Colwell v. Rogers

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

COLUMBIA DIVISION

JOSEPH A. COLWELL, SR. #552372, )

)

Petitioner, )

) NO. 1:21-cv-00010

v. )

) JUDGE CAMPBELL

VINCENT VANTELL, Warden, )

)

Respondent. )

MEMORANDUM

Joseph A. Colwell, Sr., a pro se state prisoner, filed a petition for the writ of habeas corpus

under 28 U.S.C. § 2254 (Doc. No. 1) and Respondent filed an Answer. (Doc. No. 25). Petitioner

then filed a Motion seeking permission to amend the Petition to provide a “more accurate and

precise statement” regarding one of his claims. (Doc. No. 28 at 6). Respondent filed a Response

to the Motion (Doc. No. 30), and Petitioner filed a Reply. (Doc. No. 35). For the following reasons,

Petitioner is not entitled to relief under Section 2254 and this action will be DISMISSED.

I. PROCEDURAL BACKGROUND

A Maury County jury convicted Petitioner of two counts each of rape and incest, and the

court sentenced him to an effective twenty-year sentence. (Doc. No. 24-1 at 49–52). The Tennessee

Court of Criminal Appeals (TCCA) affirmed, and the Tennessee Supreme Court denied

Petitioner’s application for permission to appeal. State v. Colwell, No. M2016-00130-CCA-R3-

CD, 2016 WL 5416337 (Tenn. Crim. App. Sept. 28, 2016), perm. app. denied Jan. 19, 2017.

Petitioner filed a pro se petition for post-conviction relief. (Doc. No. 24-14 at 14–28). The

court appointed counsel (id. at 31), and counsel filed an amended petition. (Id. at 36–50). The court

held an evidentiary hearing (Doc. No. 24-17) and denied post-conviction relief. (Doc. No. 24-14

at 54–71). The TCCA affirmed, and the Tennessee Supreme Court denied discretionary review.

Colwell v. State, No. M2019-00212-CCA-R3-PC, 2020 WL 3886031 (Tenn. Crim. App. July 10,

2020); (Doc. No. 24-23).

II. FACTUAL BACKGROUND

As context for Petitioner’s claims, the Court sets forth the TCCA’s summary of the

evidence established at trial:

Defendant’s son and daughter accused him of rape. At the time of Defendant’s

arrest and indictment, D.C., the female victim, had just turned fifteen and J.C., the

male victim, was thirteen. The children lived in Columbia with their father, who

worked as a tow truck driver.

Detective Carl Shrake of the Columbia Police Department responded to a report

regarding a rape. When he arrived at the mobile home, he met D.C. and J.C.,

Defendant’s children. Their grandmother was also present at the time. According

to D.C., Defendant raped her the night prior to Detective Shrake’s visit and had

done so on multiple occasions in the past. Detective Shrake noted that the child was

visibly upset. J.C. confirmed that Defendant “made him do things” he did not want

to do. Detective Shrake sent the children to Nashville to undergo rape evaluations.

At trial, D.C. was almost sixteen years of age. She testified that after enduring

ongoing abuse, she finally told a family friend, Shelley Ladd, that Defendant “was

raping [her] . . . and her brother.” The victim explained that she was “forced” to

have sex with her father multiple times even though she “would cry and tell

[Defendant] not to [do it].” Defendant would tell D.C. to go into his bedroom. Once

in the room, Defendant “would start taking off his clothes.” He told D.C. to take

off her clothes. When she did not comply, Defendant would take off her clothes.

D.C. “always asked him why he did it to me . . . and he would tell me it was because

we either scared his girlfriends away or we acted up . . . .” D.C. was “very afraid

because it hurt.” On the night before she reported the abuse, Defendant put a pillow

“underneath her butt” before putting his penis in her vagina. She explained that

Defendant “didn’t use [a condom]” because “he got fixed so he wouldn’t get

anybody pregnant.” The victim described that, at times, Defendant had her lie on

her back and other times she was on her knees. She described Defendant as “rough,”

and he “would like make noises” or say, “That booty’s mine,” during the rapes.

Defendant often ejaculated on the victim’s stomach and “would be like touching

her everywhere” when he finished. Defendant told the victim to go clean up and

the victim would “use a piece of toilet paper to wipe it off my stomach or anywhere

he got it and then I would take a shower.”

D.C. was aware that her brother was also being raped. She discussed the abuse with

her brother “a lot.” D.C. threatened to tell someone about the abuse on more than

one occasion, but she explained that she and J.C. were afraid to tell anyone because

Defendant would “threaten [them], scare [them].” The victim described being

“scared to death” because Defendant had “choke[d her] or jam[med] his finger in

[her] or he would talk about how [the victims] would never get to see each other

again [because they would end up in foster care].”

J.C., who was fourteen at the time of trial, recalled that two days prior to telling

someone about the abuse, Defendant raped him in the living room of their home.

J.C. was watching television on the love seat when Defendant came into the room

holding “torn-off pieces” of toilet paper in his hand. Defendant said, “Come on,

son.” J.C. knew what Defendant wanted because Defendant had done this before.

J.C. was “afraid.” Defendant made J.C. pull down Defendant’s pants and boxers.

J.C. was on his knees and Defendant made him “suck his thing” with his mouth.

Defendant was lying on the couch with his hands on the back of J.C.’s head

“pushing [his] head up and down.” J.C. testified that he was “angry” at Defendant

for “making [him] do it.” When Defendant “finished,” he “put his sperm in the

toilet paper.” J.C. never told his father that he did not want to do it because he

“didn’t want to hurt his feelings.”

D.C. admitted that she and her brother had friends over to the house without their

father’s permission several times during the summer before they reported the abuse.

On at least one of these occasions, the basement door was kicked in and someone

caused damage to the door of her bedroom. There were also a few “holes” in the

walls. D.C. acknowledged that Defendant put in a webcam to monitor activity in

the house while he was at work. According to D.C., “someone” unplugged the

webcam. J.C. testified that he and D.C. unplugged the webcam.

On the day they actually reported the abuse, D.C. and J.C. invited friends over to

the house without their father’s permission. Defendant’s sister, Tammy Colwell,

came to the house to check on things, presumably after Defendant realized that the

webcam was unplugged. Tammy made D.C. and J.C. go to their grandmother’s

house and threatened to call the police on the visitors. D.C. testified at trial that

getting caught with friends at the house had nothing to do with her disclosure of the

rapes. Shelley Ladd, the person to whom the rapes were first disclosed, testified at

trial that she was talking to D.C. on the day the children were caught with friends

at the house. D.C. was upset about getting in trouble and was afraid that her father

would beat her. Ms. Ladd explained that D.C. “broke down” and proceeded to tell

her about the rapes. Ms. Ladd then spoke with J.C. before finding a police officer.

Detective Shrake spoke with Defendant about the allegations, describing

Defendant’s attitude as “blasé.” Defendant denied the allegations and informed

Detective Shrake that items were missing from his home because his children had

other teenagers over to the house while he was at work. Defendant admitted that he

had a vasectomy.

Based on the statements from D.C. and J.C., Detective Shrake obtained a search

warrant for the residence. Officers removed computers, bed sheets, and couch

cushion covers. Additionally, officers obtained the clothing worn by the children.

The Tennessee Bureau of Investigation (“TBI”) received the items. The search did

not result in the discovery of any pornographic material of children on the

computers. Additionally, there was no semen found on the victims’ clothing.

Defendant did not testify at trial. Briana Colwell, the victims’ cousin, testified that

D.C. had previously accused Defendant of rape. Ms. Colwell claimed that she

visited D.C. one time when she had friends over without permission and that D.C.

told her if she got caught she would “lie on her dad” by saying that he raped her.

Colwell, 2016 WL 5416337, at *1–2 (footnote omitted).

III. CLAIMS

The Petition asserts several claims (see Doc. No. 1), and Petitioner’s pending Motion seeks

permission to amend the Petition to ensure that the Court considers one of his claims as he

intended. (See Doc. No. 28). However, it is unnecessary to amend the Petition because, when

liberally construing the Petition, the claim addressed in the Motion is already raised in the Petition.

Therefore, for administrative purposes, the pending Motion (Doc. No. 28) will be DENIED as

moot. But as a practical matter, the Court will consider the claim addressed in the pending Motion

alongside the other claims raised in the Petition.

For clarity, the Court has re-numbered Petitioner’s claims as follows:

1. The State knowingly withheld exculpatory evidence. (Doc. No. 1 at 29).

2. There is insufficient evidence to support Petitioner’s convictions. (Id. at 6–15).

3. The trial court imposed an excessive sentence. (Id. at 16–20).

4. Pretrial counsel was ineffective for failing to ensure that the victims were sequestered

during the preliminary hearing. (Id. at 32).

5. Trial counsel was ineffective for failing to:

A. Request to sever the offenses for trial (id. at 18);

B. Request electronic devices seized from Petitioner’s residence and retain an expert

to properly investigate them (id. at 28–31);

C. File a pretrial motion regarding D.C’s sexual activity (id. at 26–28);

D. Research CPIT (Child Protective Investigation Team) protocol (id. at 32);

E. Consult a medical expert to challenge D.C.’s testimony based on a lack of

supporting physical evidence (id. at 26; Doc. No. 28);

F. Object to testimony that Petitioner raped the victims on more than one occasion

(Doc. No. 1 at 21–25, 31);

G. Object to D.C.’s testimony that she was not worried about getting in trouble (id. at

24, 32);1

H. Object to J.C. leaving the witness stand (id. at 32);

I. Request that the State elect offenses at the end of trial (id. at 21, 23);

J. Assist Petitioner such that his cumulative errors prejudiced Petitioner. (Id. at 24).

IV. LEGAL STANDARD

Federal habeas relief for state prisoners is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Harrington v. Richter, 562 U.S. 86, 97 (2011). AEDPA

establishes a demanding standard for granting federal relief on claims “adjudicated on the merits”

in state court. 28 U.S.C. § 2254(d). Under AEDPA, such a claim cannot be the basis for federal

relief unless the state court’s decision was: (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States”; or (2) “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 The Court will consider Petitioner’s general assertion of failure to challenge “testimony of state

witnesses” (Doc. No. 1 at 24) through his more specific assertion that counsel failed to challenge this aspect

of D.C.’s testimony. (See id. at 32).

Under Section 2254(d)(1), a state court’s decision is “contrary to” clearly established

federal law “‘if the state court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases’ or ‘if the state court confronts a set of facts that are materially

indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a [different

result].’” Hill v. Curtin, 792 F.3d 670, 676 (6th Cir. 2015) (en banc) (quoting Lockyer v. Andrade,

538 U.S. 63, 73 (2003)). “Under the ‘unreasonable application’ clause of [Section] 2254(d)(1),

habeas relief is available if ‘the state court identifies the correct governing legal principle from

[the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the

prisoner’s case.’” Id. (quoting Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008)). A state

court’s application is not unreasonable under this standard simply because a federal court finds it

“incorrect or erroneous”—instead, the federal court must find that the state court’s application was

“objectively unreasonable.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520–21 (2003)).

To grant relief under Section 2254(d)(2), a federal court must find that “the state court’s

factual determination was ‘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). State court factual

determinations are only unreasonable “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.” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting Matthews v. Ishee, 486

F.3d 883, 889 (6th Cir. 2007)). “[I]t 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)

(citing Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)).

Review of claims rejected on the merits in state court, however, is ordinarily only available

to petitioners who “exhausted the remedies available in the courts of the State.” 28 U.S.C. §

2254(b)(1)(A). 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). “To be properly exhausted, each claim must have been ‘fairly

presented’ to the state courts,” meaning that the petitioner presented “the same claim under the

same theory . . . to the state courts.” Wagner v. Smith, 581 F.3d 410, 414, 417 (6th Cir. 2009)

(citations omitted).

The procedural default doctrine is “an important ‘corollary’ to the exhaustion

requirement,” under which “a federal court may not review federal claims that . . . the state court

denied based on an adequate and independent state procedural rule.” Davila v. Davis, 137 S. Ct.

2058, 2064 (2017) (citations omitted). A claim also may be “technically exhausted, yet

procedurally defaulted” where “a petitioner fails to present a claim in state court, but that remedy

is no longer available to him.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones

v. Bagley, 696 F.3d 475, 483–84 (6th Cir. 2012)).

To obtain review of a procedurally defaulted claim, a petitioner must “establish ‘cause’

and ‘prejudice,’ or a ‘manifest miscarriage of justice.’” Middlebrooks v. Carpenter, 843 F.3d 1127,

1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790–91 (6th Cir. 2014)). Cause

may be established by “show[ing] that some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.” Davila, 137 S. Ct. at 2065 (citations

omitted). Prejudice requires a showing that the errors at trial worked to a petitioner’s “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) (quoting Hollis v. Davis, 941 F.2d 1471,

1480 (11th Cir. 1991)) (internal quotation marks omitted). And the manifest-miscarriage-of-justice

exception applies “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 (2004)

(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

V. ANALYSIS

Respondent contends that Petitioner’s claims are subject to dismissal as not cognizable,

without merit under AEDPA’s demanding standard of review for claims adjudicated on the merits

in state court, or procedurally defaulted. (See Doc. Nos. 25, 30). The Court agrees and will address

each category of claims in turn.

A. Non-Cognizable Claims

1. Claim 3—Excessive Sentence

Petitioner asserts that his twenty-year sentence is excessive. Specifically, he argues that the

trial court erred in applying enhancing and mitigating factors under state law, and that the court’s

rationale for consecutive sentencing was improper. (Doc. No. 1 at 16–20). Petitioner made these

same arguments on direct appeal, and the TCCA considered this claim solely under state law before

concluding that Petitioner was not entitled to relief. Colwell, 2016 WL 5416337, at *4–5.

“[F]ederal habeas corpus relief does not lie for errors of state law.” Thomas v. Stephenson, 898

F.3d 693, 700 (6th Cir. 2018) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991), and collecting

cases). Therefore, Petitioner’s claim that “the trial court’s sentencing decision violated state law .

. . is not cognizable on federal habeas review.” Noonan v. Burton, No. 17-2458, 2018 WL 6584905,

at *3 (6th Cir. Oct. 15, 2018) (quoting Estelle, 502 U.S. at 67).

To the extent Petitioner asserts that the trial court violated his federal right to due process

by imposing a sentence “on the basis of misinformation of constitutional magnitude,” Petitioner’s

sentencing claim is cognizable. See Noonan, 2018 WL 6584905, at *3 (internal citations and

quotation marks omitted). But at the sentencing hearing, the trial court considered the victims’ trial

testimony, victim impact statements, and statements to law enforcement reflected in the pre-

sentence report, and it accepted the victims’ allegations as true. (See Doc. No. 24-5 at 29, 32–33,

36–37). Petitioner “has failed to present any evidence, much less clear and convincing evidence,

to rebut the presumption of correctness afforded to the trial court’s factual findings.” See Noonan,

2018 WL 6584905, at *3 (citing 28 U.S.C. § 2254(e)) (rejecting habeas petitioner’s claim that “the

trial court based its upward departure on unproven allegations from his oldest stepdaughter”).

Additionally, to the extent Petitioner asserts that his sentence violates the Eighth Amendment, the

Sixth Circuit has held that a sentence “within the maximum penalty authorized by statute . . .

generally does not constitute ‘cruel and unusual’ or excessive punishment.” Barrett v. Parris, No.

20-5202, 2020 WL 4875315, at *4 (6th Cir. July 20, 2020) (citing Austin v. Jackson, 213 F.3d 298,

302 (6th Cir. 2000)). And Petitioner’s sentences were well below the maximum punishment

authorized for his offenses. (See Doc. No. 24-1 at 49–52 (reflecting Petitioner received two ten-

year sentences for rape, a Class B felony, and two four-year sentences for incest, a Class C felony));

Tenn. Code Ann. § 40-35-112 (b)(2), (3) (reflecting that the maximum punishment authorized by

statute for Class B and C felonies is thirty and fifteen years, respectively). For all of these reasons,

Claim 3 will be denied.

2. Claim 5.J—Trial Counsel’s Cumulative Errors

Petitioner asserts that trial counsel’s cumulative errors amounted to constitutionally

ineffective assistance. “[T]he law of [the Sixth Circuit] is that cumulative error claims are not

cognizable on habeas [review] because the Supreme Court has not spoken on this issue.” Daniels

v. Jackson, 2018 WL 4621942, at *6 (6th Cir. July 17, 2018) (quoting Williams v. Anderson, 460

F.3d 789, 816 (6th Cir. 2006)). Claim 5.J therefore does not state a viable ground for relief.

B. Adjudicated Claims

Petitioner exhausted his insufficient evidence claim on direct appeal and three of his

ineffective assistance claims on post-conviction appeal.

1. Claim 2—Insufficient Evidence

Petitioner asserts that there was insufficient evidence to support his convictions. The TCCA

identified the federal standard governing this claim as set forth in Jackson v. Virginia, 443 U.S.

307 (1979), before rejecting the claim on the merits. See Colwell, 2016 WL 5416337, at *3–4.

“Under Jackson, habeas corpus relief is appropriate based on insufficient evidence only

where the court finds, after viewing the evidence in the light most favorable to the prosecution,

that no rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (quoting Parker v. Renico,

506 F.3d 444, 448 (6th Cir. 2007)). On federal habeas review, this standard “commands deference

at two levels”: “First, deference should be given to the trier-of-fact’s verdict, as contemplated by

Jackson; second, deference should be given to the [state court’s] consideration of the trier-of-fact’s

verdict, as dictated by AEDPA.” Id. (citing Parker, 506 F.3d at 448).

The TCCA ruled:

“Rape” is the unlawful sexual penetration of a victim by the defendant

accomplished by force or coercion, without the consent of the victim and the

defendant knows or has reason to know at the time of the penetration that the victim

did not consent, or where the defendant knows or has reason to know that the victim

is mentally incapacitated or physically helpless. T.C.A. § 39-13-503(a)(2)–(3).

“Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s body

into the genital or anal openings of the victim’s, the defendant’s or any other

person’s body, but emission of semen is not required. T.C.A. § 39-13-501(7).

“Incest” is sexual penetration of one’s child. T.C.A. § 39-15-302(a)(1).

Viewing the evidence in a light most favorable to the State, we conclude that the

evidence was sufficient to support the convictions for two counts of rape and two

counts of incest. D.C. and J.C. testified that they were the biological children of

Defendant. Both of the victims told Ms. Ladd, their grandmother, and the police

that Defendant raped them. They described in graphic detail exactly how Defendant

committed the offenses. D.C. explained that Defendant called her into his bedroom,

removed her clothing, placed a pillow underneath her bottom, and penetrated her

vagina with his penis. D.C. testified that she protested the entire time, was in pain,

and was afraid. Defendant ejaculated on her stomach and ordered her to shower.

She knew that Defendant had a vasectomy, so it was not surprising that there was

no sperm present. D.C. testified that Defendant choked her at least once when he

was raping her and told her no one would believe her if she went to the police.

Similarly, J.C. testified that Defendant raped him the last time two days prior to the

police report. Defendant ordered J.C. to kneel and perform fellatio while Defendant

lay on the couch and put his hands on the back of J.C.’s head. J.C. was upset and

angry during the encounter, and he ran to his room afterward because he felt like

he was going to throw up.

Defendant claims that the State did not prove that J.C. failed to consent. J.C.

testified that during the ordeal, he was thinking that he “did not want to do it” but

had never told Defendant that before because he was “scared.” J.C. also testified

that he never told his father that he did not want to do it because he “didn’t want to

hurt his feelings.” In our view, the jury was entitled to infer from the testimony that

J.C. did not consent to executing fellatio on his own father. “[T]he inferences to be

drawn from [the] evidence, and the extent to which the circumstances are consistent

with guilt and inconsistent with innocence, are questions primarily for the jury.”

State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006).

Moreover, the jury heard and discredited Defendant’s theory that the children made

up the allegations to avoid getting in trouble for having friends over to the house

while Defendant was at work. D.C. acknowledged that she had friends over without

her father’s permission and that items at the house were damaged, but she testified

that this had absolutely nothing to do with the report of the abuse. J.C. agreed,

testifying that he would never lie about rape to avoid a “whipping.” The jury

assessed the credibility of the witnesses, clearly accrediting the testimony of D.C.

and J.C.

Lastly, the State was not required to prove by physical evidence alone that the rapes

occurred. We note that our supreme court has stated that “it has long been the rule

in our state that the uncorroborated testimony of a minor victim may be sufficient

to sustain a conviction for forcible or coercive sex offenses such as simple rape.”

State v. Collier, 411 S.W.3d 886, 899 (Tenn. 2013); see also State v. McKnight,

900 S.W.2d 36, 48 (Tenn. Crim. App. 1994) (holding that corroboration of minor

victims’ testimony not necessary to support a conviction for rape), abrogated on

other grounds by State v. Williams, 977 S.W.2d 101 (Tenn. 1998); Montgomery v.

State, 556 S.W.2d 559, 560 (Tenn. Crim. App. 1977) (stating that rape statute does

not require that testimony of minor female victim be corroborated to support a

conviction of rape). Moreover, the testimony of the victims was accredited by the

jury, and this Court will not re-weigh or re-evaluate the evidence on appeal. Reid,

91 S.W.3d at 277 (quoting [State v.] Bland, 958 S.W.2d [651,] 659 [Tenn. 1997]).

It is not the role of this Court to reweigh or reevaluate the evidence, nor to substitute

our own inferences for those drawn from the evidence by the trier of fact. Id. The

evidence was sufficient to support the convictions. Defendant is not entitled to relief

on this issue.

Colwell, 2016 WL 5416337, at *3–4.

This ruling was reasonable. Petitioner does not contest that the victims were his children,

and a rational juror could have found beyond a reasonable doubt that the victims’ “graphic” and

“detail[ed]” testimony established the other required elements: sexual penetration, force or

coercion, and lack of consent. See id. at *3. Arguing otherwise, Petitioner contends that D.C. and

J.C.’s testimony was not credible and unsupported by physical evidence. (Doc. No. 1 at 10). But

physical evidence is not required to sustain a conviction—“‘testimonial evidence’ . . . is sufficient

as long as the jury is convinced beyond a reasonable doubt.” Gipson v. Sheldon, 659 F. App’x 871,

881 (6th Cir. 2016) (quoting Holland v. United States, 348 U.S. 121, 140 (1954)). And as the

TCCA noted, “the jury heard and discredited [Petitioner]’s theory that the children made up the

allegations to avoid getting in trouble for having friends over to the house while [Petitioner] was

at work.” Colwell, 2016 WL 5416337, at *4. Indeed, the jury considered testimony directly

supporting this theory from the victims’ cousin. (See Doc. No. 24-4 at 114–15 (testifying that, the

April before the June offenses alleged in the indictment, D.C. said she would lie and say that

Petitioner raped D.C. if Petitioner caught D.C. having friends at home)). The jury nonetheless

credited the victims’ testimony that the charged offenses actually occurred. Such credibility

determinations are “clearly the province of the jury.” Tyler v. Mitchell, 416 F.3d 500, 505 (6th Cir.

2005) (citations omitted). This Court cannot “reweigh the evidence, re-evaluate the credibility of

witnesses, or substitute [its] judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191, 205

(6th Cir. 2009) (citing United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)).

Petitioner also argues that there was insufficient evidence to support his convictions as to

J.C. because the State failed to prove lack of consent beyond a reasonable doubt. (Doc. No. 1 at

10). Petitioner bases this argument on J.C.’s testimony that, despite not wanting to engage in sexual

acts with Petitioner, J.C. never told Petitioner because J.C. did not “want to hurt [Petitioner’s]

feelings.” (Doc. No. 24-4 at 29–30). However, J.C. also testified that: he did not tell Petitioner that

he “did not want to do it” because he was scared (id. at 24); he was “angry” at Petitioner “for

making [him] do it” (id. at 27); during the act, he was crying “some” (id. at 28); and after the act,

he “ran up to [his] room” and “felt like [he] wanted to throw up.” (Id. at 30). Juries have “broad

discretion” to determine “what inferences to draw from the evidence presented at trial,” and the

Court must defer to a jury’s determination as long as it “‘dr[e]w reasonable inferences from basic

facts to ultimate facts.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443

U.S. at 319). The TCCA found that J.C.’s testimony allowed the jury to infer “that J.C. did not

consent to executing fellatio on his own father.” Colwell, 2016 WL 5416337, at *4. That

conclusion was clearly reasonable. For all of these reasons, Claim 2 will be denied.

2. Ineffective Assistance of Trial Counsel

Petitioner asserts that trial counsel was ineffective in several ways. The TCCA applied the

federal standard governing these claims—Strickland v. Washington, 466 U.S. 668 (1984)—to

reject three ineffective-assistance claims on the merits. Colwell, 2020 WL 3886031, at *8–12.

Under Strickland, a petitioner must show (1) deficient performance and (2) prejudice to the

defendant. Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citing Strickland, 466 U.S. at 687).

Counsel’s performance is deficient where it falls “below an objective standard of reasonableness.”

Strickland, 466 U.S. at 687–88. “[A] court must indulge a strong presumption that counsel’s

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

must overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

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

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

Further, when a petitioner raises an exhausted claim of ineffective assistance in a federal

habeas petition, “[t]he pivotal question” is not “whether defense counsel’s performance fell below

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

unreasonable.” Harrington, 562 U.S. at 101. This amounts to a “‘doubly deferential’ standard of

review that gives both the state court and the defense attorney the benefit of the doubt.” Burt v.

Titlow, 571 U.S. 12, 15 (2013) (quoting Pinholster, 563 U.S. at 190).

A. Claim 5.B—Electronics Seized from Petitioner’s Residence

Petitioner asserts that counsel failed to request electronic devices seized from his residence

and retain an expert to properly investigate them. As background, Detective Shrake testified that

D.C. told Shrake Petitioner took pictures of D.C. with his cell phone, but Petitioner had deleted

them at the time of the incident alleged in the indictment. (Doc. No. 24-3 at 73). Testimony also

established that Petitioner had a webcam in the living room of his residence to monitor what was

happening while he was away. (Id. at 60, 95, 98, 146–47, 179; Doc. No. 24-4 at 47). The day after

the children reported the abuse, police executed a search warrant of Petitioner’s residence and

seized, among other things, computer equipment and hard drives, a cell phone, and the webcam.

(Doc. No. 24-3 at 100–01, 116). Petitioner contends that counsel should have requested video

footage from the webcam to establish that the children were lying due to being caught with friends

at the house, and that counsel should have retained an expert to test the electronics and establish

that D.C. was lying about Petitioner having taken and deleted pictures. (Doc. No. 1 at 28–29).

The TCCA rejected this claim as follows:

As noted by the post-conviction court, the parties never disputed that D.C. was

caught with boys in the home on the day the victims made the allegations against

the Petitioner. Moreover, the Petitioner failed to present any surveillance video at

the evidentiary hearing. Therefore, he has failed to demonstrate deficient

performance or prejudice for trial counsel’s not showing the video to the jury.

Similarly, the Petitioner failed to show that his electronic devices contained

exculpatory evidence, and he did not present an electronics expert at the evidentiary

hearing. This court may not speculate as to the content of a witness’s testimony.

See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). In addition, as

noted by the State, trial counsel testified that while he believed the Petitioner’s

claim that the Petitioner did not sexually abuse the victims, he did not want to risk

hiring an expert to find deleted photographs of D.C. Trial counsel’s strategy was

reasonable, and we will not second-guess his decision. Therefore, the Petitioner is

not entitled to relief on this issue.

Colwell, 2020 WL 3886031, at *12.

The TCCA’s deficiency and prejudice rulings were reasonable. As to deficiency, counsel

testified at the evidentiary hearing that he filed a motion requesting exculpatory evidence under

Brady v. Maryland, 373 U.S. 83 (1963). (Doc. No. 24-17 at 28). He also testified that he chose not

to hire an expert because “the State had already searched the computers and equipment and didn’t

find anything,” so he “certainly didn’t want to hire [his] own expert to find” incriminating

evidence. (Id. at 34, 46, 48–49). And it is not as though counsel ignored the lack of evidence from

the electronic devices: on cross-examination of Detective Shrake, counsel elicited testimony that

the FBI’s search of the seized devices did not yield any inappropriate pictures of D.C. or evidence

of child pornography. (Doc. No. 24-3 at 114–17). It was therefore reasonable for the TCCA to

conclude that Petitioner failed to demonstrate deficiency in this regard.

Additionally, because Petitioner did not establish the existence of the surveillance footage

he contends counsel should have obtained, and because he did not present an electronics expert at

the evidentiary hearing, it was reasonable for the TCCA to find that Petitioner failed to demonstrate

prejudice. See Hutchison v. Bell, 303 F.3d 720, 748–49 (6th Cir. 2002) (citations omitted) (“[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.”); Tinsley v. Million, 399 F.3d 796, 810 (6th Cir.

2005) (“In the absence of any evidence showing that [petitioner’s proffered mitigating witnesses]

would have offered specific favorable testimony, [petitioner] cannot show prejudice from

counsel’s strategy recommendation not to introduce this evidence.”). Claim 5.B will be denied.

B. Claim 5.C—D.C.’s Prior Sexual Activity

Petitioner asserts that he was prejudiced by counsel’s failure to file a pretrial motion under

Tennessee Rule of Evidence 412, which prevented him from raising the issue of D.C.’s prior sexual

activity at trial. The TCCA rejected this claim:

At trial, trial counsel asked D.C. if she had been sexually active “with at least one

other person.” The State objected, and the trial court found that trial counsel could

not pursue the issue because he did not file a motion pursuant to Rule 412,

Tennessee Rules of Evidence. The post-conviction court found that the Petitioner

was not entitled to relief because he failed to present any proof at the post-

conviction hearing of what D.C. would have said about her prior sexual behavior

at trial.

Tennessee Rule of Evidence 412 addresses whether evidence of a victim’s prior

sexual behavior is admissible and the procedure to determine when such

information should be allowed into evidence. Usually, evidence of specific

instances of a victim’s sexual behavior is inadmissible. Relevant to this case,

though, a defendant may introduce evidence of a victim’s sexual behavior with

persons other than the accused “to prove or explain . . . knowledge of sexual

matters[.]” Tenn. R. Evid. 412(c)(4)(ii). However, the victim’s knowledge of sexual

matters must be relevant to an issue in the case. State v. Douglass Leon Lyle, No.

E2012-00468-CCA-R3-CD, 2013 WL 1281857, at *14 (Tenn. Crim. App. [] Mar.

28, 2013) (citing Tenn. R. Evid. 402). As this court has noted, [“ t]his provision[”]

will most frequently be used in cases where the victim is a young

child who testifies in detail about sexual activity. To disprove any

suggestion that the child acquired the detailed information about

sexual matters from the encounter with the accused, the defense may

want to prove that the child learned the terminology as the result of

sexual activity with third parties.

Id. at *13-14 (quoting Tenn. R. Evid. 412, Advisory Comm’n Cmts).

In order for evidence to be admissible under Rule 412, the accused generally must

file no later than ten days prior to trial a written motion seeking to offer such

evidence, and the “motion shall be accompanied by a written offer of proof,

describing the specific evidence and the purpose for introducing it.” Tenn. R. Evid.

412(d)(1)(i). The trial court must hold a jury-out hearing to determine whether the

evidence described in the motion is admissible. Tenn. R. Evid. 412(d)(2). The trial

court also must determine that the probative value of the evidence outweighs its

unfair prejudice to the victim. See Tenn. R. Evid. 412(d)(4).

In this case, D.C. was fifteen years old at the time of the abuse and sixteen at the

time of trial, so she was not a young child. Trial counsel even acknowledged that it

would not be unusual for a fifteen-year-old to have knowledge about sexual matters

and that the jury’s hearing D.C. was promiscuous could have prejudiced the jury

against her. In any event, the only evidence about D.C.’s prior sexual behavior came

from the Petitioner’s testimony that he had “a feelin’ ” D.C. was sexually active,

that he let D.C. know he was aware of her sexual behavior, and that she “did not

deny [it].” Therefore, we conclude that trial counsel was not deficient for failing to

file a Rule 412 motion and that the Petitioner has failed to demonstrate he was

prejudiced by trial counsel’s failure to file the motion.

Colwell, 2020 WL 3886031, at *11–12.

This ruling was reasonable. As the TCCA rightly noted, Petitioner did not put on any actual

proof of D.C.’s prior sexual activity at the evidentiary hearing. Counsel testified that his only basis

to believe D.C. was previously sexually active came from Petitioner, who told counsel that he “had

reason to believe that [D.C.] had had sex with one of the boys” who were “coming and going”

from Petitioner’s residence. (Doc. No. 24-17 at 72; see also id. (“I didn’t have any smoking gun

and physical proof that could have ever been put on that would have definitely proven, yes, she

absolutely had sex with this person.”)). And Petitioner’s testimony on this point was not definitive,

as Petitioner testified that he had a feeling D.C. was sexually active because Petitioner had “let it

[be] known to [D.C.] that [he] was aware of her behaviors and she did not deny [it] at all.” (Id. at

90). Because there was no evidence of how D.C. would have actually testified at trial regarding

prior sexual activity, it was reasonable for the TCCA to conclude that Petitioner failed to

demonstrate ineffectiveness for this claim. See Hutchison, 303 F.3d at 748–49; Tinsley, 399 F.3d

at 810. Claim 5.C will be denied.

C. Claim 5.F—Testimony of Rape on More than One Occasion

Petitioner asserts that counsel failed to object to testimony by Detective Shrake, D.C., and

J.C., of rape by Petitioner on more than one occasion. Petitioner contends that counsel should have

objected to this testimony under Tennessee Rules of Evidence 404(b). (Doc. No. 1 at 21–24, 31).

The TCCA rejected this claim, finding that counsel made a reasonable strategic decision to (1)

enter an agreement with the State before trial to limit questioning on this point, and (2) not object

to the ensuing testimony:

Tennessee Rule of Evidence 404(b) provides, “Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action

in conformity with the character trait. It may, however, be admissible for other

purposes.” The conditions which must be satisfied before allowing such evidence

are:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request

state on the record the material issue, the ruling, and the reasons for

admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b); see also State v. Thacker, 164 S.W.3d 208, 240 (Tenn.

2005); State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Generally, “[o]nly in an

exceptional case will another crime, wrong, or bad act be relevant to an issue other

than the accused’s character. Such exceptional cases include identity, intent,

motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867

S.W.2d 736, 740 (Tenn. Crim. App. 1992).

As noted by the Petitioner, the State indicted him for only one count of rape and

one count of incest as to D.C. and only one count of rape and one count of incest

as to J.C. Furthermore, the indictment alleged that all of the offenses occurred on

June 13, 2014. On the morning of trial, the following colloquy occurred:

[The prosecutor]: Judge, we – [trial counsel] and I have discussed

the 404 issue. I think we’ve got an agreement on that we want to put

on the record at any time.

THE COURT: That’s great. We can go ahead and do that now, if

you want.

Again, this morning [trial counsel] had filed a 404(b) Motion in

Limine. The motion specifically speaks to another indictment that

the defendant presently has pending against him. [The prosecutor]

agreed that that would be precluded under 404(b) and that he would

not attempt to elicit any -- or argue the prior pending indictment.

[The prosecutor] also indicated to me that he anticipated asking the

alleged victims in this case, Was this the first time that your father

had done this? Or words to that effect. That was not covered under

404(b), the Motion in Limine specifically. I advised [trial counsel]

that if there was going to be a 404(b) objection to that I was aware

that I had to have a hearing outside of the presence of the jury, at

which time I had to go through all of the steps, including finding by

clear and convincing proof that those prior acts had occurred.

[Trial counsel] was, at that point, not exactly sure if he wanted to

voice an objection to that particular testimony or how deep it would

get. [The prosecutor] indicated that he would not get any deeper with

the testimony other than the simple question of, Is this the first time?

So I understand now there is an agreement on that particular line of

questioning; am I correct?

[Trial counsel]: I think there is, Judge.

THE COURT: Okay.

[The prosecutor]: And I think that agreement is what we discussed

earlier. I intend to ask the victims whether this was the only or the

first [time] or some words to that effect. I expect their answer to be,

no, this was not the only time. But that’s going to be the extent of

discussions about prior instances. I’m going to be focusing on only

the instances alleged in the indictment.

THE COURT: Okay. And, [trial counsel], your response?

[Trial counsel]: That’s our agreement, Judge, that [the prosecutor]

certainly can ask if it’s the first time. And I may even, depending

[on] the testimony on cross-examination, ask how long, but I’m

certainly not going to get into any details. But as far as asking was

it the first time and how long it had been happening, we have an

agreement that those questions will be fine as long as no details are

gone into about dates or specific acts or what was done at that point

in time.

The State’s first witness was Detective Shrake, who testified on direct examination

that “[D.C.] had stated that her father had raped her the night before, and that it had

– that was not the first time, that it happened before.” During D.C.’s direct

testimony, the prosecutor asked, “Did it only happen the one time?” D.C. answered

that “[i]t happened a lot,” and the prosecutor responded that he was only going to

ask her about “the last time.” The prosecutor asked D.C. to tell him what happened,

and D.C. responded, “He would either lay on top of me or have me on my knees . .

. . And sometimes he would lay flat on me and he would, you know – he would be

rough with me.” The prosecutor stated, “Okay. Now, again, you know, I’m just

going to ask about the last time. That’s the only thing that I want any specifics

about. Is the position that you described for us, is that the way that you were on this

last time?” D.C. answered yes, and the prosecutor asked if the Petitioner said

anything to D.C. “during the act.” D.C. answered, “Most of the time he didn’t say

anything, but if he did he would make noises or he would say, That booty’s mine.

He said that once or twice . . . . The last time I don’t think he said that, but I know

he was making noises.” D.C. said that “[s]ometimes” the Petitioner would go into

the bathroom with her to clean up. She said that she knew “something was

happening” with J.C. as well and that she and J.C. talked about the abuse “a lot.”

D.C. stated that the Petitioner threatened her if she told anyone about the abuse and

that “[h]e didn’t threaten us with any weapons or anything. But like if he was raping

me he would choke me or jam his finger in me or he would talk about how we

would never get to see each other again.”

During J.C.’s direct testimony, the prosecutor asked if “it happened before,” and

J.C. said yes. At the conclusion of J.C.’s testimony, the prosecutor asked, “And

. . . the last incident that we’ve been talking about today, the one incident that we’ve

been talking about here, did that occur here in Columbia?” J.C. again answered yes.

The post-conviction court found that the Petitioner was not entitled to relief, noting

that trial counsel filed a pretrial motion to exclude evidence of other bad acts

pursuant to Tennessee Rule of Evidence 404(b). The post-conviction court found

that trial counsel’s subsequently entering into the agreement with the prosecutor,

so that the prosecutor could ask the witnesses if the sexual abuse alleged in the

indictment was “the first time,” was not deficient performance. We agree with the

post-conviction court. At the evidentiary hearing, trial counsel testified that he

could not remember why he did not object to the victims’ testimony but

acknowledged that his decision may have been strategic. The Petitioner did not ask

trial counsel why he entered into the agreement with the prosecutor. At trial,

though, trial counsel advised the trial court, “And I may even, depending [on] the

testimony on cross-examination, ask how long [it had been happening], but I’m

certainly not going to get into any details.” We think trial counsel’s statement

confirms that his decision to enter into the agreement and not object to testimony

about prior instances of abuse was strategic. We note that when trial counsel entered

into the agreement, he fully anticipated that the Petitioner was going to testify to

rebut the victims’ claims. Our review of the trial transcript reveals that during trial

counsel’s opening statement, he repeatedly told the jury that the Petitioner was

going to testify in order to explain why the victims were making up the allegations

against him. However, after the State presented its proof, the Petitioner became

nervous and decided not to testify. At the evidentiary hearing, trial counsel said that

he thought the Petitioner’s testifying to rebut the victims’ claims probably was the

Petitioner’s “only chance” and that the Petitioner’s decision not to testify was “very

damaging.” The Petitioner even acknowledged at the evidentiary hearing that he

regretted not testifying and that he had nothing to lose by doing so.

“The fact that a particular strategy or tactic failed or even hurt the defense does not,

alone, support a claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521,

528 (Tenn. Crim. App. 1992). Moreover, “an accused is not deprived of the

effective assistance of counsel because a different procedure or strategy might have

produced a different result.” Vermilye v. State, 754 S.W.2d 82, 85 (Tenn. Crim.

App. 1987). This was a “he said, she said” case in which the defense’s theory was

that the victims were not credible. The State did not have any physical proof against

the Petitioner, and the defense presented significant evidence that the victims had a

motive to lie about the sexual abuse in order to keep the Petitioner from punishing

them. Defense counsel’s entire strategy was based on the Petitioner’s proposed

testimony, which would rebut the victims’ testimony and show they were not

credible. Therefore, we conclude that the Petitioner has failed to demonstrate trial

counsel was deficient for entering into the agreement with the prosecutor and for

not objecting to testimony about prior instances of abuse and that he has failed to

demonstrate he was prejudiced by any deficiency.

Colwell, 2020 WL 3886031, at *9–11.

This deficiency ruling was not unreasonable. As the TCCA noted, counsel’s strategy for

handling the testimony at issue here—that Petitioner had raped the victims on more than one

occasion—was based on the assumption that Petitioner would testify in his own defense. The

record reflects that this assumption was well-founded. During opening argument, counsel told the

jury that he anticipated Petitioner would testify to deny the children’s allegations. (Doc. No. 24-3

at 39). At the evidentiary hearing, counsel testified that Petitioner’s best chance for acquittal was

to testify in order to rebut the children’s anticipated testimony. (Doc. No. 24-17 at 25). Petitioner

agreed that he spent a significant amount of time with counsel preparing to testify, and that it was

not until the State rested its case-in-chief that Petitioner became very nervous and decided not to

testify. (Id. at 109, 124). In short, counsel reasonably anticipated that Petitioner would testify to

rebut the testimony in question, so he struck a deal to limit the State to a single context-framing

question on this subject and chose not to object to the resulting testimony. Applying the doubly

deferential standard of review for exhausted claims of ineffective assistance of counsel, it was not

unreasonable for the TCCA to conclude that this strategy was within the wide range of reasonable

professional assistance. See Green v. MacLaren, No. 17-1249, 2017 WL 3973956, at *2 (6th Cir.

Aug. 2, 2017) (quoting Miller v. Francis, 269 F.3d 609, 615–16 (6th Cir. 2001); Hughes v. United

States, 258 F.3d 453, 457 (6th Cir. 2001)) (“[A] ‘strategic decision cannot be the basis for a claim

of ineffective assistance unless counsel’s decision is shown to be so ill-chosen that it permeates

the entire trial with obvious unfairness.’”).

The TCCA also reasonably concluded that Petitioner failed to carry his burden of

demonstrating prejudice. See Cobble v. Smith, 154 F. App’x 447, 451 (6th Cir. 2005) (citing Smith

v. Robbins, 528 U.S. 259, 285–86 (2000); Williams v. Taylor, 529 U.S. 362, 394 (2000)) (noting

that a habeas petitioner “has the burden of demonstrating prejudice,” and that the “burden is a

heavy one”). That is, even without Petitioner testifying, the jury considered Petitioner’s theory that

the challenged testimony was not credible. See Colwell, 2020 WL 3886031, at *11 (“[T]he defense

presented significant evidence that the victims had a motive to lie about the sexual abuse in order

to keep the Petitioner from punishing them.”); (Doc. No. 24-4 at 114–15 (the victims’ cousin’s

testimony supporting this point)). And Petitioner has not demonstrated a reasonable probability

that the outcome of trial would have been different if counsel objected to the challenged testimony

in the manner contemplated by Petitioner. For all of these reasons, Claim 5.F will be denied.

C. Procedurally Defaulted Claims

Petitioner’s remaining claims—a Brady claim and seven ineffective-assistance claims—

are procedurally defaulted without cause.

1. Claim 1—Withholding Exculpatory Evidence

Petitioner asserts that the State withheld exculpatory evidence, namely, video footage of

the living room captured by the webcam seized by police. (Doc. No. 1 at 29). As background, J.C.

testified that Petitioner raped him in the living room two days before he and D.C. initially disclosed

the abuse. (Doc. No. 24-4 at 22). Petitioner contends that the webcam footage “would have

prove[n] that the children were lying about their sexual abuse claims.” (Doc. No. 1 at 29).

Brady v. Maryland “requires the prosecution to disclose all material exculpatory evidence

to the defendant before trial.” Henness v. Bagley, 644 F.3d 308, 324 (6th Cir. 2011) (citing Brady,

373 U.S. 83). “To succeed on a Brady claim, a petitioner must establish: (1) the existence of

favorable evidence, either exculpatory or impeaching; (2) that the evidence was suppressed; and

(3) that the suppression resulted in prejudice.” Hill v. Mitchell, 842 F.3d 910, 926 (6th Cir. 2016)

(citing Strickland v. Greene, 527 U.S. 263, 281–82 (1999)). “To show cognizable prejudice, [the

petitioner] must establish that the suppressed evidence is material—that ‘there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)).

Respondent asserts that this claim is procedurally defaulted, and that Petitioner does not

argue cause and prejudice to overcome the default. (Doc. No. 25 at 31 n.6). The Court agrees that

this claim is defaulted, as Petitioner did not exhaust a Brady claim in state court, and no state court

remedies remain. See Tenn. Code Ann. § 40-30-102(c) (establishing Tennessee’s “one-petition”

limitation on post-conviction relief); Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing

Fletcher v. Tennessee, 951 S.W.2d 378, 380–81 (Tenn. 1997)) (explaining the three narrow

circumstances in which a state prisoner may file a motion to reopen post-conviction proceedings,

none of which apply to this claim). However, because the “cause and prejudice standard” of a

procedural default analysis “tracks the last two elements of a Brady claim”—suppression and

materiality—the Sixth Circuit has explained that it may be appropriate to address “the merits of [a

Brady] claim with the understanding that [a] decision on the merits resolves any issues as to

procedural default.” Akrawi v. Booker, 572 F.3d 252, 261 (6th Cir. 2009) (quoting Bell v. Bell, 512

F.3d 223, 231 n.3 (6th Cir. 2008) (en banc)). The Court takes that approach here, but as explained

below, Petitioner is not entitled to relief for two reasons.

First, Petitioner has not established that video footage of the living room for the relevant

time period ever existed. The burden is on a habeas petitioner “to prove that the evidence was not

disclosed to him.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) (citations omitted). Here, as the

TCCA noted in ruling on another claim, Petitioner did not “present any surveillance video at the

evidentiary hearing” in state court. See Colwell, 2020 WL 3886031, at *12. And he has not

presented any evidence of the alleged footage’s existence in this Court. Petitioner’s Brady claim

fails for this reason alone. See Hendricks v. Lindamood, No. 3:18-CV-00094-JRG-HBG, 2019 WL

5558571, at *7 (E.D. Tenn. Oct. 28, 2019) (citing Coe, 161 F.3d at 344) (“[Petitioner] has failed

to include any challenged evidence as part of his petition, and therefore, he has failed to sustain

his burden of proving that evidence was not properly disclosed to him.”).

Second, “a Brady violation does not occur when ‘the defendant knew or should have known

the essential facts permitting him to take advantage of the information in question, or if the

information was available to him from another source.’” Stojetz v. Ishee, 892 F.3d 175, 206 (6th

Cir. 2018) (quoting Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000)). Here, in the Petition,

Petitioner states that the webcam was “motion activated” and “took time stamped still photographs

and automatically e-mailed them to [his] e-mail account.” (Doc. No. 1 at 8). Petitioner gave

consistent testimony on this point at the evidentiary hearing. (See Doc. No. 24-17 at 94–95).

Petitioner likewise testified that, when the webcam was activated, it recorded videos “in

increments of three minutes at a time” and sent the videos “to [Petitioner’s] e-mail.” (Id. at 95).

Therefore, Petitioner knew or should have known that any exculpatory photographs or video

footage from the webcam was available to Petitioner through his e-mail account. And because this

alleged evidence, if it existed, was “readily available to the defense from another source, there

simply [was] nothing for the government to ‘disclose.’” Matthews, 486 F.3d at 891 (quoting Coe,

161 F.3d at 344). For all of these reasons, Claim 1 will be denied.

2. Ineffective Assistance of Counsel

There are seven ineffective-assistance claims remaining. These claims are procedurally

defaulted because Petitioner did not to present them to the TCCA on post-conviction appeal, and

he can no longer raise them in state court. See Tenn. Code Ann. § 40-30-102(c); Hodges, 727 F.3d

at 530 (citing Fletcher, 951 S.W.2d at 380–81). As cause to overcome the default of certain

ineffective-assistance claims, a petitioner may point to the ineffectiveness of post-conviction

counsel under the Supreme Court’s holding in Martinez v. Ryan, 566 U.S. 1 (2012). But for the

following reasons, Petitioner cannot rely on Martinez for that purpose here.

A. Claims 4, 5.D, 5.E, 5.G, 5.H, 5.I—Defaulted on Appeal

Petitioner defaulted six remaining claims on post-conviction appeal. However, the

ineffective assistance of post-conviction counsel cannot act as cause to excuse the default of a

claim that is rejected by the post-conviction court, but not raised on appeal. See Martinez, 566 U.S.

at 16 (“The holding in this case does not concern attorney errors in other kinds of proceedings,

including appeals from initial-review collateral proceedings . . . .”) (citations omitted); see also

West v. Carpenter, 790 F.3d 693, 699 (6th Cir. 2015) (“[A]ttorney error at state post-conviction

appellate proceedings cannot excuse procedural default.”).

In Claim 4, Petitioner asserts that pretrial counsel was ineffective for failing to ensure that

D.C. and J.C. were sequestered during each other’s testimony at the preliminary hearing. And in

Claims 5.D, 5.E, 5.G, 5.H, and 5.I, respectively, Petitioner asserts that trial counsel was ineffective

for failing to: research CPIT protocol; consult a medical expert to challenge D.C.’s testimony

based on a lack of supporting physical evidence; object to D.C.’s testimony that she was not

worried about getting in trouble for having friends at the residence while Petitioner was at work;

object to J.C. leaving the witness stand; and request that the State elect offenses at the end of trial.

The post-conviction court rejected all of these claims in its written order. (Doc. No. 24-14 at 68

(Claim 4, addressed under “Preliminary hearing counsel”); id. at 65 (Claim 5.D, addressed under

“Defense counsel’s failing to impeach State’s witnesses”); id. at 67 (Claim 5.E, addressed under

“Failure to hire expert”); id. at 65 (Claim 5.G, addressed under “Failure to object to trial

testimony”); id. at 67 (Claim 5.H, addressed under “Testimony of victim, J.C.”); id. at 64–65

(Claim 5.I, addressed under “Election”)). And Petitioner did not present these claims to the TCCA

on post-conviction appeal. Accordingly, Petitioner cannot rely on Martinez to demonstrate the

cause necessary to obtain further review of Claims 4, 5.D, 5.E, 5.G, 5.H, and 5.I.

B. Claim 5.A—Insubstantial

Finally, in Claim 5.A, Petitioner asserts that trial counsel was ineffective for failing to

request to sever the offenses for trial. To excuse the default of this claim based on the

ineffectiveness of post-conviction counsel, the claim must be “substantial.” Abdur’Rahman v.

Carpenter, 805 F.3d 710, 713 (6th Cir. 2015) (quoting Martinez, 566 U.S. at 17). “A substantial

claim is one that has some merit and is debatable among jurists of reason.” Id. (citing Martinez,

566 U.S. at 14). “In the converse, a claim is insubstantial when ‘it does not have any merit’” or

“‘is wholly without factual support.’” Porter v. Genovese, 676 F. App’x 428, 432 (6th Cir. 2017)

(quoting Martinez, 566 U.S. at 15–16). This claim is without merit.

“Under Rule 14 of the Tennessee Rules of Criminal Procedure, a defendant is entitled to

seek a severance of offenses unless the offenses are part of a ‘common scheme or plan and the

evidence of one would be admissible in the trial of others.’” Busby v. State, No. M2012-00709-

CCA-R3-PC, 2013 WL 5873276, at *17 (Tenn. Crim. App. Oct. 30, 2013) (quoting Tenn. R. Crim.

P. 14(b)(1)). Petitioner contends that trial counsel was ineffective for failing to file a motion to

sever because the offenses against D.C. and J.C. were not part of a common scheme or plan. (See

Doc. No. 1 at 18 (“Because the offense[s] were not ‘signature’ crime[s] or part of a larger,

continuing plan or conspiracy, the offenses[s] alleged against defendant did not constitute a

common scheme or plan.”)).

At the evidentiary hearing, trial counsel testified that he did not think a motion to sever

would have been successful, and that trying the offenses together actually “benefitted [Petitioner’s]

defense strategy” of portraying the children as liars motivated by anger because “it was odd to

have an allegation against a father of sexual abuse of both a male and female victim.” (Doc. No.

24-17 at 53–54). Therefore, counsel’s decision not to request a severance was strategic, and such

a strategic decision is presumptively sound. See Strickland, 466 U.S. at 689; State v. Pottebaum,

No. M2012-01573-CCA-R3-PC, 2013 WL 3198132, at *10 (Tenn. Crim. App. June 21, 2013)

(rejecting ineffective-assistance claim for failure to seek severance of offenses, even though “the

trial court probably would have granted” a severance, because it was a tactical strategy to support

the defense theory that the victims were motivated to lie about the offenses). Petitioner also has

not shown a reasonable probability that the result of the proceeding would have been different if

the offenses against D.C. and J.C. were severed for trial. Accordingly, Claim 5.A is insubstantial.

VI. CONCLUSION

For these reasons, Petitioner is not entitled to relief under Section 2254 and this action will

be DISMISSED. Petitioner’s pending Motion (Doc. No. 28) will be DENIED as moot because

the claim addressed in the Motion is already raised in the Petition.

Because this is a “final order adverse to” Petitioner, the Court must grant or deny a

certificate of appealability (COA). Habeas Rule 11(a). A COA requires “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard

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

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

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack

v. McDaniel, 529 U.S. 473, 484 (2000)). “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, 529 U.S. at 484).

For the reasons stated throughout the Court’s analysis, the Court concludes that Petitioner

has not satisfied these standards and will deny a COA.

An appropriate Order shall enter.

WILLIAM L. CAMPBELL, K

UNITED STATES DISTRICT JUDGE

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