no evidentiary hearing be held in this matter; (2) petitioner’s

petition for habeas corpus relief under 28 U.S.C. § 2254 be denied; (3) this action be dismissed

with prejudice; and (4) a certificate of appealability should not issue. Petitioner filed objections

to the Report and Recommendation. (Doc. Nos. 27 and 29).

After a de novo review, and for the following reasons, Plaintiff’s objections are

OVERRULED and the Report and Recommendation is ADOPTED. Accordingly,

Petitioner’s petition for habeas corpus relief (Doc. No. 1) is DENIED and this action is

dismissed with prejudice.

I. BACKGROUND

Petitioner was one of several defendants charged in connection with an aborted drug

deal. (Doc. No. 11-1 at 73). He was a passenger in a vehicle in which Laura Carter was found

to be in possession of a quantity of cocaine, which she said Defendant had handed to her at the

time of the stop. (Id.) Petitioner was indicted on one count of possession with intent to sell

cocaine, and one count of possession with intent to deliver cocaine. (Id.) On October 2, 2014,

Defendant pleaded guilty to the charge for possession with intent to sell, and the state dismissed

the remaining charge. (Id.) Co-defendant Laura Carter pleaded guilty to facilitation of

possession. (Id. at 71). Another co-defendant was tried and convicted. (Id. at 73).

Petitioner filed a pro se state post-conviction petition with the Marshall County Circuit

Court and was appointed counsel. (Doc. No. 11-1 at 3, 56-57). On March 11, 2016, the circuit

court held an evidentiary hearing and heard testimony from Petitioner and his trial attorneys.

(Doc. No. 11-1 at 64-70).

On June 16, 2016, before the circuit court ruled on the post-conviction petition,

Petitioner filed a Motion to Reconsider Post Conviction, submitting a notarized statement by

Carter, dated February 17, 2016, in which Carter claimed the drugs as hers. (Id. at 71). She

wrote, “I claim the ounce as mine, I’m doing time for it. It was on ME and I’m writing you this

to let you know I’m the guilty on facilitation possession …You not guilty on having an ounce

– I am.” Relying upon the Carter statement, Petitioner argued that his plea was not knowing

and voluntary, and that counsel were ineffective for allowing him to enter the plea agreement.

(Id. at 65-69).

On June 30, 2016, the circuit court denied Petitioner’s state post-conviction petition.

The court found that Petitioner’s trial counsel never made the threatening statements attributed

to her and that Petitioner failed to show he pled guilty because of the statements. (Id. at 79).

The circuit court then dismissed Petitioner’s pro se motion to reconsider because it did not

demonstrate grounds for reopening the evidence at a post-conviction proceeding.1 (Doc. No. 1

at 14).

1 The circuit court dismissed Petition’s pro se motion to reconsider because it did not demonstrate

grounds to reopen the evidence at the evidentiary hearing on the petition for post-conviction relief. (Doc.

No. 1 at 14). Under Tenn. Code Ann. § 40-30-117(a), a motion to reopen a post-conviction proceeding

On June 27, 2017, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the

denial of Petitioner’s state post-conviction petition. (Doc. No. 11-6). The TCCA stated that the

only issue raised on appeal was Petitioner’s claim that counsel “terrorized” him with threats of

an all-white jury, that these statements constituted ineffective assistance of counsel, and that

they caused him to involuntarily plead guilty.2 (Id. at 2). The TCCA held that there was no

proof in the record to preponderate against the findings of the circuit court that the statements

alleged by Petitioner were never made. (Id.)

Petitioner, proceeding pro se, brought this action on July 17, 2017, seeking federal

habeas corpus relief, under 28 U.S.C. § 2254, asserting the following grounds for relief: (1)

representation of appointed counsel was deficient; (2) his guilty plea was not knowing and

voluntary; and (3) he is innocent of the offence to which he pleaded guilty. (Doc. No. 1). The

Magistrate Judge found Petitioner was not entitled to relief on any of these grounds.

II. STANDARD OF REVIEW

Under 28 U.S.C. § 636(b)(1) and Local Rule 72.03(b)(3), a district court reviews de

novo any portion of a report and recommendation to which a specific objection is made. United

States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory objections are

insufficient. See Zimmerman v. Cason, 354 F. App’x 228, 230 (6th Cir. 2009). Thus, “only

those specific objections to the magistrate’s report made to the district court will be preserved

is only available if petitioner can establish by clear and convincing evidence that either (1) an appellate

court has recognized a new constitutional right that requires retroactive application; (2) new scientific

evidence has come to light that establishes petitioner’s actual innocence; or (3) petitioner’s sentence was

enhanced due to a conviction later found to be invalid. Keen v. Tennessee, 398 S.W.3d 594, 607 (Tenn.

2012) (citing Tenn. Code Ann. § 40-30-117(a)).

2 The TCCA noted that the petition “raised other grounds for post-conviction relief. However,

this issue was the main issue addressed at the post-conviction hearing and the only issue raised on

appeal.” (Doc. No. 11-6 at 3, n.1).

for appellate review.” Id. (quoting Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373

(6th Cir. 1987)).

In conducting the review, the court may “accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

Arguments not raised before the Magistrate Judge will not be considered. Swain v. Comm’r of

Soc. Sec., 379 F. App’x 512, 517-18 (6th Cir. 2010) (citing Ward v. United States, 208 F. 3d

216 (table) (6th Cir. 2000) (“[A] claim raised for the first time in objections to a magistrate

judge’s report is deemed waived.”).

III. ANALYSIS

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

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

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

decision that was contrary to, or involved an unreasonable application of, clearly established

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

determination of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2);

Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

To obtain relief under § 2254, a prisoner must first exhaust his state remedies by

“giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999). To be “fairly presented” a habeas petitioner must present both the

factual and legal basis for his claim to the state courts. Hanna v. Ishee, 694 F.3d 596, 606 (6th

Cir. 2012). Failure to exhaust is considered a procedural default when “the court to which the

petitioner would be required to present his claims in order to meet the exhaustion requirement

would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1. A petitioner

may defeat procedural default only by showing that there was cause for the default and prejudice

resulting from the default or that failure to consider the claim would result in a fundamental

miscarriage of justice. Williams v. Mitchell, 792 F.3d 606, 613 (6th Cir. 2015); Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

“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, or that his trial

counsel rendered ineffective assistance. Id. at 753. The prejudice demonstrated to overcome

the default must be actual, not merely a possibility of prejudice. Maupin v. Smith, 785 F.3d 135,

139 (6th Cir. 1986). A showing of prejudice requires petitioner to bear “the burden of showing,

not mere that errors [in the proceeding] created a possibility of prejudice, but that they worked

to his actual and substantial disadvantage, infecting his entire [proceeding] with error of

constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). To demonstrate

“a fundamental miscarriage of justice,” a petitioner must make a “convincing showing” or

actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Hodges v. Colson, 727 F.3d

517, 530 (6th Cir. 2013).

A. Claims Related to the Carter Statement Are Procedurally Defaulted

Petitioner’s central grievance revolves around his belief that Carter’s statement

establishes his actual innocence of the crime to which he pled guilty; that his guilty plea could

not have been knowing and voluntary because he was actually innocent of the charges; and that

because of this new evidence showing his innocence, he should be allowed to withdraw his

guilty plea. (Doc. No. 1, ¶¶18, 20, 26). He claims that if Carter had made the statement that the

drugs were hers before he pled guilty, he would not have entered a plea.

As stated above, Petitioner filed a motion with the post-conviction court to consider the

Carter statement, styled as a motion to reconsider, but the court denied the motion. (Doc. No. 1

at 14). Petitioner then appealed his claim to the TCCA. Although he had promised to do so,3

Petitioner’s counsel did not appeal any issues regarding the Carter statement. The only question

presented to the TCCA was, “Did the Post-Conviction Court commit error in its determination

that the conduct of Trial Counsel was with the standard demanded of competent defense

counsel?” (Doc. No. 11-4 at 5).

Petitioner concedes that he did not exhaust his actual-innocence claim or any other

claims related to the Carter statement and asserts that his failure to do so was due to his

attorney’s deficient representation on post-conviction. (Id., ¶¶ 20, 22).

The question presented then is: Does failure of counsel to appeal the issue as directed

by Petitioner constitute “cause” that will excuse the procedural default? Unfortunately for

Petitioner, it does not. As stated above, “cause” requires a showing of some factor external to

the defense that impeded counsel’s efforts to comply with the procedural rule. See Murray, 477

U.S. at 488. The Magistrate Judge found Petitioner had not alleged any external cause for

counsel’s failure to raise the issue with the TCCA. Perhaps in an attempt to overcome this

finding, Petitioner now asserts that the state assistant attorney general, his trial attorneys, and

his post-conviction attorneys “conspired together to deprive him of due process right to i.e. be

heard on Mr. Carter affidavit to prove his innocence [sic].” (Doc. No. 29 at ¶¶ 41, 39). Petitioner

has not provided any evidentiary support for his conspiracy claims. In any event, this argument

is waived because it was not presented to the Magistrate Judge. See Swain, 379 F. App’x at

3 Counsel wrote to Petitioner, “I have filed your Notice of Appeal … We will aver that the trial

court erred in not reopening your petition or in not considering new proof in your post-conviction

petition.” (Doc. No. 1 at 15).

517-18. The Court agrees with the finding of the Magistrate Judge that Petitioner does not

allege any external factor prevented his attorney from complying with the procedural rule.

Petitioner contends procedural default should be excused due to ineffective assistance

of post-conviction counsel – i.e. counsel’s failure to appeal the post-conviction court’s denial

of the motions to consider new evidence – and that Martinez v. Ryan, 566 U.S. 1 (2012) and

Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) save his claim from procedural default.

Martinez and Sutton, however, do not extend to ineffective assistance of counsel beyond the

initial post-conviction review. Martinez saves claims of ineffective assistance at trial from

procedural default when post-conviction counsel fails to raise the claim at the initial post-

conviction review. Martinez, 566 U.S. at 17; Sutton, 745 F.3d 791. Petitioner’s claims related

to the Carter statement do not implicate the effectiveness of his trial counsel. The point at which

Petitioner’s claims related to the Carter statement and his claim of actual innocence became

procedurally defaulted is when his appellate counsel failed to appeal the question to the TCCA.

Because Martinez only applies to claims of ineffective assistance of trial counsel, this later

procedural default is not encompassed by Martinez. See Atkins v. Holloway, 792 F.3d 654, 661

(6th Cir. 2015) (“attorney error at state post-conviction appellate proceeding cannot excuse

procedural default under the Martinez-Trevino framework”) (citing West v. Carpenter, 790 F.3d

693, 698 (6th Cir. 2015)).

For these reasons, the Court finds Petitioner has not shown “cause.” Having failed to

show “cause,” it is not necessary to address the prejudice half of the cause-prejudice test. The

next question is whether Petitioner has made a “credible showing of actual innocence” that a

fundamental miscarriage of justice would occur if the claim is not reviewed.

A “credible showing of actual innocence” may permit a prisoner to pursue his

constitutional claims on the merits notwithstanding the existence of a procedural bar to relief.

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). A petitioner must show “it is more likely

than not that no reasonable juror would have convicted [him] in light of the new evidence.” Id.

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This requires him “to support his

allegations of constitutional error with new reliable evidence – whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was

not presented at trial.” Benning v. Warden, Lebanon Corr. Inst., 345 F. App’x 149, 161 (6th

Cir. 2009) (citing Schlup, 513 U.S. at 324). A “credible claim of actual innocence is extremely

rare,” and it “should ‘remain rare’ and ‘only be applied in the extraordinary circumstances.’”

Souter v. Jones, 395 F.3d 577, 590, 600 (6th Cir. 2005) (quoting Schlup, 513 U.S. at 321).

Notably, “‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley

v. United States, 523 U.S. 614, 623 (1998).

The Court agrees with the Magistrate Judge’s determination that the Carter statement

does not establish Petitioner’s actual innocence, i.e. that no reasonable juror would have

convicted him. In the context of a trial, Carter’s statement would be one piece of evidence

subject to consideration of its reliability and weighed against Petitioner’s contradictory

testimony under oath at the plea hearing. Plea hearing testimony “constitute[s] a formidable

barrier in any subsequent collateral proceeding” because “[s]olemn declarations in open court

carry a strong presumption of veracity.” Calvey v. Burt, No. 17-1926, 2018 WL 2015779, at

*3 (6th Cir., April 30, 2018) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). In

other words, the Court may presume that Petitioner’s statement under oath at the plea hearing

is true – that he bought the cocaine and only gave it to Carter to hide after officers initiated a

stop of the vehicle. In assessing the reliability of Carter’s statement, i.e. the likelihood that her

statement is true, the Court may consider the timing of the statement and Carter’s likely

credibility. Benning, 345 F. App’x 149 at 161 (citing Schlup, 513 U.S. at 332). Here, Carter

wrote the letter only after she pleaded guilty and was sentenced for her role. Such post-

conviction statements are “inherently suspect because codefendants may try to assume full

responsibility for the crime without any adverse consequences.” Allen v. Yukins, 366 F.3d 396,

405 (6th Cir. 2004).

The Court agrees with the conclusion of the Magistrate Judge that Carter’s statement

lacks sufficient reliability to show “it is more likely than not that no reasonable juror would

have convicted [Petitioner] in light of the new evidence.” Accordingly, Petitioner has not

shown a fundamental miscarriage of justice that would overcome the procedural default on his

claims related to the Carter statement or his claim of actual innocence.

B. Ineffective Assistance of Counsel

Without objecting to specific portions of the Report and Recommendation, Petitioner

alleges three instances where his Sixth Amendment right to effective assistance of counsel was

violated: (1) trial counsel coerced him to enter a guilty plea by threatening him with an all-

white jury who would hang him; (2) trial counsel failed to show him incriminating statements

made by his codefendants; (3) post-conviction counsel failed to obtain a hearing on the Carter

Statement; and (4) post-conviction counsel failed to appeal the post-conviction court’s

dismissal of his motion to reopen the evidence.

The allegation that trial counsel did not show him the statements of codefendants is

entirely new. In fact, in the supplemental objections to the Report and Recommendation,

Petitioner states that he “now realized that trial counsel Zimmerle’s [sic] never let him to this

date see the alleged statement [of Carter].” (Doc. No. 29, ¶ 38). Because was not raised before

the Magistrate Judge, this argument is waived. See Swain, 379 F. App’x at 517-18. Moreover,

the relevant statement considered by the state trial court at Petitioner’s plea hearing was

Petitioner’s own statement that he was guilty of the crime charged. Petitioner’s admission of

guilt renders the content of Carter’s prior statement irrelevant.

Petitioner’s assertion of ineffective assistance of post-conviction counsel is not grounds

for habeas relief. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel

during Federal or state collateral post-conviction proceedings shall not be a ground for relief in

a proceeding arising under 2254.”) Moreover, there is no constitutional right to counsel in

postconviction proceedings, and therefore no corresponding claim for ineffective assistance of

counsel. See Coleman, 501 U.S. at 725; Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013)

(ineffective assistance of post-conviction counsel does not provide a separate ground for habeas

relief).

Only the first instance of ineffective assistance – that trial counsel coerced him to enter

a guilty plea by threatening him with an all-white jury who would hang him – was exhausted

in state court. Both the post-conviction court and the TCCA rejected Petitioner’s claim that

ineffective assistance of counsel rendered his guilty plea involuntary. Petitioner’s only

objection to the Report and Recommendation on the issue of ineffective assistance of trial

counsel an objection to the trial court finding that he pleaded guilty because of the jail

recordings and not because of statements by counsel regarding the makeup of the jury. (Doc.

No. 29, ¶¶ 16-17).

To satisfy due process, guilty pleas must “not only must be voluntary, but must be

knowing, intelligent acts done with sufficient awareness of the relevant circumstances and

likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). A state court’s

determination that a guilty plea was valid is a factual finding entitled to a presumption of

correctness on federal habeas review, rebuttable only by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 417 (6th Cir. 2008); Carethers v.

Wolfenbarger, 407 F. App’x 14, 17 (6th Cir. 2011). “[T]he two-part Strickland test … applies

to challenges of guilty pleas based on the ineffective assistance of counsel.’” Lafler v. Cooper,

566 U.S. 152, 162 (2012) (citing Missouri v. Frye, 566 U.S. 134 (2012)). In the guilty-plea

context, a habeas petitioner “must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Id. at 163. In addition, when an ineffective assistance of claim arises under AEDPA, the court

gives deference to both counsel’s performance and the state court’s determination that counsel’s

performance was reasonable. See Cullen v. Pinholster, 563 U.S. 170, 196 (2011); Hand v.

Houk, 871 F.3d 390, 413 (6th Cir. 2017), cert. denied, 138 S. Ct. 1593 (2018). The result of

this double deference is that “[e]stablishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult.” Hodges v. Colson, 727 F.3d 517, 534

(6th Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)) (“The standards

created by Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.”) (internal quotation marks and citations omitted). Therefore,

“[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id.

The Magistrate Judge carefully and thoroughly examined the record and found the state

courts’ determinations regarding the voluntariness of Petitioner’s guilty plea did not constitute

an unreasonable application of clearly established Federal law or an unreasonable determination

of the facts in light of the evidence presented such that would entitle Petitioner to habeas relief.

The Court has conducted a de novo review of the state court proceedings and agrees with the

recommendation of the Magistrate Judge.

The post-conviction court heard testimony from Petitioner and both trial attorneys and

found that trial counsel did not make the statement attributed to her and that Petitioner decided

to plead guilty because of the supplemental disclosure of jail recordings. (Doc. No. 11-1 at 79).

Petitioner presents no evidence that preponderates against the finding by the post-conviction

court. Accordingly, Petitioners petition for habeas relief on this ground is denied.

C. An Evidentiary Hearing Is Not Warranted

Petitioner objected to the recommendation that no evidentiary hearing be held. (Doc.

No. 27, ¶ 1). The standard by which the Court determines whether to grant an evidentiary

hearing has been articulated by the Supreme Court as follows:

In deciding whether to grant an evidentiary hearing, a federal court must

consider whether such a hearing could enable an application to prove the

petition’s factual allegations, which if true, would entitle the applicant to

federal habeas relief. Because the deferential standards prescribed by §

2254 control whether to grant habeas relief, a federal court must take into

account those standards in deciding whether an evidentiary hearing is

appropriate.

Schriro v. Landrigan, 550 U.S. 465 (2007); see also, Ivory v. Jackson, 509 F.3d 284, 298 (6th

Cir. 2007). “A district court is not required to hold an evidentiary hearing if the record

‘precludes habeas relief.’” Muniz v. Smith, 647 F.3d 619, 625 (6th Cir. 2011).

Here, as stated above, Petitioner’s claims are procedurally barred or without merit.

Carter’s statement, whether by affidavit or direct testimony, would not entitle Petitioner to

habeas relief. Accordingly, an evidentiary hearing is not warranted.

IV. CONCLUSION

For the reasons stated, Petitioner’s objections ace OVERRULED. The Report and

Recommendation of the Magistrate Judge (Doc. No. 26) is ADOPTED and APPROVED.

Petitioner’s petition for habeas corpus relief under 28 U.S.C. § 2254 is DENIED and this action

is DISMISSED WITH PREJUDICE. Should Petitioner file a notice of appeal, such notice

shall be docketed as both a notice of appeal and application for COA which should not issue.

This Order shall constitute the final judgment in this case pursuant to Fed. R. Civ. P. 58.

It is so ORDERED.

UNITED STATES DISTRICT JUDGE

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