Cartwright v. Phillips

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NORTHEASTERN DIVISION

WILLIAM FLOYD CARTWRIGHT )

#352873, )

)

Petitioner, )

) NO. 2:20-cv-00055

v. )

)

SHAWN P. PHILLIPS, )

)

Respondent. )

MEMORANDUM OPINION

William Floyd Cartwright filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas

corpus (Doc. No. 1), Respondent filed an Answer (Doc. No. 13), and Petitioner filed a Reply.

(Doc. No. 14). For the following reasons, Petitioner is not entitled to relief under Section 2254 and

this case will be dismissed.

I. Procedural Background

A Putnam County grand jury indicted Petitioner and co-defendant Christopher Servo in

connection with the killing of Marvin Martin, Jr., in August 2004. Petitioner faced a first-degree

murder charge, and Servo faced charges for facilitation and being an accessory after the fact. (Doc.

No. 12-1 at 5–6). Petitioner and Servo were tried together, but after the closing of proof, Servo

pleaded guilty to a lesser charge. Cartwright v. State, No. M2018-01544-CCA-R3-PC, 2020 WL

1867042, at *1 (Tenn. Crim. App. Apr. 14, 2020). The jury convicted Petitioner as charged, and

he received a sentence of life imprisonment. (Doc. No. 12-1 at 230). The Tennessee Court of

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

Petitioner’s application for permission to appeal. State v. Cartwright, No. M2007-00500-CCA-R3-

CD, 2008 WL 902093 (Tenn. Crim. App. Apr. 3, 2008); (Doc. No. 12-17).

Petitioner filed a post-conviction petition (Doc. No. 12-18 at 3–7), followed many years

later by an amended petition (id. at 12–19) and an evidentiary hearing.1 (Doc. No. 12-19). The

court denied relief. (Doc. No. 12-18 at 29–31). The TCCA affirmed, and the Tennessee Supreme

Court denied discretionary review. Cartwright, 2020 WL 1867042; (Doc. No. 12-32).

II. Factual Background

On post-conviction appeal, the TCCA summarized the evidence presented against

Petitioner at trial as follows:

On the evening of August 27, 2004, the victim was at the Cookeville home of

Lakeisha Darty. He was there drinking, along with Ms. Darty and her two

roommates, Sherry Rooks and Tiffiney Reagan. Ms. Reagan and the Petitioner were

involved in an affair at the time. At some point in the evening, Ms. Darty left the

residence and went to a local bar where she encountered the Petitioner, Ms. Darty’s

cousin by marriage. The victim stayed at the house that evening, as did Ms. Rooks

and Ms. Reagan.

When the bar closed in the early morning hours of August 28, 2004, Ms. Darty

drove home, and she was accompanied by her friend Jennifer Vinson, the Petitioner,

and Josh Cartwright (“Mr. Cartwright”), “another of their cousins.” According to

Ms. Darty, when they left the bar, the Petitioner did not appear intoxicated, but he

“was upset with [Mr.] Cartwright for ‘disrespecting’ their grandmother.” At one

point, the Petitioner hit Mr. Cartwright, leaving blood in Ms. Darty’s car. The

Petitioner “said, in reference to disrespect of his grandmother, he never wanted to

see ‘that’ again.” The group arrived at Ms. Darty’s house “where [the Petitioner]

continued to push [Mr.] Cartwright around in the yard.”

Ms. Darty went to wake up Ms. Reagan. When Ms. Reagan awoke, she saw the

Petitioner, “whom she described as ‘very drunk,’ arguing with [Mr.] Cartwright,

who had blood on his face.” The victim intervened and told the Petitioner to leave

1 Regarding the unusual delay in Petitioner’s post-conviction proceedings, the TCCA wrote:

It is unclear why over nine years elapsed between the Petitioner’s filing of his original

petition for post-conviction relief and the evidentiary hearing occurring. Such a lengthy

delay is inexcusable. We note that trial judges have an obligation to manage their dockets

in a timely manner, see Tennessee Supreme Court Rule 10, Rule of Judicial Conduct 2.5,

and defense lawyers and prosecutors have an ethical obligation to make reasonable efforts

to expedite litigation, see Tennessee Supreme Court Rule 8, Rule of Professional Conduct

3.2.

Cartwright, 2020 WL 1867042, at *4.

Mr. Cartwright alone. The Petitioner responded by hitting the victim in the face,

“knocking the victim’s glasses from his face[,] and telling him that this was none

of his business but was family business.” Ms. Darty helped the victim find his

glasses, and then she left to drive Ms. Vinson home.

Thereafter, the Petitioner received a phone call, and Ms. Reagan heard him say,

“I’m at Tiffiney’s, you need to get over here right now.” Ms. Reagan saw the

following events transpire next:

Ms. Reagan . . . saw [the Petitioner] “just turn around and hit” the

victim, who had not touched [the Petitioner] to this point. [Ms.]

Reagan saw the two move to the side of the house, and she saw [the

Petitioner] pull the victim’s shirt off. She heard the victim say, “Tug,

that’s enough, please stop, I didn’t do anything.” [FN: The

Petitioner’s nickname was “Tug.”] [Ms.] Reagan said, thereafter,

she saw mostly shadows and silhouettes, and she heard someone hit

the car. She next saw [the Petitioner] kicking and “stomping” on the

victim in the front yard. [Ms.] Reagan said that, approximately three

times, she yelled “Tug, that’s enough, stop,” prompting [the

Petitioner] to walk away briefly but return to beating the victim.

[Ms.] Reagan never saw the victim attempt to defend himself.

At that point, [Ms.] Reagan went and awakened [Ms.] Rooks, telling

her that [the Petitioner] was “beating up” the victim. When [Ms.]

Reagan came back to the doorway of the front porch, she saw [the

co-defendant] standing on the porch. [The Petitioner] was still

stomping on the victim’s head, and the victim had his stomach down

on the ground.

According to Ms. Rooks, she was going to call 9-1-1, but both the co-defendant and

Ms. Reagan told her that “it wasn’t that bad, that everything was okay.”

Nonetheless, Ms. Rooks went inside the house and called Ms. Darty, telling her to

get there quickly.

Ms. Reagan observed the Petitioner tell the co-defendant to come and help him, and

they tried to carry the victim out of the yard. Ms. Reagan continued,

They could not and ended up dragging him by his feet, face down,

toward the porch. When they placed the victim on the porch, [the

Petitioner] appeared to be grabbing at the victim’s clothes, perhaps

in an attempt to take his shorts off. Ms. Reagan noticed that [the

Petitioner’s] silver Reeboks were covered in blood. [The Petitioner]

then grabbed the victim’s hands and dragged him into the shed. The

victim was, at first, sitting in the shed, and [the Petitioner] pushed

him onto his side.

Thereafter, Ms. Darty arrived and attempted to approach the Petitioner, but Ms.

Reagan told her to wait because they did not know what the Petitioner would do.

When the Petitioner left the shed and walked away, Ms. Darty ran to the shed and

pulled the victim out from inside. Ms. Darty yelled to Ms. Rooks for help because

she could not find the victim’s pulse. The two women began performing CPR, and

after doing so, Ms. Rooks felt a faint pulse. Although Ms. Darty called 9-1-1, they

decided to drive the victim to the hospital, so she hung up. As the women were

attempting to load the victim into Ms. Reagan’s SUV, the Petitioner, who appeared

uninjured, returned and assisted them. The Petitioner “told the girls to say that they

found the victim in their yard in his present condition” and instructed them that they

“better not say what happened.” The Petitioner “also told [Ms.] Reagan not to take

the victim to the hospital if he did not have a pulse. They were all scared of what

[the Petitioner] might do if they told the truth.”

Richard G. Clark, a staff physician in the emergency room at Cookeville Regional

Medical Center, testified that he retrieved the victim from Ms. Reagan’s vehicle

but could not find a pulse. After unsuccessfully performing “advanced life support

measures[,]” the doctor pronounced the victim dead at 4:07 a.m. Dr. Clark said that

he “could tell from the injuries that the victim had suffered some blunt trauma to

the face and body, along with skin abrasions consistent with being dragged across

concrete.”

When Ms. Reagan was informed of the severity of the Petitioner’s injuries, she

called the Petitioner. However, the co-defendant answered and said that the

Petitioner was sleeping. Ms. Reagan informed the co-defendant that the victim was

dead. The Petitioner and the co-defendant then fled to Lebanon, Tennessee to stay

with a friend, Frederick Lashane Garrett. They arrived at Mr. Garrett’s home later

in the day on August 28, 2004. According to Mr. Garrett, while there, the Petitioner

told him “that he had gotten into a fight where he punched, kicked, and slammed a

guy around and said he was laughing while beating the man.” The Petitioner and

the co-defendant were later apprehended in Nashville on August 31, 2004, while

they were en route to the Clarksville bus station “to catch a bus.”

Detective Carl Sells, with the Cookeville Police Department, “interviewed the

women.” He stated that the women “were not initially truthful with him about what

had happened, telling him they found the victim lying in their front yard and

someone must have left him there.” However, he opined that later, they all gave

“full statements consistent with their trial testimony.”

Upon processing the crime scene, “the victim’s blood was found on a welcome mat

on the porch, in the grass in the front yard, and in two places in the shed.” Also,

“[t]he victim’s glasses, and a lens separated from those glasses, and the victim’s

shirt were found near the house.” Additionally, “[t]he morning after the beating,

[Ms.] Rooks had noticed a new dent in the driver’s side right fender of her car,

which had been parked near where the beating occurred . . . . [A] sample was taken

of what appeared to be dried bodily fluid on the fender, but the test results returned

inconclusive.”

Dr. Feng Li, the medical examiner, testified to the following regarding the victim’s

injuries and cause of death:

[A]n external examination of the victim’s body revealed he suffered

injuries ‘all over the body.’ The victim had areas of abrasions,

contusions, and lacerations to multiple areas of his body. The

victim’s skull bone was fractured, and he had orbital bruises. The

victim’s injuries were the result of blunt force, and a combination of

these injuries resulted in his death. The doctor opined that the most

severe injuries were the skull f[r]actures and hemorrhages. The

victim’s injuries were consistent with his head being stomped upon

while he lay on the ground. The doctor said that the victim suffered

‘brush burns,’ which were consistent with the victim being dragged

across concrete.

Dr. Li stated that he measured the victim and that the victim was five-feet, four-

inches tall. In addition, the victim’s blood alcohol level was determined to be

between .15 and .19; no drugs were detected in his system. Dr. Li admitted “that

the victim’s blood alcohol level was over twice the legal driving limit in

Tennessee.”

Cartwright, 2020 WL 1867042, at *1–3 (internal citations omitted).

III. Claims

Petitioner asserts the following claims:

1. Trial counsel was ineffective for failing to:

A. Object to a jury instruction given at the beginning of trial (Doc. No. 1 at 17–18);

B. Request a new preliminary hearing (id. at 18–20);

C. Introduce evidence consistent with his opening statement (id. at 21);

D. Properly question the medical examiner regarding the cause of death (id. at 22–23);

E. Move to re-open the proof and call co-defendant Servo to testify (id. at 23–24);

F. Assist Petitioner in such a way as to amount to cumulative error (id. at 25–26);

G. Obtain a mental evaluation of Petitioner in pursuit of a diminished-capacity

argument (id. at 27–29); and

H. Raise the defense of voluntary intoxication. (Id. at 29–30).

2. There was insufficient evidence to support Petitioner’s conviction. (Id. at 6, 32–40).

IV. Legal Standard

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

Death Penalty Act of 1996 (AEDPA). AEDPA sets a very high bar for granting federal relief on

claims “adjudicated on the merits” in state court. Harrington v. Richter, 562 U.S. 86, 97 (2011).

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

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 unreasonable only “if it is shown that the state court’s presumptively correct

factual findings are rebutted by ‘clear and convincing evidence’ and do not have support in the

record.” 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 can exhaust all available state remedies for a claim by

presenting it to the TCCA. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (citing 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.

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (citations omitted). It prevents a federal habeas court

from reviewing “federal claims that . . . the state court denied based on an adequate and

independent state procedural rule.” Id. 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”

has been described as “some objective factor external to the defense [that] impeded counsel’s

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

“Prejudice” means that the errors must have resulted in “actual and substantial disadvantage,

infecting [the petitioner’s] entire trial with error of constitutional dimensions.” Garcia-Dorantes v.

Warren, 801 F.3d 584, 598 (6th Cir. 2015) (internal citations and 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 argues that Petitioner’s claims are either 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. 13 at 22–38). The Court agrees.

A. Claims Adjudicated on the Merits

The claims adjudicated on the merits by the TCCA include six ineffective-assistance claims

and an insufficient-evidence claim. AEDPA deference applies to these decisions.

1. Ineffective Assistance of Counsel

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

identified the federal standard governing ineffective-assistance claims, as set forth in Strickland v.

Washington, 466 U.S. 668 (1984), before rejecting Petitioner’s claims on the merits. Cartwright,

2020 WL 1867042, at *8–15.

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)).

a. Claim 1.A—Jury Instruction

At the beginning of trial, the court gave the following preliminary instruction to the jury:

I will decide which rules of law apply to this case. My decisions will be reflected

in my responses to questions and objections the attorneys raise during the trial as

well as in my final jury instructions.

It is your job to determine what the facts of this case are. You must then apply the

law that I give you in the instructions to the facts in this case and from that

application you will arrive at your verdict.

(Doc. No. 12-2 at 26). In Claim 1.A, Petitioner asserts that trial counsel should have objected to

this instruction because it was “incorrect.” (Doc. No. 1 at 17).

The TCCA rejected the premise of this claim, ruling that counsel was not ineffective for

failing to object because the challenged instruction was a correct statement of the law. Cartwright,

2020 WL 1867042, at *9–10. This ruling was reasonable, as the challenged instruction was

consistent with Tennessee Pattern Preliminary Jury Instruction 1.00, which was, in turn, consistent

with long-standing Tennessee law. See State v. Lawson, No. E2018-01566-CCA-R3-CD, 2019

WL 4955180, at *6 (Tenn. Crim. App. Oct. 8, 2019) (“It is the duty of the court to direct the jury

what the law is, and it is the duty of the jury to apply it, under the direction of the court, so far as

he has directed, to the facts in evidence.” (quoting Ford v. State, 47 S.W. 703, 704 (Tenn. 1898))).

“Omitting meritless arguments is neither professionally unreasonable nor prejudicial.” Coley v.

Bagley, 706 F.3d 741, 752 (6th Cir. 2013) (citations omitted). Accordingly, Claim 1.A will be

denied.

b. Claim 1.B—Preliminary Hearing

There was an audio recording of Petitioner’s preliminary hearing, and that recording was

used to prepare a transcript. (See Doc. No. 12-24 at 3–29). Two witnesses testified at the hearing

(Tiffany Reagan and Sherry Rooks). (See id.). The transcript reflects that there was a gap in the

recording that began during the cross-examination of the second witness (Rooks) and ended during

counsels’ closing arguments. (See id. at 27). In Claim 1.B, Petitioner asserts that trial counsel

should have filed a motion to dismiss the indictment and request a new preliminary hearing on this

basis, because the incomplete recording left counsel unable to impeach trial testimony that was not

consistent with preliminary hearing testimony. (Doc. No. 1 at 19).

The TCCA rejected this claim, ruling that counsel’s failure to file the requested motion was

not ineffective because “it was unlikely that dismissal of the indictment would have been

warranted and a new preliminary hearing ordered even if trial counsel had filed such a motion.”

Cartwright, 2020 WL 1867042, at *11. This ruling was reasonable. Under the version of the

applicable rule of criminal procedure in effect during the lead up to Petitioner’s trial in 2005, the

State was required to preserve a preliminary hearing “by electronic recording or its equivalent.”

State v. Howard, No. E2007-00178-CCA-R3-PC, 2008 WL 1805758, at *21 (Tenn. Crim. App.

Apr. 22, 2008) (quoting Tenn. R.Crim. P. 5.1(a) (2005)). Then-Rule 5.1(a)2 “provide[d] no

guidance as to the remedy to be applied for a violation of its terms,” but the Tennessee Supreme

Court had ruled that the State’s failure to properly preserve a preliminary hearing recording did

not require dismissal of an indictment and a new preliminary hearing if two conditions were met:

(1) the defendant had access to the material evidence and testimony introduced at the hearing and

(2) that testimony was subject to cross-examination. See State v. Graves, 126 S.W.3d 873, 877–

78 (Tenn. 2003). The TCCA considered those conditions met here, noting that: (1) the same

attorney who represented Petitioner at trial also represented Petitioner at the preliminary hearing,

and (2) Petitioner’s counsel personally observed the direct preliminary-hearing testimony of both

witnesses (Reagan and Rooks) before cross-examining them. Cartwright, 2020 WL 1867042, at

*11–12. Indeed, at the post-conviction evidentiary hearing, counsel testified that he “knew exactly

what was said at the preliminary hearing” going into trial. (Doc. No. 12-19 at 73–74). In these

2 This Rule was amended in 2008, after Petitioner’s trial. See Cartwright, 2020 WL 1867042, at *11.

circumstances, it was reasonable for the TCCA to rule that counsel did not provide ineffective

assistance by failing to file a motion based on the condition of the preliminary hearing recording.

c. Claim 1.C—Opening Statement

In his opening statement, Petitioner’s counsel remarked: “We feel like the proof will show

that [the victim] was supposed to be on house arrest” on the night he was killed. Cartwright, 2020

WL 1867042, at *12. In Claim 1.C, Petitioner asserts that this statement was a promise to the jury,

and that counsel was ineffective for not fulfilling that promise by presenting evidence regarding

the victim’s house arrest during trial. (Doc. No. 1 at 21).

The TCCA rejected this claim, first providing the full context of counsel’s statement:

During opening statement, trial counsel made the following comments:

Now . . . this was relatively late at night when all this started and

there’s a reason for that, ladies and gentlemen. We feel like the proof

will show that [the victim] was supposed to be on house arrest. He

was not supposed to be out at night, was supposed to be home. He

had already committed an offense and [as] opposed to being in jail

he was supposed to be at home and monitored.

The State lodged an objection: “We’re going to object to that proof at this time,

Your Honor. There’s no foundation that’s laid and it is disparaging to the victim.”

The resulting colloquy ensued:

THE COURT: [Trial counsel], let’s---

[TRIAL COUNSEL]: Your Honor, I think that’s proper.

THE COURT: Well, I’m ruling that you move on. Let’s not tarry on

that issue.

[TRIAL COUNSEL]: Okay.

THE COURT: Move on.

No further reference was made about the victim’s being on house arrest, and no

evidence of such was put forth by the defense at trial.

Cartwright, 2020 WL 1867042, at *12.

The TCCA then decided that counsel’s failure to follow up the house-arrest issue after

opening statements did not amount to ineffective assistance:

In certain circumstances, the failure to present evidence promised during the

opening statement constitutes ineffective assistance of counsel. State v.

Zimmerman, 823 S.W.2d 220, 225-26 (Tenn. Crim. App. 1991). “The trial attorney

should only inform the jury of the evidence that he is sure he can prove . . . . His

failure to keep [a] promise [to the jury] impairs his personal credibility.” Id. at 225

(quotation omitted). Our supreme court noted that in Zimmerman, it was counsel’s

sudden, unwarranted change in trial strategy that resulted in the deficient

performance. King v. State, 989 S.W.2d 319, 332 (Tenn. 1999) (citing Zimmerman,

823 S.W.2d at 224, 226). However, the supreme court held that a change in defense

strategy did not rise to the level of the ineffective assistance of counsel when it

occurred in response to surprise testimony or other change in the proceedings. See

id.

We have reviewed trial counsel’s opening statement in this case. Trial counsel set

out the defense theory and made assertions regarding the evidence, including that

the victim was intoxicated on the evening in question, that “it was two drunks

fighting,” and that the Petitioner lacked premeditation. The trial court’s

admonishment to trial counsel not to “tarry on” the issue of the victim’s house arrest

was made in front of the jury after an objection by the State. Under these

circumstances, trial counsel’s failure to produce evidence of the victim’s being on

house arrest after promising it in his opening statement would not have significantly

impaired his credibility. We do not believe that trial counsel’s failure rose to the

level of ineffective assistance of counsel. See Charles Ritter v. State, No. E2008-

01278-CCA-R3-PC, 2009 WL 3711991, at *9 (Tenn. Crim. App. Nov. 6, 2009)

(finding that counsel’s failure to provide evidence of the victim’s alternate source

of sexual knowledge did not rise to the level of ineffective assistance of counsel

because the defense strategy was not abandoned arbitrarily but in response to

rulings from the trial court).

Cartwright, 2020 WL 1867042, at *12–13.

This ruling was reasonable. The Sixth Circuit has held that it may be ineffective “for

counsel to promise testimony to the jury without first examining the availability and soundness of

such testimony where counsel could, and should, have discovered these details prior to trial.”

Plummer v. Jackson, 491 F. App’x 671, 677 (6th Cir. 2012) (citing English v. Romanowski, 602

F.3d 714, 728 (6th Cir. 2010)). But the primary rationale for this holding is that a jury may take a

dim view of a defendant and his counsel’s credibility when a promise of presenting particular

evidence goes unfulfilled. See English, 602 F.3d at 729 (“The jury in this case must have wondered

what happened to [a witness] after she was promised as a corroborating witness for [the

defendant’s] story, and the jury may well have counted this unfulfilled promise against [the

defendant] and his attorney.” (citation omitted)). And here, counsel abandoned the house arrest

issue only after the court ruled that he “move on” and “not tarry on that issue” during opening

statements. In other words, the jury was not left to wonder why counsel did not revisit that issue—

it witnessed the court foreclose that approach in real time. Therefore, it was reasonable for the

TCCA to rule that the jury did not view counsel’s credibility as significantly impaired when

counsel did not revisit the house arrest issue. See Kendricks v. Phillips, No. 1:16-CV-00350-JRG-

SKL, 2019 WL 4757813, at *34 (E.D. Tenn. Sept. 30, 2019) (“As English notes, the damage from

such unfulfilled promises occurs when the jury is left to infer why such testimony was not raised

or believes that counsel lied.” (citing English, 602 F.3d at 729)). So Claim 1.C will be denied.

d. Claim 1.D—Questioning the Medical Examiner

Dr. Feng Li, a medical examiner, performed the victim’s autopsy. (Doc. No. 12-4 at 123–

24). At trial, Dr. Li testified that there was evidence that the victim had sustained “multiple blunt

force injuries” in several places on his body. (Id. at 126–29). When the State asked Dr. Li if he

could tell “which of these injuries or which combination of these injuries was the cause of [the

victim’s] death,” Dr. Li responded: “I would say that the combination of the injuries, all the injuries

combined.” (Id. at 129). In Claim 1.D, Petitioner asserts that trial counsel should have solicited

testimony from Dr. Li on cross-examination to “clarify which injury . . . was the fatal one,” as the

victim’s death could have resulted from being accidentally dropped on concrete rather than being

deliberately beaten by Petitioner. (Doc. No. 1 at 23).

The TCCA thoroughly considered Dr. Li’s testimony regarding the victim’s cause of

death—testimony in response to questions from the State, Petitioner’s counsel, and the jury—

before finding counsel was not ineffective in this regard:

As noted above, Dr. Li testified that the victim suffered multiple injuries all over

his body, that the victim’s injuries were the result of blunt force, and that a

combination of these injuries resulted in his death. Cartwright, 2008 WL 902093,

at *4. The medical examiner “opined that the most severe injuries were the skull

factures and hemorrhages” and that “[t]he victim’s injuries were consistent with his

head being stomped upon while he lay on the ground.” Id. Furthermore, the medical

examiner also classified the skull fractures and hemorrhages as “the most fatal in

this case,” and he surmised that the manner of death was “assault[ ] by others.”

On cross-examination by trial counsel, Dr. Li indicated that if he had “to pick one

injury” leading to the victim’s death, he would “say the bleeding inside the brain

would” have been “the most serious.” Dr. Li agreed that in the autopsy report, he

“didn’t specifically indicate which blow or which injury caused the death[.]” Dr. Li

also agreed that his conclusions were “based upon all the circumstances that had

been furnished” to him. Trial counsel also focused his cross-examination on the

discrepancy in the victim’s height, the victim’s level of intoxication, and the

victim’s possible respiratory issues. Co-defendant’s counsel next examined Dr. Li,

and Dr. Li agreed that the victim’s injuries were likewise consistent with being hit

by a car.

The jury also submitted questions for the medical examiner. Dr. Li was asked about

possible injuries to the victim after death, possible causes of the congestion seen in

the victim’s lungs, if previous calculations of the victim’s height and weight were

available, whether the victim exhibited any signs of a panic attack, whether

untrained individuals moving the victim or delay in his treatment precipitated the

victim’s death.

When asked about a specific scenario, the medical examiner agreed that if a car

fender were made of a “hard enough” material, the victim’s head injuries were

“consistent with blunt force trauma of his head being slammed into a car fender

during a fight[.]” Dr. Li was shown a photograph of Ms. Rooks’s fender, and he

opined that it was “probably not” capable of producing the victim’s skull fractures.

It was also noted that Ms. Rooks’s fender did not appear to exhibit much damage.

Dr. Li was presented with another scenario, the jury’s asking whether stomping the

victim’s head against the ground could have caused the victim’s skull fractures, to

which he replied it was “very hard to [have] cause[d] the skull fractures by the

stomp alone.” But, Dr. Li clarified that it was possible if done with sufficient force

or repetition. Dr. Li also stated that the type of shoes worn would impact his

decision and that the victim’s injuries were “not likely” caused by someone wearing

tennis shoes. He was unable to say with any certainty whether the victim was

“directly facing down” when he was injured. Nonetheless, Dr. Li affirmed his

opinion that the manner of death was the victim’s suffering multiple impacts while

being assaulted by another individual or individuals, although he could not say for

certain.

Most importantly, Dr. Li was presented with the following scenario: “If a body is

carried face down and dropped on the concrete, could this cause a skull fracture?”

Dr. Li replied, “Again, it varies from the height. I mean obviously if it’s a very low

height, it might not. If there’s a, you know, high area and dropped to the ground,

yeah, it could.” Trial counsel then inquired, “And that would be more apt to cause

a skull fracture than kicking or stomping with tennis shoes, would it not?” Dr. Li

responded, “It could in theory. But again, based on the height.” Upon further

questioning by trial counsel, Dr. Li agreed that a person could “already be

unconscious” before getting “their skull fractured from other separate

incidences[.]”

Here, the medical examiner testified at length. Trial counsel asked the medical

examiner if his conclusions were “based upon all the circumstances that had been

furnished” to him, and the medical examiner answered affirmatively. Moreover, the

jury’s questions indicated that they had been supplied with evidence of several

other possible causes for the victim’s skull fractures and hemorrhaging in addition

to the State’s theory. Their questions were suggestive of conscious reflection.

Although trial counsel did not ask the medical examiner about the victim’s being

dropped on the concrete during his initial cross-examination, the medical examiner

did discuss the issue based upon the questions submitted by the jury. The jury had

clearly been provided with evidence to support said theory prior to the medical

examiner’s testimony. Trial counsel, after the question, got Dr. Li to concede that

such a scenario “could in theory” be “more apt to cause a skull fracture than kicking

or stomping with tennis shoes” and that the injuries could have been received after

the victim was already unconscious. Accordingly, we agree with the post-

conviction court because we cannot say that the record supports either deficient

performance or prejudice with regard to trial counsel’s questioning of the medical

examiner. See, e.g., Lonnie Lee Owens v. State, No. M2011-02188-CCA-R3-PC,

2013 WL 1384936, at *17 (Tenn. Crim. App. Apr. 4, 2013) (finding no deficiency

when the medical examiner was cross-examined about an alternative cause of

death).

Cartwright, 2020 WL 1867042, at *13–14.

This ruling was reasonable. Petitioner’s core complaint is that counsel did not ask Dr. Li

questions to bolster an “accidental-drop-as-cause-of-death” theory. Though counsel did not

directly ask Dr. Li about the effect of an accidental drop during the initial cross-examination, this

topic was fully covered in the portion of Dr. Li’s testimony prompted by questions from the jury.

During that time, counsel asked a line of questions intended to foster doubt about the cause of

death, namely whether the human body can “take a lot of punishment,” whether “a minor blow

placed at a specific location can be a cause of death,” and whether the victim’s cause of death

“could have just as easily been a minor blow to a specific area” as it could have been a “major

blow.” (Doc. No. 12-5 at 6–7). Dr. Li’s answers were, effectively, “yes, yes, and yes in theory,”

though Dr. Li emphasized his opinion that the victim sustained “so many injuries” that the cause

of death was “a combination of the injuries.” (Id. at 7). Further, as the TTCA noted, Dr. Li did

answer a question specifically addressing the accidental-drop-as-cause-of-death theory; it just

happened to be posed by the jury, rather than counsel. (Id. at 22 (“If a body is carried face down

and dropped on the concrete, could this cause a skull fracture?”)). Counsel followed up by asking

if an “accidental[] drop[] . . . could cause a skull fracture,” and Dr. Li stated, “it depends on how

high the head or the distance from the head to the ground.” (Id. at 22–23). Considering the totality

of the testimony, it was reasonable for the TCCA to conclude that Petitioner failed to demonstrate

both deficiency and prejudice regarding counsel’s questioning of Dr. Li. See Jackson v. Bradshaw,

681 F.3d 753, 765 (6th Cir. 2012) (“Most cross-examinations can be improved but if that ‘were

the standard of constitutional effectiveness, few would be the counsel whose performance [pass]

muster.’” (quoting Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997))). Claim 1.D,

accordingly, will be denied.

e. Claim 1.E—Call Petitioner’s Co-Defendant to Testify

Petitioner and co-defendant Christopher Servo proceeded to trial together. After the close

of proof, however, Servo pleaded guilty to an offense less serious than his charged offenses. In

Claim 1.E, Petitioner asserts that trial counsel should have moved to re-open the proof and call

Servo to testify that he and Petitioner accidentally dropped the victim when moving him. (Doc.

No. 1 at 24).

The TCCA rejected this claim on deficiency and prejudice grounds:

Before trial, trial counsel was unable to talk with the co-defendant because the co-

defendant was tried jointly with the Petitioner and represented by counsel. The co-

defendant did not plead guilty until the proof had been closed and the jury was

awaiting the trial court’s formal instructions. Trial counsel, as he averred at the

post-conviction hearing, would have been unaware of the exact details of the co-

defendant’s testimony at that stage of trial. His decision not to call the co-defendant

was certainly reasonable.

Additionally, the defense had already been presented to the jury that the victim’s

injuries may have resulted from his being dropped or hitting his head on the

concrete, that the co-defendant was involved, and that any such actions were

accidental. Ms. Reagan testified at trial that she observed the Petitioner and the co-

defendant carrying the victim from the yard onto the porch, and later testimony

established that the porch was concrete. According to Ms. Reagan, the Petitioner

was carrying the victim by his “head and shoulders,” and the co-defendant had the

victim by the legs before they dropped him, although Ms. Reagan believed any drop

was “accidental.” Ms. Reagan then observed the co-defendant dragging the victim

face down by his feet onto the porch. Both doctors testified that the victim had

injuries consistent with being dragged across the concrete. As noted above, the

medical examiner was asked if the victim’s injuries could have been caused during

such a scenario, and he agreed that they in fact could. During closing argument,

trial counsel argued that it was the co-defendant who dropped the victim and also

that any drop was unintentional. Moreover, the co-defendant’s testimony served

little to bolster the theory that the victim was dropped on the concrete hard enough

to cause his injuries. The co-defendant also testified inconsistently with other

witnesses, which would have impacted his credibility. Accordingly, the Petitioner

has shown neither deficient performance nor prejudice based upon trial counsel’s

failure to call the co-defendant to testify.

Cartwright, 2020 WL 1867042 at *15.

This ruling was reasonable. As to counsel’s performance, he testified at the evidentiary

hearing that he did not call Servo as a witness because he was uncertain of Servo’s expected

testimony. This uncertainly, counsel explained, was because Servo’s legal status as a counseled

co-defendant prevented counsel from interviewing Servo prior to trial. See Cartwright, 2020 WL

1867042, at *7. Because counsel had a legitimate reason not to interview Servo before trial, the

strategic decision not to call Servo as a witness was presumptively sound. See Strickland, 466 U.S.

at 689; Davis v. Lafler, 658 F.3d 525, 537–38 (6th Cir. 2011) (rejecting claim of ineffective

assistance for failure to call witness who pleaded guilty to an offense stemming from the same

incident giving rise to petitioner’s charges, reasoning: “[Petitioner] has not produced any evidence

that defense counsel failed to adequately investigate or consider the option of calling [the person

who pleaded guilty] to testify. Without proof to the contrary, we must assume that counsel

adequately considered the possibility, but ultimately decided that the best strategy was not to

present [that person’s] testimony.” (citing Carter v. Mitchell, 443 F.3d 517, 532 (6th Cir. 2006))).

As to prejudice, the TCCA rightly noted that the jury heard Petitioner’s sought-after

testimony (that Petitioner and Servo accidentally dropped the victim), just from Tiffiney Reagan

rather than Servo himself. (See Doc. No. 12-3 at 141–42 (“Q. Did you actually see [Servo] drag

[the victim] in? A. I saw [Servo] drag [the victim] in. Q. Okay. But you testified earlier at the

preliminary hearing that you thought that that was accidental, that they accidentally dropped--- A.

Yes, I don’t think that they just threw [the victim] down and started dragging him, no.”); id. at

144–45 (“Q. [I]n your statement to Detective Sergeant Sells, isn’t it true that you said Servo had a

hold of [the victim’s] legs and [Petitioner] had his arms, when they got to the steps they

accidentally dropped [the victim], they grabbed [the victim] by his shorts and his shorts fell off, I

was able to see how bad [the victim] was hurt so I ran inside and put some clothes on? A. Maybe

I did say that.”)). Therefore, it was reasonable for the TCCA to conclude that Petitioner failed to

demonstrate prejudice in this regard. See Cobble v. Smith, 154 F. App’x 447, 451 (6th Cir. 2005)

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

is a heavy one” (citing Smith v. Robbins, 528 U.S. 259, 285–86 (2000); Williams v. Taylor, 529

U.S. 362, 394 (2000))). Accordingly, Claim 1.E will be denied.

f. Claim 1.F—Cumulative Error

In Claim 1.F, Petitioner asserts that counsel’s cumulative errors prejudiced the outcome of

trial. (Doc. No. 1 at 25). The TCCA rejected this claim on post-conviction appeal by pointing to

its rulings “that counsel was not deficient in any respect.” Cartwright, 2020 WL 1867042, at *15.

Regardless of this holding, however, binding Sixth Circuit authority holds that “cumulative error

claims are not cognizable on habeas because the Supreme Court has not spoken on this issue.”

Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (citing Moore v. Parker, 425 F.3d 250,

256 (6th Cir. 2005)); see also Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002); Sheppard v.

Bagley, 657 F.3d 338, 348 (6th Cir. 2011).3 So this claim is not a viable ground for relief in this

proceeding.

2. Insufficient Evidence

In Claim 2, Petitioner asserts that the State presented insufficient evidence of premeditation

to support his first-degree murder conviction. (Doc. No. 1 at 34–40). The TCCA correctly

identified the governing federal standard for this claim by citing Tennessee Supreme Court

opinions that adopt the framework in Jackson v. Virginia, 443 U.S. 307 (1979). See Cartwright,

2008 WL 902093, at *4 (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994)).

“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,

3 Recent unpublished Sixth Circuit opinions have cast some doubt on this holding. See, e.g., Teats v.

Genovese, No. 22-5365, 2022 U.S. App. LEXIS 30775, at *9–10 (6th Cir. Nov. 4, 2022) (“Jurists of reason

could disagree as to whether Teats’s eighth claim, alleging cumulative error by trial and appellate counsel,

is cognizable on habeas review.”); Ramsey v. Phillips, No. 20-3452, 2020 WL 9423257, at *3 (6th Cir.

Nov. 4, 2020) (“It is less clear whether jurists of reason could disagree with the district court’s determination

that Ramsey’s fourth claim, in which he alleges cumulative error, is not cognizable on habeas review.”).

But it does not appear that the Sixth Circuit has revisited this holding or that the Supreme Court has since

contradicted it, so the Court is bound to apply it.

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 rejected this claim as follows:

First degree murder is the “premeditated and intentional killing of another.” T.C.A.

§ 39-13-202(a)(1). Tennessee Code Annotated section 39-13-202(d) provides:

As used in subdivision (a)(1) “premeditation” is an act done after

the exercise of reflection and judgment. “Premeditation” means that

the intent to kill must have been formed prior to the act itself. It is

not necessary that the purpose to kill pre-exist in the mind of the

accused for any definite period of time. The mental state of the

accused at the time the accused allegedly decided to kill must be

carefully considered in order to determine whether the accused was

sufficiently free from excitement and passion as to be capable of

premeditation.

T.C.A. § 39-13-202(d). Therefore, in order to convict [Petitioner] of his indicted

offense, the State was required to prove beyond a reasonable doubt that [Petitioner]

killed the victim with “premeditation.” “[W]hether premeditation is present is a

question of fact for the jury, and it may be inferred from the circumstances

surrounding the” commission of the crime. State v. Billy Gene Debow, Sr., No.

M1999-02678-CCA-R3-CD, 2000 WL 1137465, at *4 (Tenn. Crim. App. Aug. 2,

2000); see also State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003); State v.

Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Anderson, 835 S.W.2d 600, 605

(Tenn. Crim. App. 1992). Some relevant factors that tend to support the existence

of premeditation include: “the use of a deadly weapon upon an unarmed victim; the

particular cruelty of the killing; declarations by the defendant of an intent to kill;

evidence of procurement of a weapon; preparations before the killing for

concealment of the crime, calmness immediately after the killing,” and evidence

that the victim was retreating or attempting to escape when killed. Davidson, 121

S.W.3d at 614; Bland, 958 S.W.2d at 660; see also State v. West, 844 S.W.2d 144,

148 (Tenn. 1992). “[T]he fact that repeated blows (or shots) were inflicted on the

victim is not sufficient, by itself, to establish first-degree murder.” State v. Brown,

836 S.W.2d 530, 542 (Tenn. 1992).

Looking at the evidence in a light most favorable to the State, the evidence showed

that the victim asked [Petitioner] to stop hitting [Josh] Cartwright, to which

[Petitioner] responded by hitting the victim. [Petitioner] then received a phone call

and asked the caller for assistance, apparently planning to continue this altercation.

[Petitioner’s] friend Servo arrived a short time later. After this brief intermission,

and in response to no apparent action by the victim, [Petitioner] hit the victim again.

The victim pleaded with [Petitioner] to stop, telling [Petitioner] that he had not done

anything. [Petitioner] stripped the victim of his shirt and continued to beat him

mercilessly, stomping repeatedly on his head. When Reagan yelled for [Petitioner]

to stop, he would stop, walk away for a moment, and then go back to kicking and

stomping on [Petitioner’s] head. [Petitioner], with Servo’s assistance, then dragged

the victim to the porch where he pulled down his shorts. He dragged him to the

shed, stuffing his unconscious body into the shed and then leaving. Shortly after

the beating, [Petitioner] assisted the girls by loading the victim into the truck, but

he told them to lie about what had happened and not to take the victim to the

hospital if he had no pulse. The victim died of multiple blunt force trauma injuries,

and he had several skull fractures and brain hemorrhages. [Petitioner] told Mr.

Garrett that he was laughing while beating the victim. [Petitioner] left town in an

apparent attempt to escape the police, who were looking for him at the time.

Whether the State established premeditation was primarily a jury question and

based in this case on the credibility of the witnesses. Again, questions involving the

credibility of witnesses, the weight and value to be given the evidence, and all

factual issues are resolved by the trier of fact, not an appellate court. [State v.]

Morris, 24 S.W.3d [788,] 795 [Tenn. 2000]. Further, calmness immediately after a

crime is relevant in determining the element of premeditation. Bland, 958 S.W.2d

at 660. [Petitioner] was calm after the killing, having the wherewithal to hide the

victim’s body in the shed. He told the young women present not to take the victim

to the hospital if he did not have a heartbeat, he told the women to lie if they did

take the victim to the hospital, and [Petitioner] immediately made plans to leave the

city. Further, while the fact that repeated blows were inflicted on the victim is not

sufficient, by itself, to establish first-degree murder, see Brown, 836 S.W.2d at 542,

it is still a consideration. [Petitioner] not only repeatedly hit, kicked, and stomped

the victim, but he would walk away when Reagan pled for him to stop and then

return to beating the victim. [Petitioner] also retold the story of the beating to

Garrett, apparently bragging about the killing, telling Garrett he was laughing as he

inflicted a savage beating. The jury heard the evidence and determined that there

was sufficient evidence of premeditation. Upon the evidence in the record, we

determine that a rational jury could have found that [Petitioner] was guilty of

premeditated first degree murder. This issue is without merit.

Furthermore, the jury, by its verdict, rejected the contention that [Petitioner] acted

in a state of passion required for a finding of voluntary manslaughter. The jury was

instructed that “premeditation” is an act done after the exercise of reflection and

judgment. See T.C.A. § 39–13–202(d). This necessarily excludes a state of passion.

This issue is without merit.

Cartwright, 2008 WL 902093, at *5–6.

This ruling was not unreasonable. As Petitioner points out, some of the factors relied on to

establish premeditation in other cases were not present here, as Petitioner did not use a weapon

and there was no evidence of planning or a particular motive before the killing. (See Doc. No. 1 at

37). But as the TCCA noted, the State did present at least some evidence from which a jury could

infer premeditation, including that Petitioner had time to reflect on the merciless beating he was

inflicting on the victim during approximately three short breaks that were prompted by Tiffiney

Reagan’s pleas for Petitioner to stop, and that Petitioner was calm immediately after the killing—

first attempting to hide the victim’s body, then instructing others to lie about the victim. It is not

the Court’s role to “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)). Rather, “[t]he jury in this case was

convinced, and the only question under Jackson is whether that finding was so insupportable as to

fall below the threshold of bare rationality.” Smith v. Cook, 956 F.3d 377, 396 (6th Cir. 2020)

(quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012)). And even where this Court considers

the jury verdict to be questionable in light of Jackson’s “low standard,” a “state court’s

‘determination in turn is entitled to considerable deference under AEDPA.” Id. (quoting Coleman,

566 U.S. at 656). Applying this doubly deferential standard of review, the Court concludes that

the TCCA’s resolution of this claim was not unreasonable. Accordingly, Claim 2 will be denied.

B. Procedurally Defaulted Claims

There are two claims remaining, both asserting ineffective assistance of trial counsel

(IATC). In Claims 1.G and 1.H, respectively, Petitioner asserts that counsel was ineffective for

failing to obtain a mental evaluation in pursuit of a diminished-capacity argument and raise the

defense of voluntary intoxication. (Doc. No. 1 at 27–30). Petitioner did not present these claims to

the TCCA at any point, 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) (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 (citing Fletcher v. Tennessee, 951 S.W.2d 378, 380–81 (Tenn. 1997))).

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

As cause to overcome this default, Petitioner argues that he received ineffective assistance

of counsel in post-conviction proceedings. (See Doc. No. 1 at 26–27; Doc. No. 14 at 5–6). Based

on the Supreme Court’s ruling in Martinez v. Ryan, post-conviction counsel’s alleged

ineffectiveness may, in some circumstances, constitute the “cause” necessary to obtain review of

a defaulted IATC claim. 566 U.S. at 17. But for the following reasons, Petitioner cannot rely on

Martinez for that purpose here.

Petitioner raised Claim 1.G (regarding diminished capacity) at the trial court level of his

post-conviction proceedings, asserting it in the amended post-conviction petition (Doc. No. 12-18

at 12–13) and presenting supporting evidence at the evidentiary hearing. (Doc. No. 12-19 at 13–

20, 40–42, 69–70, 72–73, 80). The post-conviction court rejected this claim at the conclusion of

the hearing (id. at 87–91) and in a written order. (Doc. No. 12-18 at 29). And Petitioner did not

present this claim to the TCCA on post-conviction appeal. Martinez does not apply to IATC claims

rejected by the post-conviction court but not raised on appeal. 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 . . . .”); 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.”). Claim 1.G, therefore, is not subject to further review.

Claim 1.H concerns counsel’s alleged failure to use a voluntary intoxication defense to

negate the premeditation element of Petitioner’s first-degree murder charge. (Doc. No. 1 at 30).

Post-conviction counsel did not assert this claim at the trial court level of Petitioner’s post-

conviction proceedings, so Martinez could, in theory, provide a pathway for demonstrating cause.4

But to excuse default under Martinez, the underlying IATC 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). And Claim 1.H is without merit.

Prior to trial, counsel filed a motion to request that the jury be instructed on the defense of

intoxication (Doc. No. 12-1 at 168–70) and argued in support of that motion before the court. (Doc.

No. 12-21 at 215, 282–84). The court ruled that it “[m]ay or may not be charged, depending on the

evidence, as with any other jury instructions.” (Id. at 286). During opening argument, counsel told

the jury that earlier on the night on the killing, Petitioner was at a nightclub on free beer night and

“had too much to drink” (Doc. No. 12-2 at 46), leading to an incident of “two drunks fighting.”

(Id. at 51, 54). Counsel later elicited testimony from Lakeisha Darty that she saw Petitioner with a

beer in his hand at the club. (Doc. No. 12-3 at 30–31). And the court ultimately found that there

was sufficient evidence of Petitioner’s intoxication to give the requested instruction. (See Doc. No.

4 Post-conviction counsel did assert a claim of trial court error with regard to a voluntary

intoxication jury instruction (Doc. No. 12-18 at 16), but that is not the same as an IATC claim.

12-6 at 145-47). Counsel then returned to the theme of Petitioner’s intoxication during closing

argument. (Doc. No. 12-7 at 22—23, 39, 45-46, 54). Accordingly, the record reflects that counsel

pursued the very defense that Petitioner claims should have pursued, and Petitioner does not

explain what else counsel could have done to convince the jury to accept it. Claim 1.H, therefore,

is without merit.

VI. Conclusion

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

be dismissed. Petitioner cannot appeal this adverse ruling without 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 US. 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 is filed herewith.

Wah. Eusbe.

at tah. Citastiniip

CHIEF UNITED STATES DISTRICT JUDGE

26