Bledsoe v. Lindamood

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

ERIC BLEDSOE, )

)

Petitioner, )

) No. 2:17-cv-02390-TLP-tmp

v. )

)

CHERRY LINDAMOOD, SCCF Warden, )

and ARVIL CHAPMAN, WCF Warden, )

)

Respondents. )

ORDER DISMISSING PETITION UNDER 28 U.S.C. § 2254, DENYING

CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT

TAKEN IN GOOD FAITH, AND DENYING LEAVE TO

PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Eric Bledsoe1 petitions under 28 U.S.C. § 2254 for a writ of habeas corpus by a

person in state custody (“§ 2254 Petition”). (ECF No. 1.) Respondent answered (ECF No. 33),

and Petitioner replied. (ECF No. 39.)

The issues Petitioner raises here fall into two categories: (1) whether the state court

identified and applied the correct federal legal principles, and (2) whether his claim is barred by

the procedural default doctrine. For the reasons below, the Court DISMISSES his § 2254

Petition.

1 Petitioner is an inmate at the Whiteville Correctional Facility (“WCF”) in Whiteville,

Tennessee. His Tennessee Department of Correction (“TDOC”) prisoner number is 281676.

BACKGROUND

I. Petitioner’s State Court Procedural History

A Shelby County grand jury indicted Petitioner for one count of aggravated rape, one

count of aggravated burglary, and one count of theft of property over $1,000.00. (ECF No. 32-1

at PageID 128.) Following a trial, the jury then convicted Petitioner of all counts. (Id. at Page

ID 157.) The trial court sentenced him to an effective term of sixty-five years in prison. (Id. at

PageID 165–67.)

Petitioner appealed (Id. at PageID 171), and the Tennessee Court of Criminal Appeals

(“TCCA”) affirmed his conviction. State v. Bledsoe, No. W2012-01643-CCA-R3-DD, 2013 WL

3968780 (Tenn. Crim. App. July 31, 2013), perm. app. denied (Tenn. Nov. 14, 2013). Then

Petitioner sought relief in Shelby County Criminal Court under the Tennessee Post-Conviction

Procedure Act, Tenn. Code Ann. §§ 40-30-101-122. (ECF No. 32-16 at PageID 974–90; 1000-

03.) The post-conviction court conducted an evidentiary hearing and denied relief. (Id. at

PageID 1007–17.) So Petitioner appealed that decision (Id. at PageID 1018), and the TCCA

affirmed again. Bledsoe v. State, No. W2016-00419-CCA-R3-PC, 2017 WL 1380022 (Tenn.

Crim. App. Apr. 13, 2017), perm. app. denied (Tenn. Aug. 18, 2017).

As a result, Petitioner sought post-conviction relief from the state court a second time.

(ECF No. 32-29 at PageID 1284.) Again, the post-conviction court denied the petition and the

TCCA affirmed. Bledsoe v. State, No. W2017-01399-CCA-R3-PC, 2018 WL 1989612 (Tenn.

Crim. App. Apr. 25, 2018), perm. app. denied (Tenn. Aug. 13, 2018). Petitioner later sued here

for habeas relief. The Court now turns to the facts of Petitioner’s case.

II. Factual Background

A. Facts Summarized on Direct Appeal

On direct appeal, the TCCA summarized the evidence presented at trial:

C. O.2 (“the victim”) testified that the incident took place on May 18, 2009.

At the time, she was residing in a townhome at 303 Bishop Drive, Memphis,

Tennessee. The previous night the victim left her downstairs kitchen window

partially open. She awoke at approximately 5:00 a.m. to what she described as a

“creeping noise.” The victim initially thought the noise was her young son moving

around the house, but when she looked out of her bedroom door, she saw a man on

all fours just outside her bedroom. The intruder was dressed in a brown denim

jacket, jeans, a red baseball cap with an “A” on it, and a “dewrag.” At trial, the

victim identified the Defendant as the intruder who entered her home that night.

The victim testified that she did not react immediately upon seeing the

Defendant because she was in shock. When the Defendant realized he had been

seen by the victim, he stood up, entered the bedroom, turned the lights on, and stood

over the victim’s bed. The Defendant told the victim, “I’m not going to hurt you. I

want some.” The victim understood his words to mean he “wanted sex,” and she

immediately began kicking and hitting him. In response, the Defendant placed both

hands around the victim’s neck and choked her until she was unconscious. When

the victim regained consciousness, the Defendant was gone, and she noticed that

her underwear had been pushed to the side.

After rearranging her underwear, she went to her son’s room to make sure

he was unharmed, and from her son’s window she saw that her vehicle was missing.

The victim then went downstairs to check the rest of her home and discovered that

her car keys, student identification, some money, and her driver’s license were

missing from her purse. She noticed her kitchen window was completely open, and

the screen over the kitchen window was missing. The victim called her mother and

911. After police arrived at the scene, the victim was transported to the Memphis

Sexual Assault Resource Center3 (“the Rape Crisis Center”), where Dr. Amanda

Taylor conducted a full physical examination of the victim. The victim’s injuries

were photographed, DNA samples were taken for a rape kit, and she was given a

Plan B pill.4 The underwear the victim had been wearing during the incident was

kept by the Rape Crisis Center as part of the rape kit. After leaving the Rape Crisis

2 It is the policy of this Court [to] not use names of victims of sexual crimes.

3 The authorities in Memphis changed the name of the Memphis Sexual Assault Resource Center

to “the Shelby County Rape Crisis Center” after the attack.

4 A Plan B pill is used “to prevent pregnancy following unprotected intercourse or contraception

failure.” Plan B Definition, MERRIAM-WEBSTER.COM, http://merriam-

webster.com/medical/plan%20b (Last visited June 27, 2013).

Center, the victim worked with a sketch artist to create a composite picture of her

attacker, and she also gave a statement to police.

On cross-examination, the victim denied knowing the Defendant prior to

the attack. When questioned about why she failed to state, in a written statement

made during a photo identification three days after the crime, that the Defendant

had assaulted or sexually assaulted her, the victim testified that she still was too

distraught and that she already had told the police that she had been sexually

assaulted.

Dr. Amanda Taylor, a sexual assault nurse examiner at the Rape Crisis

Center, testified as an expert witness in forensic nursing and sexual assault

examinations. The victim arrived at the Rape Crisis Center at 9:30 a.m. on May

18, 2009. Dr. Taylor explained that the procedure following a victim’s arrival at

the Rape Crisis Center is to first talk to the patient with an advocate present, then

to do a full physical examination, collect “labs,” administer medications, and

collect a rape kit. Any injuries a victim might have are photographed. In this case,

the victim had injuries both to her neck and thighs, and they were fresh injuries at

the time of the physical examination. The victim also had a genital examination,

which involved both an internal and external examination. The victim did not have

any injuries to her genitals. Dr. Taylor testified that women commonly do not have

any genital injuries after being sexually assaulted and that 80% of sexual assault

victims do not show injuries in their genital area. Dr. Taylor collected a rape kit

consisting of four swabs from the victim’s mouth for baseline DNA, four swabs

from the “vulvar area,” and four swabs from the internal genital area. The kit also

included the victim’s underwear. Dr. Taylor testified that, after a kit has been

collected, all of the evidence is sealed and sent to the Tennessee Bureau of

Investigation (“TBI”) for analysis. The kits are kept in a secure location until they

are transported to the TBI.

On cross-examination, Dr. Taylor explained that the advocate who is

present during the initial interview at the Rape Crisis Center is there to explain to a

victim the legal proceedings involved. The advocate is not present for the medical

exam. Dr. Taylor confirmed that the victim did not have any injuries to her genitals

and that she could neither confirm nor negate sexual abuse had taken place. The

victim’s statement taken at the Rape Crisis Center did not include anything about

her underwear being awry after she recovered from unconsciousness. On redirect,

Dr. Taylor confirmed the victim’s injuries were consistent with the statement the

victim gave at the Rape Crisis Center.

Dyane Karl, a forensic technician with TBI, testified that it is her job to

receive and label evidence and then place it in the TBI’s vault until it is ready to be

analyzed. Karl testified that the TBI will not accept evidence that is either unsealed

or not delivered by law enforcement. She received the sealed rape kit taken from

the victim’s examination from Hyun Kim, a Memphis Police Department (“MPD”)

officer.5 Karl testified that Francesca Sanders, who also worked as a forensic

technician at TBI, received the DNA standard swabs of the Defendant from Officer

Kim.

Donna Nelson, a special agent forensic scientist assigned to the serology

DNA unit with the TBI, testified as an expert witness in the area of DNA analysis.

Her job at the TBI was to process evidence for DNA and test any DNA evidence

for possible matches. After receiving the rape kit, Special Agent Nelson first tested

the vaginal swabs for the presence of semen. The vaginal swabs tested negative for

the presence of semen. The vulvar swabs were then tested for the presence of alpha

amylase, an enzyme found in saliva. The tests returned positive results for the

presence of alpha amylase. Because alpha amylase is found in other substances, its

presence only indicates the possibility of the presence of saliva, and is not

conclusory. The victim’s underwear tested positive for the presence of semen, on

the inside of the underwear, in the “front of the crotch area.” After these tests were

performed, the evidence was returned to the TBI’s evidence vault, and Special

Agent Nelson requested a DNA standard from the Defendant. The semen found on

the victim’s underwear was matched to the Defendant’s DNA. Dr. Taylor’s report

on the DNA test results stated that the “probability of an unrelated individual having

the same DNA profile from either the African American, Caucasian, Southeastern

Hispanic or Southwestern Hispanic population exceeds the current world

population.”

Marvin Pender, a supervisor at Memphis Police Communications, testified

that the victim made an emergency call on May 18, 2009. His testimony was based

on a 911 chronology record. The dispatcher initially classified the call as a “prowler

call,” but after talking with the victim, the dispatcher discovered the victim was

sexually assaulted, and the call was changed to criminal assault. A dispatch to the

victim’s home was made at 5:37 a.m.

Officer James Henderson of the MPD responded to the victim’s 911 call

first. The victim told Officer Henderson that she had been sexually assaulted and

that she suspected the intruder had entered her home through the open kitchen

window. Officer Henderson observed that the window was open and that its screen

was on the ground outside. He also noticed injuries on the victim’s arm and neck.

Officer Henderson took a description of the victim’s assailant, and noted that her

car, keys, and student identification had been stolen.

Officer David Galloway, a crime scene unit officer with the MPD,

photographed the crime scene and processed the kitchen window’s sill for

fingerprints. He also processed the window screen and sent it to the crime lab to

be dusted for fingerprints. The screen was not processed at the scene because

5 Officer Kim’s first name is spelled both “Hyun” and “Yon” in the record, but “Hyun” appears

to be the correct spelling.

Officer Galloway determined that, due to the nature of the window screen, better

fingerprints could be obtained in the crime lab.

Sergeant Roger Wheeler of the MPD was a part of crime scene investigation

at the time of the incident. He obtained three fingerprints from the window screen,

and sent those fingerprints to be examined by a latent print examiner.

Officer Archie Rudd of the MPD received a call over his radio to be on the

lookout for the victim’s Jeep. A vehicle matching the description was located on

the lot of a Mapco. A witness at the scene informed Officer Rudd that a black male

had been attempting to change the tire on the vehicle. The Jeep was still on a jack

when officers arrived on the scene, and a tire was pushed under the vehicle. After

talking to witnesses, Officer Rudd then went to a nearby McDonald’s. He

attempted to use the restaurant’s surveillance cameras to identify the suspect and

also located another tire from the Jeep in a dumpster behind the McDonald’s.

Officer Rudd then returned to the Jeep and had it towed to the city impound lot.

Officer Rudd testified that either he or his trainee was the one to fill out the paper

work for towing the Jeep. Officer Rudd testified that he stands over his trainees’

shoulders and makes sure any paperwork they fill out is correct.

Sergeant Ricky Davison of the MPD testified that he processed the victim’s

Jeep after it was towed. He photographed the vehicle and also dusted the exterior

for fingerprints. The photographs were taken before and after he dusted the outside.

Sergeant Davison found fingerprints on the exterior of the passenger door. The

Jeep’s rear view mirror had been torn off, and it was located on the rear passenger

floorboard. Sergeant Davison obtained fingerprints from the rear view mirror.

Martin Milner, a civilian employee of the MPD’s crime scene investigation

latent print unit, testified as an expert in latent print examination. Milner received

all of the fingerprint evidence collected by MPD officers from the crime scene and

from the victim’s Jeep. Milner determined that seven of the fingerprints collected

by law enforcement officers were “of value.” The fingerprints of value were then

compared to known fingerprints using the automated fingerprint identification

system (“AFIS”), a computerized database of known fingerprints. The AFIS

returned a single identification number, 248804, as a match to the fingerprints taken

from the crime scene. This number had previously been assigned to the Defendant.

Milner manually compared the fingerprints after they were scanned using the AFIS.

Two fingerprints from the torn rear view mirror matched a known print of the

Defendant on more than ten points of comparison. A thumb print taken from the

victim’s window screen matched the Defendant’s known fingerprint on seven

points of comparison. A palm print taken from the passenger door of the victim’s

vehicle matched the Defendant on six points of comparison. Milner testified that

he preferred not to make a comparison with less than five points of comparison

matching and that he felt very comfortable in saying there was a match when seven

points of comparison matched. He did not like “to go below five” points of

comparison when identifying matching fingerprints.

On cross-examination, Milner confirmed his preferences for the number of

matching points when making an identification. Milner stated that he would still

report an identification between fingerprints when only four points matched but

explained that four matching points neither confirmed nor negated a match.

Debra Finley, a fingerprint technician working for the Shelby County

Sheriff's Office, testified as an expert witness in fingerprint identification. She

testified that fingerprints taken from the Defendant the day of the trial were the

“exact same” as the fingerprints already on file for the Defendant on between seven

to ten different comparison points. The file number attached to the previously

known fingerprints was 248804. The comparisons were made using the right thumb

print and the right index finger. On cross-examination, she admitted there are more

than ten points for comparison when identifying fingerprints.

Mark Workman, a composite layout artist with MPD’s photo laboratory,

testified that he developed a sketch of the victim’s assailant during an interview

with the victim in his office based on the description given to him by the victim.

Workman’s process is to begin creating a sketch using a description given to him

without looking at photographs. He continuously shows the image to whoever is

describing the person until they do not wish to make any more changes. Once the

picture is complete, it is sent to the investigating officer.

Lieutenant Angela Smith of the MPD was the lead investigator on the case.

At the time of the investigation, she held the rank of sergeant. Lieutenant Smith

responded to the victim’s home, and she also responded when the victim’s Jeep was

found. She took the victim’s statement after she had been examined at the Rape

Crisis Center, and she was also responsible for circulating the composite sketch of

the suspect. After the fingerprints taken at the crime scene and from the Jeep were

matched to the Defendant’s fingerprints, Lieutenant Smith created a photo array

that included a photo of the Defendant and presented it to the victim. The victim

identified the Defendant from the photo array.6

After the Defendant was arrested, Lieutenant Smith interviewed him, took

his statement, and obtained a DNA swab. Lieutenant Smith testified that the

Defendant was aware of his rights when he gave his statement. The Defendant’s

statement included the following:

I open the window up went in and I was looking around and

I went upstairs and in this room and when I got in the room the lady

woke up and I start talking to her asking her questions and stuff and

when I got in the room I seen [sic] her butt naked then I started

6 The photograph of the Defendant included in the array was from a previous arrest. The trial

judge ruled that, while the photo array was admissible, the jury could not be informed how

Lieutenant Smith obtained the photo of the Defendant.

talking to her asking where her boyfriend was and what she was

doing naked. Then she told me he had just left then we were still

talking and I asked her if she could give me a few dollars to get

something to eat cause I was high then she started screaming and

stuff and I told her don’t be yelling cause [sic] I wasn’t going to do

anything to her and then yelling and kicking and then she kicked me

in my stomach and I grabbed her leg and tried to calm her down then

she swung at me so after that I opened her legs up and had sex with

her but I took it out before I had ejaculated. I took it out and did it

on the bed I didn’t have a condom on when I left out of there I got

her keys from off the table and drove off.

When the Defendant was asked if there was anything else he wanted to add

to his statement, he stated, “I really apologize for what I did because I wasn’t in my

right mind, I sorry [sic] I did [sic] her like that that is not me.”

Officer Andy Hurst of the MPD worked in the sex crimes division at time

of the incident. He was asked by then-sergeant Smith to help her take a statement

from the Defendant. Officer Hurst testified that the Defendant never appeared to

be confused, “out of his mind,” under the influence, or uncooperative during his

police interview. At one point during the interview, the Defendant asked

Lieutenant Smith to leave the room. After she had left the interview room, the

Defendant immediately began crying and stated it “wasn’t like him” to do what he

had done. The Defendant blamed his actions on the “pills and alcohol” that he had

consumed. After this admission, Officer Hurst determined it would be best to get

a statement from the Defendant, and he notified Lieutenant Smith to return to the

interview room so they could take the Defendant’s statement. On-cross

examination, Officer Hurst testified that the statements the Defendant made while

Lieutenant Smith was absent from the room were not included in his written

statement because they were “covered in the narrative.”

The Defendant did not testify, and the defense did not call any witnesses.

The jury convicted the Defendant of one count of aggravated rape, one

count of aggravated burglary, and one count of theft of property over $1,000. After

a subsequent hearing, the trial court sentenced the Defendant to an effective term

of sixty-five years in the Tennessee Department of Correction. The trial court

denied the Defendant’s timely-filed motion for new trial, and the Defendant timely

filed his notice of appeal. The only issue raised on appeal by the Defendant is the

sufficiency of the evidence supporting his rape conviction on the element of

penetration.

State v. Bledsoe, 2013 WL 3968780, at *1–6.

B. Facts Summarized on Post-Conviction Appeal

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

conviction hearing and the decision of the post-conviction trial court:

I. May 28, 2015 Post–Conviction Hearing

On May 28, 2015, the Petitioner explained that he had concerns regarding

his trial counsel’s representation. The Petitioner claimed that he did not speak with

trial counsel regularly, claiming that they spoke “mainly when [the Petitioner] came

to court and a couple of times [when trial counsel] came to the jail.” The Petitioner

said that trial counsel visited him “twice” while he was in jail. He asserted that

there were matters trial counsel told the Petitioner he was working on, but the

Petitioner never received updates from him. He contended that trial counsel “left

[him] in the dark” on matters concerning his case.

The Petitioner also testified that he had concerns regarding the victim’s

testimony about the Petitioner and her relationship with him. The victim asserted

that she had never met the Petitioner, but he claimed that he and the victim knew

each other prior to the night of the attack. He said that he informed trial counsel

that he and the victim were “in a pre-existing relationship” and that he had “moved

out” of her home. The Petitioner insisted that he and the victim were “[b]oyfriend

and girlfriend.” The Petitioner explained that he would have called witnesses to

testify at trial regarding his relationship. He claimed that he wrote a letter to his

trial counsel in which he asked trial counsel to contact Veronica White, James

Bledsoe, and Lois Bledsoe about testifying at his trial. However, according to the

Petitioner, he never received a response to this request from his attorney.

When asked if he had the opportunity at trial to confront the victim about

her truthfulness, the Petitioner responded “[n]o” and explained that “[trial counsel]

never asked [him] anything” about what the victim “stated.” He further explained

that if trial counsel had “subpoenaed witnesses that [the Petitioner] asked [trial

counsel] to call on [his] behalf to testify that [he and the victim were] together” and

that they had “seen [them] together and know[n] that [they were] staying together,

[then trial counsel] would have known that [the Petitioner] and [the victim] had a

relationship.”

Additionally, the Petitioner testified that he suffered from mental illness.

He explained that he had “PTSD, paranoid schizoaffective disorder, depressive

disorder, and probably substance dependence.” The Petitioner agreed that he had

received a mental health evaluation prior to his trial but explained that he had

trouble understanding the process and his evaluator “got frustrated with [him].”

Furthermore, the Petitioner claimed that trial counsel “never brung [sic] up

[his] mental illness that [he] told [trial counsel] about.” He insisted that his mother,

Lois Bledsoe, could have verified that he suffered from mental illness. The

Petitioner stated that he relayed this information to trial counsel, but never got a

reply from him. The Petitioner explained that he had dealt with mental illness

problems “[s]ince [he] was a kid” and agreed that “in order to function” he had “to

have [his] medication.” Additionally, the Petitioner stated that his medication had

been “upgraded” during his time in jail regarding this incident.

The Petitioner also expressed concern about how trial counsel handled

“statements he might have made during the time that he was under the influence”

and “wasn’t on [his] medicine.” He explained that at the time he was arrested, he

had not been taking his medication. He stated that when the police began talking

to him, he “told them that [he] was not in [his] right mind[,]” that he “was under

the influence[,]” and that he had not taken his “medicine and [he] needed to see a

psychologist[.]” When asked how the police responded to his assertions, the

Petitioner stated that “[t]hey never even tr[ied] to help [him.]” He asserted that he

had informed his trial counsel of this information and that he “wanted [trial counsel]

to file a motion for suppression and he never filed it.” The Petitioner agreed that at

trial, his counsel asked the interrogating officers during cross-examination about

their interview with the Petitioner, and the Petitioner claimed that the officers

responded that “they never really ask people about their mental health history[.]”

II. July 10, 2015 Post–Conviction Hearing

On July 10, 2015, the post-conviction hearing continued. On cross-

examination, the Petitioner was asked to explain what happened on the night of the

incident involving the victim. The Petitioner testified that he was at the victim’s

home that night, and that he arrived around 11:00 p.m. He said that he “used [his]

key” and “walked right in” the “front door[.]” The Petitioner asserted that the

victim was expecting him. He explained that once he was inside the home, he “took

. . . a shower and laid down.” The Petitioner stated that after he had taken a shower,

his “baby mama, [Veronica White,] called [him] about [his] daughter.” He said

that after he received this phone call from Ms. White, the victim “flipped out[,]”

and they “start[ed] arguing[.]” He explained that as they were arguing, the victim

“put her hands” on the Petitioner, and they “started wrestling[.]” He claimed that

the victim “started kicking [him] and hitting [him] and [he] was trying to leave.”

He said that he “blacked out and the next thing [he knew], [he was] choking her.”

He agreed that he “put [his] hands around her throat” and “choke[d] her until she

was unconscious.” The Petitioner averred that this happened “on the bed in the

bedroom” and that after he choked the victim he left the house. He explained that

he left the victim's house that night “in her truck” and then went to the home of his

brother, James Bledsoe. He explained that he stayed with his brother “when [he]

and [the victim got] into it.”

Additionally, the Petitioner claimed that he had a sexual relationship with

the victim but that they did not have sex on the night of the incident. However, he

claimed that he had sex with the victim “three days prior.” Furthermore, the

Petitioner stated that he had taken “Loxapine,” and had used “marijuana” and

“heroin” on the day of the incident. He also agreed that he had been “drinking

alcohol that night.” According to the Petitioner, he was arrested on May 21, 2009.

The Petitioner testified that upon being arrested, he gave a statement to law

enforcement officers at the police station. He explained that he “didn’t talk to [the

officers] until they told [him] the only way [he] would be able to use the phone was

if I talk[ed] to them about what went on.” When asked if the officers made threats,

the Petitioner responded, “That’s the only reason [he] talked to them.” He agreed

that he made a statement to the police, that they typed it, and that he signed the

typed copy. He stated that he gave the statement “because [he] was tired and ready

to go lay down” and because he wanted “to be able to call [his] family.” He claimed

that he “never paid attention” to what was in his statement “because [he] was under

the influence” of “marijuana, heroin,” and “all type of stuff.” He further claimed

that the “only thing [he] remember[ed] telling [the police] was that three days

before” he and the victim “got into an altercation and [they] had sex.” He asserted

that he told trial counsel about this interview but that trial counsel “never responded

to [his] letters.”

The Petitioner was questioned about the type of mental illness he suffered.

The Petitioner testified that he had “[m]ajor depression[,] PTSD, [a]nd paranoid

schizophrenia.” He explained that at “eight or nine”, he was diagnosed with major

depression, at “eighteen” he was diagnosed with “PTSD[,]” and “in 2006, [he] was

diagnosed with paranoid schizophrenia.” He asserted that he had taken the

following medications for these conditions: “Xanax, Seroquel, Lexapro, Celexa,

Prozac,” “Thorazine,” “Risperdal,” and “Depakote.” He stated that he was

currently taking “Zoloft, Benadryl[,] and Loxapine.” The Petitioner agreed that

there were times in his life when he did not take his prescribed medications. He

explained that “[w]hen he couldn’t get [his medications], that’s the only time” he

did not take them. He acknowledged that he functioned “better” when he took his

medications.

The Petitioner claimed that he discussed his mental health with the attorney

who represented him while his case was in General Sessions court. He conceded

that he knew his attorney “submitted an order to the court to have [him] evaluated

for [his] mental health issues” and admitted that he remembered meeting with “the

doctors” who performed the evaluation. However, when asked if he knew the

results of his evaluation, the Petitioner asserted that he “never knew what . . . the

outcome [was].” The Petitioner denied being aware of a letter regarding his mental

health evaluation addressed to the General Sessions judge, which stated that the

Petitioner “was competent” and had “the ability to talk to [his] lawyer about [his]

case.”

The Petitioner agreed that the case proceeded after his first mental health

evaluation. He acknowledged that he had a preliminary hearing, his case was bound

over to the grand jury, and then his case went to criminal court. Additionally, the

Petitioner confirmed that he was appointed trial counsel when his case advanced to

criminal court. The Petitioner conceded that he discussed the previous mental

health evaluation with his trial counsel and that trial counsel “decided to have [the

Petitioner’s] mental health status reviewed[.]” The Petitioner admitted that trial

counsel did this upon the Petitioner’s request. The Petitioner insisted that he never

saw the results of this evaluation and that trial counsel never discussed it with him.

On re-direct, the Petitioner identified a document as his “mental health

treatment plan.” He stated that the document explained what he was diagnosed

with and claimed that he obtained this document by requesting it from the “prison

facilities that offer mental health” treatment. The report was entered into evidence

in order to show that the Petitioner suffered symptoms of “depression[,]”

“nightmares[,]” and “paranoia[.]”

The Petitioner’s trial counsel testified that he was appointed to represent the

Petitioner in this case. Trial counsel testified that he had been practicing law since

1982 and that he had practiced criminal law since 1989. In response to the

Petitioner’s testimony, trial counsel testified as follows:

[The Petitioner] gave me—it was several jail visits by the

way, I counted at least five jail visits, at jail property. Mentioned

the other day three, today two, but it was at least five. He gave me

the names of the [potential witnesses] he [had] mentioned today,

telephone numbers. I did not turn those numbers over to

investigators to track down for two reasons. One, I wanted to talk

to them myself first and I left voicemails at the numbers given me.

I had given [the Petitioner] my card any number of times. I return

all phone calls. And two, the fact that he might have known her

[had] nothing to do with consensual sex on the night alleged, the

early morning hours of May 18th, 2009.

On cross-examination, trial counsel acknowledged that he remembered

representing the Petitioner and that he remembered “submitting [the Petitioner] for

a mental health examination.” He explained that he did this “[b]ecause [the

Petitioner] had asked that and it [was his] understanding there, that they [were] a

little more thorough when they [were] being evaluated for a criminal court judge[.]”

He stated that he was not sure if that “was absolutely accurate or not[,]” “[b]ut just

in case,” trial counsel requested that the Petitioner receive a second mental health

evaluation. Regarding the results of the evaluation, trial counsel admitted that he

did not “recall ever having sent any client a copy of those letters[,]” but he asserted

that he informed the Petitioner that “the doctor said he was A–OK” and competent

to stand trial. Furthermore, he agreed that he informed the Petitioner that “whatever

his mental health diagnosis” was, it would not have been “a defense to be used at

trial.”

Additionally, trial counsel testified that he kept the Petitioner informed on

the status of his case. Trial counsel asserted that he met with his client at multiple

court dates and discussed what was occurring with the Petitioner. Trial counsel

also testified that he sent the Petitioner copies of discovery and kept him informed

on developments in his case. He again asserted that he visited the Petitioner in jail

“at least five times.”

Regarding the potential trial witnesses the Petitioner asked him to call to

testify, trial counsel explained,

[The Petitioner] told me on one of those jail visits that he had

met [the victim] on Beale Street once. I asked her about that on

cross[-]examination and she denied it. If any of these folks he had

given me their names, if they had confirmed that, I would have

called them in here. I’ve called people to the stand five minutes after

meeting them. Whether [the prosecutor] would have let me get

away with it or not, I don’t know, but I would have tried.

Trial counsel insisted that he had “tried personally” to contact these

individuals and insisted that “if anything had come of it, [he] would have asked an

investigator to talk to [the potential witnesses].” Furthermore, trial counsel did not

“recall [the Petitioner’s] ever saying [he and the victim] had cohabitated.” He

testified that he informed the Petitioner that whether or not he knew the victim was

“irrelevant to consent[.]” He asserted that he asked the Petitioner if any of these

individuals were present “the night [the victim] alleged this happened[,]” and the

Petitioner told him that they were not there. Furthermore, he testified that when

alibi witnesses [were] family [members], he considered them “less reliable.”

Despite potentially being less reliable, trial counsel claimed that if he “had thought

it would have . . . gone to the issue of consent, mama, daddy, brother, cousin, [he]

would have called them.”

Trial counsel testified that the physical evidence offered at trial was

consistent with the victim’s version of events. Trial counsel agreed that her

testimony at the preliminary hearing, trial, and her statement to the police “were all

very consistent.” Also, he averred that the Petitioner’s “statement to the police and

his story of the events that happened that night, were very consistent with [the

victim’s] version of events.” Trial counsel stated that he “believe[d the Petitioner]

said in his statement he didn’t know [the victim].” Counsel also testified that when

the victim “was asked to do the sketch [of her attacker], there was no picture of [the

Petitioner] presented, and again, it was just spot on.” Trial counsel agreed that

“physical evidence would have been consistent with her testimony of how she

regained consciousness and what her situation was at that time.”

Additionally, trial counsel explained that the defense theory at trial was that

“there was no proof of [sexual] penetration.” On re-direct, trial counsel identified

a document that was entered into evidence at the Petitioner’s trial. The document

contained mug shots of six individuals, one of which was circled. There was a

handwritten note signed by the victim, which stated, “This is the person that

invaded my home, choked me, and stole my car.” The signed note was dated May

21, 2009. Trial counsel testified that he used this document to support his trial

strategy that “there was not penetration.”

James Bledsoe testified and explained that the Petitioner was his “baby

brother.” He stated that the Petitioner would often stay at his house. When asked

if he was “familiar with the Petitioner and the victim[,]” he replied that he knew

“they had a few arguments over the phone.” On cross-examination, Mr. Bledsoe

admitted that he had never met the person the Petitioner would argue with over the

telephone. Mr. Bledsoe could not remember exactly when it was that the Petitioner

would come over to his house and use the telephone.

Mr. Bledsoe also confirmed that he did not testify at the Petitioner’s trial.

When asked why, Mr. Bledsoe explained that no one called him and stated that he

was supposed to have been “called by a lawyer[,]” but he never received a call. He

agreed that he did not attend the Petitioner’s trial but testified that he visited his

brother in jail “[p]lenty of times.”

III. August 28, 2015 Post–Conviction Hearing

The post-conviction court continued the hearing to August 28, 2015. On

that date, Lois Bledsoe testified that she was the Petitioner’s mother. She stated

that in May 2009, the Petitioner “had several girlfriends[.]” She knew this because

they went “to [her] house.” She agreed that she saw “several different girlfriends

purporting to be [the Petitioner’s] girlfriend that would drive to [her] house[.]” She

testified that she did not recall their names.

Additionally, the Petitioner offered further testimony. The Petitioner

testified that “if [trial counsel] would have filed the grounds that [the Petitioner]

asked according to the defects in the indictment and trial court errors, [the

Petitioner] would have probably had a better trial than [he] had.” The Petitioner

agreed that he wrote to trial counsel “explaining the different things that [he] would

have liked [trial counsel] to do.” The Petitioner identified a collective exhibit,

which consisted of a series of letters the Petitioner sent to trial counsel. The

Petitioner explained that the document contained letters to his trial counsel making

requests and letters to the “Board of Professional Responsibility” “complaining

about [trial counsel's] not responding to [his] request[s].” The letters were entered

into evidence.

The Petitioner also raised additional claims at the post-conviction hearing

related to a lack of his DNA from the rape kit, trial counsel’s failure to retest the

victim’s underwear, and trial counsel’s failure to strike a juror who had been a

victim of a robbery. However, he failed to raise those claims on appeal. Thus,

those issues are waived. See Tenn. R. App. P. 36(a).

The post-conviction court subsequently denied the petition. In its order

denying the Petitioner relief, the post-conviction court found that the Petitioner

offered no proof to support his claim that his trial counsel should have called

witnesses to establish that he had a prior relationship with the victim. In its order

denying the petition, the court found that

[The Petitioner] testified that he asked his trial attorney to

call Veronica White, his brother James Bledsoe and his mother Lois

Bledsoe at trial to show that he knew her, to impeach the victim’s

credibility. He claimed that although he did not have sex with the

victim that night, he did have sex with her three nights before. No

proof was offered by the [P]etitioner that he had ever met the victim

prior to the rape other than his completely unsupported testimony.

His mother, Lois Bledsoe, was called as a witness at the hearing, and

could only testify that he had a lot of girlfriends during that time and

she could not remember any of their names. Her testimony at trial,

if she had been called, would have been completely irrelevant. His

brother James testified that he never met the victim or knew her

name, but was told by the [P]etitioner that the victim was the lady

he had been arguing with on the telephone. This testimony would

not have been allowed at trial as inadmissible hearsay. His brother

also testified that the [P]etitioner mostly stayed with him for the

three years prior to his arrest. The victim was consistent in her 911

call, her statement to first responders on the scene, in her formal

statement to the police, in her preliminary hearing testimony and in

her trial testimony that she woke up to find the [P]etitioner in her

bedroom and had never met him before. She worked with a

composite layout artist with the MPD to attempt to produce a

portrait of the rapist. In the [P]etitioner’s signed confession, he

admitted that he did not know her. His trial attorney testified that

the [P]etitioner told him that he had only met her once on Beale

Street, never alleging that they had an ongoing relationship.

Veronica White was never called by the [P]etitioner as a witness for

the hearing, even though they apparently have a child together. In

general, the only way a petitioner can establish that trial counsel’s

failure to interview or present a witness in support of his defense at

trial inured to his prejudice is to present the witness at the

evidentiary hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). This court finds the [P]etitioner totally lacking

in credibility on this issue, and finds that this allegation must fail for

lack of any credible proof of deficient performance or prejudice to

the [P]etitioner.”

Bledsoe v. State, 2017 WL 1380022, at *5–10.

The Court now discusses the different legal standards that apply to Petitioner’s claims.

LEGAL STANDARDS

I. Standard for § 2254 Petitions

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), federal courts may grant habeas corpus relief for persons in state

custody “only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a).

A. Exhaustion and Procedural Default

Under § 2254(b) and (c), federal courts generally may not grant a writ of habeas corpus

on behalf of a state prisoner unless the prisoner has first exhausted available state remedies by

presenting the same claims to the state courts. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

The petitioner must “fairly present”7 each claim at all levels of state court review, up to the

state’s highest court on discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A

petitioner need not seek review by the highest state court, however, if the state has explicitly

decided that state supreme court review is not an available state remedy. O’Sullivan v. Boerckel,

526 U.S. 838, 847–48 (1999). And under Tennessee Supreme Court Rule 39, the petitioner need

not seek review in the Tennessee Supreme Court to “be deemed to have exhausted all available

state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003); see Smith v. Morgan, 371

F. App’x 575, 579 (6th Cir. 2010).

7 For a petitioner to exhaust a claim, “[i]t is not enough that all the facts necessary to support the

federal claim were before the state courts, or that a somewhat similar state-law claim was made.”

Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). Nor is it

enough to “make a general appeal” to a broad constitutional guarantee. Gray v. Netherland, 518

U.S. 152, 163 (1996).

The procedural default doctrine is also related to § 2254’s exhaustion requirement. See

Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000) (noting the “interplay” between the

exhaustion rule and the procedural default doctrine). In sum, if the state court decides a claim on

an independent and adequate state ground (such as a procedural rule prohibiting the state court

from reaching the merits of the constitutional claim), the procedural default doctrine ordinarily

bars a petitioner from seeking federal habeas review. Wainwright v. Sykes, 433 U.S. 72, 81–82

(1977); see Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court will not review

a claim rejected by a state court if the decision of the state court rests on a state law ground that

is independent of the federal question and adequate to support the judgment”) (internal

quotations omitted)).8 That said, a federal court “may only treat a state court order as enforcing

the procedural default rule when it unambiguously relied on that rule.” Peoples v. Lafler, 734

F.3d 503, 512 (6th Cir. 2013).

With that in mind, if a state court opinion bars a petitioner’s claim under the procedural

default doctrine, the petitioner’s claim survives only if he shows: (1) cause to excuse his failure

to present the claim and actual prejudice stemming from the constitutional violation; or (2) that

the federal court’s failure to review the claim will lead to a fundamental miscarriage of justice.

Schlup v. Delo, 513 U.S. 298, 320–21 (1995); Coleman v. Thompson, 501 U.S. 722, 750 (1991).

To show a fundamental miscarriage of justice, the petitioner must show that a constitutional error

has “probably resulted” in the conviction of one who is innocent of the crime. Schlup, 513 U.S.

8 “The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier

to adjudication of the claim on the merits.” Walker, 562 U.S. at 315. A state rule is an

“adequate” procedural ground if it is “firmly established and regularly followed.” Id. at 316

(quoting Beard v. Kindler, 558 U.S. at 60–61 (2009)). “A discretionary state procedural rule . . .

can serve as an adequate ground to bar federal habeas review . . . even if the appropriate exercise

of discretion may permit consideration of a federal claim in some cases but not others.” Id.

(quoting Kindler, 558 U.S. at 60–61) (internal quotation marks and citations omitted).

at 321; see also House v. Bell, 547 U.S. 518, 536–539 (2006) (restating the ways to overcome

procedural default and further explaining the actual innocence exception).

B. Merits Review

Under Section 2254(d), if the state court decided petitioner’s claim on the merits, the

federal court should only grant a habeas petition if resolving the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable

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

Court of the United States; or

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

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). The petitioner carries the burden of proof on this “‘difficult to meet’

and ‘highly deferential [AEDPA] standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt.’” Cullen, 563 U.S. at 181 (quoting

Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam)).

When reviewing a claim under § 2254(d)(1), the federal court is limited to the record

before the state court that decided the claim on the merits. Cullen, 563 U.S. at 182. And a state

court’s decision is not “contrary” to federal law unless it “arrives at a conclusion opposite to that

reached” by the Supreme Court on a question of law, or “decides a case differently than” the

Supreme Court has “on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.

362, 412–13 (2000). In like manner, an “unreasonable application” of federal law occurs when

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. at

412–13. So the state court’s application of clearly established federal law must be “objectively

unreasonable” for the court to grant habeas relief. Id. at 409. What is more, the habeas court

may not issue the writ just because, “in its independent judgment,” the court determines that the

“state-court decision applied clearly established federal law erroneously or incorrectly.” Renico

v. Lett, 559 U.S. 766, 773 (2010) (citing Williams, 529 U.S. at 411).

There is not much case law discussing when a state court bases a decision on “an

unreasonable determination of the facts” under § 2254(d)(2). In Wood v. Allen, the Supreme

Court found that “a state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”9 558 U.S.

290, 301 (2010). And in Rice v. Collins, the Court explained that “[r]easonable minds reviewing

the record might disagree” about the factual finding in question, “but on habeas review that does

not suffice to supersede the trial court’s . . . determination.” 546 U.S. 333, 341–42 (2006).

The Sixth Circuit also described the § 2254(d)(2) standard as “demanding but not

insatiable.” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (quoting Harris v. Haeberlin,

526 F.3d 903, 910 (6th Cir. 2008)). But, the Sixth Circuit emphasized that, under § 2254(e)(1), a

court should presume that the state court’s factual determinations are correct, absent clear and

convincing evidence to the contrary. Id. And so, a federal court should not overturn a state court

adjudication on factual grounds unless the state court’s decision is objectively unreasonable

considering the evidence presented during the state court proceeding. Id.; see also Hudson v.

Lafler, 421 F. App’x 619, 624 (6th Cir. 2011) (same).

9 In Wood, the Supreme Court granted certiorari to resolve whether, to satisfy § 2254(d)(2), “a

petitioner must establish only that the state-court factual determination on which the decision

was based was ‘unreasonable,’ or whether § 2254(e)(1) also requires a petitioner to rebut a

presumption that the determination was correct with clear and convincing evidence.” Wood, 558

U.S. at 299. But the Court left that issue open “for another day.” Id. at 300–01, 304 (citing Rice

v. Collins, 546 U.S. 333, 339 (2006), in which the Court recognized that it is unsettled whether

there are some factual disputes where § 2254(e)(1) does not apply).

C. Ineffective Assistance of Counsel

i. Right to Effective Assistance of Counsel

The standards stated in Strickland v. Washington control a claim that ineffective

assistance of counsel deprived a defendant of his Sixth Amendment right to counsel. 466 U.S.

668, 687 (1984). To succeed on this claim, a movant must show that (1) counsel’s performance

was deficient, and (2) “that the deficient performance prejudiced the defense.” Id. “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Id. at 686.

First, to establish deficient performance, the petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. And a court

considering such a claim must apply a “strong presumption” that counsel’s representation was

within the “wide range of reasonable professional assistance.” Id. at 689. The petitioner’s

burden is to show “that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

Second, to show prejudice, a petitioner must establish “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694.10 “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. But “[i]t is not enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id. at 693. Instead, counsel’s errors must

be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at

10 If a reviewing court finds no prejudice, it need not determine whether counsel’s performance

was deficient. Strickland, 466 U.S. at 697.

687; see also Harrington, 562 U.S. at 104 (citing Strickland); Wong v. Belmontes, 558 U.S. 15,

27 (2009) (per curiam) (stating that “Strickland does not require the State to ‘rule out’” a more

favorable outcome, but “places the burden on the defendant, not the State, to show a ‘reasonable

probability’ that the result would have been different.”).

When reviewing an ineffective assistance claim that the state courts already considered,

federal courts show deference to the state-court decision under 28 U.S.C. § 2254(d) . As the

Supreme Court said in Harrington,

Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so. The Strickland standard is a general one, so the range of reasonable

applications is substantial. Federal habeas courts must guard against the danger of

equating unreasonableness under Strickland with unreasonableness under §

2254(d). When § 2254(d) applies, the question is not whether counsel’s actions

were reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.

562 U.S. at 105 (internal quotations and citations omitted).

ii. Right to Effective Assistance of Counsel on Appeal

A criminal defendant is also entitled to the effective assistance of counsel on direct

appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). But counsel’s failure to raise a nonfrivolous

issue on appeal does not constitute per se ineffective assistance. The Supreme Court held the

“process of winnowing out weaker arguments on appeal and focusing on those more likely to

prevail, far from being evidence of incompetence, is the hallmark of effective appellate

advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks and citation

omitted). So courts evaluate claims of ineffective assistance of appellate counsel using the

Strickland standards. Smith v. Robbins, 528 U.S. 259, 285–86 (2000) (applying Strickland to

claim that appellate counsel rendered ineffective assistance by failing to file a merits brief);

Murray, 477 U.S. at 535–36 (applying Strickland to appellate counsel’s failure to raise issue on

appeal). This means that, to establish that appellate counsel was ineffective, a petitioner

must first show that his counsel was objectively unreasonable in failing to find

arguable issues to appeal—that is, that counsel unreasonably failed to discover

nonfrivolous issues and to file a merits brief raising them. If [the prisoner] succeeds

in such a showing, he then has the burden of demonstrating prejudice. That is, he

must show a reasonable probability that, but for his counsel’s unreasonable failure

to file a merits brief, he would have prevailed on his appeal.

Robbins, 528 U.S. at 285 (citation omitted).11

In fact, appellate counsel’s ability to choose which arguments are more likely to succeed

is “the hallmark of effective appellate advocacy.” Matthews v. Parker, 651 F.3d 489, 523 (6th

Cir. 2011) (quoting Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003)), rev’d on other grounds,

567 U.S. 37, 49 (2012). For that reason, it is difficult for a petitioner to show that appellate

counsel was deficient for raising one issue on appeal, rather than another. See id. “In such cases,

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

counsel did present.” Id. at 524. And the petitioner must also show that “there is a reasonable

11 The Sixth Circuit has identified a nonexclusive list of factors to consider when assessing

claims of ineffective assistance of appellate counsel:

1. Were the omitted issues “significant and obvious?”

2. Was there arguably contrary authority on the omitted issues?

3. Were the omitted issues clearly stronger than those presented?

4. Were the omitted issues objected to at trial?

5. Were the trial court’s rulings subject to deference on appeal?

6. Did appellate counsel testify in a collateral proceeding as to his appeal

strategy and, if so, were the justifications reasonable?

7. What was the appellate counsel’s level of experience and expertise?

8. Did the petitioner and appellate counsel meet and go over possible issues?

9. Is there evidence that counsel reviewed all the facts?

10. Were the omitted issues dealt with in other assignments of error?

11. Was the decision to omit an issue an unreasonable one which only an

incompetent attorney would adopt?

Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir. 2006) (citation omitted).

probability that inclusion of the issue would have changed the result of the appeal.” McFarland

v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004).

When the direct appeal ends, the right to counsel also ends. In Coleman v. Thompson, the

Supreme Court found that “[t]here is no constitutional right to an attorney in state post-

conviction proceedings.” 501 U.S. at 752 (internal citations omitted). As a result, “a petitioner

cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Id. What is

more, attorney error cannot constitute “cause” for a procedural default, “because the attorney is

the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the

petitioner must bear the risk of attorney error.” Id. at 753 (internal quotation marks omitted). So

when the state has no constitutional obligation to ensure that a prisoner has competent counsel,

the petitioner bears the risk of attorney error. Id. at 754.

There is, however, a narrow exception to the rule in Coleman. In Martinez v. Ryan, the

Supreme Court considered an Arizona law that did not permit petitioners to raise ineffective

assistance claims on direct appeal. Martinez, 566 U.S. at 6. The Court held that, “[w]here, under

state law, claims of ineffective assistance of trial counsel must be raised in an initial-review

collateral proceeding, a procedural default will not bar a federal habeas court from hearing a

substantial claim of ineffective assistance [of counsel] at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. 1, 17

(2012). The Supreme Court also emphasized that “[t]he rule of Coleman governs in all but the

limited circumstances recognized here,” and “[i]t 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.” Id. at 16.

To excuse a procedural default under Martinez, a petitioner must show that

(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim;

(2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel

during the state collateral review proceeding; (3) the state collateral review

proceeding was the “initial” review proceeding in respect to the “ineffective-

assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective

assistance of trial counsel [claim] . . . be raised in an initial-review collateral

proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis and alterations in original). And, in its

later decision in Trevino, the Supreme Court extended its Martinez holding to states which have

a “procedural framework, by reason of its design and operation, [that] makes it highly unlikely in

a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal . . . .” 569 U.S. at 429. Thus, Trevino modified the

fourth Martinez requirement for overcoming procedural default. The Sixth Circuit has found that

both Martinez and Trevino apply to Tennessee prisoners. Sutton v. Carpenter, 745 F.3d 787, 790

(6th Cir. 2014).

The Court now considers Petitioner’s § 2254 claims.

II. Petitioner’s Federal Habeas Claims

Petitioner’s § 2254 Petition raises these issues:

1. That the evidence was insufficient to convict Petitioner of aggravated rape12

(“Issue 1”) (ECF No. 1 at PageID 4);

2. Petitioner’s trial counsel performed deficiently (“Issue 2”) (id. at PageID 5–

11); and

3. The state failed to disclose what items the forensic center—West Tennessee

Forensics—reviewed, violating Brady v. Maryland, 373 U.S. 83 (1963)

(“Issue 3”) (id. at PageID 11).

12 Petitioner clarified in his reply that he challenges only the sufficiency of the evidence on his

aggravated rape conviction. (ECF No. 39 at PageID 1415–17.)

The TCCA addressed Issue 1 on direct appeal. (ECF No. 32-10 at PageID 863.)

Tennessee courts have not addressed the other issues.

ANALYSIS OF PETITIONER’S CLAIMS

I. Issue 1: Sufficiency of the Evidence

Petitioner argues that the TCCA’s conclusion that the evidence supported his conviction

for aggravated rape goes against the Supreme Court’s decision in Jackson v. Virginia, 443 U.S.

307 (1979). (ECF No. 1 at PageID 4.) Indeed, Petitioner claims that “the TCCA’s terminology

under Jackson v. Virginia on [the] sufficiency of evidence were [sic] constitutionally misused

concerning the facts use[d] as evidence,” and “penetration was never proved.” (ECF No. 39 at

PageID 1416–17.) Respondent replies that the TCCA’s decision was not contrary to federal law

and was a reasonable determination of the facts. (ECF No. 33 at PageID 1387–92.)

The TCCA ruled on this issue. State v. Bledsoe, 2013 WL 3968780, at *6–8.

And after reviewing the evidence presented at trial on the aggravated rape charge, the TCCA

found:

Our standard of review regarding sufficiency of the evidence is “whether,

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a defendant

guilty, the presumption of innocence is removed and replaced with a presumption

of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the

defendant has the burden on appeal of demonstrating why the evidence was

insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982).

The appellate court does not weigh the evidence anew. Rather, “a jury

verdict, approved by the trial judge, accredits the testimony of the witnesses for the

State and resolves all conflicts” in the testimony and all reasonably drawn

inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

Thus, “the State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation

omitted). This standard of review applies to guilty verdicts based upon direct or

circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our

Supreme Court adopted the United States Supreme Court standard that “direct and

circumstantial evidence should be treated the same when weighing the sufficiency

of such evidence.” Id. at 381. Accordingly, the evidence need not exclude every

other reasonable hypothesis except that of the defendant’s guilt, provided the

defendant’s guilt is established beyond a reasonable doubt. Id.

As charged in this case, aggravated rape is defined as the “unlawful sexual

penetration of a victim by the defendant” and the defendant “causes bodily injury

to the victim.” Tenn. Code Ann. § 39–13–502(a)(2) (2006). The Defendant

contends that the State failed to prove the element of penetration, arguing that no

rational jury could have found that he penetrated the victim because it is clear from

his confession and the physical evidence that the Defendant only engaged in

“frottage”13 with the victim.

We disagree. The State presented evidence that the victim’s underwear had

been moved to the side and that the Defendant’s semen was found on the inside of

the victim’s underwear. The Defendant confessed that he “opened her legs up and

had sex with her but [he] took it out before [he] ejaculated.” If there are ambiguities

in this statement, the jury resolved those in the State’s favor when it returned a

verdict of guilty on the aggravated rape count. The jury found that penetration took

place during the crime, and this Court will not disturb inferences drawn by the jury.

See State v. Winters, 137 S.W.3d 641, 655 (Tenn. Crim. App. 2003).

To the extent that the Defendant’s argument could be interpreted to raise a

corpus delicti argument, any such argument also fails. A defendant cannot be

convicted on his or her confession alone. See Ashby v. State, 139 S.W.2d 872, 875

(Tenn. 1991). “The ‘corpus delicti’ refers to the ‘body of the crime—evidence that

a crime was committed at the place alleged in the indictment.’” State v. Banks, 271

S.W.3d 90 (Tenn. 2008) (quoting Van Zandt v. State, 218 Tenn. 187, 402 S.W.2d

130 (1966)). “[T]he State must present some corroborating evidence to establish

the corpus delicti.” Id. (citing State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000)).

When a defendant confesses to a crime, the corroborating evidence “‘need not be

as convincing as the evidence necessary to establish a corpus delicti in the absence

of any confession.’” State v. Housler, 193 S.W.3d 476, 490 (Tenn. 2006) (quoting

Ricketts v. State, 192 Tenn. 649, 241 S.W.2d 604, 606 (1951)). The State need

present “only slight evidence . . . to corroborate a confession and sustain a

conviction.” Smith, 24 S.W.3d at 281 (quoting State v. Driver, 634 S.W.2d 601,

606 (Tenn. Crim. App. 1981)). “Whether the [S]tate has sufficiently established

the corpus delicti is primarily a jury question.” State v. Jones, 15 S.W.3d 880, 891

(Tenn. Crim. App. 1999). “All elements of the corpus delicti may be established

13 In this case we understand “frottage” to mean that the Defendant rubbed his penis on the

victim, as opposed to engaging in intercourse.

by circumstantial evidence.” State v. Garmon, 972 S.W.2d 706, 708 (Tenn. Crim.

App. 1998) (citing Clancy v. State, 521 S.W.2d 780 (Tenn. 1975)).

The Defendant argues that there is no evidence of penetration other than his

statement made to law enforcement officers that he had sex with the victim. The

State, however, did present evidence that the victim’s underwear had been moved

to the side and that the Defendant’s semen was on the inside of her underwear. This

evidence clearly rises to the “slight evidence” requirement of our case law and is

sufficient to corroborate the corpus delicti. We note also that corroboration is

primarily a jury question, see Jones, 15 S.W.3d at 891, and the jury resolved this

question in favor of the State.

We hold that the evidence is sufficient to support the Defendant’s

conviction of aggravated rape and that the Defendant is not entitled to relief on this

basis.14

State v. Bledsoe, 2013 WL 3968780, at *6–8.

Here Petitioner fails to explain how the TCCA’s decision contradicted Jackson v.

Virginia. In Jackson v. Virginia, the Supreme Court held that, “in a challenge to a state criminal

conviction brought under 28 U.S.C. § 2254—if the settled procedural prerequisites for such a

claim have otherwise been satisfied—the applicant is entitled to habeas corpus relief if it is found

that upon the record evidence adduced at the trial no rational trier of fact could have found proof

beyond a reasonable doubt.” 443 U.S. at 324. Applying this standard, a federal district court

must examine the evidence in the light most favorable to the state. Id. at 326 (“[A] federal

habeas corpus court faced with a record of historical facts that supports conflicting inferences

must presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

14 We again note that the Defendant only challenges the sufficiency of the evidence as to the

element of penetration. Therefore, we need not address the other elements of this offense.

Petitioner here repeats his argument about penetration that the TCCA considered and

rejected. So because he presented his claim that the state failed to prove the element of

penetration to the TCCA, Petitioner exhausted that claim.

But he now tries to take it a step further by making a new argument—that the prosecution

presented no evidence on the elements of force, coercion, or injury. (ECF No. 39 at PageID

1415–17; ECF No. 32-10 at PageID 873–75.) Petitioner did not challenge the sufficiency of the

evidence to establish force, coercion, or injury on direct appeal. State v. Bledsoe, 2013 WL

3968780, at *6–8. And so Petitioner’s claims challenging the sufficiency of the evidence

establishing force, coercion, or injury are not exhausted. And given the statute of limitations on

state post-conviction relief, Petitioner has no remaining avenues in state court for relief on that

point. As a result, this procedural default operates as a complete and independent procedural bar

to him bringing this claim now for federal habeas review of his claims that the evidence could

not establish force, coercion, or injury. He has lost the opportunity to question that part of his

case.

The Court now turns to the single exhausted aspect of this claim. Petitioner has not

shown that the state court’s resolution of the penetration element was objectively unreasonable.

As to penetration, the jury credited the testimony of the victim, expert witnesses, and

Petitioner’s own statement to police officers in which he admitted to engaging in sex with the

victim. State v. Bledsoe, 2013 WL 3968780, at *7. What is more, the TCCA applied the

correct legal rule and cited both Jackson v. Virginia and state cases applying the Jackson

standard. Id. at *6–8. The TCCA also decided that the state’s presentation of “evidence that

the victim’s underwear had been moved to the side and that the Defendant’s semen was on the

inside of her underwear” was enough to corroborate his confession in support of the aggravated

rape conviction. Id. at *7.

And so, based on this Court’s review of Petitioner’s trial transcript (ECF Nos. 32-4, 32-

5, 32-6, and 32-7), the TCCA correctly concluded that the testimony and evidence were more

than sufficient to permit the jury to find that Petitioner was guilty of aggravated rape. The

Court therefore DENIES Petitioner’s claim on Issue 1.

II. Issue 2: Ineffective Assistance of Trial Counsel

Petitioner next cites six instances of allegedly ineffective assistance by trial counsel. (Id.)

He argues that trial counsel failed to:

1. Provide Petitioner with a proper mental examination (ECF No. 1 at PageID

5);

2. Have Petitioner mentally evaluated for a second time after the first

evaluation was biased and inconclusive (id.);

3. Have the victim’s panties inspected for DNA (id. at PageID 7);

4. Suppress Petitioner’s confession (id. at PageID 8);

5. Object to the State’s motion in limine that the parties should not ask the

victim about prior sexual behavior (id. at PageID 9); and

6. Challenge one juror and retain another juror (id. at PageID 10).

Respondent argues that the procedural default doctrine bars this claim because Petitioner did not

raise these issues when he had an opportunity during his post-conviction appeal. (ECF No. 33 at

PageID 1393–99.) The Court agrees with Respondent.

Petitioner raised all six issues in his post-conviction petition. (ECF No. 32-16 at PageID

982–86; 1001.) So Petitioner either presented evidence (or had the chance to present evidence)

supporting his claims during the post-conviction hearing. (Id. at PageID 1007.) The post-

conviction court, however, denied each claim. (Id. at PageID 1014–16.)

Then Petitioner did not raise any of these six issues in his post-conviction appeal.

Instead, his post-conviction appellate counsel raised a single issue of ineffective assistance—that

trial counsel was ineffective in failing to call potential defense witnesses during trial.15 (ECF

No. 32-22 at PageID 1195, 1199–1202.)

It is true that “ineffective assistance of post-conviction counsel can establish cause to

excuse a Tennessee defendant’s procedural default of a substantial claim of ineffective assistance

at trial.” Sutton, 745 F.3d at 787 (citing Martinez, 566 U.S. at 18). But for a claim like this to

qualify as “substantial” under Martinez, it must have “some merit” based on the controlling

standard for ineffective assistance of counsel. Martinez, 566 U.S. at 14.

The holdings in Martinez and Trevino, therefore, cannot excuse Petitioner’s default of

these ineffective assistance of counsel claims. Martinez does not include claims that post-

conviction appellate counsel was ineffective. See id. at 15 (“Coleman held that an attorney’s

negligence in a postconviction proceeding does not establish cause, and this remains true except

as to initial- review collateral proceedings for claims of ineffective assistance of counsel at

trial.”) In this case, the procedural default of Petitioner’s ineffective assistance of counsel claims

15 The post-conviction appellate brief included a single statement that “Petitioner had mental

health issues, which could have easily explained his alleged ‘confession’ to police.” (ECF No.

32-22 at PageID 1201.) The TCCA held that “Petitioner completely fail[ed] to support this

allegation with argument,” and “[t]hus, the issue is waived.” Bledsoe v. State, 2017 WL

1380022, at *11; see Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b).” Tennessee’s

waiver rule is an independent and adequate state procedural ground. Mathis v. Colson, 528 Fed.

App’x 470, 478 (6th Cir. 2013). This means that, absent a showing of cause and prejudice or

actual innocence, a state appellate court’s application of the rule bars federal habeas review of a

claim. See id. (federal habeas review of petitioner’s claim was barred where Tennessee appellate

court refused to decide merits of claim because it was not “support[ed] . . . with argument or

citation to authorities” in violation of Tenn. Ct. Crim. App. R. 10). Petitioner does not

acknowledge that this issue is now defaulted because he failed to comply with the state

procedural rule. What is more, he makes no attempt to establish cause or prejudice. All in all,

this issue is barred by procedural default because Petitioner did not properly preserve the issue in

his post-conviction appeal. And Martinez does not provide a basis for excusing the default of

this claim because ineffective assistance of Petitioner’s trial counsel had nothing to do with

failure to brief an issue properly on appeal from denial of post-conviction relief. The Court thus

DENIES this claim.

occurred when post-conviction counsel used his discretion to limit his TCCA brief to a single

argument. Appellate counsel has no duty to raise frivolous issues and may exercise his

discretion to limit a brief to the TCCA to the strongest arguments. See Matthews, 651 F.3d at

523. And so, Issue 2 is barred by procedural default and the Court DENIES Petitioner’s claims

on these grounds.

III. Issue 3: Brady Violation

Petitioner’s habeas claims based on Brady v. Maryland are also barred by procedural

default. In his amended post-conviction petition, Petitioner alleges that “West Tennessee

Forensics did not provide Petitioner, or trial defense counsel, with information detailing the

specific items that they reviewed in order to reach their conclusion” and that, “by not disclosing

what specifically this information was, Petitioner, or Petitioner’s trial counsel, was in no position

to determine the accurateness of the conclusions reached, or to challenge it, if necessary, and this

made it impossible for Petitioner to receive the proper representation needed.” (ECF No. 32-16

at PageID 1002.) Respondent replies that the procedural default doctrine bars this claim too.

(ECF No. 33 at PageID 1401.) The Court agrees.

The post-conviction trial court addressed this issue solely as a claim of ineffective

assistance of counsel. During the post-conviction hearing, Petitioner testified that he “never had

any recognition of what recommendation [West Tennessee Forensic Services] made concerning

[his] mental [state] because [he] never had copies of it, never was discussed about it or nothing

and so I never knew.” (ECF No. 32-19 at PageID 1089–90.) Petitioner said he met with the

doctors, but he denied that trial counsel discussed the outcome of the second mental evaluation

with him. (Id. at PageID 1095.) Even so, the post-conviction court found that, because he

underwent mental evaluations twice and the doctors found him competent to stand trial,

Petitioner failed to show either deficient performance or prejudice. (ECF No. 32-16 at PageID

1014.)

In sum, Petitioner did not allege a freestanding Brady violation during the post-

conviction proceedings. That means that Petitioner did not properly exhaust a Brady claim here.

He did not present it to the Tennessee courts during the direct or the post-conviction appeal. And

so the procedural default doctrine bars Petitioner’s Issue 3. Also, given the statute of limitations

on state post-conviction relief, this procedural default operates as a complete and independent

procedural bar to federal habeas review of this claim. As a result, the Court DENIES

Petitioner’s claim.

In the end, the issues raised in this petition lack merit and are barred by procedural

default. The Court therefore DISMISSES WITH PREJUDICE Petitioner’s § 2254 Petition.

The Court will enter judgment for Respondent.

APPELLATE ISSUES

A petitioner is not always entitled to appeal a district court’s denial of a § 2254 petition.

Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). The court must issue or deny a certificate of

appealability (“COA”) when it enters a final order adverse to a § 2254 petitioner. See Rule 11,

Rules Governing Section 2254 Cases in the United States District Courts. A petitioner may not

appeal unless a circuit or district judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. App. P.

22(b)(1).

The Court may issue a COA only if the petitioner has made a substantial showing of the

denial of a constitutional right, and the COA must reflect the specific issue or issues that satisfy

the required showing. 28 U.S.C. §§ 2253(c)(2)–(3). A petitioner makes a “substantial showing”

when “reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Miller-El, 537 U.S. at 336 (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000)); Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per curiam)

(holding a prisoner must show that reasonable jurists could disagree with the district court’s

resolution of his constitutional claims or that the issues presented warrant encouragement to

proceed more).

Nor does the petitioner have to show that the appeal will succeed. Miller-El, 537 U.S. at

337; Caldwell v. Lewis, 414 F. App’x 809, 814–15 (6th Cir. 2011) (same). But courts should not

issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005)

(quoting Miller-El , 537 U.S. at 337).

Here, doctrines of procedural default bar Petitioner’s claims. Because any appeal by

Petitioner on the issues raised in this petition does not deserve attention, the Court DENIES a

certificate of appealability.

For the same reasons, the Court CERTIFIES under Fed. R. App. P. 24(a) that any appeal

here would not be taken in good faith. Thus, the Court DENIES leave to appeal in forma

pauperis.16

SO ORDERED, this 11th day of December, 2020.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE

16 If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or move to

proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within

thirty days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).