# Pewitte v. Washburn

> District Court, M.D. Tennessee · December 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10436885

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** December 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436885

## How later opinions describe it (automated extraction)

- noting the interplay between the exhaustion rule and the procedural default doctrine
- 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
- finding that “having shown cause, petitioners must show actual prejudice to excuse their default”

## Opinion text

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.
2
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.
3
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.
4
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
5
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

6
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.

7
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

8
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

9
(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
10
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
11
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
12
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.

13
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436885. Public record. Not legal advice.