Pewitte v. Washburn

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ANTONIO TERREL PEWITTE, )

)

Petitioner, ) No. 3:20-cv-00010

)

v. ) JUDGE TRAUGER

)

WARDEN RUSSELL WASHBURN, )

)

Respondent )

MEMORANDUM OPINION

Antonio Pewitte, a convicted prisoner in state custody, filed a petition for the writ of

habeas corpus under 28 U.S.C. § 2254 and paid the filing fee. (Doc. Nos. 1, 4.) The court will

deny the petition for the reasons explained below.

I. FACTS AND PROCEDURAL HISTORY

A Davidson County jury convicted the petitioner in 2015 of one count of aggravated

child neglect resulting in serious bodily injury. (Doc. No. 10-1 at 7, 82.) He had also been

charged with three other counts of which he was acquitted—one count of aggravated child abuse

resulting in serious bodily injury, one count of aggravated child abuse by use of a dangerous

instrumentality, and one count of aggravated child neglect by use of a dangerous

instrumentality—all as alternative theories of criminality for scalding his girlfriend’s six-year-old

daughter’s hands in hot water. (Doc. No. 10-13 at 2.)

At the time of the incident, the petitioner had been dating the victim’s mother for almost

three years and lived with her, the victim, her son M.O., and the petitioner’s son. (Id.) The

Tennessee Court of Criminal Appeals summarized the evidence at trial:

On the evening of December 1, 2013, Mother was at work, and Defendant was

watching her children. Before dinner, N.C. went into the bathroom next to the

kitchen and began washing her hands with cold water. Defendant and the other

children were at the kitchen table waiting on N.C. to finish washing her hands so

that they could begin eating together. Defendant joined N.C. in the bathroom and

turned the faucet handle to hot water. Defendant then “grabbed” her wrists and

put her hands under the hot water so that the water ran over the back of her hands

and thumbs. N.C. testified that the hot water was “painful” and that she cried

when she felt it. N.C. said that Defendant did not apply soap to her hands or rub

her hands together while her hands were under the water. According to N.C.,

Defendant also “tried to put [her] face in the water.”

N.C. thought that Defendant changed the water temperature because she was

“taking too long,” and she thought he was “angry.” N.C. also testified that, prior

to the incident, Defendant believed that N.C. was “messing with nail polish,” so

he punished her by making her “stand in the corner with one leg up and one leg

down” while raising both of her hands to her head. N.C. thought that Defendant

put her hands under the hot water on purpose and that it was not an accident.

Afterward, Defendant told N.C. to go sit down at the kitchen table, and she

complied. During dinner, N.C.’s hands hurt and made it difficult for her to use her

fork. Throughout the night, N.C. had trouble sleeping because her hands hurt.

M.O., who was twelve years old at the time of trial, testified that he was at the

kitchen table and heard N.C. scream after Defendant went into the bathroom with

her. M.O. saw that N.C.’s hands were red, but he did not recall Defendant doing

anything to help treat N.C.’s hands. M.O. also heard N.C. “moaning” before she

went to bed.

While Mother was at work, she talked with Defendant on the phone around half a

dozen times. He told her that N.C. was playing with her nail polish and said that

he was going to let Mother “handle it” when she got home. According to Mother,

Defendant sounded “angry.” On one of the phone calls, Defendant made N.C. tell

Mother that she was in trouble because she “lied” about playing with the nail

polish. Mother testified that she did not believe her daughter lied about the nail

polish because N.C. was crying on the phone. Although they spoke on the phone

numerous times, Defendant never called Mother to tell her that N.C.’s hands were

burned, and he did not mention the incident to Mother when she returned home

from work. Mother’s shift ended at 11 p.m. When she got home, she fell asleep on

the couch in the living room.

The following morning, N.C. awakened Mother and said that her hands hurt.

Mother observed that there were blisters on the front and back of N.C.’s hands.

The blisters covered “most” of her hands. Mother was “shocked” and “worried.”

Mother woke up Defendant and asked him what happened.

Given the nature of the injuries, Mother thought that N.C. needed to go to the

hospital, but Defendant disagreed. Defendant told Mother that she was “stupid”

and said that N.C. “didn’t need to go to no f***ing hospital.” Then, Defendant

soaked N.C.’s hands in rubbing alcohol and tried to “pop” the blisters with a

safety pin. Mother went to the store and bought gauze wrap and Neosporin cream.

She used both to treat N.C.’s hands.

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Mother called her mother, Carla Agins, and told her about what happened. After

learning that N.C.’s hands were burned, Ms. Agins called 911 and the hotline for

the Department of Children’s Services. According to Ms. Agins, Mother seemed

scared because she was whispering on the phone.

Detective Jeffrey Gibson of the Nashville Police Department went to the house

and inspected the bathroom where the incident occurred. When Detective Gibson

arrived, Defendant was cooperative and seemed “visibly upset.” The sink’s faucet

had a single lever which turned back and forth horizontally to change the water

temperature. Detective Gibson turned on the hot water as high as it would go and

then he used a digital thermometer to check the temperature of the water over a

period of about two minutes. The temperature of the water fluctuated, but the

highest reading was 141.6 degrees Fahrenheit, and the most consistent

temperature reading was around 131.6 degrees Fahrenheit. When Detective

Gibson checked the water temperature with an analog thermometer, it reached

almost 130 degrees Fahrenheit. While the water was running, steam would come

from the water intermittently.

After checking the hot water heater, Detective Gibson discovered that the

temperature control dial was on the setting just below the hottest. The hot water

heater was located next to the bathroom, so the water would not have had to travel

far before reaching the bathroom faucet. Mother testified that she had not adjusted

the hot water heater temperature settings. She was not aware that anyone had

previously been burned by the hot water in their home. The house in which they

lived was government-owned housing, so the tenants did not handle maintenance

issues.

An ambulance took N.C. to the hospital, where she remained for six days, during

which she received aqua therapy and had to perform exercises “to keep flexibility

in her hands.” N.C. stayed on pain medication throughout the hospitalization.

Mother had to change N.C.’s bandages twice a day after N.C. was discharged, and

N.C. had to continue doing flexibility exercises for two months.

Carrie Donnell was a nurse practitioner at Vanderbilt University Medical Center

who evaluated N.C. in the emergency department on the day after the incident.

The trial court certified her as an expert in child abuse pediatrics without

objection. Ms. Donnell described N.C.’s injuries as a mix of superficial thickness

burns and partial thickness burns located on “the palm and the back of her hand

and then extended from her wrist down to her fingers” on each hand. Ms. Donnell

explained:

[B]urns are described ... on a continuum being partial thickness to

full thickness burns. And within partial thickness, you can have

superficial and deep partial thickness burns. So, if you think about

a superficial burn, it would be like a sunburn, redness to the skin,

but no loss of skin. And then, as the burn progresses and gets ...

deeper, you will have blistering and loss of skin. In a full thickness

burn, [it] would enter into subcutaneous tissue and even bone.

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The majority of N.C.’s burns were partial thickness burns, including deep partial

thickness burns on both hands. Ms. Donnell explained that “superficial and partial

thickness burns are actually more painful than full thickness burns ... because the

nerve endings are exposed but not yet killed off, ... and the full thickness burns

are so deep that the nerve endings are just completely [gone], ... so you don’t

actually feel that sensation anymore.” Because N.C.’s burns were of the former

type, they required “ongoing pain management” until they healed.

After N.C. sustained the injuries, “her hands would have been obviously very red.

While they might not have been blistered immediately upon burn—that would

have developed over some time—but it would have been clear to any prudent

caregiver that she had been injured.” Ms. Donnell explained that immediate

medical attention is “very important” for a child with such injuries in order to

reduce the risk of developing “difficulty in flexing that extremity or body part.”

Ms. Donnell testified that popping the blisters and applying burn ointment was

not “an appropriate form of medical intervention” for N.C.’s injuries because

opening a wound increases the risk of infection. N.C.’s injuries caused loss of

pigmentation to her skin and also reduced the range of motion in her hands.

Ms. Donnell testified that the burns on N.C.’s hands were consistent with both

hands having been placed “perpendicular to the floor” with the thumbs upwards

underneath the hot water. According to Ms. Donnell, a child can comfortably

wash in hot water with a temperature of about 101 degrees, and burns can begin

forming at 113 degrees with prolonged exposure. A child like N.C. would be

expected to cry out in pain and withdraw from 113–degree water. Accordingly,

N.C.’s injuries were not accidentally self-inflicted. N.C.’s burns required

“increased temperature and increased exposure time” beyond that of quick contact

with 113–degree water. Ms. Donnell testified that, in water of 130 degrees

Fahrenheit, it would take approximately six to ten seconds for a child to sustain

the injuries that N.C. did. A full thickness burn would result after approximately

one second from a child’s exposure to water of 140 degrees Fahrenheit.

(Doc. No. 10-13 at 2–5.)

The petitioner did not testify at trial. (Id. at 5.) The trial court sentenced him to 20 years

in prison with eligibility for release after serving 70% of his sentence. (Doc. No. 10-1 at 95.)

The Tennessee Court of Criminal Appeals affirmed the conviction and sentence on direct appeal,

and the Tennessee Supreme Court denied review. (Doc. Nos. 10-13, 10-18.) The petitioner then

sought relief through post-conviction proceedings, which the trial court denied after an

evidentiary hearing. (Doc. No. 10-19 at 49–58.) The Tennessee Court of Criminal Appeals

affirmed the denial of relief, and the Tennessee Supreme Court again denied review. (Doc. Nos.

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10-24, 10-27.)

The petitioner filed his pending habeas petition in January 2020, and the respondent

acknowledges that it is timely and that it is the petitioner’s first such petition. (Doc. No. 12 at 1.)

II. ISSUES PRESENTED FOR REVIEW

The petition raises the following claims for relief:

1. The trial court erred in failing to require the state to make an election of offenses.

(Doc. No. 1 at 16.)

2. The trial court erred by admitting hearsay evidence. (Id.)

3. Trial counsel was ineffective for failing to present a plumbing expert at trial. (Id. at

17.)

4. The prosecution’s closing argument amounted to a constructive amendment of the

indictment and violated the petitioner’s right to a fair trial. (Id. at 18.) And

5. The cumulative effect of these errors denied the petitioner a fundamentally fair trial.

(Id. at 20.)

III. STANDARD OF REVIEW

The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only

on the ground that he is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus

review, a federal court may only grant relief if it finds that the error “had substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 637 (1993); Peterson v. Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).

AEDPA was enacted “to reduce delays in the execution of state and federal criminal

sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and

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federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529

U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met

before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht

v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,

AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction

through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v.

Virginia, 443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA

imposes “a substantially higher threshold” for obtaining relief than a de novo review of whether

the state court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007)

(citing Williams, 529 U.S. at 410).

Specifically, a federal court may not grant habeas relief on a claim rejected on the merits

in state court unless the state decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United States,” or

“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)(1) and (d)(2). A state court’s legal decision is

“contrary to” clearly established federal law under § 2254(d)(1) “if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state

court decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 412–13. An “unreasonable application” occurs

when “the state court identifies the correct legal principle from [the Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A state

court decision is not unreasonable under this standard simply because the federal court finds it

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erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court’s

decision applies federal law in an objectively unreasonable manner. Id. at 410–12.

Similarly, a district court on habeas review may not find a state court factual

determination to be unreasonable under Section 2254(d)(2) simply because it disagrees with the

determination; the determination must be “‘objectively unreasonable’ in light of the evidence

presented in the state court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir.

2002). “A state court decision involves ‘an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding’ only if it is shown that the state court’s

presumptively correct factual findings are rebutted by ‘clear and convincing evidence’ and do

not have support in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting

§ 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 & n.3 (6th Cir. 2014)

(observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1)

and the panel did not read Matthews to take a clear position on a circuit split about whether clear

and convincing rebutting evidence is required for a petitioner to survive (d)(2)). Moreover,

under Section 2254(d)(2), “it is not enough for the petitioner to show some unreasonable

determination of fact; rather, the petitioner must show that the resulting state court decision was

‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).

Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected

on the merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given the benefit of

the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Richter, 562 U.S. at 102,

and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Petitioner carries the burden of

proof. Pinholster, 563 U.S. at 181.

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Even that demanding review, however, is ordinarily only available to state inmates who

have fully exhausted their remedies in the state court system. 28 U.S.C. §§ 2254(b) and (c)

provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner

unless, with certain exceptions, the prisoner has presented the same claim sought to be redressed

in a federal habeas court to the state courts. Pinholster, 563 U.S. at 182. 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. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v.

Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (explaining that exhaustion “generally entails fairly

presenting the legal and factual substance of every claim to all levels of state court review”).

Moreover, the substance of the claim must have been presented as a federal constitutional claim.

Gray v. Netherland, 518 U.S. 152, 162–63 (1996).

The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards

v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the

procedural default doctrine). If the state court decides a claim on an independent and adequate

state ground, such as a procedural rule prohibiting the state court from reaching the merits of the

constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review.

Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also Walker v. Martin, 562 U.S. 307, 315

(2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of

the state court rests on a state law ground that is independent of the federal question and

adequate to support the judgment.”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). If a

claim has never been presented to the state courts, but a state court remedy is no longer available

(e.g., when an applicable statute of limitations bars a claim), then the claim is technically

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exhausted, but procedurally barred. Id. at 731–32.

If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless

the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will result in

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. 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, 501 U.S. at 754). “‘[C]ause’ under the cause and

prejudice test must be something external to the petitioner, something that cannot fairly be

attributed to him [;] . . . some objective factor external to the defense [that] impeded . . . efforts to

comply with the State’s procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original).

Examples of cause include the unavailability of the factual or legal basis for a claim or

interference by officials that makes compliance “impracticable.” Id. 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)); see also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir.

2012) (finding that “having shown cause, petitioners must show actual prejudice to excuse their

default”). “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).

Likewise, if a petitioner cannot establish prejudice, the question of cause is immaterial.

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

miscarriages of justice, the United States Supreme Court 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

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(2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord Lundgren v. Mitchell,

440 F.3d 754, 764 (6th Cir. 2006).

IV. ANALYSIS

A. Election of Offenses

The state charged the petitioner in a four-count indictment reflecting two different

theories each of aggravated child abuse and aggravated child neglect: (1) abuse and/or neglect

resulting in serious bodily injury; and (2) abuse and/or neglect inflicted with a “dangerous

instrumentality”—scalding water. (Doc. No. 10–1 at 4–8.) The jury convicted him only on

Count 3, aggravated child neglect resulting in serious bodily injury, and acquitted him on the

other three counts. (Id. at 7, 82–85.) The petitioner claims that the state should have been

required “to make an election of offenses to distinguish the separate counts of child abuse and

child neglect based upon spatial and factual differences of each count” and that the failure to

require such election meant that he was subject to “multiple punishments” for a “criminal

episode [that] constituted but a single offense.”(Doc. No. 1 at 16.) He complains of

“multiplicity” in the indictment. (Id.) The court understands this claim to assert that the failure

to require an election of offenses violated the petitioner’s rights under the Fifth Amendment’s

Double Jeopardy Clause.

The petitioner claimed on direct appeal that “the trial court erred in failing to require the

state to make an election of offenses for each count charged in the indictment.” (Doc. No. 10-10

at 11.) The petitioner’s brief mentioned only in passing that one of the purposes of an election of

offenses is “to protect the defendant against double jeopardy”:

Where a defendant commits multiple offenses against a victim, the state has a

duty to elect which act or occurrence relates to which particular charged offense

for which the State seeks a conviction. State v. Adams, 24 S.W.3d 289, 294 (Tenn.

2000). The purposes of election are: 1) to ensure the defendant is able to prepare

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for and defend a specific charge; 2) to protect the defendant against double

jeopardy; 3) to allow the trial and appellate courts to review the legal sufficiency

of the evidence; and 4) most importantly, to ensure that the jurors deliberate over

and render a verdict on the same offense, which is a fundamental constitutional

right of an accused. Id.

(Id. at 33.) But his chief argument in support of his claim on direct appeal was that the failure to

require an election violated his “right to a unanimous jury verdict under the Tennessee

Constitution.” (Id. at 32–33.) Specifically, he asserted that “some jurors may have found that the

defendant’s negligent act was putting the victim’s hands under the hot water; other jurors may

have determined that the defendant’s negligent act was failing to seek appropriate medical

treatment for her injuries.” (Id. at 36 (citations omitted).)

The Tennessee Court of Criminal Appeals rejected this claim on its merits in an analysis

that focused solely on the state constitutional claim about unanimity of the jury verdict:

Defendant argues that his right to a unanimous jury verdict was violated when the

trial court refused to require the State to elect which offense it was prosecuting

under each count of the indictment. He maintains that the jury’s guilty verdict for

aggravated child neglect could have been based on either his conduct in holding

the victim’s hands under hot water or his conduct in failing to seek prompt

medical assistance for the victim. The State argues that no election was required

because Defendant’s continuing course of conduct was a single offense. We agree

with the State.

A criminal defendant’s constitutional right to a jury trial includes the right to a

unanimous jury verdict. See State v. Lemacks, 996 S.W.2d 166, 169–70 (Tenn.

1999). “[W]here the prosecution presents evidence to the jury that tends to show

more than one criminal offense, but the underlying indictment is not specific as to

the offense for which the accused is being tried,” the trial court must require the

State to elect which offense it is submitting for the jury’s consideration. Id. at 170.

The purpose of the election requirement is to prevent “patchwork” verdicts,

wherein some of the jury base their decision on one offense, while others base

their decision on another offense. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.

1993). Accordingly, no election is necessary where there is only evidence of a

single offense. State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000).

In Adams, our supreme court declared that child neglect may be a single,

“continuing course of knowing conduct beginning with the first act or omission

that causes adverse effects to a child’s health or welfare” and continuing “until the

person responsible for the neglect takes reasonable steps to remedy the adverse

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effects to the child’s health and welfare caused by the neglect.” Id. at 296.

Although not always the case, “a continuing offense may be composed of

multiple discrete acts where a single scheme or motivation is present.” Id.

In this case, the conduct for which Defendant was prosecuted and convicted was a

continuing course of conduct which began when he caused the victim’s hands to

be burned by holding them under hot water and continued for as long as he failed

to properly attend to her injuries. [FN2: Indeed, the jury instructions informed the

jury as much: “‘Neglect’ is a continuing course of conduct beginning with the

first act or omission that causes adverse effects to a child’s health and welfare and

can be an act of commission or omission. Neglect also includes a failure to

provide or seek appropriate medical care.”] This remains true even though the

course of conduct was composed of more than one discrete act. While failure to

seek medical care, in some cases, may constitute the entirety of the allegedly

criminal conduct for a charge of neglect, we do not believe that it necessarily

follows that an election of offenses is required anytime a period of failure to seek

medical care accompanies other discrete conduct which more directly contributes

to the infliction of injury. Under these circumstances, there was no need for an

election of offenses because the neglect charges were predicated upon a single,

continuing course of conduct, and therefore, the evidence only suggested a single

criminal offense of neglect. Defendant is not entitled to relief on this basis.

(Doc. No. 10-13 at 5–6.)

The court concludes that petitioner’s fleeting reference to double jeopardy in his state-

court brief, which the state court did not treat as part of the substance of his claim, did not fairly

present any federal double jeopardy claim to the state court for review. Adams, the state court

opinion the petitioner cited for his general basis for the requirement to elect offenses, does not

cite or discuss the federal constitution or any federal constitutional rights. 24 S.W.3d 289. It

cites a single federal opinion, Toussie v. United States, 397 U.S. 112, 115 (1970)), simply as a

secondary citation on the topic of when a crime is a continuing offense. Adams, 24 S.W.3d at

295. Toussie does not involve double jeopardy, and Adams mentions double jeopardy only once,

as the second basis for the election requirement: “Second, election protects a defendant against

double jeopardy by prohibiting retrial on the same specific charge.” Adams, 24 S.W.3d at 294.

Accordingly, the petitioner’s oblique reference to “double jeopardy” is simply not sufficient to

put a state court on notice of any federal constitutional claim. See McMeans v. Brigano, 228 F.3d

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674, 682 (6th Cir. 2000) (holding that references to broad constitutional concepts like “fair trial”

and “due process” do not fairly present a specific constitutional claim). It clearly did not do so in

this case.

The petitioner is now barred from presenting any federal double jeopardy claim to the

state courts by Tennessee Rule of Appellate Procedure 4, the statute of limitations imposed by

Tennessee Code Annotated § 40-30-102(a), and the “one petition” limitation of Section 40-30-

102(c). Accordingly, any federal double jeopardy claim raised here is procedurally defaulted

and not subject to federal habeas review.

Alternatively, even if the petitioner’s reference to double jeopardy fairly presented his

claim such that the state court is presumed to have rejected it on the merits without discussion,

see Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to

a state court and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.”), the claim would fail in this court as well. The Fifth Amendment’s

Double Jeopardy Clause provides that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. “The prohibition . . . protects

individuals not only from successive trials, but also prohibits multiple punishments for the same

offense.” United States v. DeCarlo, 434 F.3d 447, 454 (6th Cir. 2006) (citing Witte v. United

States, 515 U.S. 389, 391 (1995)). The petitioner was subjected to only one trial resulting in

only one punishment for a single count of conviction, and he does not cite any clearly established

precedent establishing that the Double Jeopardy Clause was violated in this case. He is not

entitled to relief on this claim.

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B. Hearsay

The petitioner alleges that the trial court relieved the state of its burden of proof at trial by

admitting hearsay testimony from Carrie Donnell, in violation of his right to due process under

the Fourteenth Amendment. (Doc. No. 1 at 16–17.) He raised the admissibility of this hearsay

on appeal, and the Tennessee Court of Criminal Appeals denied relief:

Defendant argues that the trial court erred by admitting into evidence statements

made by the victim to the nurse practitioner at the hospital. Defendant maintains

that the statements were procured for the purpose of facilitating criminal

prosecution rather than for medical diagnosis and treatment. The State disagrees.

Tennessee Rule of Evidence 803(4) allows for the admission of hearsay in the

form of statements for the purposes of medical diagnosis or treatment. The rule

requires either that (1) the statement must have been made for the purposes of

diagnosis and treatment, in effect describing medical history, past or present

symptoms, or pain or sensations, or (2) the statement must address the cause or

source of the problem if reasonably pertinent to diagnosis and treatment. State v.

McLeod, 937 S.W.2d 867, 870 (Tenn. 1996). This hearsay exception is justified

because “the declarant’s motive of obtaining improved health increases the

statement’s reliability and trustworthiness.” State v. Barone, 852 S.W.2d 216, 220

(Tenn. 1993). In addition, “if physicians or other medical personnel rely upon the

statement in diagnosing and treating the patient, then the statement should be

sufficiently trustworthy to be admissible in a court of law.” McLeod, 937 S.W.2d

at 870 (citing Barone, 852 S.W.2d at 220; State v. Edwards, 868 S.W.2d 682, 699

(Tenn. Crim. App. 1993)).

In order to determine the admissibility of a statement made by a child-declarant

pursuant to Rule 803(4), the trial court is required to conduct an evidentiary

hearing outside the jury’s presence. Id. at 869. When determining whether a

child’s statement qualifies for a hearsay exception under Rule 803(4), the trial

court “must consider criteria such as the circumstances surrounding the making of

the statement,” including “the timing of the statement and its contents,” whether

“the statement was inappropriately influenced by another,” whether the statement

“was in response to suggestive or leading questions,” and whether there were any

other factors that might “affect trustworthiness, such as a bitter custody battle or

family feud.” Id. at 871.

Ms. Donnell was employed by Vanderbilt University Hospital and worked in their

Child Abuse Response and Evaluation (“CARE”) Team. The CARE Team is

called in to evaluate injuries possibly caused by child abuse or neglect. Ms.

Donnell and her team act as a liaison with the Department of Children Services

14

and law enforcement officers when necessary. The CARE Team works on over

200 cases each year, and Ms. Donnell handles about a third of those cases. In

every case, Ms. Donnell takes a medical history from the child, if able to speak, as

well as the caregiver. The medical history includes questions about the source of

and the circumstances surrounding an injury because that information is useful in

formulating a medical diagnosis and recommendations for treatment. Medical

professionals also use this information to ensure that a child will not be released

back into an environment where the injury may occur again. Knowledge of

previous injuries or a history of domestic violence against a patient would be

utilized by any medical professional in diagnosing and treating an injury. In her

capacity, Ms. Donnell does not actually provide treatment to patients, but she

makes treatment recommendations to the attending physician. Ms. Donnell

testified, “The purpose of my evaluation is strictly medical. It has an investigative

value, but we are not investigators . . . .”

At trial, the prosecutor asked Ms. Donnell to read the medical history portion of

her medical record for N.C. Ms. Donnell conveyed the following:

I first met with [N.C.] at the bedside who reports that last night she

was washing her hands in the bathroom before dinner and that her

mother’s boyfriend, who she refers to as daddy, purportedly told

her to “hurry up and wash her hands.” When I asked how she hurt

her hands, she states, “My daddy put them under hot water.” When

asked why she thinks he did that, she states, “I was going slow,

washing, and then he came in and put it on hot water.” She reports

that he was “mad” when he did this “because he is tired of me

because I didn’t hurry up and wash my hands.” When asked what .

. . the temperature was when she first went in the bathroom to

wash her hands, she states, “I put it on cold water first.” She states

that, after he turned the water to hot, “He put my hands under hot

water.” She reports that she pulled her hands out of the water. She

reports that she did not say anything at the time but states, “My

hands were red. It hurt.” When asked if her father said anything to

her after that, she states, “He told me to sit down.”

Later, Ms. Donnell testified that N.C. told her that she had been placed in a corner

as a form of discipline. She also related what she learned about the incident from

Mother. Mother told her that N.C.’s hands looked like “water balloons” and that

N.C. appeared to be in pain. Mother also explained what she and Defendant did to

treat the burns and told Ms. Donnell that she called her mother about the incident.

Defendant relies on State v. Cannon, 254 S.W.3d 287, 304-05 (Tenn. 2008),

where our supreme court held that statements made by a patient to a sexual assault

nurse examiner violated the Confrontation Clause. However, that case is factually

distinguishable from this case, and the court only conducted a Confrontation

Clause analysis—it did not discuss whether the victim’s statements satisfied the

hearsay exception under Rule 803(4).

Our courts have routinely applied this hearsay exception to statements of victims

15

provided in response to questions about how an injury was inflicted. See, e.g.,

State v. Parker, 350 S.W.3d 883, 901 (Tenn. 2011). Additionally, our supreme

court has determined that “statements made to a physician identifying a

perpetrator who is a member of a child’s household may be reasonably pertinent

to proper diagnosis and treatment of emotional and psychological injury.” State v.

Stinnett, 958 S.W.2d 329, 333 (Tenn. 1997) (quoting State v. Livingston, 907

S.W.2d 392, 397 (Tenn. 1995)). Here, Ms. Donnell testified that she was

conducting a medical evaluation not an investigation. Her questions about the

nature of the injury and the circumstances under which it was caused were

intended to elicit information that any physician would utilize in diagnosing and

treating injuries to a child. Similarly, the statements made by the victim’s mother

describing the victim’s injuries and the steps taken to provide treatment prior to

hospitalization were relevant to diagnosis and treatment. The trial court did not err

by admitting testimony about the statements made regarding the victim’s injuries.

Defendant is not entitled to relief on this issue.

(Doc. No. 10-13 at 11–13.)

In his brief on direct appeal, the petitioner asserted this issue solely as an error in

admitting hearsay in violation of the Tennessee Rules of Evidence and state court opinions

applying those rules. (Doc. No. 10-10 at 47–49.) He acknowledged that his case did not involve

a violation of his constitutional right to confront witnesses (id. at 49 n. 18) and did not otherwise

reference the constitution or any constitutional rights in the relevant portion of his brief. The

respondent argues that to the extent the petitioner now asserts any violation of his federal

constitutional rights in connection with the testimony in question, that claim was not exhausted

in state court.

The court agrees. For a claim to be exhausted, “[i]t is not enough that all the facts

necessary to support the federal claim were before the state courts or that a somewhat similar

state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal

citation omitted). The claim must be presented to the state courts as a federal constitutional

issue, not merely as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th

Cir. 1984). Specifically, in determining whether a petitioner “fairly presented” a federal

16

constitutional claim to the state courts, federal courts should consider whether the petitioner: (1)

phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently

particular to allege a denial of the specific constitutional right in question; (2) relied upon federal

cases employing the constitutional analysis in question; (3) relied upon state cases employing the

federal constitutional analysis in question; or (4) alleged “facts well within the mainstream of

[the pertinent] constitutional law.” Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004) (quoting

McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Moreover, the claim must be

presented to the state courts under the same legal theory with which it is later presented in

federal court. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). Its presentation in federal

court cannot rest on a legal theory that is separate and distinct from the one previously

considered and rejected in state court. Id. This does not mean that the petitioner must recite

“chapter and verse” of constitutional law, but he is required to make a specific showing of the

alleged claim to the state courts. Wagner, 581 F.3d at 414.

The petitioner did not assert any federal rights in connection with his hearsay challenge in

state court. Any such challenge is now barred from presentation to the state courts by Tennessee

law for the reasons explained above. Accordingly, any federal claim raised based on the

admission of hearsay testimony is procedurally defaulted and not subject to federal habeas

review.

C. Plumbing Expert

The petitioner claims that trial counsel was ineffective for failing to call an expert in the

field of plumbing “to educate the jury in establishing reliable, critical evidence and the elements

of my particular defense relating to hot water temperature codes, the optimum water temperature

for hot water heaters, how water-heaters should be installed with a Temperature Limiting

17

Device, and whether the water-heater in question was properly equipped with such a device.”

(Doc. No. 1 at 18.)

All federal claims of ineffective assistance of counsel are subject to the highly deferential

two-prong standard of Strickland v. Washington, which asks: (1) whether counsel was deficient

in representing the defendant; and (2) whether counsel’s alleged deficiency prejudiced the

defense so as to deprive the defendant of a fair trial. 466 U.S. 668, 687 (1984). To meet the first

prong, a petitioner must establish that his attorney’s representation “fell below an objective

standard of reasonableness,” and must overcome the “strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that . . . the challenged action ‘might be considered sound trial

strategy.’” Id. at 688–89. The “prejudice” component of the claim “focuses on the question of

whether counsel’s deficient performance renders the result of the trial unreliable or the

proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Prejudice,

under Strickland, requires showing that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

The Tennessee Court of Criminal Appeals accurately summarized this standard on post-

conviction appeal. (Doc. No. 10-24 at 9.) It summarized the relevant testimony from the post-

conviction hearing and rejected the petitioner’s claim on the merits:

At the post-conviction hearing, trial counsel testified that he represented the

Petitioner in criminal court, that he met with the Petitioner approximately twelve

times at the jail before the trial, and that each meeting lasted approximately one

hour. Counsel said that a portion of the defense was that an error could have

occurred in the water heater, causing the temperature to spike or to have “bursts

of hot water.” Counsel agreed that the investigating officer’s thermometer showed

18

readings of 129 and 131 degrees and showed spikes in the temperature at 141.

Counsel said that he researched topics such as burn safety and information, how

fast burns occurred, scald burns, hot water problems, and public safety

announcements about how to maintain water heater temperatures and what

temperatures were safe. He said that a recommendation for water heaters was to

have a thermostatic mixer valve installed to balance the water temperature and to

prevent temperature spikes. Counsel said that the investigating officer was not an

expert witness in plumbing or water heaters.

Trial counsel testified that he consulted Dr. Foley about the victim’s burns and

that although Dr. Foley did not charge for the consultation, Dr. Foley provided

information about how to approach the topic of burns, directed counsel to

websites with helpful information, and provided information about problems with

hot water. Counsel recalled reviewing medical journal articles about children and

burns and reviewing public health information addressing water heater safety,

including how to set the temperature on a water heater and how to prevent

temperature spikes. Counsel’s file contained some of the articles he reviewed, but

he noted that the file did not contain all of his research.

Trial counsel testified that he did not present a medical expert, although he and

the nurse practitioner who testified at the trial disagreed about whether the

victim’s burns could have occurred in a few seconds or minutes. Counsel said that

initially the nurse practitioner believed the burns took minutes to occur, although

the literature counsel had reviewed discussed the burn rate on the hands in terms

of seconds. Counsel said, though, that the nurse practitioner later agreed with

counsel that the burns occurred in seconds.

Trial counsel testified that the investigating officer measured the water

temperature from the faucet using digital and analog thermometers, that the

temperature readings ranged from 129 to 131 degrees with a spike of 141 degrees,

and that the recommended water temperature was around 120 degrees, which was

significantly lower than the temperature readings from the faucet. Counsel did not

recall showing this information at the trial. Counsel said that “in hindsight” an

expert could have established the average water temperature coming from the

faucet, whether the water temperature was normal or an aberration, and whether a

thermostatic mixer valve was installed on the water heater. Counsel was unsure

whether the trial court would have allowed such an expert because of the “general

nature” of the information.

Trial counsel testified that he and the Petitioner discussed the information Dr.

Foley provided but that he did not tell the Petitioner the defense intended to

present a medical expert to testify about the victim’s burns. Counsel recalled that

the water heater was made by Honeywell but did not recall researching any

problems associated with Honeywell water heaters. Counsel agreed that a water

heater engineer was not presented at the trial.

Trial counsel testified that the Petitioner and the victim’s mother, along with the

victim and her brother, lived in public housing and that records showed the

victim’s mother had contacted the housing authority to address issues with the

19

water heater. Counsel said that the victim’s mother confirmed at the trial that she

called the housing authority about the water heater after the incident in this case.

Counsel obtained maintenance records, which did not show any maintenance

before the incident.

On cross-examination, trial counsel testified that the defense was accidental

burns, that the parties did not dispute that the victim was burned by the water

from the bathroom faucet, and that the primary issue in this case was the

Petitioner’s intent. Counsel recalled that the State’s theory was that the Petitioner

intentionally held the victim’s hands under the water and that the defense’s theory

was that the burns occurred accidentally. Counsel agreed that although an issue

existed about the temperature setting of the water heater, the victim’s burns were

severe and obvious. Counsel said, though, that due to the severity of the burns the

water temperature and the amount of time the victim’s hands were under the

faucet were relevant.

Trial counsel testified that he did not present Dr. Foley as a defense expert

because he thought the testimony would harm the defense. Counsel said that the

decision was made after evaluating Dr. Foley’s potential testimony about the

victim’s burns. Counsel said the defense requested that the State provide notice of

whether it intended to call expert witnesses beyond the nurse practitioner who

treated the victim. After reviewing the maintenance records, counsel agreed that

the housing authority showed one maintenance request for the water heater after

the incident in this case. Counsel recalled that the State objected on the basis of

relevancy to any maintenance record outside the time frame of the incident in this

case.

The Petitioner testified that although he knew trial counsel had talked to someone

about this case, he did not know if counsel had secured an expert medical witness.

The Petitioner denied asking counsel whether he intended to present an expert

from the Occupational Safety and Health Administration (OSHA) to testify about

the water heater. The Petitioner denied knowing that counsel had obtained the

maintenance records from the housing authority. The Petitioner said that he had

heard other tenants had complained about water heater temperatures being too

high and that he asked counsel to investigate it. He said counsel should have

obtained an expert to show that the victim’s hands were under the water for “just

a couple of seconds.”

On cross-examination, the Petitioner testified that he and the victim went to the

bathroom to wash her hands before eating dinner. He said that he grabbed the

victim’s wrists, that he held her hands under the water, that he turned around to

tell his two-year-old child to sit down, and that when he turned back around, the

victim said her hands hurt. He said that his hands were not under the faucet but

that his “top fingers” touched the water. He denied that [he] held the victim’s

hands under the water and said that he was washing her hands. He said that if he

had not turned around, he would have noticed the water was too hot and that he

was not paying attention. He said that the victim’s hands were under the water no

more than five seconds and denied that her hands were under the water for thirty

20

to forty seconds.

The Petitioner testified that trial counsel should have presented an expert witness

to show that the water temperature was too hot and that the burns occurred in a

few seconds. The Petitioner agreed that he did not have expert testimony to

present at the post-conviction hearing.

. . .

The Petitioner contends that the post-conviction court erred by denying relief. He

argues that counsel provided ineffective assistance by failing to present an expert

witness, such as a burn expert, an OSHA expert, or a water heater engineer, who

could have testified about the spiking of water temperatures in an effort to explain

how the victim’s injuries could have occurred quickly. He asserts that such expert

testimony would have shown the jury that the victim’s injuries were accidental.

The State responds that the post-conviction court did not err by denying relief. We

agree with the State.

. . .

Trial counsel’s credited testimony reflects that he consulted with a medical expert,

Dr. Foley, who assisted counsel with research related to water temperature and

burns. Counsel stated that although he consulted with Dr. Foley, counsel did not

present medical testimony because counsel did not think Dr. Foley would have

benefited the defense. Although counsel did not present expert testimony related

to the water heater, counsel researched possible problems with the water heater

inside the home and obtained the maintenance records.

In any event, the Petitioner did not present an expert at the post-conviction

hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This

court will not speculate about the potential testimony of an expert witness, and

without proof of what an expert’s testimony might have been, the Petitioner is

unable to establish his ineffective assistance allegation. As a result, the record

supports the post-conviction court’s determination that counsel did not provide

ineffective assistance. The Petitioner is not entitled to relief on this basis.

(Doc. No. 10-24 at 5–10.)

As discussed above, the AEDPA standard asks whether the state court’s determination of

an exhausted claim “involved an unreasonable application of” the law, or “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) and (2); Williams v. Taylor, 529 U.S. 362, 412 (2000). As the Supreme Court

clarified in Harrington v. Richter, 562 U.S. 86 (2011),

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

21

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.

Id. at 101 (internal quotation marks and citation omitted). Accordingly, the question before this

court is not whether the state court’s application of Strickland was correct, but whether it was

reasonable. Id. (“The pivotal question is whether the state court’s application of the Strickland

standard was unreasonable.”).

In the absence of the actual proposed testimony in question, the state court’s

determination that the petitioner failed to establish prejudice under Strickland was consistent

with federal case law. See Hutchison v. Bell, 303 F.3d 720, 748–749 (6th Cir. 2002) (noting that

“a petitioner cannot show deficient performance or prejudice resulting from a failure to

investigate if the petitioner does not make some showing of what evidence counsel should have

pursued and how such evidence would have been material”); Daniels v. Sexton, No. 2:12-CV-

210, 2014 WL 940467, at *8 (E.D. Tenn. Mar. 11, 2014) (“Because petitioner did not offer the

testimony of these individuals at the post-conviction hearing to show that the testimony would

have redounded to the benefit of the defense, petitioner has failed to demonstrate that prejudice

flowed from the absence of such trial testimony.”). There was already testimony at trial that the

temperature of the hot water coming from the faucet was significantly higher than recommended

and had spikes of up to 21 degrees higher than recommended.1 The petitioner did not

1 The petitioner’s attorney used that testimony to his advantage to argue in closing argument that the

victim’s injury happened very quickly:

[T]here is some facts in this case that are undisputed.

22

demonstrate in state court, and has not demonstrated here, that corroboration of that undisputed

testimony or explanation of its mechanical cause would have materially benefited his case at

trial. In fact, additional testimony to the effect that the water in the victim’s apartment was

consistently hotter than recommended could have simply made the petitioner’s actions—turning

the water to hot, not checking the water temperature with his own hands, and looking away while

he held the victim’s hands in the water—seem even more culpable to the jury. The state courts

thus reasonably concluded that the petitioner failed to establish that his vaguely proposed

testimony would have worked to his advantage.

The petitioner argues in his reply that he should prevail on this claim without regard to

whether he was actually prejudiced by counsel’s failure because he suffered a per se violation of

his right to counsel as set forth in United States v. Cronic, 466 U.S. 648 (1984). (Doc. No. 15 at

1–3.) Such an automatic violation is found where “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing,” but for that to occur, “the attorney’s failure

must be complete.” Bell v. Cone, 535 U.S. 685, 695–98 (2002). Cronic simply does not apply in

circumstances where defense counsel has performed substantial work in support of a petitioner’s

defense at trial, as is apparent from the record in this case. See Bell, 535 U.S. at 695–98 (counsel

had not entirely failed where he performed beneficial work at every stage of trial). The state

courts reviewing the petitioner’s ineffective-assistance claim were entitled to credit counsel’s

Fact, that water is hot. It’s 141.7 degrees. That is 21 degrees higher than the

recommendation from manufacturers to set water heaters. It is hot water. . . . Hot water is

dangerous to kids and this water is very very very hot, 112 to 114 it burns, it causes pain,

this is 141 degree water.

. . . [T]his from the proof happened quickly and when water is 141 degrees or can get that

hot, you know what, burns can happen quickly, a second for a full thickness burn, that is

a third degree burn in approximately a second . . . that is one second for a third degree

burn and less for what [the victim] had a second degree or partial thickness burn.

(Doc. No. 10-4 at 97–98.)

23

testimony to the effect that he did significant research into water safety issues in general and the

records pertaining to the water heater in the victim’s home before determining that additional

evidence on those matters would not benefit the defense. “Because advocacy is an art and not a

science, and because the adversary system requires deference to counsel’s informed decisions,

strategic choices must be respected in these circumstances if they are based on professional

judgment.” Strickland, 466 U.S. at 681.

The state court’s rejection of the petitioner’s claim was reasonable,2 and he is not entitled

to relief on this claim.

D. Constructive Amendment

This claim focuses on the petitioner’s disapproval of the following statements by the

prosecutor during closing argument, which he says concerns “evidence clearly outside the record

concerning the nature of burn cases”:

Burn cases by their nature are a different entity, in order to create a burn that is

done abusively you have to stage your crime. Sometimes we fill up basins of

water with hot water and we dip kids in, sometimes we take a lighter and we light

the tip and we put it on the skin, or we light a cigarette and we put it on the skin,

or we heat up an iron and we put it on the skin, but every one of those acts has at

least two different stages, you have got to create the environment and then you

have to apply the environment to the child.

It is a two-step process and that conduct beyond anything in a burn case is what

should tell you that this is not only not an accident, it is abuse, it is neglect, and it

was knowingly engaged and indeed intentionally engaged in by Mr. Pewitte.

(Doc. No. 1 at 18–19 (quoting Doc. No. 10-4 at 90).) The petitioner asserts that this argument

constituted prosecutorial misconduct and somehow constructively amended his indictment by

modifying its essential terms. (Doc. No. 1 at 18–20.)

2 Because this claim was raised in state court and rejected there on its merits, this court has considered it under

Section 2254(d) rather than rejecting it as procedurally defaulted. Accordingly, the petitioner’s reliance in his reply

on Martinez v. Ryan, 566 U.S. 1 (2012), and its progeny “to establish cause to excuse the procedural default of [his]

substantial claim of ineffective assistance at trial” (Doc. No. 15 at 3) is superfluous and has no bearing on the court’s

treatment of this claim.

24

The petitioner did not argue on direct appeal or post-conviction appeal that there had

been any constructive amendment of his indictment. (See Doc. No. 10-10 at 11; Doc. No. 10-22.)

As explained above, state law prevents the petitioner from raising that argument before the state

courts at this stage. Accordingly, that portion of his claim is procedurally defaulted and not

subject to federal habeas review.

The petitioner did, however, exhaust a claim on direct appeal that prosecutorial

misconduct in the form of improper argument during closing should have resulted in a mistrial.

(Doc. No. 10-10 at 11, 50–59.) Among other things, he complained specifically about the

prosecutor’s “comments concerning the nature of burn cases,” which fell “outside of the

evidence presented at trial” and amounted to the prosecutor’s “own expert testimony on the

inferences that can be drawn from burn injuries.” (Id. at 53–54.) He characterized the portion of

the argument in question as “graphic and inflammatory.” (Id. at 54.) The Tennessee Court of

Criminal Appeals rejected that claim on its merits:

Defendant argues that the trial court erred by failing to grant a mistrial based on

inappropriate closing argument by the prosecutor. The State responds that no

prosecutorial misconduct occurred.

A trial court has the authority to declare a mistrial, and its decision is reviewed for

an abuse of discretion. See State v. Nash, 294 S.W.3d 541, 546 (Tenn. 2009).

“Normally, a mistrial should be declared only if there is a manifest necessity for

such action.” State v. Saylor, 117 S.W.3d 239 (Tenn. 2003). A mistrial is

appropriate when “a trial cannot continue, or a miscarriage of justice would result

if it did.” Id. (internal quotation omitted).

Closing argument is “a valuable privilege that should not be unduly restricted.”

Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d

411, 425 (Tenn. 2001); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998).

Closing arguments “have special importance in the adversarial process,” allowing

the parties “to present their theory of the case and to point out the strengths and

weaknesses in the evidence to the jury.” State v. Banks, 271 S.W.3d 90, 130

(Tenn. 2008). Attorneys “should be given great latitude in both the style and the

substance of their arguments.” Id. at 131. “[A] prosecutor’s closing argument

must be temperate, must be based on the evidence introduced at trial, and must be

pertinent to the issues in the case.” Id. Although not exhaustive, this Court has

25

recognized five general areas of prosecutorial misconduct during closing

arguments: (1) intentionally misstating the evidence or misleading the jury as to

the inferences it may draw; (2) expressing personal beliefs or opinions as to the

truth or falsity of any testimony or evidence or the guilt of the defendant; (3)

inflaming or attempting to inflame the passions or prejudices of the jury; (4)

injecting issues broader than the guilt or innocence of the accused; (5) arguing or

referring to facts outside the record unless the facts are matters of common public

knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

A trial court has significant discretion in controlling closing argument, and its

decisions relative to the contents of argument may only be reversed upon an abuse

of discretion. Terry, 46 S.W.3d at 156; State v. Trusty, 326 S.W.3d 582, 607

(Tenn. Crim. App. 2010). “A criminal conviction should not be lightly overturned

solely on the basis of the prosecutor’s closing argument.” Banks, 271 S.W.3d at

131. Instead, “an improper closing argument will not constitute reversible error

unless it is so inflammatory or improper that it affected the outcome of the trial to

the defendant’s prejudice.” Id. In reviewing the propriety of a prosecutor’s closing

argument, this Court considers:

(1) the conduct at issue in light of the facts and circumstances of

the case, (2) the curative measures undertaken by the trial court

and the prosecution, (3) the intent of the prosecutor in making the

improper argument, (4) the cumulative effect of the improper

argument and any other errors in the record, and (5) the relative

strengths and weaknesses of the case.

Id.; Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

. . .

Defendant next complains about the prosecutor’s references to child abuse cases

in general. The prosecutor argued that cases involving burns always occur in “a

two-step process” involving a preparatory step and then an execution step. The

prosecutor then suggested that the preparatory step in such cases is evidence of

the accused’s guilty state of mind. While making this argument, the prosecutor

referred to other instrumentalities that are commonly involved in burn cases, such

as hot water, a lighter, a cigarette, and an iron. Defendant maintains that the

prosecutor was arguing evidence outside of the record by making these

references. However, we do not think that is an accurate characterization of that

argument. The prosecutor never asserted or suggested that any of those other

hypotheticals occurred in this case. Instead, he was merely using examples of

other types of conduct to help the jury understand the State’s theory of the case—

that Defendant intended to harm the victim and “staged” his crime by turning the

water faucet from cold to hot. While we take no position on the efficacy of such

an argument, we cannot say that the prosecutor’s comments amounted to

inappropriately arguing evidence outside of the record.

(Doc. No. 10-13 at 13–15.)

26

The United States Supreme Court has stated that prosecutors must “refrain from improper

methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88

(1935). But the standard for granting habeas corpus relief on the basis of improper prosecutorial

argument is extremely high. “The relevant question is whether the prosecutors’ comments so

infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations and internal quotation marks omitted)

(denying relief on the basis of inflammatory prosecutorial argument). This is particularly true

when a federal court reviews a case on habeas corpus, where the scope of review is “the narrow

one of due process, and not the broad exercise of supervisory power.” Id. (quoting Donnelly v.

DeChristophoro, 416 U.S. 637, 642 (1974)). To require reversal, a prosecutor’s misconduct

must be “so pronounced and persistent that it permeates the entire atmosphere of the trial or so

gross as probably to prejudice the defendant.” Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005)

(quoting Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)).

The Sixth Circuit has instructed that in order to obtain relief on a claim of prosecutorial

misconduct, a petitioner “must demonstrate that the prosecution’s conduct was both improper

and so flagrant as to warrant reversal.” Id. Accordingly, if a court first finds improper conduct, it

must then consider four factors to determine whether the challenged conduct is flagrant: “(1) the

likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the

petitioner; (2) whether the remarks were isolated or extensive; (3) whether the remarks were

deliberately or accidentally made; and (4) the total strength of the evidence against the

defendant.” Id. Finally, in considering whether prosecutorial misconduct warrants a writ of

habeas corpus, courts must find the misconduct to be harmless unless it “had a substantial and

injurious effect or influence in determining the jury’s verdict.” Id. (quoting Brecht v.

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Abrahamson, 507 U.S. 619, 638 (1993)); accord Moore v. Mitchell, 708 F.3d 760, 799–800 (6th

Cir. 2013).

The standard applied by the state court is consistent with this federal standard,3 and the

state court found that the portion of the argument in question was not improper. That

determination was not unreasonable. By giving commonsense examples of other similar crimes,

the prosecutor did not assert or even imply that the petitioner was charged with or had committed

those crimes. He did not, as the petitioner argues, misstate the evidence or mislead the jury

about the facts of the case, and he did not incorporate graphic or inflammatory descriptions of

hypothetical injuries that might have aroused any prejudice in the jury. He simply used

analogies to frame the jury’s perspective on the petitioner’s crime, which is not objectively

improper. See Glenn v. Prelesnik, No. 1:08-CV-1002, 2012 WL 4464296, at *15 (W.D. Mich.

Feb. 14, 2012), report and recommendation adopted, No. 1:08-CV-1002, 2012 WL 4464244

(W.D. Mich. Sept. 26, 2012) (denying habeas relief because “the prosecutor’s analogies served a

legitimate function in these proceedings” and were “not improper”). Even if other courts might

have found this particular argument improper, such a conclusion is not “beyond any possibility

for fairminded disagreement,” as required to warrant relief under AEDPA. Harrington v. Richter,

562 U.S. 86, 103 (2011).

Accordingly, the petitioner is not entitled to relief on this claim.

3 The fact that the state court did not cite federal law in its opinion is immaterial to whether its decision

was contrary to or an unreasonable application of clearly established federal law. See Early v. Packer, 537

U.S. 3, 8 (2002) (“Avoiding these pitfalls does not require citation of our cases-indeed, it does not even

require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision

contradicts them.”).

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E. Cumulative Error

Finally, the petitioner asserts that the cumulative effect of the errors at trial denied him a

fair trial. (Doc. No. | at 20.) But “[t]he law of this Circuit is that cumulative error claims are not

cognizable on habeas because the Supreme Court has not spoken on this issue.” Williams v.

Anderson, 460 F.3d 789, 816 (6th Cir. 2006). Accordingly, the petitioner is not entitled to relief

on this claim.

V. CONCLUSION

For the foregoing reasons, the petitioner is not entitled to relief on any of his claims. The

court will deny the requested relief and dismiss the petition.

An appropriate order shall enter. Uy

United States District Judge

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