Doss v. Mays

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HAROLD DOSS #421315, )

)

Petitioner, )

)

v. ) No. 3:19-cv-00330

) Judge Trauger

TONY MAYS, Warden, )

)

Respondent. )

MEMORANDUM

Harold Doss, a pro se state prisoner, filed an amended petition for the writ of habeas corpus

under 28 U.S.C. § 2254 (Doc. No. 23) and the respondent filed an answer. (Doc. No. 32.) The

petitioner filed a reply requesting the appointment of counsel and an evidentiary hearing (Doc. No.

36), and the respondent filed a response in opposition. (Doc. No. 37.) For the following reasons,

the petitioner is not entitled to relief under Section 2254, his requests for counsel and an evidentiary

hearing will be denied, and this action will be dismissed.

I. Procedural Background

A Davidson County grand jury indicted the petitioner and co-defendants Johnathan

Hathaway, Courtney Hambric, and Christopher Doss. (Doc. No. 30-1 at 4–9.) The petitioner and

co-defendant Hathaway were tried together, with co-defendant Hambric testifying for the State.

See State v. Doss, No. M2012-02201-CCA-R3-CD, 2014 WL 2592736, at *4 (Tenn. Crim. App.

June 10, 2014). A jury convicted the petitioner of felony murder, second-degree murder (as a

lesser-included-offense of first-degree murder), especially aggravated robbery, and especially

aggravated kidnapping. (Doc. No. 30-1 at 56–59.) The court imposed an effective sentence of life

plus 30 years’ imprisonment (life for the two merged murder counts, and 30 consecutive years for

the two other counts). (See id.) The Tennessee Court of Criminal Appeals (TCCA) affirmed, the

Tennessee Supreme Court denied the petitioner’s application for permission to appeal,1 and the

United States Supreme Court denied the petitioner’s petition for a writ of certiorari. Doss, 2014

WL 2592736, perm. app. denied, Oct. 15, 2014; Doss v. Tennessee, 575 U.S. 1040 (2015).

The petitioner filed a pro se post-conviction petition (Doc. No. 30-26 at 90–96, 102–16),

followed by two amended petitions. (Doc. No. 30-27 at 4–13, 32–36.) The court held a hearing

(Doc. Nos. 30-28, 30-29) and denied relief. (Doc. No. 30-27 at 64–97.) The TCCA affirmed, and

the Tennessee Supreme Court denied review. Doss v. State, No. M2019-00238-CCA-R3-PC, 2020

WL 1466306 (Tenn. Crim. App. Mar. 24, 2020), perm. appeal denied July 20, 2020.

II. Factual Background

On post-conviction appeal, the TCCA provided a concise summary of the trial evidence:

This case arose from the October 20[09] robbery and shooting of Jiro Kanazawa,

the victim, who was found dead in Room 118 of America’s Best Value Inn in

Nashville, Tennessee.

Metropolitan Police Department Officer Isaac Wood testified that on October 5,

2009, he was dispatched to America’s Best Value Inn. Officer Wood entered the

motel Room 118 and observed the deceased victim lying on the floor. He obtained

an address for the person who rented the room from the motel registration form and

proceeded to the address, which was associated with Petitioner Doss,2 but was not

able [to] locate the suspect. Detective Wood then obtained bank records for the

victim’s accounts and was able to trace transactions to a Mapco convenience store

and an Exxon convenience store. He obtained video surveillance footage from both

stores. In one of the videos, a female and male could be seen walking out of the

store, and the victim’s vehicle could be seen driving away. Detective Wood

obtained still photographs from the video footage and released them to news media.

He received a phone call identifying the female from the surveillance video as

Courtney Hambric.

1 In denying permission to appeal, the Tennessee Supreme Court designated the TCCA opinion “Not for

Citation” and made a harmless-error determination that will be discussed in more detail below. (See Doc.

No. 30-26 at 57.)

2 The state courts conducted post-conviction proceedings for the petitioner and co-defendant Hathaway

together. See Doss, 2020 WL 1466306, at *1. On post-conviction appeal, therefore, the TCCA referred to

the petitioner as “Petitioner Doss” and co-defendant Hathaway as “Petitioner Hathaway.” See id.

The police picked up Ms. Hambric. She identified Christopher Doss and both

Petitioners in a photographic lineup and assisted detectives in recording a telephone

call with Christopher Doss, in which he told her “to stop telling people what had

happened” and “this is something that [they] should take to the grave.” At trial,

Detective Wood was able to identify Courtney Hambric and Christopher Doss in

the videos played for the jury.

Courtney Hambric testified that she worked as an escort and received a telephone

call from the victim inquiring about her “rates.” Ms. Hambric explained that she

was unavailable because she did not have transportation to meet the victim. About

an hour later, Christopher Doss called Ms. Hambric, and she asked him to give her

a ride to “get a room” in order to meet with the victim. She called the victim and

arranged to meet at America’s Best Value Inn. Christopher Doss and Petitioners

picked up Ms. Hambric. On the way to the motel, Christopher Doss indicated that

they were going to rob the victim. Petitioner Doss rented Room 118. Petitioner

Doss hid in the bathroom, Petitioner Hathaway hid behind the door, and

Christopher Doss remained in the vehicle. When the victim entered the room,

Petitioner Hathaway stepped out and pointed a gun at the victim. After getting the

victim’s billfold and car keys, Petitioner Doss made the victim give him the PIN

numbers for two ATM cards. Petitioner Doss told Ms. Hambric to go with

Christopher Doss and Petitioner Hathaway in the victim’s car to get money. After

obtaining a total of $600.00 from two locations, they returned to the motel. She and

Petitioner Hathaway got back into Christopher Doss’s vehicle. Petitioner Doss

came out of the motel room and got into the vehicle. As they drove away, Petitioner

Doss said he shot the victim three times because he tried to escape.

Petitioner Doss fled to Texas where he was arrested in March 2010. The police

were ultimately able to locate Petitioner Hathaway. They obtained fingerprints

from Petitioner Hathaway which they were able to match with a thumbprint

obtained from an interior door of Room 118. Michael Frizzell, a TBI special agent

in the technical services unit, testified “that [he] helped prepare the visual

presentation in this case as a testimonial aid for a particular [C]ricket phone

number.” He explained that he used a cell tower map for Davidson County that

included information from the “call detail records” of the Cricket phone and the

locations of the Mapco convenience store, Exxon convenience store, and America’s

Best Value Inn at issue in this case. Detective Russell Thompson testified that the

locations of the cell towers used to route calls were consistent with Ms. Hambric’s

version of the events and Laquisha Hughes’s statements that Petitioner Doss spent

the night at her home.

Doss, 2020 WL 1466306, at *1–2 (internal citations omitted) (footnote added).

III. Claims

The petitioner asserts the following claims, which the court has rearranged for clarity:

1. The trial court erred by:

A. Denying the petitioner’s motion to sever before trial (Doc. No. 23 at 3);

B. Admitting hearsay evidence at trial (id. at 4);

C. Failing to give the jury a lesser-included-offense instruction (id. at 16);3

D Imposing consecutive sentences (id. at 4);

E. Allowing dual convictions for a single course of conduct (id.); and

F. Failing to take appropriate action in response to the jury-misconduct allegation in

the petitioner’s motion for new trial. (Id.)

2. There is insufficient evidence to support the petitioner’s convictions. (Id.)

3. Trial counsel was ineffective for failing to:

A. Investigate and produce a defense (id. at 3);

B. Obtain defense experts to rebut the State’s experts (id. at 3, 10);

C. Obtain an independent cell tower expert (id. at 3);

D. Object to the introduction of a letter and instead agree to its redaction (id.); and

E. Object to the incomplete jury instruction for the charged offense of especially

aggravated kidnapping. (Id. at 6–8.)4

4. Counsel was ineffective for failing to raise an issue in the motion for new trial, namely the

incomplete jury instruction for the especially-aggravated-kidnapping charge. (Id. at 3.)5

3 This claim is not a listed ground in the amended petition (see Doc. No. 26 at 3–4), but it is clearly presented

within the body of the petition. Applying an appropriate liberal construction, the court considers this an

independent claim. See MacLloyd v. United States, 684 F. App’x 555, 558 (6th Cir. 2017) (quoting Franklin

v. Rose, 765 F.2d 82, 85 (6th Cir. 1985)) (“‘The allegations of a pro se habeas petition . . . are entitled to a

liberal construction,’ which may ‘require[] active interpretation in some cases to construe a pro se petition

to encompass any allegation stating federal relief.’”)

4 This is not a listed ground, but the court considers it an independent claim because it is clearly presented

in the body of the amended petition. See MacLloyd, 684 F. App’x at 558.

5 This claim encompasses the first two grounds listed in the amended petition, as the court considers the

petitioner’s general claim of counsel’s failure to “raise the issue of faulty jury instructions” (Doc. No. 23 at

3 (the petitioner’s Ground 1)) subsumed into his more specific claim of counsel’s failure to address the

omission of a particular jury instruction. (Id. (the petitioner’s Ground 2).)

5. Counsel was ineffective on appeal for failing to:

A. Have the jury instructions transcribed (id.); and

B. Raise the issue of jury misconduct. (Id. at 4.)

6. The TCCA erred on direct appeal by failing to properly apply State v. White, 362 S.W.3d

559 (Tenn. 2012). (Id. at 7–9.)6

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).

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

6 The court considers this an independent claim despite its not being a listed ground because it is asserted

in the body of the amended petition. See MacLloyd, 684 F. App’x at 558.

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

The respondent contends that the petitioner’s claims should be dismissed as not cognizable,

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

in state court, or procedurally defaulted without cause. (Doc. No. 32 at 2). The court agrees and

will address each category of claims in turn.

A. Non-Cognizable Claims

A federal court can grant a state prisoner’s request for habeas relief “only on the ground

that he is in custody in violation of the Constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a). A ground for relief that does not assert a violation of federal law, therefore, is

“outside the scope of federal habeas corpus review.” See Cress v. Palmer, 484 F.3d 844, 853 (6th

Cir. 2007) (citations omitted).

1. Claim 1.B—Hearsay Evidence

In Claim 1.B, the petitioner asserts that the court erred by admitting hearsay evidence at

trial, namely Detective Thompson’s handwritten note on a photographic identification form stating

that co-defendant Hambric identified the petitioner as the shooter. (Doc. No. 23 at 4, 15.) This

claim was raised and rejected on direct appeal under state law. See Doss, 2014 WL 2592736, at

*23. “A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so

fundamentally unfair as to violate the petitioner’s due process rights.” Wilson v. Sheldon, 874 F.3d

470, 475 (6th Cir. 2017) (quoting Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001)). “[A]s

a general matter, ‘state-court evidentiary rulings cannot rise to the level of due process violations

unless they offend some principle of justice so rooted in the traditions and conscience of our people

as to be ranked as fundamental.’” Id. at 475–76 (quoting Seymour v. Walker, 224 F.3d 542, 552

(6th Cir. 2000)) (internal citation and quotation marks omitted). Here, co-defendant Hambric

herself testified—separate from Detective Thompson—that the petitioner said he shot the victim

and that she identified the petitioner from Thompson’s photographic line-up. See Doss, 2014 WL

2592736, at *6–7. Accordingly, the petitioner has not shown that admission of Thompson’s alleged

hearsay evidence was fundamentally unfair. Claim 1.B is not subject to further review.

2. Claim 1.D—Consecutive Sentences

In Claim 1.D, the petitioner asserts that the court erred by ordering the 30-year sentence he

received for especially aggravated robbery and especially aggravated kidnapping to run

consecutively to the life sentence he received for murder. (Doc. No. 23 at 4, 15–16.) Again, this

claim was raised and rejected on direct appeal as a matter of state law. See Doss, 2014 WL

2592736, at *25–27. A claim asserting 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 v. McGuire, 502 U.S. 62, 67 (1991)).

Although “convicted defendants . . . have a due process right to a fair sentencing procedure,”

Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (quoting United States v. Anders, 899 F.2d

570, 575 (6th Cir. 1990)), Tennessee’s approach of allowing state court judges discretion to impose

consecutive sentences after making “certain predicate factfindings” is not unconstitutional. See

Oregon v. Ice, 555 U.S. 160, 163–64 & n.3 (2009). Accordingly, Claim 1.D will be denied.

3. Claim 2—Insufficient Evidence

The petitioner asserts that there was insufficient evidence to support his convictions

because “the State failed to provide evidence to corroborate his co-defendant, Courtney Hambric’s

testimony against him.” (Doc. No. 23 at 14.) This argument is based on Tennessee’s rule that “a

conviction cannot be based ‘solely upon the uncorroborated testimony of an accomplice.’” Cofer

v. Lee, No. 3:16-cv-671, 2019 WL 4016204, at *18 (E.D. Tenn. Aug. 26, 2019) (quoting State v.

Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)) (footnote omitted). On direct appeal, as in the amended

petition, the petitioner’s insufficient-evidence argument focused exclusively on this state-law rule.

(See Doc. No. 30-16 at 43–48 (direct appeal brief arguing that “the State failed to sufficiently

corroborate the testimony of [Hambric] to legally support [the petitioner’s] conviction”).) And the

TCCA rejected the petitioner’s argument under state law, listing ample evidence that corroborated

Hambric’s testimony. See Doss, 2014 WL 2592736, at *22. Tennessee’s corroboration rule is “not

one of constitutional magnitude,” Cofer, 2019 WL 4016204, at *18 n.1 (citing United States v.

Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985)), because “the uncorroborated testimony of an

accomplice may support a conviction under federal law.” United States v. Scott, 716 F. App’x 477,

485 (6th Cir. 2017) (quoting Gallo, 763 F.2d at 1518). The petitioner’s challenge to the TCCA’s

application of Tennessee’s state-law corroboration rule, therefore, cannot provide a basis of federal

habeas relief. See Powell v. Berghuis, 560 F. App’x 442, 449 (6th Cir. 2013) (citing Sanford v.

Yukins, 288 F.3d 855, 862 (6th Cir. 2002)) (“[A] state law claim disguised as a [claim of

insufficient evidence under Jackson v. Virginia, 443 U.S. 307 (1979)] . . . is not cognizable on

federal habeas review.”). Accordingly, Claim 2 will be denied.

4. Claim 6—Appellate Court Error

On direct appeal, the petitioner argued that the trial court erred by failing to instruct the

jury as required by State v. White, 362 S.W.3d 559 (Tenn. 2012). Doss, 2014 WL 2592736, at *25.

In White, “the Tennessee Supreme Court held that Tennessee trial courts in kidnapping cases must

instruct the jury to determine whether the removal or confinement of a victim is essentially

incidental to any other offense with which the defendant is charged or whether it is instead

‘enough, standing alone, to support a [kidnapping] conviction.’” Alston v. Genovese, No. 20-5038,

2020 WL 3960581, at *2 (6th Cir. June 9, 2020) (citing White, 362 S.W.3d at 578). The TCCA

found that the petitioner waived the State v. White issue by failing to raise it in his motion for new

trial. See Doss, 2014 WL 2592736, at *25. Here, in Claim 6, the petitioner asserts that the TCCA’s

waiver ruling was in error. (Doc. No. 23 at 7–9.)

“In general, the fact that a jury instruction was allegedly incorrect under state law is not a

basis for federal habeas relief.” Ambrose v. Romanowski, 621 F. App’x 808, 813 (6th Cir. 2015)

(citing Estelle, 502 U.S. at 71–72). “The only exception is when a defective jury instruction ‘by

itself so infected the entire trial that the resulting conviction violates due process.’” Alston, 2020

WL 3960581, at *2 (quoting Estelle, 502 U.S. at 72). And in this case, moreover, the Tennessee

Supreme Court acknowledged that the TCCA’s waiver ruling was not a proper analysis under State

v. White by independently determining that the trial court’s failure to give a White instruction “was

harmless beyond a reasonable doubt.” (Doc. No. 30-26 at 57 (applying White, 362 S.W.3d at 580

n.20).) “This harmlessness determination is entitled to significant deference on habeas review,

adding yet one more obstacle to an already difficult path to relief.” Id. (citing Davis v. Ayala, 135

S. Ct. 2187, 2198 (2015)).

The petitioner has not met the high bar of demonstrating that the Tennessee Supreme

Court’s harmlessness determination was objectively unreasonable. It was not unreasonable to

determine that the State presented evidence of confinement beyond what was necessary to

accomplish the aggravated robbery, as the assailants had already taken the victim’s property (ATM

cards) when they further confined him by tying his hands and holding him at gunpoint. See Doss,

2014 WL 2592736, at *6 (Hambric’s testimony that Hathaway had the victim’s ATM cards when

she returned to the hotel room and saw the victim’s hands being tied before leaving the petitioner

in the room with the victim while the three co-defendants attempted to withdraw money using the

victim’s cards); id. at *2 (police officer’s testimony that the victim’s body was found with “[a]

brown leather belt [] tied around one of his wrists, ‘which made it appear that his hands had been

bound together’”). The petitioner, therefore, has not established that the omission of a State v.

White jury instruction infected the entire trial and resulted in a due process violation. Claim 6 is

not subject to further review.

B. Adjudicated Claims

The petitioner properly exhausted one claim of trial court error and three claims of

ineffective assistance.

1. Claim 1.A—Motion to Sever

On the first morning of trial, trial counsel made an oral motion to sever the petitioner from

co-defendant Hathaway, based on the State’s intent to introduce a post-arrest interview between

Detective Thompson and Hathaway. (Doc. No. 30-2 at 4–5.) Over the course of this interview,

Thompson told Hathaway his theory of the facts underlying the offenses, made several references

to the possibility that the petitioner was the shooter, and said, “I believe personally that [the

petitioner] is the shooter.” (Id. at 4–5; Doc. No. 30-3 at 5, 7–8.) Hathaway, in the interview, denied

all involvement in the offenses and denied knowing the petitioner. (Doc. No. 30-2 at 6.) The court

denied counsel’s request for a severance, but it ordered the State to redact Thompson’s statement

about believing that the petitioner is the shooter, and it gave a limiting instruction when the

Thompson-Hathaway interview was introduced, stating that the jury could not consider it as

evidence in the State’s case against the petitioner for any reason. (Id. at 8; Doc. No. 30-3 at 5–6,

9–10; Doc. No. 30-33 at 85–86, 88–89.)

On direct appeal, the petitioner did not take issue with the admission of co-defendant

Hathaway’s general denial, but he argued that Detective Thompson’s interview statements

required severance because they were derived from the hearsay statements of severed, non-

testifying co-defendant Christopher Doss, and thus violated the Confrontation Clause. (Doc. No.

30-16 at 35–38.) Though the petitioner does not mention Christopher Doss by name in the section

of the amended petition explaining this claim, the court liberally construes the amended petition

to raise a Doss-based Confrontation Clause claim through the petitioner’s reference to out-of-court

statements by “co-defendants.” (See Doc. No. 23 at 12.) The court also notes that co-defendant

Courtney Hambric is mentioned by name in the context of this claim, however, so it is clear that

the amended petition raises a Hambric-based Confrontation Clause claim as well. (Id. at 11–12.)

The respondent contends that any Hambric-based claim is procedurally defaulted (Doc.

No. 32 at 27–29), but it is simpler to address this argument on the merits. See Wade v. Timmerman-

Cooper, 785 F.3d 1059, 1077 (6th Cir. 2015) (quoting Arias v. Hudson, 589 F.3d 315, 316 (6th

Cir. 2009)) (noting that a federal court may “reach[] beyond the procedural-default analysis to

address the underlying claim on the merits when it ‘present[s] a more straightforward ground for

decision’”). Even if Detective Thompson’s interview statements were based on out-of-court

statements by co-defendant Hambric, that did not raise any Confrontation Clause concerns because

Hambric testified at trial and was subject to cross-examination. See Doss, 2014 WL 2592736, at

*8 (summarizing Hambric’s testimony on cross). A court may admit “statements by a witness to

police officers during an interrogation” “without violating the Sixth Amendment if the witness is

“‘test[ed] in the crucible of cross-examination’ at trial.” Levingston v. Warden, Warren Corr. Inst.,

891 F.3d 251, 254 (6th Cir. 2018) (quoting Crawford v. Washington, 541 U.S. 36, 61 (2004)).

Accordingly, even if Hambric’s out-of-court statements were introduced at trial through

Thompson’s interview statements to co-defendant Hathaway, that did not supply a reason to sever

the petitioner and Hathaway under the Confrontation Clause.

As to the Christopher Doss-based claim, the TCCA acknowledged and rejected the

petitioner’s argument as follows:7

On appeal, Defendant Doss challenges “the statements of the Detective setting forth

his theory of the case, delivered with the imprimatur of law enforcement, which

were derived from the testimonial hearsay statements of severed, non-testifying

codefendant Christopher Doss.”

The Defendant has not shown that the trial court abused its discretion when it

denied his motion to sever. The specific statements challenged by Defendant Doss

are as follows:

“I’ve been investigating this case almost a year.” “Here’s the story

I got.”

“You [Hathaway] and Harold [Doss] and Chris

[Doss] picked up Courtney [Hambric]. Courtney sets

up a date with a Japanese man from Kentucky, at the

hotel room. You get to the hotel room, set up a plan.

Chris stays outside, you and Harold and Courtney go

in the room. When the man shows up, Courtney

opens the door for him, lets him in, you and Harold

tie him up on the bed. The three of you, you and

Courtney and Chris leave in his car. Go to two

different markets, withdraw money from the ATM

machine. You stay in the car. You then return[,]

Harold comes running out and said he had to shoot

the man and he’s dead in the hotel room. And you all

leave in Harold’s truck. You then get dropped off

over at the apartments on White’s Creek Pike. You

and Harold and then that’s kinda the end of your

involvement that night.”

“[A]nd the evidence has been building for a year.

And the, myself, the district attorney’s office, we’ve

talked about it.”

7 The TCCA did not mention the phrase “Confrontation Clause,” but it recognized the substance of the

petitioner’s argument and made an outcome-determinative ruling. See Doss, 2014 WL 2592736, at *20

(making hearsay ruling); United States v. Davis, 577 F.3d 660, 670 (6th Cir. 2009) (quoting United States

v. Gibbs, 506 F.3d 479, 486 (6th Cir. 2007)) (“[T]o constitute a Confrontation Clause violation, ‘the

statement must be used as hearsay.’”). The court thus presumes that the TCCA rejected the petitioner’s

Confrontation Clause argument on the merits. See Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When

a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must

presume that the federal claim was adjudicated on the merits—but that presumption can in some limited

circumstances be rebutted.”)

“Chris [Doss] has been in jail for six months or

longer on this.”

“When you can tell us up front that, ‘I was just there. I didn’t have

nothing to do with it. Harold did the shooting.’”

A motion to sever pursuant to Tennessee Rule of Criminal Procedure 14(b)(1)

addresses statements of one co-defendant about another co-defendant in a joint trial.

Defendant Doss does not challenge Defendant Hathaway’s statements, but instead

he challenges Detective Thompson’s statements made during Detective

Thompson’s interview of Defendant Hathaway. In our view, Detective Thompson’s

statements to Defendant Hathaway during Detective Thompson’s interview of

Defendant Hathaway were not offered into evidence to prove the “truth of the

matter asserted,” therefore, the statements are not hearsay. See Tenn. R. Evid.

801(c). Detective Thompson’s statements gave context to the questions that he

asked Defendant Hathaway during his interview. The interview was properly

admitted into evidence, and the trial court properly instructed the jury concerning

their consideration of this evidence.

Accordingly, the trial court did not abuse its discretion when it denied Defendant

Doss’s motion to sever based upon the State’s offer of a recorded interview between

Defendant Hathaway and Detective Thompson. Defendant Doss is not entitled to

relief as to this issue.

Doss, 2014 WL 2592736, at *20.

This ruling did not contravene or unreasonably apply clearly established federal law. For

the admission of a testimonial statement to violate the Confrontation Clause, “the statement must

be used as hearsay—in order words, it must be offered for the truth of the matter asserted.” Gibbs,

506 F.3d at 486 (quoting United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005)). The TCCA

found that Detective Thompson’s statements were offered not to prove the truth of the matter

asserted, but to give context to Thompson’s questions. Importantly, the trial court instructed the

jury to that effect before introduction of the Thompson-Hathaway interview, and even then, the

court clearly emphasized that the jury was to consider no aspect of the interview in the case against

the petitioner. Doss, 2014 WL 2592736, at *19 (“I hereby instruct you that this evidence may be

considered by you only as it relates to the guilt or innocence of Mr. Hathaway. It cannot be

considered by you for any reason regarding [the petitioner]. Furthermore, you are instructed that

the statements, remarks and questions of the detectives contained in the interview are not evidence

against Mr. Hathaway and cannot be considered by you as such unless Mr. Hathaway agreed with

the statement, remark or question, otherwise the inclusion of the detective’s theories of or

comments about the case is simply to place in context the responses to Mr. Hathaway.”) (emphasis

added). Moreover, the State did not reference the Thompson-Hathaway interview in its closing

argument. (See Doc. No. 30-10 (transcript)); Davis, 577 F.3d at 670 n.7 (distinguishing United

States v. Hearn, 500 F.3d 479, 483–84 (6th Cir. 2007)) (noting that an out-of-court statement to

law enforcement, later introduced at trial, may not be relied on for the truth of the matter asserted

where it contains unnecessary detail and is relied upon in a prosecutor’s closing argument). “In

short, the jury was properly invited to focus on [Hathaway’s] reaction to the statement[s], not the

‘truth’ of its substance.” See id. at 667 (footnote omitted) (holding that an officer’s statements

offered as background evidence for an investigation were not hearsay).

It bears emphasizing that, even if this court were to disagree with the TCCA’s ruling, the

court could not grant habeas relief unless the ruling “was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington, 562 U.S. at 103. The TCCA’s hearsay ruling does not rise to this level.

And because it was not unreasonable for the TCCA to conclude that Thompson’s interview

statements were not hearsay, no Confrontation Clause issue with Christopher Doss required

severance of the petitioner and Hathaway. For all of these reasons, Claim 1.A will be denied.

2. Ineffective Assistance of Counsel

The petitioner asserts that he received ineffective assistance of counsel 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. Doss, 2020 WL

1466306, at *7–9.

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 Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

i. Claim 3.C—Cell Tower Expert

At trial, the State called TBI special agent Michael Frizzell to testify regarding cell phone

records for a phone number associated with the petitioner—specifically, Frizzell prepared a map

“of the Davidson County area that included cell tower locations from Metro Mapping and

Planning” and “information he had provided from the call detail records and the locations of the

Mapco gas station, Exxon gas station, and America’s Best Value Inn at issue in this case.” Doss,

2014 WL 2592736, at *15.

The petitioner asserts that trial counsel should have obtained an expert to rebut Frizzell’s

testimony on cell towers. (Doc. No. 23 at 13–14.) The TCCA rejected this claim by adopting the

post-conviction court’s deficiency ruling. See Doss, 2020 WL 1466306, at *8. The post-conviction

court ruled:

At the post-conviction hearing, trial counsel testified that he had filed a motion to

exclude testimony regarding cell phone tower transmission, and the motion was

denied. He also testified that during trial he was able to point out to the jury that

cell phone towers are not reliable locators of persons. Further, he believed that the

statement provided by the cell phone provider was actually favorable to his client.

Besides, a petitioner who claims ineffective assistance of counsel based on a failure

to call a witness must bring in a witness to testify at the post-conviction hearing,

for it is not the trial court’s prerogative to speculate as to what the witness would

say. State v. Black, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990). Petitioner has

not shown that trial counsel was deficient in this area.

Id. at *5.

This ruling was reasonable. Trial counsel attempted to keep the State from presenting

evidence on cell tower locations by filing a motion in limine (Doc. No. 30-1 at 31–35), and when

that was unsuccessful, he elicited clear testimony from multiple witnesses to undercut the

reliability of the cell tower evidence for establishing the petitioner’s location. See Doss, 2014 WL

2592736, at *14 (record custodian’s testimony that “cell tower information did not provide the

exact location of the cellular telephone in use but rather provided a general area of use,” and that

the company statement specified that “[t]he only purpose of the towers is to be a part of a network

that provides good wireless to our customers”); id. at *15 (Frizzell’s testimony that “cell phone

detail records provide general geographical location and not specific location of the cellular

telephone user”); (Doc. No. 30-6 at 65 (Thompson’s testimony agreeing that cell company

statement said “our witnesses will testify that the signal does not necessarily go to the closest tower

geographically”).) And at the post-conviction hearing, trial counsel testified that he was not aware

of a cell tower expert who could have provided testimony that significantly differed from the

testimony he elicited at trial. (Doc. No. 30-28 at 30–31.) It was therefore reasonable for the state

courts to determine that trial counsel was not deficient for failing to obtain a cell tower expert.

Additionally, the state court’s rejection of this claim was reasonable because the petitioner

did not present a cell tower expert at the post-conviction hearing. 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.”). For all of these reasons, Claim 3.C will be denied.

ii. Claim 3.D—The Petitioner’s Letter

When law enforcement apprehended the petitioner in Texas, they recovered several letters

written but unsent by the petitioner. (Doc. No. 30-33 at 102.) As the State was about to reference

these letters during Detective Thompson’s trial testimony, trial counsel requested to raise some

issues outside the presence of the jury. (Id. at 101–02.) The court ruled that, in discussing the

letters, Thompson could not “talk about [the petitioner’s] prior criminal activity” or “read those

portions that reference [the petitioner’s] past.” (Id. at 103–05.) The parties then went through the

letters to give trial counsel an opportunity to request redaction of specific language, and as a result

of this process, the court agreed to redact a reference to “jail talk.” (See id. at 109–22.) Trial counsel

also requested redaction of “an ambiguous reference to life in jail,” but the court denied that

request. (Id. at 122–23.)

The petitioner asserts that trial counsel was ineffective because he did not obtain

suppression of these letters and instead “agree[d] to the redaction of parts that alluded to petitioner

having been in jail.” (Doc. No. 23 at 13.) The TCCA rejected this claim as follows:

Trial counsel did object to the letter being introduced. When counsel determined

during the jury-out hearing that his objection was going to be denied, he made a

strategic decision to seek redaction of the letter. We will not second-guess a

reasonable trial strategy, and we will not grant relief based on a sound, yet

ultimately unsuccessful, tactical decision. Petitioner Doss has completely failed to

show that trial counsel’s performance was in any [way] deficient in his handling of

the letter, and he is not entitled to relief on this issue.

Doss, 2020 WL 1466306, at *8 (citation omitted).

This deficiency ruling was reasonable. Trial counsel requested and obtained a jury-out

hearing on the letters before their introduction, which had the same effect as an objection (even if

counsel did not say the word “objection”). See Humility of Mary Health Partners v. N.L.R.B., No.

09-CV-0453, 2010 WL 796824, at *10 (N.D. Ohio Mar. 3, 2010) (citations omitted) (“Courts do

not generally require that particular magic words be used because it is the substance of statements

that is paramount.”). Early on in this hearing, the court telegraphed its intention to allow the letters

into evidence in some form. (See Doc. No. 30-33 at 103 (“[Thompson] needs to make sure he

doesn’t generally talk about prior criminal activity. We will make arrangements to redact before

it’s submitted to the jury for their consideration.”).) Given this development, trial counsel testified,

counsel chose to focus on “try[ing] to take out the things that [he] thought were particularly

harmful to [the petitioner].” (Doc. No. 30-28 at 33–34.) It was reasonable for the TCCA to

determine that counsel’s strategy fell 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.’”). And the petitioner has not identified an argument that counsel should

have made that would have resulted in suppression of the letters. Accordingly, Claim 3.D is

without merit.

iii. Claim 5.B—Juror Misconduct

In the motion for new trial, trial counsel requested an evidentiary hearing to explore the

possibility that the jury foreman had committed misconduct by failing to disclose a personal

relationship with the trial judge. (Doc. No. 30-1 at 69, 78.) The court entered an order allowing

trial counsel to contact all twelve jurors. (Id. at 82–83.) Trial counsel and the State questioned the

jury foreman and one other juror at a subsequent evidentiary hearing (Doc. No. 30-13 at 10–20),

and the court ruled that any claim of jury misconduct was “clearly refuted.” (Id. at 29–30.)

The petitioner asserts that trial counsel was ineffective for failing to include the jury-

misconduct claim on appeal. (Doc. No. 23 at 4, 14.) The TCCA rejected this claim on post-

conviction appeal, finding that trial counsel made a strategic decision not to appeal the claim

because he determined the issue to be without merit. Doss, 2020 WL 1466306, at *9.

This ruling was reasonable. “[A]ppellate counsel who files a merits brief need not (and

should not) raise every nonfrivolous claim, but rather may select from among them in order to

maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing

Jones v. Barnes, 463 U.S. 745 (1983)). To establish deficiency for failing to raise a claim, a

petitioner “must demonstrate that the issue not presented ‘was clearly stronger than issues that

counsel did present.’” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting Smith, 528 U.S.

at 289). Counsel testified that he interviewed all jurors in advance of the evidentiary hearing,

questioned the jury foreman at the hearing, and determined that the issue of jury misconduct “did

not appear to be a meritorious issue at all. That’s why it was not raised.” (Doc. No. 30-28 at 38–

39; see also id. at 40 (“I made a judgement that the issues that I included in the direct appeal were

the most significant issues.”).) The evidentiary hearing testimony of the jurors supports this

conclusion. (See Doc. No. 30-13 at 10–20 (testifying that the foreman’s relationship with the judge

did not influence deliberations).) Counsel, therefore, properly exercised his professional judgment

to select the strongest claims for appeal. Claim 5.B is without merit.

C. Procedurally Defaulted Claims

The petitioner’s remaining claims are procedurally defaulted. This includes three claims of

trial court error and five claims of ineffective assistance.

1. Claims 1.C, 1.E, 1.F—Trial Court Errors

In Claim 1.C, the petitioner asserts that the trial court erred by failing to instruct the jury

that second-degree murder is a lesser-included-offense of felony murder. (Doc. No. 23 at 16.) In

Claim 1.E, he asserts that the trial court erred by allowing dual convictions of felony murder and

second-degree murder for a single course of conduct. (Id. at 4, 16.) And in Claim 1.F, he asserts

that the trial judge erred in ruling on the jury-misconduct claim in the motion for a new trial by

failing to recuse himself, excuse a juror for bias, or declare a mistrial. (Id. at 4.)

The petitioner did not present these claims to the TCCA on either direct or post-conviction

appeal, and no state court remedies remain for doing so. 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 applies to these claims). Accordingly, these

claims are procedurally defaulted. See Atkins, 792 F.3d at 657.

As cause to overcome his procedural default, the petitioner points to ineffective assistance

of counsel at trial, on appeal, and in post-conviction proceedings. (See Doc. No. 23 at 4–5.) As for

trial and appellate counsel, it is true that ineffective assistance “can constitute cause for a

procedural default,” Hodges, 727 F.3d at 530 (citing Carrier, 477 U.S. at 492), but “‘an ineffective-

assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself

be procedurally defaulted.’” Id. (quoting Edwards v. Carpenter, 529 U.S. 446, 453 (2000)). That

is the case here for two out of three claims discussed above, as the petitioner did not exhaust a

claim of trial or appellate ineffectiveness that relates to Claim 1.C (omission of a lesser-included-

offense instruction for felony murder) or Claim 1.E (dual convictions for felony murder and

second-degree murder).

As for Claim 1.F, however, the petitioner exhausted a claim that counsel was ineffective

for failing to raise the jury-misconduct claim on appeal. As an independent ground for habeas

relief, this claim is subject to AEDPA’s deferential standard of review. Smith v. Warden, Toledo

Corr. Inst., 780 F. App’x 208, 225 (6th Cir. 2019) (citing Joseph, 469 F.3d at 459). And as

discussed above, the TCCA’s rejection of this claim was reasonable. But as an assertion of cause

to excuse a procedural default, this claim is subject to de novo review. Id. (citing Joseph, 469 F.3d

at 459). The court will therefore revisit counsel’s decision to omit the jury-misconduct claim on

appeal in this context.

Even stripped of AEDPA’s deference to state courts, this court “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012) (quoting Strickland, 466

U.S. at 689). “[T]he presumption of effective assistance” afforded to appellate counsel “will not

be overcome unless” counsel omitted claims that “are clearly stronger than those presented on

appeal.” Powell v. Berghuis, 560 F. App’x 442, 452 (6th Cir. 2013) (citing Smith, 528 U.S. at 288).

“Further, to demonstrate prejudice in this context, a petitioner must show a reasonable probability

that his claims would have succeeded on appeal.” Id. (citing Smith, 528 U.S. at 285–86). Based on

counsel’s out-of-court interviews with all twelve jurors and the evidentiary hearing testimony of

two jurors, counsel made a strategic decision to omit the jury-misconduct claim from the appeal

in favor of claims that he perceived to be stronger. The petitioner has not demonstrated that this

decision fell outside the wide range of reasonable professional assistance. Smith, 528 U.S. at 288

(citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)) (“[I]t is still possible to bring a Strickland

claim based on counsel’s failure to raise a particular claim [on appeal], but it is difficult to

demonstrate that counsel was incompetent.”). Because this claim of appellate ineffectiveness is

meritless under a de novo review, it cannot serve as cause to excuse the default Claim 1.F.

Finally, the ineffective assistance of post-conviction counsel can only act as “cause to

overcome the default of a single claim—ineffective assistance of trial counsel.” Davila, 137 S. Ct.

at 2062–63 (discussing Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. 413

(2013)). It cannot excuse the default of the trial court errors asserted in Claims 1.C, 1.E, and 1.F.

And without any other allegation of cause, these three claims are not subject to further review.

2. Claims 3.A, 3.B, 3.E, 4, and 5.A—Ineffective Assistance

The petitioner’s remaining claims are for ineffective assistance of counsel. The petitioner

defaulted these claims by failing to present them to the TCCA on post-conviction appeal. See Tenn.

Code Ann. § 40-30-102(c); Hodges, 727 F.3d at 530. As cause to overcome this default, the

petitioner again asserts that he received ineffective assistance of counsel at trial, on appeal, and in

post-conviction proceedings. (See Doc. No. 23 at 4–5.) The petitioner cannot rely on an assertion

of trial or appellate ineffectiveness to excuse this default, however, because the petitioner did not

exhaust a claim of ineffectiveness that pertains to Claims 3.A, 3.B, 3.E, 4, and 5.A. See Hodges,

727 F.3d at 530 (quoting Edwards, 529 U.S. at 453) (“[A]n ineffective-assistance-of-counsel claim

asserted as cause for the procedural default of another claim can itself be procedurally defaulted.”).

A habeas petitioner may, in some circumstances, rely on Martinez v. Ryan to establish the

“cause” necessary to obtain review of an otherwise defaulted ineffectiveness claim by pointing to

post-conviction counsel’s alleged ineffectiveness. 566 U.S. at 17. But, for the following reasons,

Martinez cannot be used for that purpose here.

i. Claim 5.A—Appellate Ineffectiveness

In Claim 5.A, the petitioner asserts that counsel was ineffective on appeal for failing to

have the jury instructions transcribed. (Doc. No. 23 at 3, 6.) Martinez, however, does not extend

to claims of appellate ineffectiveness. See Gerth v. Warden, Allen Oakwood Corr. Inst., 938 F.3d

821, 832 (6th Cir. 2019) (explaining that Davila “declined to expand Martinez to procedurally

defaulted claims of ineffective assistance of appellate counsel”). Accordingly, this claim is

procedurally defaulted without cause.

ii. Claim 3.E—Defaulted on Appeal

In Claim 3.E, the petitioner asserts that trial counsel was ineffective for failing to object to

the omission of a State v. White instruction for the charged offense of especially aggravated

kidnapping. (Doc. No. 23 at 6–8.) The petitioner raised this claim in his first amended post-

conviction petition (Doc. No. 30-27 at 7), and the post-conviction court denied it. (Id. at 92.) The

petitioner did not raise this claim on post-conviction appeal. Martinez “does not extend to attorney

errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of

ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient

for other reasons.” 566 U.S. at 16. In other words, “attorney error at state post-conviction appellate

proceedings cannot excuse procedural default.” West v. Carpenter, 790 F.3d 693, 699 (6th Cir.

2015). Accordingly, the petitioner cannot rely on any alleged post-conviction ineffectiveness to

excuse the default of Claim 3.E, and it is not subject to further review.

iii. Claims 3.A, 3.B, 4—Insubstantial

That leaves Claims 3.A, 3.B, and 4. To excuse the default of these claims under Martinez,

several requirements must be met, including that the underlying claim is “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).

In Claim 3.A, the petitioner asserts that trial counsel was ineffective for failing to

investigate and produce a defense for the petitioner. (Doc. No. 23 at 3.) Trial counsel’s post-

conviction testimony, however, reflects that his investigation of the case and preparation for trial

were far from deficient. (See Doc. No. 30-28 at 27–29, 46, 62–63 (testifying that he went through

every piece of discovery with the petitioner over 33 pre-trial visits; conducted an independent

investigation of the case; obtained information for cross-examination of co-defendant Hambric at

trial, including by personally interviewing several people associated with Hambrick; and filed a

motion in limine to attempt to prevent the admission of cell tower location evidence).) The

petitioner acknowledged many of trial counsel’s efforts at the post-conviction hearing. (See id. at

11, 21–22 (testifying that trial counsel met with him, went over discovery, and discussed strategies

that defense counsel intended to use at trial).) In the amended petition, moreover, the petitioner

does not identify any particular investigation that counsel should have pursued (aside from a

conclusory reference to consulting with experts, discussed below). (See Doc. No. 23 at 10.)

Accordingly, Claim 3.A is insubstantial. See Hutchison, 303 F.3d at 748–49 (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.”).

In Claim 3.B, the petitioner asserts that trial counsel was ineffective for failing to obtain

defense experts to rebut the State’s experts. (Doc. No. 23 at 3.) The petitioner exhausted a specific

claim of ineffectiveness regarding counsel’s decision not to retain a cell tower location expert, and

as discussed above, the TCCA’s rejection of that claim was reasonable. Beyond that, however, the

petitioner does not explain what kind of expert counsel should have obtained or how expert

testimony would have helped his case. (See id. at 10.) Claim 3.B, therefore, is a “conclusory

allegation[] of ineffective assistance” that is “insufficient to state a constitutional claim.”

Wogenstahl, 668 F.3d at 335 (citing Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)); see also

Kendrick v. Parris, 989 F.3d 459, 472 (6th Cir. 2021) (quoting Harrington, 562 U.S. at 111)

(“Strickland does not enact Newton’s third law for the presentation of evidence, requiring for every

prosecution expert an equal and opposite expert from the defense.”). This claim is insubstantial.

Finally, in Claim 4, the petitioner asserts that counsel failed to raise a claim in the motion

for new trial regarding the omission of a State v. White jury instruction. (Doc. No. 23 at 3, 6.) This

instruction, to restate, applies in kidnapping cases and requires “the jury to determine whether the

removal or confinement of a victim is essentially incidental to any other offense with which the

defendant is charged or whether it is instead ‘enough, standing alone, to support a [kidnapping]

conviction.’” Alston, 2020 WL 3960581, at *2 (citing White, 362 S.W.3d at 578). The TCCA ruled

on direct appeal that counsel waived this issue by failing to raise it in his motion for new trial.

Doss, 2014 WL 2592736, at *25. This ruling, however, was error, as counsel raised this issue in

the memorandum supporting his motion for new trial. (See Doc. No. 30-1 at 79.) The Tennessee

Supreme Court acknowledged as much when it found that the TCCA’s waiver ruling did not

amount to a proper analysis under White. (See Doc. No. 30-26 at 57.) Accordingly, because counsel

did what the petitioner claims he should have done, Claim 4 is without merit.

VI. Request for Counsel and an Evidentiary Hearing

In his reply, the petitioner requests the appointment of counsel and an evidentiary hearing

to explore his allegation of jury misconduct. (Doc. No. 36 at 1, 4–7.) This request will be denied.

“[A]lthough state prisoners may occasionally submit new evidence in federal court,

‘AEDPA’s statutory scheme is designed to strongly discourage them from doing so.’” Shoop v.

Twyford, 142 S. Ct. 2037, 2044 (2022) (quoting Pinholster, 563 U.S. at 186). When a habeas

petitioner requests an evidentiary hearing, a federal court “must determine at the outset whether

the new evidence sought could be lawfully considered.” Id.

To restate, the petitioner raised a jury-misconduct claim in the motion for new trial, the

trial court rejected it following an evidentiary hearing, and counsel did not raise it on direct appeal.

The petitioner asserts two claims related to this issue in the amended petition. In Claim 1.F, he

challenges the trial court’s denial of his jury-misconduct claim, but, as discussed above, this claim

is procedurally defaulted without sufficient cause. A habeas petitioner is not entitled to an

evidentiary hearing for such a claim. See Cammuse v. Morgan, 105 F. App’x 667, 670 n.4 (6th

Cir. 2004) (declining to consider whether evidentiary hearing was required for habeas claim that

was procedurally defaulted where petitioner had “not made a showing sufficient to excuse that

default”). And in Claim 5.B, the petitioner challenges counsel’s decision not to raise the jury-

misconduct claim on direct appeal, but that claim was adjudicated on the merits in state court, so

this court is “obligated to decide the [claim] based solely on the state court record.” Sheldon v.

Black, No. 20-4156, 2021 WL 1654419, at *3 (6th Cir. Apr. 20, 2021) (citing Pinholster, 563 U.S.

at 181–82; Mitchell v. Genovese, 974 .3d 638, 650 (6th Cir. 2020)).8 The petitioner, accordingly,

has not established that the court can consider new evidence on the jury-misconduct issue.

The petitioner also requests the appointment of counsel. The court is not required to appoint

counsel for a habeas petitioner “unless counsel is ‘necessary for effective discovery’ or an

evidentiary hearing is needed.” Scott v. Winn, No. 18-1845, 2018 WL 5309805, at *1 (6th Cir. Oct.

22, 2018) (citing Habeas Rules 6(a) and 8(c)). Here, the petitioner is not entitled to discovery and

an evidentiary hearing is not needed. See Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004)

(quoting Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)) (“[A] court must provide discovery in

a habeas proceeding only ‘where specific allegations before the court show reason to believe that

the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to

relief.’”); Vizcaino-Ramos v. Lindamood, No. 1:14-cv-1230-STA-egb, 2017 WL 5163588, at *4

(W.D. Tenn. Nov. 7, 2017) (“[I]f the claim is procedurally defaulted and the default is unexcused,

discovery on the claim would be futile[.]”). Accordingly, the petitioner’s request will be denied.

VII. Conclusion

For these reasons, the petitioner is not entitled to relief under Section 2254, his request to

appoint counsel and hold an evidentiary hearing will be denied, and this action will be dismissed.

8 The petitioner also asserts that the TCCA refused to consider his jury-misconduct claim on direct appeal

based on counsel’s failure to raise it in a motion for new trial (Doc. No. 36 at 5), but that ruling applied to

co-defendant Hathaway, not the petitioner. See Doss, 2014 WL 2592736, at *30.

Because this is a “final order adverse to” the 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 the

petitioner has not satisfied these standards and will deny a COA.

An appropriate order is filed herewith. fi

United States District Judge

30