McCathern v. Lebo

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ERIC MCCATHERN, )

)

Petitioner, )

) No. 3:18-cv-00408

v. ) Judge Trauger

)

JONATHAN LEBO, )

)

Respondent. )

MEMORANDUM

Eric McCathern, an inmate of the West Tennessee State Prison in Henning, Tennessee,

filed an amended pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 challenging

his 2011 convictions and sentence for aggravated burglary, possession of over 26 grams of cocaine

with intent to sell or deliver within 1,000 feet of a school zone, and possession of drug

paraphernalia. (Doc. No. 1-2.) The respondent, Warden Jonathan Lebo, filed the state court record

(Doc. No. 11) and an answer urging dismissal. (Doc. No. 12.) The petitioner filed a reply. (Doc.

No. 14.) The petition is ripe for review on the merits, and this court has jurisdiction pursuant to 28

U.S.C. § 2241(d). Having fully considered the record, the court finds that an evidentiary hearing

is not needed. For the following reasons, the petitioner is entitled to habeas relief on one claim.

The petition will be granted.

I. Procedural History

On August 28, 2009, the petitioner was indicted in Davidson County, Tennessee, for

aggravated burglary, possession of 26 grams or more of cocaine with intent to sell or deliver within

1,000 feet of a school zone, and possession of drug paraphernalia. (Doc. No. 11-1 at 4-6.) The

aggravated burglary charge expressly alleged that the petitioner entered a habitation “with the

intent to commit possession of a controlled substance containing cocaine with intent to sell or

deliver” as separately charged in the indictment. (See id.) On August 9, 2010, after the indictment

was read on the first day of trial, the petitioner stated that he would “plead guilty” to “the burglary”

and not guilty to the other two counts. McCathern v. State, No. M2016-02143-CCA-R3-PC, 2017

WL 5462491, at *1 (Tenn. Crim. App. Nov. 14, 2017), perm. app. denied (Tenn. Mar. 14, 2018)

(hereinafter “McCathern II”); (Doc. No. 11-1 at 15). The trial proceeded without further colloquy.

McCathern II, 2017 WL 5462491, at *1. The trial court eventually charged the jury on all three

counts because it concluded that the petitioner’s plea was only to a lesser-included offense. Id. The

jury failed to reach a verdict, and the trial court declared a mistrial on all counts. Id. at *2; (Doc.

No. 11-1 at 17).

The petitioner’s case was retried on April 4, 2011, before a different judge. McCathern II,

2017 WL 5462491, at *2. After the indictment was read on the first day of trial, the petitioner

“pled guilty” to aggravated burglary and not guilty to the other counts. Id. Again, no colloquy was

held, and, again, the trial court charged the jury on all three counts. Id. After testimony that “largely

replicated” the first trial, the jury found the petitioner guilty on all counts. Id. The trial court denied

the petitioner’s motion for a new trial.1 (See Doc. Nos. 11-1 at 31-34; 11-8 at 2-3.)

On May 11, 2011, the trial court sentenced the petitioner to consecutive 10-year and 25-

year terms of imprisonment on counts one (aggravated burglary) and two (possession of cocaine

with intent to sell or deliver), and to a concurrent misdemeanor sentence of 11 months and 29 days

on count three (drug paraphernalia). (Doc. No. 11-1 at 28-30); State v. McCathern, No. M2011-

01612-CCA-R3-CD, 2012 WL 5949096, at *1 (Tenn. Crim. App. Nov. 16, 2012), perm. app.

denied (Tenn. Feb. 25, 2013) (hereinafter “McCathern I”). Thus, the petitioner received a total

1 At the hearing on the motion for a new trial, trial counsel declined the invitation to make oral argument,

and asked to be relieved from further representation of the petitioner. (See Doc. No. 11-8.)

effective sentence of 35 years of imprisonment, with 15 years to be served at 100%. Id. The

petitioner challenged the sufficiency of the evidence and his sentence on appeal. McCathern II,

2017 WL 5462491, at *2; McCathern I, 2012 WL 5949096, at *5; (Doc. No. 11-1 at 35). The

Tennessee Court of Criminal Appeals (“TCCA”) affirmed, McCathern I, 2012 WL 5949096, at

*5, and the Tennessee Supreme Court denied discretionary review. (Doc. No. 11-14.)

The petitioner filed a pro se petition for post-conviction relief in state court. (See Doc. No.

11-15 at 21-32.) The post-conviction court appointed counsel, held an evidentiary hearing, and, on

October 18, 2016, denied relief. (Doc. Nos. 11-15 at 33-65, 70-96; 11-18.) In particular, the trial

court concluded that trial counsel’s advice to admit guilt on the aggravated burglary charge was a

reasonable strategic decision. McCathern II, 2017 WL 5462491, at *3. On appeal, the TCCA

concluded that trial counsel’s advice constituted deficient performance, but affirmed nonetheless

based on its conclusion that the petitioner was not prejudiced. Id., at *3-7. The Tennessee Supreme

Court denied discretionary review. (Doc. No. 11-29.)

II. Evidence at Trial

On the night of May 23, 2007, a team of Metropolitan Nashville Police Department

(“MNPD”) officers approached a hilltop area known for drug trafficking. McCathern II, 2017 WL

5462491, at *1. To avoid being seen, three officers parked several blocks away and approached on

foot. Id. They observed the petitioner and another man approach a stopped vehicle for a “suspected

a drug transaction.” Id. The petitioner and the other man then walked to an apartment that was

“completely dark and appeared abandoned.” Id. The petitioner entered the apartment through a

waist-high window. Id. As the other man followed, the officers called for him to stop. Id. The other

man appeared to put something down and moved away from the window. Id. Within reach of the

other man, officers discovered a gun, two digital scales, and a small quantity of cocaine. Id. The

petitioner then exited the apartment at the direction of officers. Id. The petitioner was carrying

$163 and stated that he did not live at the residence. Id.

Officers searched the uninhabited apartment and found two plastic chairs, a jacket, trash,

and feces. Id. There was no edible food, clothing, or personal items. Id. In the kitchen, officers

found plastic sandwich baggies, and there was a large quantity of cocaine in a closed oven. Id.

Officers did not hear the petitioner open the oven door during his “[m]aybe a minute, maybe two”

in the apartment, and they made no attempt to take fingerprints from the oven. Id.

The manager of the apartment building testified that the apartment was rented but not

occupied. Id. The manager told the tenants that they needed to move in, turn on utilities, and

otherwise live there. Id. He testified that the tenants had “taken possession” of the apartment by

putting a chair at a window, and that it appeared that the tenants were not living there.2 Id.

III. Standard of Review

A. Habeas Relief

A federal habeas petition is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Cassano v. Shoop, 1 F.4th 458, 465 (6th Cir. 2021) (citing Woodford v.

Garceau, 538 U.S. 202, 210 (2003)). AEDPA was enacted “to reduce delays in the execution of

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

federalism.” Woodford, 538 U.S. at 206 (internal citations and quotation marks omitted). It

“reflects 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)

2 MNPD Lieutenant William Mackall also gave expert testimony regarding drug investigations. (Doc. No.

1-2 at 124-36.) Mackall’s direct testimony was general in nature and included no conclusions specific to

the petitioner. (Id.) On cross, trial counsel raised with Mackall the crime scene procedures used by MNPD

at the empty apartment; however, Mackall gave mostly non-specific responses. (See id. at 138-48.)

(Stevens, J., concurring)). Under AEDPA, “[a] federal court’s collateral review of a state-court

decision must be consistent with the respect due state courts in our federal system,” Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003), and state courts are considered “adequate forums for the

vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013); see also Renico v. Lett, 559

U.S. 766, 773 (2010) (explaining that AEDPA “demands that state-court decisions be given the

benefit of the doubt”) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

“In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62,

68 (1991) (citations omitted); 28 U.S.C. § 2254(a). AEDPA further restricts federal courts from

providing relief on habeas claims that were previously “adjudicated on the merits” in the state

courts unless the state-court adjudication (1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established federal law, as determined by the Supreme

Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. Cassano, 1 F.4th at 466 (quoting 28

U.S.C. § 2254(d)); Harrington, 562 U.S. at 100.

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ ‘if the state court

applies a rule different from the governing law set forth in [the Supreme Court’s] cases, or if it

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

indistinguishable facts.’” Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018) (quoting Bell v. Cone,

535 U.S. 685, 694 (2002)). “Under the ‘unreasonable application’ clause, a federal habeas court

may grant the writ if the state court identifies the correct governing legal principle from the

Supreme Court’s decisions but unreasonably applies the law or bases its decision on an

unreasonable determination of the facts, in light of the record before the state court.” Id. (citing

Harrington, 562 U.S. at 100; Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). An incorrect or

erroneous application of clearly established federal law is not the same as an unreasonable one;

“relief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so

obvious that a clearly established rule applies to a given set of facts that there could be no

‘fairminded disagreement’ on the question.” Carter v. Mitchell, 829 F.3d 455, 468 (6th Cir. 2016)

(quoting White v. Woodall, 572 U.S. 415, 427 (2014)); Harrington, 562 U.S. at 103. Likewise, a

state court decision involves an unreasonable determination of the facts “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 28 U.S.C. § 2254(e)(1)); Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (citing

Miller-El, 537 U.S. at 340).

B. Exhaustion and Procedural Default

Before a federal court may review the merits of a Section 2254 habeas claim, the petitioner

must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A);

Harrington, 562 U.S. at 103. To be properly exhausted, each claim must be “fairly presented”

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

Boerckel, 526 U.S. 838, 845, 848 (1999); see also Anderson v. Harless, 459 U.S. 4, 6 (1982)

(quoting Picard v. Connor, 404 U.S. 270, 277 (1971)) (explaining that a habeas petitioner must

provide the state courts with a “fair opportunity” to apply controlling legal principles to the facts

bearing upon his constitutional claim). In Tennessee, a petitioner is “deemed to have exhausted all

available state remedies for [a] claim” when it is presented to the TCCA. Adams v. Holland, 330

F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39). A petitioner must then present to a

federal court essentially the same facts and legal theories that were considered and rejected by the

state courts. Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002) (citing Wong v. Money, 142 F.3d

313, 322 (6th Cir. 1998)). The burden is on a petitioner to demonstrate compliance with the

exhaustion requirement or that the available state procedure would be futile. Rust v. Zent, 17 F.3d

155, 160 (6th Cir. 1994).

The exhaustion requirement works together with the procedural-default doctrine, which

generally bars federal habeas review of claims that were procedurally defaulted in the state courts.

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017); O’Sullivan, 526 U.S. at 848. A petitioner

procedurally defaults a claim when he fails to properly exhaust available remedies and can no

longer do so because state procedural rules have closed off any avenue for state court review on

the merits. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones v. Bagley, 696 F.3d

475, 483–84 (6th Cir. 2012)). Procedural default also occurs where the state court “actually . . .

relied on [a state] procedural bar as an independent basis for its disposition of the case.” Caldwell

v. Mississippi, 472 U.S. 320, 327 (1985).

To overcome a procedural default, a petitioner may show “good cause for the default and

actual prejudice from the claimed error.” Benton v. Brewer, 942 F.3d 305, 307 (6th Cir. 2019)

(citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)); Sutton v. Carpenter, 745 F.3d 787, 790

(6th Cir. 2014) (citing Coleman, 501 U.S. at 754). A petitioner may establish cause by “show[ing]

that some objective factor external to the defense” – a factor that “cannot be fairly attributed to”

the petitioner – “impeded counsel’s efforts to comply with the State’s procedural rule.” Davila,

137 S. Ct. at 2065 (citations omitted). Objective impediments include an unavailable claim or

interference by officials that made compliance with the rule impracticable. Id. Attorney error does

not constitute cause unless it is constitutionally ineffective assistance of counsel. Edwards, 529

U.S. at 451-52; Benton, 942 F.3d at 307-08. Generally, however, a claim of ineffective assistance

must be presented to the state courts as an independent claim before it may be used to establish

cause for a procedural default.3 Murray, 477 U.S. at 489.

Ineffective assistance of post-conviction counsel may establish cause under two

circumstances. First, the complete abandonment (of the representation) by counsel during state

post-conviction proceedings without notice to the petitioner may establish cause to excuse default.

Maples v. Thomas, 565 U.S. 266, 288-89 (2012). Second, ineffective assistance of post-conviction

counsel may establish the cause needed to excuse procedural default regarding substantial claims

of ineffective assistance of trial counsel. Martinez v. Ryan, 566 U.S. 1, 17 (2012); Trevino v.

Thaler, 569 U.S. 413, 429 (2013); see also Sutton, 745 F.3d at 792 (holding that Martinez and

Trevino apply in Tennessee).

If cause is established, a petitioner must also demonstrate actual prejudice. To do so, 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) (emphasis in original)

(quoting United States v. Frady, 456 U.S. 152, 170 (1982)). This means that “a petitioner must

show not merely that the errors at his trial created a possibility of prejudice, but that they worked

to his actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” Garcia-Dorantes v. Warren, 801 F.3d 584, 598 (6th Cir. 2015) (emphasis in

original); Frady, 465 U.S. at 170. In the alternative, a court may bypass these requirements if a

petitioner presents an “extraordinary case” whereby a constitutional violation “probably resulted”

in the conviction of someone who is “actually innocent” of the substantive offense. Dretke v.

Haley, 541 U.S. 386, 392 (2004); Benton, 942 F.3d at 307.

3 If the ineffective-assistance claim is not presented to the state courts in the manner that state law requires,

that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim

if the petitioner demonstrates cause and prejudice with respect to the ineffective assistance claim. Edwards,

529 U.S. at 452-53.

IV. Analysis

With these principles in mind, the court turns to the four claims raised by the petitioner.

The petition asserts that trial counsel rendered constitutionally ineffective assistance by: (1)

advising the petitioner to plead guilty to aggravated burglary at trial; (2) failing to protect the

petitioner’s Fifth Amendment rights in connection with that guilty plea; (3) failing to move for a

new trial on the ground that the petitioner was the rightful tenant of the apartment; and (4) failing

to contest the duplicity of the indictment. (See Doc. Nos. 1-2, 2, 14.) The petitioner further claims

that it was unreasonable for the state courts to conclude that he was not prejudiced by trial

counsel’s deficient performance.4 (Id.)

A. Ineffective Assistance of Counsel

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

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

assistance of counsel. To succeed on a claim of constitutionally ineffective assistance of counsel,

a petitioner “must show both deficient performance by counsel and prejudice.” Premo v. Moore,

562 U.S. 115, 121 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) and citing

Strickland v. Washington, 466 U.S. 668, 686-87 (1984)); see also Bell, 535 U.S. at 694-95. These

dual requirements provide that, while reasonable attorneys may disagree on the appropriate

strategy for defending a client, the Constitution is violated only where counsel’s performance is

4 The respondent has filed an answer that provides limited insight. The respondent addresses Claim One,

but not in a serious way. The respondent closely repeats the state court’s discussion and adds, without any

fresh analysis, that it is “obvious” that the “[p]etitioner and his associate were using the apartment to

package and distribute cocaine.” (Doc. No. 12 at 9-13.) It is questionable whether this meager effort

complies with Habeas Rule 5 or the court’s order to “respond to the petitioner’s argument that he is entitled

to habeas relief on the claim with appropriate reasoned legal and factual argument.” (Doc. No. 8 at 2-3.)

The respondent also replies to another claim concerning a motion to suppress, but the petitioner does not

advance this claim in the petition; rather, the petitioner raises a claim concerning the motion for a new trial.

In any event, based on the tenor of the respondent’s filing, the court infers that the respondent generally

finds no fault with the state court’s determinations.

“so thoroughly ineffective that defeat was ‘snatched from the jaws of victory.’” West v. Seabold,

73 F.3d 81, 84 (6th Cir. 1996) (quoting United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992)

(en banc)); see also Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004). A court may address

performance and prejudice in any order and end the inquiry if one requirement is not met.

Strickland, 466 U.S. at 697.

Trial counsel’s performance is constitutionally deficient when it falls below an objective

standard of reasonableness measured by prevailing professional norms. Strickland, 466 U.S. at

686-87; Richardson v. Palmer, 941 F.3d 838, 856 (6th Cir. 2019); Bigelow, 367 F.3d at 570. When

evaluating performance, a court must be “highly deferential,” consider the totality of evidence, and

apply a “strong presumption” that trial counsel’s conduct falls within a “wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689, 695; Harrington, 562 U.S. at 104.

“[S]trategic choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional judgments support

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

However, “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate]

judgment.” Smith v. Jago, 888 F.2d 399, 404-05 (6th Cir. 1989) (quoting Strickland, 466 U.S. at

691). Thus, the prejudice element requires a petitioner to show that there is a “reasonable

probability” that the result of the trial would have been different but for counsel’s unprofessional

errors. Premo, 562 U.S. at 122 (citing Harrington, 562 U.S. at 104-05); Strickland, 466 U.S. at

694; Bigelow, 367 F.3d at 570. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. This does not require a showing that

counsel’s actions “more likely than not altered the outcome,” but “the likelihood of a different

result must be substantial, not just conceivable.”5 Harrington, 562 U.S. at 112 (quoting Strickland,

466 U.S. at 693, 697); Cullen v. Pinholster, 563 U.S. 170, 189 (2011). In reaching this conclusion,

a court considers whether the result of the trial was “fundamentally unfair or unreliable,” Bigelow,

367 F.3d at 570 (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)), or “infect[ed] . . . with

error of constitutional dimensions.” Richardson, 941 F.3d at 856 (quoting Murray, 477 U.S. at

494).

Additionally, due to the restrictive scope of review under AEDPA, see Cassano, 1 F.4th at

466 (quoting 28 U.S.C. § 2254(d)), “[t]he pivotal question” on federal habeas review is not simply

whether the Strickland standard was satisfied, but rather “whether the state court’s application of

the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101. As the Supreme Court

has emphasized:

This is different from asking whether defense counsel’s

performance fell below Strickland’s standard. Were that the inquiry,

the analysis would be no different than if, for example, this Court

were adjudicating a Strickland claim on direct review of a criminal

conviction in a United States district court. Under AEDPA, though,

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

purposes of [Section] 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. (quoting Williams, 529 U.S. at 410) (emphasis in original); see also Burt, 571 U.S. at 15

(explaining that habeas review of ineffective assistance of counsel “gives both the state court and

the defense attorney the benefit of the doubt”) (quoting Pinholster, 563 U.S. at 190). Thus, a state

court’s determination that an ineffective assistance of counsel claim lacks merit under Strickland

5 Accordingly, a petitioner need not demonstrate actual innocence in order to establish prejudice. Bigelow,

367 F.3d at 570.

“precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness

of the state court’s decision.” Harrington, 652 U.S. at 101 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).

B. Claim One: Trial counsel was constitutionally ineffective when he advised the

petitioner to admit guilt to aggravated burglary

The petitioner first claims that trial counsel rendered constitutionally ineffective assistance

by advising him to admit guilt to aggravated burglary. (Doc. No. 2 at 9-10.) The petitioner contends

that trial counsel knew the admission meant that the petitioner was also confessing that he entered

the apartment with the intent to commit the drug crime charged in the indictment. (Id.) Thus, the

petitioner argues that trial counsel’s advice caused him to unwittingly acknowledge that he

intended to possess cocaine with the intent to sell or deliver it. (Id. at 10.) This claim is fully

exhausted.

1. Background

After the indictment was read at the first trial, the petitioner stated that he would plead

guilty to “the burglary” and not guilty to the other charges. McCathern II, 2017 WL 5462491, at

*1. The case proceeded without further colloquy. Id. At the close of the state’s proof, trial counsel

moved for judgment of acquittal on the ground that there was no evidence that the petitioner knew

about the cocaine in the apartment’s oven. Id. The trial court “dr[e]w attention to the fact that as

part of the burglary charge, the petitioner had admitted that he was intending to commit a felony

inside the residence.” Id. The trial court therefore denied the motion “based on the plea.” Id. During

closing arguments, trial counsel again argued that the petitioner had no possessory interest in the

cocaine in the oven. Id. at *2. The state, however, highlighted that the petitioner “pled guilty” to

aggravated burglary, a charge “that contains the component of committing a felony, which is [the

drug charge].” Id. The state in particular contended that the petitioner had effectively “pled guilty”

to the “possession and intent” elements of the drug charge. Id.

At the start of the second trial on the same indictment, trial counsel again instructed the

petitioner to admit guilt to aggravated burglary. Id.; (Doc. No. 11-17.) During closing arguments,

trial counsel again argued that the state failed to prove possession. McCathern II, 2017 WL

5462491, at *2. And the state again argued to the jury that the drug charge was the underlying

felony implicated by the petitioner’s admission to aggravated burglary: “[A] component of

[aggravated burglary], as we discussed several times, is breaking into a facility with intent to

commit [the drug charge].” Id. Thus, the state contended, the petitioner’s admission of guilt on the

aggravated burglary charge “sheds great light” on the outcome of the drug charge. Id.

At the post-conviction hearing, trial counsel testified that his strategy was to dissociate the

petitioner from the cocaine in the oven because the state “couldn’t prove” that the petitioner had

any connection to the apartment or the drugs.6 (Doc. No. 11-18 at 13-15); McCathern II, 2017 WL

5462491, at *2. Trial counsel advised the petitioner to plead guilty to burglary at the first trial, and

this “took [the judge] back a little bit.” McCathern II, 2017 WL 5462491, at *2; (Doc. No. 11-18

at 18). Trial counsel felt the strategy was “successful.” McCathern II, 2017 WL 5462491, at *2;

(Doc. No. 11-18 at 18, 24-26). The petitioner testified that trial counsel “t[old] him what [the

defense] was going to be,” told the petitioner to plead guilty to burglary charge, and did not discuss

the matter further.” McCathern II, 2017 WL 5462491, at *3; (Doc. No. 11-18 at 37-38). The

petitioner testified that he admitted guilt to burglary at the first trial because he did not understand

the charges. McCathern II, 2017 WL 5462491, at *3; (Doc. No. 11-18 at 36). The petitioner

6 Trial counsel also testified that the petitioner told him that “he had used an alias to rent the apartment and

was the rightful tenant,” and the petitioner confirmed that he told trial counsel that he leased the apartment.

McCathern II, 2017 WL 5462491, at *2-3.

testified that trial counsel gave the same advice at the second trial, informing the petitioner that

admitting guilt to aggravated burglary was “the only way that Judge Blackburn wouldn’t hammer

[him].” McCathern II, 2017 WL 5462491, at *3; (Doc. No. 11-18 at 39.) The petitioner testified

that trial counsel instructed: “This is what we’re going to do, you’re going to come in with tight

clothes on and scraggly face” and “a shirt that’s real raggedy and we’re going to plead guilty to

aggravated burglary. . . . [B]elieve in me.” (Doc. No. 11-18 at 39).

2. Denials of Post-Conviction Relief

The post-conviction court concluded that trial counsel’s advice to admit guilt to aggravated

burglary was “a reasonably based strategic decision” that did not constitute deficient performance

or prejudice the petitioner. (Doc. No. 11-15 at 83-87); McCathern II, 2017 WL 5462491, at *3.

On appeal, the TCCA concluded that the petitioner had made an “acknowledgement of guilt” rather

than a formal guilty plea, and thus the petitioner’s “statement that he pled guilty essentially

amounted to an in-court confession made at the behest of his attorney.” McCathern II, 2017 WL

5462491, at *4-5 (citing Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002)). The TCCA therefore

applied the Strickland standard for constitutionally ineffective assistance of counsel to determine

“whether trial counsel’s advice to acknowledge guilt in front of the jury was deficient and

prejudicial.”7 Id. at 5.

The TCCA first concluded that trial counsel’s advice constituted objectively deficient

performance because it caused the petitioner to concede the contested elements of the drug charge.

Id. As the TCCA explained:

7 While the TCCA’s opinion occasionally employs imprecise language, it is evident that the TCCA

understood the Strickland standard and applied it in the petitioner’s case. See, e.g., McCathern II, 2017 WL

5462491, at *4-6 (reciting and applying performance and prejudice standards under Strickland and state

law progeny).

In making his confession, the Petitioner effectively admitted that he

had entered a habitation “with the intent to commit possession of a

controlled substance containing cocaine with intent to sell or

deliver,” as charged in the indictment. To convict the Petitioner of

the drug charge, the State had to show that the Petitioner knowingly

possessed twenty-six grams or more of cocaine with the intent to sell

or deliver and that the offenses occurred within one thousand feet of

school property. There was no dispute regarding the amount of

cocaine at issue or that the location of the apartment within one

thousand feet of a school. Accordingly, the only contested elements

were whether the Petitioner possessed the cocaine, whether he did

so with the intent to sell or deliver it, and whether he acted

knowingly. By pleading guilty to the aggravated burglary, the

Petitioner acknowledged that he intended to possess cocaine with

the intent to sell or deliver it, essentially conceding that he acted

with the requisite mens rea and that the cocaine was destined for

resale. The Petitioner’s confession of an intent to possess the

cocaine in order to sell or deliver it also had bearing on the jury’s

determination of the sole remaining question, whether he actually

obtained possession.

Id. Moreover, the TCCA determined that “[t]rial counsel should have been aware that [the

petitioner] was conceding elements of the crime both because the elements were contained in the

indictment and because the issue had been drawn to his attention at the previous mistrial.” Id. In

addition, the court highlighted that “trial counsel could have argued that the Petitioner was

trespassing on the property without advising the Petitioner to admit that he intended to commit the

felony of possession of cocaine.” Id.

However, the TCCA concluded that the petitioner failed to show that he was prejudiced by

trial counsel’s advice. Id. The TCCA cited the following evidence to support its conclusion: (1)

the petitioner and another person were seen “entering [a] seemingly empty apartment through the

window” after “approaching a car in a parking lot”; (2) the other person was stopped before fully

entering the apartment and found to have put down a small amount of cocaine, a gun, and two

scales; (3) the apartment contained nothing but two chairs and some drug paraphernalia, and it

appeared to function as a drug dispensary; and (4) there was a larger amount of cocaine in the

apartment’s closed oven. Id. The TCCA explained that this evidence established that the petitioner

“entered an apartment that appeared to function solely as a cocaine dispensary and that he did so

in the company of the [other person], who was carrying cocaine, a gun, and two sets of scales.” Id.

The TCCA acknowledged this evidence was “not overwhelming,” and it observed the inquiry was

“somewhat complicated” by the petitioner’s status as the apartment leaseholder. Id. at *5-6.

Nevertheless, the TCCA concluded that the trial was neither unreliable nor unfair and there was

no reasonable probability that the outcome of the trial would have been different, had the petitioner

not admitted guilt to aggravated burglary. Id.

3. Discussion

After careful consideration, the court concludes that the state court’s determination of this

claim was an unreasonable application of Strickland.8 As an initial matter, the TCCA reasonably

applied Strickland to conclude that trial counsel rendered constitutionally-deficient performance.

While matters of trial strategy are typically left to counsel’s discretion, Dixon v. Houk, 737 F.3d

1003, 1012 (6th Cir. 2013), trial counsel’s advice to admit guilt to aggravated burglary obviously

did not arise from “a thorough investigation of the law and facts relevant to plausible options.”

Strickland, 466 U.S. at 690. Rather, the record reflects that trial counsel failed to engage in a

thorough investigation. Indeed, trial counsel has never explained any investigation or attempted to

justify ignoring crystal-clear warnings about the impact of the petitioner’s admission of guilt on

the drug charge. See Bigelow, 367 F.3d at 570 (explaining that counsel has a duty to make

reasonable investigations or “make a reasonable decision that makes particular investigations

8 The petition phrases this issue in terms of an unreasonable application of both the facts and the law. (See,

e.g., Doc. No. 1-2 at 9.) However, the petitioner does not attempt to rebut the TCCA’s determination of the

facts. See Ayers, 623 F.3d at 308. The court therefore presumes the correctness of those factual

determinations. Rather, the court construes the petition to claim that the TCCA unreasonably applied the

law to the petitioner’s ineffective assistance of counsel claim. (See Doc. No. 2 at 9 (claiming that the TCCA

erred “by concluding that trial counsel’s deficient performance “was not prejudicial to petitioner”).)

unnecessary”); O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994) (“[A] failure to investigate

. . . must be supported by a reasoned and deliberate determination that investigation was not

warranted.”). To the contrary, trial counsel testified at the post-conviction hearing that he “did not

see any reason to try to change” his advice after the obvious warnings at the first trial. (Doc. No.

11-18 at 18, 24-26); McCathern II, 2017 WL 5462491, at *2. Trial counsel disregarded compelling

law and facts indicating that the admission-of-guilt strategy was fundamentally unsound and would

put the petitioner in direct legal jeopardy on the drug charge. Because this information was readily

available to trial counsel (e.g., relevant Tennessee criminal statutes, plain language of the

petitioner’s indictment, statements and rulings of the trial judge, and explicit arguments of the

state), the failure to make a reasonably thorough investigation dictates that trial counsel is not

entitled to a presumption that he exercised reasonable professional judgment. Strickland, 466 U.S.

at 690-91.

Moreover, the TCCA evaluated trial counsel’s advice and correctly found that it was so

deeply flawed that it fell below an objective standard of reasonableness. Trial counsel’s entire

defense strategy was premised on the idea that the state “could not prove” a connection between

the petitioner and the cocaine in the apartment oven. (Doc. No. 11-18 at 13-15); McCathern II,

2017 WL 5462491, at *2. Yet, as he acknowledged at the post-conviction hearing, trial counsel

knew the aggravated burglary charge alleged that the petitioner entered the apartment with intent

to commit the drug charge. (See Doc. No. 11-18 at 26-27.) Thus, trial counsel’s advice to confess

to aggravated burglary negated any advantage from the state’s failure to discover the petitioner’s

leasehold, supplied a critical missing connection between the petitioner and the apartment/drugs,

and exposed the petitioner to direct legal jeopardy on the drug charge.9

9 Moreover, the record reflects that this danger was likely unappreciated by the petitioner. Although the

TCCA made no express findings on this subject, the post-conviction record contains little evidence that

The drug charge required the state to prove that the petitioner knowingly possessed twenty-

six grams or more of cocaine with the intent to sell or deliver within one thousand feet of school

property. (Doc. No. 11-1 at 5); Tenn. Code. Ann. §§ 39-17-417(a)(4), (i)(5); 39-17-432(b)(1). By

admitting guilt to aggravated burglary, the petitioner effectively admitted that he entered a

habitation with the intent to commit possession of cocaine with intent to sell or deliver as charged

in the indictment. (Doc. No. 11-1 at 4); Tenn. Code Ann. §§ 39-14-402; 39-14-403, repealed by

2021 Pub. Acts, c.545, § 3, (July 1, 2021).10 Thus, the petitioner’s admission effectively served as

a concession that he “acted with the requisite mens rea and that the cocaine was destined for

resale,” and it directly impacted the jury’s determination of the “sole remaining question [on the

drug charge], whether [the petitioner] actually obtained possession.” McCathern II, 2017 WL

5462491, at *5. In other words, the admission meant that the petitioner had reduced or relieved the

state of its burden to prove the only disputed elements of the drug charge. To make matters worse,

the admission was unnecessary given the availability of other plausible defenses based on the

petitioner being a trespasser without knowledge of or intent to distribute the cocaine in the oven.

Id. Because the advice to admit guilt to aggravated burglary fell below prevailing professional

trial counsel ever meaningfully explained or discussed the advice to admit guilt. The petitioner testified that

he “took [trial counsel’s] word” because he had “no knowledge to any legal activity,” (Doc. No. 11-18 at

37-38), and that he did not understand the defense strategy going into the second trial. (Id. at 40, 45.) The

petitioner testified that trial counsel “never discussed” the admission of guilt with the petitioner between

the two trials due to an outstanding demand for $15,000 from trial counsel to the petitioner. (Id. at 49.)

According to the petitioner, the only explanation offered by trial counsel was: “[R]elax big daddy, you

riding with the best, I’ve been in this court twenty-two years.” (Id. at 40.) In short, even if the petitioner

agreed to trial counsel’s strategy, see McCathern II, 2017 WL 5462491, at *2, there simply is no indication

in the record that the petitioner understood the impact of the admission of guilt on the drug charge.

10 On July 1, 2021, the Tennessee aggravated burglary statute was amended and retitled. See Tenn. Code

Ann. § 39-13-1003. However, the court considers the statute in effect at the time of the petitioner’s

indictment and trial. See, e.g., Wenglikowski v. Jones, 162 F. App’x 582, 587 (6th Cir. 2006) (considering

habeas claim under relevant law “at the time of trial”).

norms, Strickland, 466 U.S. at 687-88; Bigelow, 367 F.3d at 570, the TCCA reasonably concluded

that trial counsel rendered constitutionally-deficient performance.

However, the TCCA unreasonably applied the prejudice prong of Strickland. The Supreme

Court has observed that a federal habeas court cannot hold that a state court prejudice

determination was lacking in justification “without identifying – let alone rebutting – all of the

justifications.” Mays v. Hines, 141 S. Ct. 1145, 1149 (2021) (quoting Shinn v. Kayer, 141 S. Ct.

517, 523 (2021)). Accordingly, the court “carefully consider[s] all the reasons and evidence” used

by the TCCA to support its prejudice determination, id. at 1149, and gives the TCCA all due

“latitude.” Shinn, 141 S. Ct. at 523 (quoting Knowles, 556 U.S. at 123). The inquiry is truncated

in this case, however, because the TCCA based its prejudice determination on scant evidence.

The TCCA justified its prejudice determination by relying on the petitioner’s “enter[ing]

an apartment that appeared to function solely as a cocaine dispensary . . . in the company of the

co-defendant, who was carrying cocaine, a gun, and two sets of scales.” McCathern II, 2017 WL

5462491, at *5. In support of this justification, the TCCA cited evidence that: (1) the petitioner

and another individual were seen “entering [a] seemingly empty apartment through the window”

after “approaching a car in a parking lot”; (2) the other individual was stopped before entering the

apartment and found to have put down a small amount of cocaine, a gun, and two scales; (3) the

apartment contained nothing but two chairs and some drug paraphernalia, and it appeared to

function as a drug dispensary; and (4) there was a larger amount of cocaine in the apartment’s

closed oven. Id. The TCCA cited no other evidence to support the petitioner’s conviction on the

drug charge or the prejudice determination; indeed, the court concluded that the state’s evidence

was “not overwhelming.” Id. at *5-6.

This evidence provides no reasonable basis to conclude that the petitioner failed to establish

prejudice under Strickland. Foremost, the evidence relied upon by the TCCA does not establish

the drug charge’s element of possession. The TCCA cites no evidence of the petitioner’s actual

possession and the record contains none. No witness testified about why the petitioner was at the

apartment; no witness provided any concrete connection between the petitioner and the cocaine or

the petitioner and the other person; no witness testified that the petitioner attempted to access the

cocaine in the apartment; no other evidence directly connected the petitioner to the cocaine or to

the apartment; and the petitioner had nothing on his person to suggest any connection to the

apartment or drug dealing. (See Doc. No. 11-2); McCathern II, 2017 WL 5462491, at *1.

Rather, the TCCA relied on circumstantial evidence of constructive possession. In

Tennessee, constructive possession can be proven by circumstantial evidence. See State v.

Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing Tenn. Code Ann. § 39-17-419); State v.

Dorantes, 331 S.W.3d 370, 380-81 (Tenn. 2011). But constructive possession requires proof that

a defendant “had the power and intention at a given time to exercise dominion and control over

the drugs either directly or through others.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)

(quoting State v. Patterson, 966 S.W.2d 435, 444 (Tenn. Crim. App. 1997)). In other words, the

state must prove that a defendant had “the ability to reduce [the drugs] to actual possession.” State

v. Ross, 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted). Importantly, circumstantial

evidence used to prove constructive possession (1) must be sufficient for a rational trier of fact to

find a defendant guilty beyond a reasonable doubt, and (2) “may not be based solely upon

conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn.

Crim. App. 1987) (citing Rucker v. State, 129 S.W.2d 208 (Tenn. 1939)). Thus, circumstantial

evidence of “[t]he mere presence of a person in an area where drugs are discovered is not, alone,

sufficient to support a finding that the person possessed the drugs.” Cooper, 736 S.W.2d at 129

(Tenn. Crim. App. 1987) (citing Dishman v. State, 460 S.W.2d 855, 858 (Tenn. Crim. App. 1970)).

“Likewise, mere association with a person who does in fact control the drugs or property where

the drugs are discovered is insufficient to support a finding that the person possessed the drugs.”

Id. (collecting cases); Shaw, 37 S.W.3d at 903; see also, e.g., Whited v. State, 483 S.W.2d 594,

596 (Tenn. Crim. App. 1972) (reversing conviction for possession of drugs located on premises in

absence of “further proof of [the] defendant’s complicity as to the possession and control of the

drugs”).

Applying these rigorous standards, the circumstantial evidence relied upon by the TCCA

is insufficient, as a matter of law, to prove constructive possession. The evidence of the petitioner’s

approaching a car is both irrelevant to control over the cocaine in the oven and utterly speculative.

Moreover, the trial record reflects that only one of the three MNPD officers, Thomas Spence, saw

the petitioner have a “short conversation” with the occupants of a vehicle and then “kind of walk[

] around.” (Doc. No. 11-2 at 17.) Spence later admitted that he had only seen “silhouettes” from

“twenty meters away” displaying “the beginnings of what [he] believe[d] was going to be [a drug

transaction]”; he had not seen any drugs, any money, or heard any conversation; the police officers’

reports contained no mention of the car; and the officers had no knowledge of or information about

the car or its occupants. (Id. at 53-60.) It is unreasonable to conclude that this wildly speculative

evidence proves that the petitioner possessed the cocaine in the apartment oven beyond a

reasonable doubt. Cooper, 736 S.W.2d at 129.

The remaining evidence fares no better. Taken together, it establishes no more than that

the petitioner was associated with another individual who possessed a small amount of cocaine,

drug paraphernalia, and a weapon, and that the petitioner entered through a window a dark, empty

apartment where cocaine was later discovered inside an unaccessed oven. There is nothing to

suggest that the petitioner sought to possess the cocaine in the empty apartment oven. Even if the

court were to infer, as the state argued at trial, that the petitioner was caught “in [a] building for

which there’s only one use,” (Doc. No. 11-2 at 174), there is no evidence – let alone evidence

beyond a reasonable doubt – that the petitioner was able or willing to “reduce [the cocaine in the

oven] to actual possession.” Ross, 49 S.W.3d at 845-46. Indeed, Spence testified that he “never”

heard the petitioner open or close the oven during the 1-2 minutes that the petitioner was in the

apartment. (Doc. No. 11-2 at 69.) Furthermore, the landlord testified at trial that tenants had rented

and “taken possession” of the apartment, but he did not identify the petitioner as having any interest

in the apartment. See McCathern II, 2017 WL 5462491, at *1. Accordingly, absent improper

speculation, the evidence relied upon by the TCCA does not establish that the petitioner had the

intent or ability to exercise dominion over the cocaine in the oven. Shaw, 37 S.W.3d at 903;

Cooper, 736 S.W.2d at 129.

The TCCA’s cited evidence is also insufficient to prove intent. The state was required to

prove that the petitioner had “intent to manufacture, deliver, or sell” the cocaine found in the oven.

See Tenn. Code. Ann. § 39-17-417(a)(4). In determining intent, a jury may consider circumstantial

evidence, including “the amount of a controlled substance . . . possessed by an offender, along

with other relevant facts surrounding the arrest.” Tenn. Code Ann. § 39-17-419; State v. Belew,

348 S.W.3d 186, 190 (Tenn. Crim. App. 2005). Because there is no evidence that the petitioner

ever possessed the cocaine in the apartment, however, circumstantial evidence of the amount of

the cocaine in the oven is entirely speculative concerning the petitioner’s intent. See Cooper, 736

S.W.2d at 129 (explaining that a conviction based upon circumstantial evidence may not be based

on “a mere possibility”). Lacking any connection between the petitioner and the apartment or

cocaine, the other evidence relied on by the TCCA establishes only the petitioner’s intent to

accompany the other person and briefly enter the empty apartment. And the trial record does not

supply “other relevant facts surrounding the [petitioner’s] arrest” sufficient to establish the

petitioner’s intent beyond a reasonable doubt. Tenn. Code Ann. § 39-17-419. To the contrary,

under cross-examination Spence testified that the MNPD entirely failed to collect such potentially-

relevant “other” evidence, including: any information concerning the car or its occupants;

fingerprints from any surface in the apartment, including the oven at issue; fingerprints from any

piece of evidence seized from the apartment, including the cocaine at issue; any tangible evidence

from the apartment that could be tied to an individual; and any photographs of the apartment taken

prior to the movement of items and limited collection of evidence.11 (See Doc. No. 11-2 at 71-79.)

Thus, the circumstantial evidence relied on by the TCCA requires pure conjecture to conclude the

petitioner intended to distribute the cocaine in the oven. Shaw, 37 S.W.3d at 903; Cooper, 736

S.W.2d at 129.

The jury was, therefore, presented with circumstantial evidence insufficient to prove the

disputed possession and intent elements of the drug charge. Accordingly, there can be no

“fairminded disagreement” that, without the petitioner’s admission of guilt to aggravated burglary

and effective concession of these elements of the drug charge, there is a reasonable probability the

outcome at trial would have been different. Carter, 829 F.3d at 468 (quoting White, 572 U.S. at

427); Strickland, 466 U.S. at 694; Premo, 562 U.S. at 122. Indeed, because the aggravated burglary

and drug charges were inextricably linked, trial counsel’s deficient advice all but ensured that the

petitioner’s trial would be “fundamentally unfair or unreliable.” Bigelow, 367 F.3d at 570 (quoting

11 The trial record reflects certain “other facts” that cut against the petitioner’s intent. For example, the

petitioner did not carry any drugs, weapons, or cell phones, which Markell testified are tools of the trade of

drug dealers.

Lockhart, 506 U.S. at 369). Because the court cannot identify “any reasonable argument” that the

prejudice element is not satisfied, Richardson, 941 F.3d at 856, the state court’s determination was

unreasonable. The petitioner is therefore entitled to habeas relief on this claim. See Miller-El, 537

U.S. at 340 (“Deference does not imply abandonment or abdication of judicial review. Deference

does not by definition preclude relief. . . . A federal court can . . . when guided by AEDPA,

conclude [a state court] decision was unreasonable.”).

C. Claim Two: Trial counsel was constitutionally ineffective for advising the

petitioner to waive his Fifth Amendment rights

The petitioner next claims that trial counsel was constitutionally ineffective for advising

him to waive his Fifth Amendment rights. (Doc. No. 14 at 4-5.) Liberally construing the petition

in conjunction with prior filings, the petitioner contends that his aggravated burglary plea was not

knowing, voluntary, or intelligent because trial counsel failed to inform the petitioner that the plea

“would be used against him” on the drug charge. (Doc. No. 11-15 at 61.) The petitioner maintains

that trial counsel had a duty to advise him of the direct consequences of the plea.12 (Doc. No. 11-

23 at 25-28.) This claim is fully exhausted.

The TCCA implicitly concluded that trial counsel’s advice did not impact the petitioner’s

Fifth Amendment right against self-incrimination because the petitioner did not enter a guilty plea

or functional equivalent. This was a reasonable conclusion. The Fifth Amendment requires that a

defendant enter his guilty plea “knowingly, voluntarily, and intelligently.” United States v. Taylor,

627 F.3d 1012, 1017 (6th Cir. 2010) (citing Brady v. United States, 397 U.S. 742, 748 (1970)); see

also U.S. Const. am. V. (“No person . . . shall be compelled in any criminal case to be a witness

12 The petitioner also invokes Tennessee Rule of Evidence 410 to contend that “evidence of these plea

negotiations was inadmissible.” (See Doc. No. 14 at 4-5.) However, a claim that a state trial court erred in

the application of an evidentiary rule, without more, does not provide a cognizable basis for granting habeas

relief. Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007).

against himself.”). “A guilty plea . . . is an event of signal significance in a criminal proceeding.”

Florida v. Nixon, 543 U.S. 175, 187 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)).

A guilty plea is more than a “voluntary confession made in open court” or a “confession which

admits the accused did certain acts.” Boykin, 395 U.S. at 242-43 & n.4. Rather, a guilty plea is a

“stipulation that no proof by the prosecution need be advanced,” and it yields “a conviction” for

which “nothing remains but to give judgment and determine punishment.” Id. In the absence of a

guilty plea, the state is “obliged to present during the guilt phase competent, admissible evidence

establishing the essential elements of the crime[ ] . . . charged.” Nixon, 543 U.S. at 188.

The record reflects that the petitioner’s admission of guilt was not the functional equivalent

of a guilty plea because the state was “still tasked with proving the elements of [the aggravated

burglary] offense beyond a reasonable doubt.” Nixon, 543 U.S. at 188. Indeed, no plea colloquy

occurred; no judgment was entered upon the petitioner’s admission; the petitioner agreed that the

aggravated burglary charge should be submitted to the jury for proof; the burglary charge was

argued to the jury; and the jury returned a verdict on the burglary charge. See McCathern II, 2017

WL 5462491, at *5. Because there is no indication that the petitioner’s admission served as a

stipulation that the state need not advance further proof, the TCCA reasonably concluded that the

petitioner made an “in-court confession” rather than a guilty plea. Id. at *4-5. Thus, the Fifth

Amendment waiver protections invoked by the petitioner do not apply.

To the extent that the petitioner gave an in-court confession, the Fifth Amendment prohibits

only the prosecution’s use of compelled testimony in the case-in-chief. United States v. Calvetti,

836 F.3d 654, 662 (6th Cir. 2016) (citing Oregon v. Elstad, 470 U.S. 298, 306-07 (1985)). The

petitioner does not claim that the state compelled him to admit guilt, nor does the petitioner suggest

that trial counsel was acting in concert with the state. Because the state was obligated to prove

aggravated burglary beyond a reasonable doubt and the petitioner retained his Fifth Amendment

rights at trial, the petitioner is not entitled to habeas relief on this claim.

D. Claim Three: Trial counsel failed to make an offer of proof that the petitioner

was the rightful tenant of the apartment he was accused of burglarizing

The petitioner next argues that trial counsel was constitutionally ineffective for failing to

make an offer of proof in the motion for a new trial that the petitioner was “the rightful tenant of

the apartment.” (Doc. No. 2 at 15.) The petitioner contends that the trial court would have

concluded from this evidence that he was not guilty of aggravated burglary. (Id.) The petitioner is

not entitled to relief on this claim for two reasons.

First, this claim is conclusory. Habeas Rule 2(c) provides that a petition must “specify all

the grounds for relief available to the petitioner” and “state the facts supporting each ground.” The

rule is even “more demanding” than Rule 8 of the Federal Rules of Civil Procedure. Jarvis v.

Hollway, No. 3:15-cv-0388, 2016 WL 454777, at *13 (M.D. Tenn. Feb. 4, 2016) (quoting Mayle

v. Felix, 545 U.S. 644, 655–56 (2005)). A conclusory claim for habeas relief that sets forth

insufficient facts may summarily be dismissed. Edwards v. Johns, 450 F. Supp. 2d 755, 756 (E.D.

Mich. 2006). Here, the petition states only that the petitioner informed trial counsel that he had

rented the apartment under the alias Eric Davis, and the apartment manager testified at the first

trial that the leaseholder’s name was Eric Davis. (Doc. No. 2 at 15.) The petition does not attach

the lease of Eric Davis or describe what the petitioner expected trial counsel to argue concerning

the lease in the motion for a new trial. Because the court cannot evaluate this vague claim against

constitutional standards, it does not satisfy the pleading requirements of Habeas Rule 2. See, e.g.,

Creech v. Taylor, No. 13-1 65, 2013 WL 6044359, at *3 (E.D. Ky. Nov. 14, 2013) (dismissing

habeas petition containing only “[c]onclusory allegations with no accompanying evidentiary

support”).

Second, this claim is procedurally defaulted. The petitioner raised the apartment leasehold

during state post-conviction proceedings in the context of a claim that trial counsel failed to file a

motion to suppress evidence. (See Doc. Nos. 11-15 at 27-28, 50-51, 56-64, 90; 11-18; 11-23 at 31-

33.) Thus, the TCCA considered only whether the petitioner’s acknowledgment of a possessory

interest in the apartment would have “given him standing to move for suppression of the evidence”

on the drug charge. See McCathern II, 2017 WL 5462491, at *7. It is entirely different to claim

that the apartment leasehold should have been used to argue innocence in a motion for a new trial.

Because the petitioner has not given the Tennessee courts an opportunity to consider “the same

claim under the same theory” in the first instance, Wagner v. Smith, 581 F.3d 410, 417 (6th Cir.

2009), and a state procedural rule prohibits the state courts from considering this claim now,13 see

In re Hall, 795 F. App’x 943, 944 (6th Cir. 2019) (noting Tennessee law “generally bars second

postconviction proceedings”), the claim is deemed exhausted (since there is no “available” state

remedy) but procedurally defaulted from federal habeas review. Coleman, 501 U.S. at 752-53;

Atkins, 792 F.3d at 657.

Inadequate assistance of counsel at initial-review collateral proceedings may establish

cause for a procedural default of a claim of ineffective assistance of counsel at trial. Martinez, 566

U.S. at 9; Sutton, 745 F.3d at 792. However, “Martinez does not apply to claims of post-trial

ineffectiveness” in connection with a motion for a new trial. Petty v. Hampton, No. 3:18-cv-00576,

2020 WL 3964207, at *17 (M.D. Tenn. July 13, 2020) (collecting cases); Johnson v. Genovese,

No. 3:18-cv-00539, 2021 WL 3269954, at *18 (M.D. Tenn. July 30, 2021); Rogers v. Westbrooks,

No. 3:13-cv-00141, 2019 WL 1331035, at *11 (M.D. Tenn. Mar. 25, 2019) (quoting Martinez,

566 U.S. at 12; Davila, 137 S. Ct. at 2066-67); see also, e.g., Reid v. United States, No. 18-5432,

13 None of the limited statutory provisions for reopening a first postconviction proceeding applies. See Tenn.

Code Ann. § 40-30-117.

2018 WL 11303655, at *2 (6th Cir. Aug. 28, 2018) (“The Supreme Court has never held that a

hearing on a motion for a new trial is a critical stage of a criminal proceeding, however, and

specifically declined to do so in Marshall.”) (quoting Marshall v. Rodgers, 569 U.S. 58, 61, 64

(2013)); Milam v. Davis, 733 F. App’x 781, 784, 786 (5th Cir. 2018), cert. denied, 139 S. Ct. 335

(2018) (applying Davila to hold that Martinez does not apply to claim of ineffectiveness in motion

for new trial and on appeal).

Even if Martinez were to apply, the petitioner must establish that he has a “substantial”

ineffective-assistance-of-counsel claim. Atkins, 792 F.3d at 658; Martinez, 566 U.S. at 14. For a

claim to be substantial, it must have “some merit,” Atkins, 792 F.3d at 660 (quoting Martinez, 566

U.S. at 14), and be “debatable among jurists of reason.” Abdur’Rahman v. Carpenter, 805 F.3d

710, 713 (6th Cir. 2015). The petitioner has not made that showing here. At the time of the motion

for new trial, the petitioner’s in-court admission was “strong evidence of guilt” on the aggravated

burglary charge. Rust, 17 F.3d at 161-62. Accordingly, the motion for a new trial focused on

arguments that the evidence was insufficient for the petitioner’s conviction on the drug charge.

(See Doc. No. 11-1 at 31-32.) The choice of trial counsel to pursue his client’s stronger arguments

does not fall below objective standards of professional reasonableness. Strickland, 466 U.S. at 688;

Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463 U.S. 745, 753 (1983). Particularly

in light of the confession, the petitioner has not articulated any compelling reason why the decision

to focus on the drug charge was incorrect or why the omission of the leasehold was unreasonable.

Furthermore, the petitioner has not demonstrated that there was a reasonable probability of a

different outcome if trial counsel had raised the leasehold in the motion. Premo, 562 U.S. at 122;

Strickland, 466 U.S. at 694. Rather, the petitioner raises only a speculative possibility of prejudice.

Baze, 371 F.3d at 322. Because the petitioner has not established that this claim has “some merit,”

it is not “substantial” under Martinez and cannot be used as cause to excuse the procedural default.

Atkins, 792 F.3d at 660. The court will, therefore, deny habeas relief on this claim.

E. Claim Four: Trial counsel did not contest the duplicity of the indictment

Finally, the petitioner claims that trial counsel was constitutionally ineffective because he

failed to contest the “duplicity” of his indictment. (Doc. No. 14 at 2-3.) The petitioner contends

that the indictment was duplicitous because it charged both aggravated burglary and possession of

cocaine with intent to sell or deliver. (Id.) The petitioner concedes, however, that he “fail[ed] to

articulate” this theory to the Tennessee courts. (Id. at 3.) Because the opportunity for the petitioner

to present this claim to the state courts has passed, the claim is deemed exhausted (since there is

no “available” state remedy) but procedurally defaulted from federal habeas review. Coleman, 501

U.S. at 752-53; Atkins, 792 F.3d at 657. The petitioner has suggested no reason to excuse the

default. To the extent that the petitioner relies on the failure of post-conviction counsel to raise this

ineffective-assistance-of-trial-counsel claim, the claim must have “some merit” to be “substantial.”

Atkins, 792 F.3d at 660 (quoting Martinez, 566 U.S. at 14).

An indictment is duplicitous if it “‘sets forth separate and distinct crimes in one count.’”

United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011); United States v. Anderson, 605 F.3d 404,

414 (6th Cir. 2010). The concern with a duplicitous count is that “a ‘jury may find a defendant

guilty on the count without having reached a unanimous verdict on the commission of any

particular offense.’” Boyd, 640 F.3d at 665 (quoting United States v. Campbell, 279 F.3d 392, 398

(6th Cir. 2002)); see also United States v. Giampietro, 475 F. Supp. 3d 779, 786 (M.D. Tenn. 2020)

(citing United States v. Damrah, 412 F.3d 618, 622 (6th Cir. 2005)). The petitioner’s indictment,

(see Doc. No. 11-1 at 4-6), charged three separate, well-established state criminal offenses that

require proof of different elements. See Giampetro, 475 F. Supp. 3d at 786 (citing Damrah, 412

F.3d at 622) (noting that the “decisive criteria” for resolving duplicity concerns are legislative

intent and separate proof). Furthermore, the petitioner has not demonstrated how he was harmed

by the wording of the indictment as opposed to other developments at trial. See Damrah, 412 F.3d

at 623 (explaining that a duplicitous indictment is harmless unless the concerns raised by duplicity

actually exist); United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir. 1980) (“Ultimately, the

indictment must be measured in terms of whether it exposes the defendant to any of the inherent

dangers of a duplicitous indictment.”).

Because the duplicity claim has no merit, trial counsel was not required to raise it. Ludwig

v. United States, 162 F.3d 456, 458 (6th Cir. 1998); Moore v. United States, No. 3:13-01362, 2014

WL 1575649, at *4 (M.D. Tenn. Apr. 21, 2014). And the petitioner may not use post-conviction

counsel’s failure to raise the issue to excuse the procedural default. The court will deny habeas

relief on this claim.

V. Conclusion

Federal and state judges alike have long called the writ of habeas corpus “the Great Writ.”

See, e.g., Ex Parte Watkins, 28 U.S. 193, 201 (1830) (Marshall, C.J.); Pinholster, 563 U.S. at 210

(Sotomayor, J., dissenting). The writ gives judges a unique power to right wrongs that occur in

criminal cases. Justice Frankfurter explained that “[t]he uniqueness of habeas corpus in the

procedural armory of our law cannot be too often emphasized. It differs from all other remedies in

that it is available to bring into question the legality of a person’s restraint and to require

justification for such detention. Of course this does not mean that prison doors may readily be

opened. It does mean that explanation may be exacted why they should remain closed.” Brown v.

Allen, 344 U.S. 443, 512 (1953) (Frankfurter, J.). Since 2013, Eric McCathern has consistently

asked whether his prison doors should remain closed in the wake of trial counsel’s deficient advice

to confess to aggravated burglary. After much consideration, this court now concludes that federal

habeas relief is required on this claim. The state court’s determination that McCathern was not

prejudiced by trial counsel’s performance is so lacking in justification as to be an “extreme

malfunction,” Harrington, 562 U.S. at 102-03, for which the writ of habeas corpus is “the best

. . . defense.” Ex Parte Yerger, 75 U.S. 85, 95 (1868) (Chase, C.J.).

Accordingly, the petition will be granted with respect to Claim One and denied as to all

other claims. Because the court will grant relief under Section 2254, McCathern’s convictions and

sentences on the aggravated burglary and drug charges will be vacated.14 Unless the State of

Tennessee re-tries McCathern within 90 days, he shall be released from further incarceration on

14 Because the petitioner did not establish that trial counsel’s advice constituted deficient performance and

prejudice regarding the petitioner’s other misdemeanor conviction, the conviction and sentence on Count

Three will remain unchanged.

those charges.

An appropriate order will enter.

bag —

United States District Judge

Because the court’s ruling is adverse to the petitioner with respect to the majority of his claims, the court

must determine whether to issue or deny a certificate of appealability (“COA”) with respect to any of those

claims. Rule 11, Rules Gov’g § 2254 Cases. A COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional night.” 28 U.S.C. § 2253(c)(2), and the COA “must indicate which

specific issue or issues satisfy the [required] showing.” 28 U.S.C. § 2253(c)(3). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 327. “If the petition [is] denied on procedural

grounds, the petitioner must show “at least that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Dufresne v. Palmer, 876 F.3d 248, 253 (6th

Cir. 2017) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “[A] COA does not require a showing

that the appeal will succeed,” but courts should not issue a COA as a matter of course. Miller-El, 537 U.S.

at 336. Having thoroughly considered whether any of the petitioner’s denied claims warrant a COA, the

court finds that jurists of reason would not disagree with the court’s resolution of those claims. Accordingly,

the court will deny a COA regarding those claims. The petitioner may, however, seek a COA directly from

the United States Court of Appeals for the Sixth Circuit. Rule 11(a), Rules Gov’g § 2254 Cases.

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