# Hayes v. Lee

> District Court, W.D. Tennessee · March 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10440947

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** March 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10440947

## How later opinions describe it (automated extraction)

- noting the interplay between the exhaustion rule and the procedural default doctrine
- holding that a defendant relinquishes the right to argue on appeal any issues that should have been presented in a motion for new trial but were not raised in the motion
- holding “the Fifth Amendment’s exception from compulsory self-incrimination” applicable to the states through the Fourteenth Amendment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ANDREW HAYES, )
)
Petitioner, )
) No. 2:18-cv-02070-TLP-tmp
v. )
)
KEVIN GENOVESE, Warden, )
)
Respondent. )

ORDER TO UPDATE THE DOCKET WITH THE CURRENT RESPONDENT,
GRANTING MOTION TO EXPAND THE RECORD, DISMISSING HABEAS
PETITION, DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING
APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL

Petitioner Andrew Hayes1 petitioned pro se under 28 U.S.C. § 2254 (“§ 2254 Petition”).
(ECF No. 1.) Respondent answered the petition and filed the state court record. (ECF Nos. 16 &
17.) The issues in this habeas petition fall into two categories: (1) whether the procedural
default doctrine bars his claims, and (2) whether the state court identified and applied the correct
federal legal principles. For the reasons discussed below, the Court finds that the procedural
default doctrine bars one of Petitioner’s claims and that the state court correctly applied federal
law to the others. As a result, the Court DISMISSES the § 2254 Petition. The Court also
DENIES a certificate of appealability, CERTIFIES that any appeal would not be taken in good
faith, and DENIES Petitioner leave to proceed in forma pauperis on appeal.

1 Petitioner is an inmate at the Northwest Correctional Complex (“NWCX”) in Tiptonville,
Tennessee. His Tennessee Department of Correction (“TDOC”) prisoner number is 477413.
The current warden at NWCX is Kevin Genovese. The Court respectfully DIRECTS the Clerk
to update the docket with the current Respondent.
BACKGROUND
I. State Court Procedural History
In August 2010, a jury in Shelby County Criminal Court returned a verdict finding
Petitioner guilty of first-degree murder during the perpetration of a felony and aggravated

robbery. (ECF No. 16-1 at PageID 147.) The trial court sentenced Petitioner to life in prison for
the murder conviction and twenty years in prison for the aggravated robbery conviction.2 (ECF
No. 16-1 at PageID 168–69.) He appealed and the Tennessee Court of Criminal Appeals
(“TCCA”) affirmed his convictions and sentence. State v. Hayes, No. W2010-02641-CCA-R3-
CD, 2012 WL 3192827 (Tenn. Crim. App. Aug. 6, 2012), perm. app. denied (Tenn. Nov. 28,
2012.)
He then petitioned pro se in Shelby County Criminal Court under the Tennessee Post-
Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 through 122. (ECF No. 16-20 at
PageID 2143–50.) Appointed counsel later filed an amended petition. (Id. at PageID 2175–86.)
The post-conviction court held an evidentiary hearing and denied relief. (Id. at PageID 2188–

98.) Petitioner appealed and the TCCA affirmed. (Id. at PageID 2199); Hayes v. State, No.
W2016-00280-CCA-R3-PC, 2017 WL 2805205 (Tenn. Crim. App. June 28, 2017), perm. app.
denied (Tenn. Nov. 20, 2017).
Typically the trial judge also hears post-conviction claims. The trial judge here, however,
moved to recuse herself and then granted that motion. (ECF No. 16-20 at PageID 2170-74.) So
a different judge heard the post-conviction matters. In the motion to recuse, the trial judge noted
that it received a letter after the trial from the “Chief Investigator” alleging “the innocence of the

2 The Court ordered Petitioner to serve his sentences concurrently. (ECF No. 16-1 at PageID
168–69.)
Defendant and new evidence which may or may not involve alleged misconduct by the
Defendant’s original attorney and members of the Shelby County Sheriff Department.” (Id.)
And so the trial judge found that the letter created a “perception of possible bias (on the judge’s
part) would be prejudicial to the Defendant.” (Id.) The motion referred to the letter and said it

was attached as Exhibit A. (Id.) But the letter the trial judge referenced was missing from the
record here.
When this Court asked whether the record here is complete, Respondent stated that he
was unsure why the state criminal court clerk’s office failed to include the exhibit in the record.
(ECF No. 26.) Respondent noted that it was “the duty of the appellant to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the issues which
form the basis of the appeal.” (Id. at PageID 2416-17.)
The Court then appointed counsel for Petitioner to assist in determining what happened to
the exhibit, what the exhibit said, and whether Petitioner’s counsel had access to the exhibit
during the post-conviction proceedings. (ECF No. 28.) During this process Respondent sent a

formal document request to the Shelby County District Attorney General’s office and the district
attorney’s officer “had and provided the letter to Respondent.” (ECF No. 31.) Respondent has
filed the letter provided by the district attorney’s office as an exhibit here. (ECF No. 31-1.)
Petitioner’s appointed counsel reviewed the original state court jacket and spoke with the
Shelby County Criminal Court Clerk’s office. (ECF No. 40.) Counsel discovered that the
missing exhibit was in a sealed envelope in the jacket, the staff had overlooked it, and did not
properly handle it when compiling the record here. (Id.) Petitioner’s counsel noted that the
exhibit had not been properly attached to the state court motion until she brought the envelope
and exhibit to the Criminal Court Clerk’s attention and requested that the letter be attached. (Id.)
The state court record thus was incomplete when Respondent filed the record.
Petitioner’s counsel also spoke to Petitioner’s post-conviction attorney, who advised he
was only aware of the exhibit after speaking with defense investigator Clark Chapman before the

post-conviction hearing. (Id.) Post-conviction counsel had not learned of the trial judge’s
recusal and had not received a copy of the letter. Petitioner’s counsel has moved to expand the
record here to include the exhibit for this Court’s review. (ECF No. 41.) Respondent had no
objection. (ECF No. 44.) So that motion is GRANTED.
Having had a chance to review the letter, this Court is now satisfied that Petitioner’s post-
conviction attorney was aware of the defense investigator’s allegations at the time. In fact, that
counsel called the investigator as a witness during the post-conviction hearing and explored the
investigator’s concerns in the letter. (ECF No. 31-1.) No evidentiary hearing will therefore be
required for the Court’s resolution of the issues raised by Petitioner in this federal habeas
proceeding.

A. Evidence Presented at Trial
The TCCA opinion on direct appeal summarized the evidence presented at trial:
The defendant’s convictions in this case relate to the August 2007 beating
death of the victim, Danny Harris, whose badly decayed corpse was discovered
inside his Memphis apartment on October 26, 2007.

At trial, Janice Jefferson, who testified that she was more commonly known
as “Snow” and sometimes known as Janice May, said that in August 2007 she lived
at 1651 Depass Street in Memphis along with the defendant, her daughter,
Chawonna Jefferson, and her sons, John Jefferson and Tamarion Jefferson.3 Snow
testified that the defendant, who had “a nervous condition,” was dating her daughter

3 Because all of the other witnesses referred to Janice Jefferson as “Snow” during their testimony
and because both Janice Jefferson and Chawonna Jefferson testified at trial, this Court will call
the witness “Snow” to avoid confusion.
and that he helped pay the rent with his disability proceeds. She said that he also
did “a little work on the side” for a neighborhood grocer.

Snow testified that, toward the end of August 2007, Sarah Lucas and her
boyfriend, a[] Hispanic man named “Miguel,” moved into the Depass Street
residence because Ms. Jefferson and the defendant were preparing to move out.
Tammy Vance, Sarah Lucas’ mother, also moved in for a brief time, telling Snow
that she needed a place to stay while her boyfriend, the victim, “was in rehab.”
Snow recalled that Ms. Vance “had a black eye and like a deep scratch mark on her
forehead” and that she claimed that the victim “had hit her in the eye because he
was drinking and that’s what made him go in rehab.” Snow said that the two
women drove “a real nice truck” with four doors during the time that they lived in
the Depass Street residence and that the women told her that the victim had given
them permission to drive the vehicle during his stint in rehabilitation.

Ms. Jefferson and the defendant did not move as planned but continued to
live in the house along with Ms. Vance, Ms. Lucas, and Miguel. In October, Snow
asked Ms. Lucas, Ms. Vance, and Miguel to move out of the house “because they
couldn’t pay on the utility bill.” Snow said that Ms. Vance was the first to leave
the residence, but before she left, Ms. Vance offered to compensate Snow with
“some groceries and . . . some Icehouse beer.” Later, Ms. Vance “brought in . . . a
TV” that she claimed had been given to her by “a lady around the corner.” Finally,
Ms. Vance brought in a handgun and offered it as payment to Snow; later, she asked
Snow to help her sell the gun as well as the victim’s truck, telling Snow that the
victim “was going to be in rehab longer than she thought and he told her to go sell
the gun to get her some food and stuff.” Snow acknowledged that she directed Ms.
Vance to “Wheelchair John” to sell the gun. Snow testified, at that point, that she
became concerned about Ms. Vance’s selling the victim’s possessions, so she
telephoned the police.

On Halloween, Snow met police officers at a nearby Mapco convenience
store, where they had Ms. Vance “surrounded” in the victim’s truck. She led
officers to the Depass Street residence and told them about the items Ms. Vance
had given in exchange for rent. Snow testified that she granted officers permission
to search the residence.

Snow testified during cross-examination that she never saw the defendant
in possession of any item belonging to the victim and that she had no personal
knowledge of the defendant’s being involved in the victim’s murder. She said that
as far as she knew, the defendant had no relationship with either Ms. Vance or Ms.
Lucas and had not met them prior to the women’s moving into the Depass Street
residence.

Snow testified that on Halloween, she was driven to the police station to
give a statement, and the defendant followed in a borrowed car to give her “a ride
back home.” She said that they left at approximately seven that evening and that
officers returned to her residence on November 2, “and that’s when they kept” the
defendant. On November 2, she returned to the police station during the early
morning hours at the request of homicide detectives, and when she arrived, the
defendant “screamed out” to her, “I love you, momma, take care of my baby.”
Snow said that police told her that the defendant had implicated her in the victim’s
murder, and she asked the defendant why he had lied.

Sarah Lucas testified that in August 2007, she moved from her Cecilia Street
residence to Snow’s Depass Street residence because she did not like the living
conditions at the Cecilia Street residence. She said that she knew the defendant
only as “Snow’s son-in-law” and that the victim “was a man that [her] mother lived
with.” She described the victim as “a very, very nice man.” Ms. Lucas testified
that sometime in the beginning of August, her mother, Tammy Vance, came to her
Cecilia Street residence bleeding from a cut on her head. She said that Ms. Vance,
who was driving the victim’s truck, told her that the victim had struck her and that
he had decided to enter “rehab because he was drinking too much and smoking too
much cigarettes.” She said that she and her mother moved in with Snow “[a]bout
two weeks” later. Ms. Lucas recalled that Ms. Vance gave Ms. Lucas’ boyfriend
“a DVD/TV type deal” for his birthday and that she did not believe the item
belonged to Ms. Vance. She said that Ms. Vance also brought “a big huge TV” to
Snow’s residence in the back of the victim’s truck.

Ms. Lucas testified that she first learned of the victim’s death when police
arrived to take her in for questioning. She said police told her that the victim had
been murdered inside his apartment. She said that police took her in for questioning
because she had pawned a “DVD/VCR” that belonged to the victim. She testified
that she pawned the item at her mother’s behest and that Ms. Vance told her that
the victim had given his permission for the item to be pawned. She said she knew
nothing about the victim’s murder.

During cross-examination, Ms. Lucas testified that she came to testify at
trial because Ms. Vance had implicated her in the victim’s murder, saying that she
wanted to “clear [her] name” and to “get justice for” the victim. She said that Ms.
Vance had implicated her in the victim’s murder “[b]ecause she’s crazy.” She
acknowledged that Ms. Vance was in prison for the victim’s murder. Ms. Lucas
said that she had no knowledge of the defendant’s playing any role in the victim’s
murder.

Ms. Lucas conceded that the prosecutor had “cleared . . . up” the outstanding
warrants for drug possession and prostitution that she had when she moved to Texas
in 2008. She admitted that she went to Arkansas to obtain an identification card
but denied that she went with the victim and Ms. Vance to do so. Ms. Lucas said
that Ms. Vance asked to stay with her in August 2007 because “[s]he didn’t want
to stay by herself across town.” To her knowledge, Ms. Vance and the defendant
did not have any type of personal relationship.
Leslie Kinnard, an employee at Woodchase Apartments in 2007, testified
that in September of that year, she was directed to verify that the victim was still
living in his apartment because the rent had not been paid. Ms. Kinnard said that
she knocked on the door, and when she got no answer, she “peep[ed]” inside the
door and saw that the furniture was still in the apartment. She said that after the
victim failed to pay his rent by the 15th of October, the victim “was scheduled for
a set out” at the end of the month. Ms. Kinnard said that after following the
appropriate legal procedure to evict the victim, she went to the victim’s apartment
with two sheriff’s deputies and the property manager. The deputies entered the
apartment first, and they came out and told Ms. Kinnard that the victim was
deceased inside the apartment.

Shelby County Sheriff’s Department Deputy Stanley Gibson testified that
he went to the victim’s apartment to assist with an eviction on October 26, 2007.
When he entered the apartment, he noticed that the bedroom door was shut and that
a towel or sheet had been placed at the bottom of the door. He and his partner
“popped the door open” and “observed a body lying in bed” and smelled a strong
odor. Deputy Gibson said that upon seeing the body, they left the apartment,
secured the door behind them, and contacted their supervisors.

Memphis Police Department (“MPD”) Officer Milton Gonzalez testified
that on October 31, 2007, his office received a call that the victim’s vehicle had
been spotted in the “Jackson/Orchi” area of Memphis. As he went to that location,
he saw the vehicle being driven by a white female. When the vehicle turned into
the Mapco station, Officer Gonzalez initiated a traffic stop and removed the driver
from the vehicle. The driver identified herself as “Tammy” and told officers that
she was the victim’s girlfriend. The vehicle was towed to the police station, and
the driver was placed under arrest.

MPD Officer John Pasley testified that the victim’s truck was seized and
Ms. Vance arrested at the Mapco station. He said that as the officers waited for
homicide detectives to arrive, Snow and Ms. Jefferson approached him and said
that “they knew something about the case” and that Ms. Vance “had left some items
in their home that they thought [police] might be interested in.” He followed the
women to their residence, where Snow showed him “a TV, a cell phone, and a little
notebook journal” that she believed had belonged to the victim. Officer Pasley said
that he then telephoned homicide detectives, who told him to call the crime scene
unit to photograph and collect the items. Officer Pasley testified that he drove Snow
and Ms. Jefferson to the police station and that the defendant followed driving a
separate vehicle. He then went to pick up Ms. Lucas, her boyfriend, and Wayne
Bobo. Unable to locate Mr. Bobo, he transported Ms. Lucas and her boyfriend to
the police station.

On the following day, he and Sergeant Nelson met with John Watkins, who
was also known as “Big John” and who was confined to a wheelchair, based on
information they had that the victim’s handgun had been sold to Big John. They
recovered the victim’s weapon from Big John.

Bureau of Alcohol, Tobacco, and Firearms Agent Richard Howard testified
that the Sig Sauer .40 caliber handgun recovered by Officer Pasley had been
purchased by the victim on October 31, 2000.

MPD Crime Scene Investigator Jeffrey Alan Garey testified that when he
arrived at the victim’s apartment, “[t]he victim was laying on his back, on a bed,
his left leg was hanging off the left side of the bed, foot touching the floor. The
body was in a severe state of decomposition. There were flies throughout, maggots
all over the body and the bedding.” Investigator Garey testified that he collected a
Sigarms “gunbox,” a piece of mail postmarked August 14, 2007, a partial loaf of
bread that bore an expiration date of August 17, bloody sheet rock and paint
samples, three rings from the dresser, “an instruction manual for a Hitachi DVD
player with video cassette recorder,” and the sheets, pillows, and pillow cases from
the bed where the victim’s body was discovered. He photographed “an unidentified
light spot with other lighter speckled spots on the carpet” in the bedroom, “possible
blood spatter” on the south wall of the living room, “a corner of a wall area” that
appeared to have “a blood print,” a door jam[b] “where a possible bloody print was
located,” and “blood spatter on two separate walls in the bedroom.”

MPD Lieutenant Bart Ragland testified that Lieutenant Mason, who was the
lead investigator, asked him and Sergeant Parks “to go out and pick up” Ms. Vance,
Snow, Ms. Jefferson, and the defendant. He said they were not suspects and that
they drove to the police station in their own car. Lieutenant Ragland testified that
he and Sergeant Parks interviewed the defendant, who they believed had relevant
information “[b]ecause of his involvement with Tammy Vance and her daughter.”
During that first interview, the defendant’s “story kept changing and changing and
changing.” Lieutenant Ragland said that at that point, “it became obvious . . . that
he knew more than he was telling . . . and that he had more involvement than just
being a witness,” so they provided the defendant with Miranda warnings. The
defendant had some difficulty reading the advice of rights form, so Lieutenant
Ragland “read the entire thing to him and he understood it and we went over it.”
The defendant executed a written waiver of his rights at 3:15 p.m. on November 2,
2007, and he provided a statement at 5:57 p.m. that same day implicating Ms.
Vance in the victim’s murder, telling officers that he traveled with Ms. Vance and
Ms. Lucas’s boyfriend, Miguel, to an apartment in Cordova to get a 36 inch
television. The defendant told officers that he opened a closed bedroom door inside
the apartment because he “smelled the foul odor” and that he saw the victim’s
“body laying in the bed.” He said Ms. Vance told him “not to worry” about the
body because she and Miguel “were going to take care of it.” The defendant
described the body as “a white male, he was laying on his left side. He was about
in his mid-fifties. He was medium build. His skin was turning black. His hair was
brown, and he had a mustache, too.” He said that he did not notice anything in the
victim’s mouth or any blood in the room. He said that he and Miguel loaded the
television into the victim’s truck and that Ms. Vance also removed “a VCR and a
DVD player that was built together and DVD movies.” He said that they left the
victim’s apartment and traveled back to the Depass Street residence to pick up Ms.
Lucas so that Ms. Lucas could pawn the items. The defendant told Lieutenant
Ragland that he did not tell anyone about seeing the corpse in the apartment because
he was afraid that he would be charged with the victim’s murder because he had
helped move the television.

Lieutenant Ragland said the fact that the defendant was able to describe the
victim as a white male was suspicious because “the state of decomposition of the
victim at the time” made it difficult “to tell that was indeed a male white.”
Lieutenant Ragland said that he spoke with the defendant on a second occasion and
that the defendant “gave a statement, but he stopped. . . . And he refused to sign the
statement.” Between the giving of the two statements, Lieutenant Mullins
“interviewed” the defendant, and “it became apparent that he had more
involvement” than he had originally admitted. During the taking of the second
statement, the defendant initially “admitted that he had actually been involved and
hit the victim with a steel pipe” before he “recanted and said that, no, he didn’t
actually do it.” Following this recantation, the defendant “became hysterical and
started crying, and at that point, it became obvious [that officers] couldn’t talk to
him anymore.” Shortly thereafter, the defendant was booked into the jail “on a
forty-eight hour hold.”

Lieutenant Ragland said that he became suspicious of the defendant when
the details of the defendant’s statement changed over tellings. Lieutenant Ragland
admitted that he was not present when the defendant first admitted striking the
victim with a pipe. He said that after recanting his admission of murder, the
defendant blamed the victim’s murder on Wayne Bobo, Snow, and Ms. Jefferson.
He said that the defendant became “hysterical” and that it was impossible to
continue the interrogation. Lieutenant Ragland denied that the defendant was upset
at being accused of a crime he did not commit and said that the defendant was upset
“[b]ecause he had admitted to his involvement and he knew he was up shit creek
without a paddle, that’s why.” He said that the defendant immediately began
recanting and blaming others “because that’s what criminals do.”

MPD Sergeant Anthony Mullins testified that he became involved in the
investigation when he arrived at the scene. Later, Sergeant Mullins interviewed the
defendant after the defendant was “developed as a possible suspect.” He recalled
that when he first came into contact with the defendant, the defendant was in
Lieutenant Toney Armstrong’s office. During that encounter, the defendant “could
describe things in the apartment and describe things that happened and the more we
asked him about what happened, he gave particular details that no one would know
[] unless they committed the act.” Sergeant Mullins said that upon further
questioning, the defendant admitted killing the victim, telling officers,
They went there, him and Tammy Vance, to rob [the victim],
and when they got inside an argument ensued. He wanted to know,
[the victim] wanted to know why they were there, how they got in
his apartment, because Miss Vance had a key. And during the
argument, Tammy Vance threw a container of bleach at [the victim]
and then he said he struck [the victim] in the head with an iron pipe,
pushed him in the bedroom and struck him again, and again, and
again. Ultimately, he said, between seven and nine time[s].

Sergeant Mullins said that the defendant’s statement “explained some of the
things” that police had seen in the victim’s apartment, like the rag in the victim’s
mouth, which the defendant said Ms. Vance had “stuck . . . in [the victim’s] mouth
to stop him from screaming.” Sergeant Mullins said that when they started to take
a “formal” statement the second time, the defendant “was getting some [details]
wrong” such as the location of the victim’s apartment. When Sergeant Mullins
questioned the defendant about the mistakes, the defendant became “very upset”
and said that “people have threatened him about this incident.” The defendant then
blamed Wayne Bobo and an individual named Miguel for the victim’s murder but
continued to acknowledge that he was present during the murder. During this time,
the defendant was “[l]oudly crying and yelling.” When it became apparent that
they would be unable to obtain a statement from the defendant, they took him
“down to the jail on a hold” because they “felt like” they had sufficient proof “to
charge him” but “weren’t prepared to charge him at that point.”

Sergeant Mullins testified that officers brought the defendant to the
homicide office for another interview on the following morning. The defendant
was provided Miranda warnings a second time. At that point, the defendant
provided a statement admitting that he murdered the victim by striking him with a
metal pipe “about seven or eight times on the head.” He said that he went to the
victim’s apartment “[t]o rob him. Tammy said to ride with her to rob her
boyfriend.” The defendant admitted, “I struck him the first time with the pipe. She
grabbed [the victim] by the mouth and shoved a face towel in his mouth.” The
defendant said that he did not get blood on him and that Ms. Vance threw the
murder weapon into the Wolf River.

Sergeant Mullins testified that he had been trained in “basic blood stain
pattern analysis,” which he described as “locating, analyzing, and documenting
blood stain patterns on crime scenes and then interpreting that evidence to
determine what can be determined.” He said that “victim location, assailant
location” and “how the crime occurred” could be determined by analyzing blood
stain patterns. Sergeant Mullins testified that he had been at the crime scene on a
single occasion “for a matter of hours” and that the defendant’s statement “was
corroborated by what [Sergeant Mullins had seen] at the crime scene previously.”
He noted “cast-off” blood stains on the wall in the bedroom, which he described as
“coming as a result of the blows” to the victim. He said, “Once a blow is given and
blood is transferred from him to the instrument, every swing is going to cast blood
off of that object, and in this case, a lot of it hits the surface of the wall.” Sergeant
Mullins also identified blood cast off on the floor and the closet door. Sergeant
Mullins testified that based upon the “six distinct patterns” of blood stain, it
appeared that the victim “had been hit at least six to eight times.” He said that a
“hard shove” would have sent the victim from the doorway of the bedroom onto
the bed.

Doctor Marco Ross, the forensic pathologist who performed the victim’s
autopsy, testified that the cause of the victim’s death was “[b]lunt force injuries of
the head and asphyxia.” Doctor Ross testified that the victim suffered “fractures of
the skull in the right frontal area [and] the left frontal area” as well as “some
fractures involving the bones around the orbit of the right eye, and the face, and a
little bit on the right cheek, and the roof of the orbit on the right eye.” In addition,
the victim “had a fracture of the left upper canine tooth,” which Doctor Ross found
in “the airway of the right lung, probably in the region of the right main stem
bronchus.” Doctor Ross identified “some hemorrhage or material consistent with
hemorrhage in the brain itself, although, due to the decomposed nature of the brain,
it was difficult to precisely delineate where that hemorrhage may have originally
come from.” Doctor Ross noted that the victim was in “a moderately advanced
stage of decomposition.” Doctor Ross said that the victim “had an orange towel
that was stuffed into his mouth” and that the towel pushed the victim’s tongue back
“and effectively block[ed]” the victim’s airway. The location of the tooth in the
bronchial tubes indicated that the tooth was knocked out before the rag was stuffed
into the victim’s mouth.

Doctor Ross testified that the victim suffered “a total of eight lacerations to
the head area” and that “based upon the locations of the lacerations on the head and
given the configurations of the head and face, . . . a minimum of five separate
impacts to the head and face were sustained.” He explained that his findings
indicated that the victim suffered a minimum of five and a maximum of eight blows
to the head. Toxicology testing detected “the presence of ethanol at a level of 199
milligrams per deciliter which on the breathalyzer scale is similar to a .19,” but
Doctor Ross cautioned that “alcohol typically forms as a result of the
decomposition process.”

Doctor Ross removed the victim’s pacemaker device during the autopsy.

Joel Hunt, an employee in the “pacing division” of Boston Scientific,
testified that he was charged with programming and trouble-shooting implantable
pacemakers and defibrillators. Mr. Hunt identified the device removed from the
victim as “a dual chamber, meaning it can pace and defibrillate the top chamber
and the bottom chamber of the heart.” By examining the data he removed via
computer from the victim’s pacemaker, Mr. Hunt learned that on August 20, 2007,
the victim’s heart rate accelerated to 205 beats per minute, activating the
pacemaker, which regulated the heart rate. The victim’s heart rate then accelerated
to 289 beats per minute, which activated the defibrillator. The defibrillator
delivered two shocks “and then, from that point on nothing else is . . . detected or
sensed.” On October 27, 2007, the pacemaker delivered shocks, which could have
been attributed to the autopsy. Although he could not say when the victim died,
Mr. Hunt could say that all heart activity ceased on August 20, 2007.

Following Mr. Hunt’s testimony, the State rested.

Doctor Randy Schnell, Clinical Services Coordinator of the Memphis City
Schools Mental Health Center, identified a psycho-educational evaluation
performed on the defendant to determine the defendant’s eligibility for special
education services. The defendant’s intelligence quotient (“IQ”) at the time of the
test in 1992 was 62, which Doctor Schnell described as “well below average” and
as indicating that the defendant’s “mental development would be significantly
delayed compared to other children his age.” He said that the defendant’s IQ score
“was consistent with mental retardation.” The defendant’s scores on the Woodcock
Johnson Psycho educational Battery and the Vineland Adaptive Behavior Scales
confirmed a diagnosis of mental retardation. He said that it was “[e]xtremely
unlikely” that the defendant’s IQ score would have increased to normal levels by
adulthood, noting that IQ scores “are reasonably stable by age fourteen,” the age at
which the defendant was tested.

Twenty-one-year-old Chawonna Jefferson, testified that she and the
defendant dated for several years and had a three-year-old child together. She said
that at the time of the victim’s death, she and the defendant lived with her mother,
Snow. Ms. Jefferson said that Ms. Vance and Ms. Lucas came to live in the home
in late August 2007 and that at that time the women were driving a Silverado truck.
She recalled that Ms. Vance had a bruise on her head and a black eye.

The 29–year–old defendant testified that he had never met the victim. The
defendant said that he only went as far as the seventh grade and that he had taken
only resource classes. He testified that his only source of income at the time of the
victim’s murder was a Social Security Disability check of $685 per month. He said
that he worked at a neighborhood store sweeping the floor and stocking shelves in
exchange for “Pampers and milk to provide” for the child he had with Ms.
Jefferson. The defendant recalled that he first met Ms. Vance when she and Ms.
Lucas moved into the residence owned by Snow. At that time, the women were
traveling in the victim’s truck. He said that Ms. Vance “had a gash in the center of
her forehead and her eye was black.”

The defendant testified that on November 2, 2007, officers returned to the
Depass Street residence and asked him, Ms. Jefferson, and Snow to return to the
police station for questioning. He said that they traveled to the police station
together in the family vehicle. The defendant claimed that after he had waited alone
in an interview room for several hours, Lieutenant Ragland told him that Ms. Vance
had implicated him in the victim’s murder. He said that he told them that he had
no part in the victim’s death. The defendant testified that although he initially
denied any knowledge of Ms. Vance’s possession of the victim’s handgun, he
eventually told officers that he had gone with Ms. Vance and Snow to sell the gun
to Wheelchair John. He said that the initial interrogation lasted “hours” and that he
“got tired of sitting there.” He claimed that the officers continued to scream at him
for hours until he finally said, “What the f* * * do you want to hear, what do you
want me to tell you [?]” He said that at that point, the officers created a statement
that was allegedly given by him.

The defendant testified that although he had no knowledge whether Ms.
Vance had killed the victim, he told the officers that she had “probably” killed the
victim because she had accused him of doing so. He said that when he was in the
office, the officers showed him a live feed of Ms. Vance’s interrogation and told
him that she was accusing him of the murder. The defendant admitted accusing a
number of others, including Snow, of being involved in the murder “just so they
would just leave [him] alone.”

During cross-examination, the defendant said that he had never given a
statement in a criminal case prior to this one and that he had never testified in court.
The defendant admitted that he had tattoos of a pitchfork and “folk,” which were
associated with the Gangster Disciples. The defendant questioned the State’s
evidence, saying,

The only evidence you all got against me is what Tammy
said and that bogus statement that I gave. That’s all you got. The
detective just admitted it yesterday. If I wouldn’t have said I had
nothing to do with killing Mr. Danny Harris, I wouldn’t be sitting
here today. By me being stupid and constantly just allowing them
to jus[t] drill me the way they did, if I would have just left it alone
and let them deal with the[ir] job, I wouldn’t be sitting here today.
You know it and I know it.

The defendant insisted that he did not commit the crime, claiming that his statement
contained only the repeated details about the crime that detectives had provided to
him.

Tammy Vance testified that she pleaded guilty to first degree murder and
aggravated robbery related to the victim’s death. She nevertheless denied having
killed the victim, whom she said she met through a chat line in January 2007. Ms.
Vance testified that she lived with the victim for “about two and a half months” and
that, during that time, the victim was not in good health because “all he did was
drink beer and smoke cigarettes.” She said that the victim gave her free access to
his truck and personal finances, which came primarily from retirement benefits, so
that she could manage his personal affairs. Ms. Vance claimed that the victim
intended to file for bankruptcy because he could not make ends meet.
Ms. Vance testified that on August 20, 2007, she and the victim woke early
to take Ms. Lucas to West Memphis to procure an identification card. She said that
Ms. Lucas was addicted to crack cocaine and that the victim “kind of felt for her
because he had an addiction.” After concluding their business, the three went to
Burger King, where the victim purchased food for Ms. Lucas. Ms. Vance said that
when she told the cashier to “go ahead and keep [the change] for somebody else,”
the victim became “very irate” and “started beating his fists on the dashboard,
slapping his hat.” Despite the victim’s outburst, they returned to the victim’s
apartment, and she prepared a fried egg sandwich for the victim’s lunch. She
testified that as the victim ate, “he put the sandwich down and he got up and . . . he
balled up his fist and he hit me in my head and split my head wide open, and I was
dazed, I fell on my knees to the floor.” She said when she “came to” she found the
victim and Ms. Lucas in the victim’s bedroom. Ms. Vance claimed that Ms. Lucas
“had hit him with a hammer in the head, and he was laid back on the bed.” She
said that she tried to stop Ms. Lucas, but Ms. Lucas struck the victim “a couple of
times” and then struck Ms. Vance one time. According to Ms. Vance, Ms. Lucas
struck the victim “a total of seven or eight times. Then when she got through with
that, she took a rag and . . . put it down in his mouth.”

Ms. Vance testified that Ms. Lucas’ violent attack on the victim caused her
to be “in total shock” and that she “did not know what to do.” She watched as Ms.
Lucas poured kerosene and some “cleaning substances” over the victim’s body.
Ms. Vance said that she complied with Ms. Lucas’ command to pack her things and
that the two women left the victim’s apartment in the victim’s truck. Ms. Vance
claimed that Ms. Lucas put the murder weapon in her bag and later disposed of it
in a dumpster near a convalescent home.

The two women returned to the victim’s apartment several days later to get
a television and other items to pawn for money. She first met the defendant on that
day. She said that she and Ms. Lucas had decided to blame the victim’s murder on
Wayne Bobo and that she initially did so when questioned by police. She testified
that after police told her that the defendant had confessed, she blamed the defendant
for the murder in order to protect Ms. Lucas. She said that “not a bit” of her
statements incriminating the defendant was true.

Ms. Vance claimed that after she was charged with the victim’s murder, she
tried to tell her lawyer that Ms. Lucas had committed the murder. Despite her
innocence, she decided to plead guilty. She said that just prior to entering her pleas,
she wrote a statement exonerating the defendant and asked her attorney to give it
to defense counsel.

During cross-examination, Ms. Vance acknowledged that she continued to
cash the victim’s checks.

Based on this evidence, the jury convicted the defendant as charged of
felony murder and aggravated robbery. The trial court imposed an automatic
sentence of life with the possibility of parole for the murder conviction and,
following a sentencing hearing, a concurrent sentence of 20 years for the aggravated
robbery conviction.

Following the denial of his timely but unsuccessful motion for [a] new trial,
the defendant filed a timely notice of appeal. In this appeal, the defendant contends
that the trial court erred by denying his motion to suppress the incriminating
statements he provided to police, that the trial court erred by admitting into
evidence six photographs depicting the deceased victim, that the evidence adduced
at trial was insufficient to support his convictions, and that the trial court committed
plain error in its instructions to the jury. We consider each claim in turn.

State v. Hayes, 2012 WL 3192827, *1–10.
B. Evidence Presented at the Post-Conviction Hearing
The TCCA’s post-conviction opinion summarized the evidence presented at the post-
conviction hearing:
At the evidentiary hearing, Clark Chapman, the private investigator who
was appointed to assist defense counsel, testified that he learned that the Petitioner
had “numerous learning disabilities” and “nervous issues throughout his childhood
and as an adult” and had been receiving disability benefits since the age of twelve
or thirteen. Mr. Chapman identified the Petitioner’s school mental health
professional report, which he said he turned over to trial counsel approximately
eight or nine months prior to trial. He testified he interviewed fifteen to twenty
witnesses during the course of his investigation, including Frances Wheeler, the
woman who owned the house where the Petitioner was living. He learned of her
late in the case and interviewed her close to the time of trial. Ms. Wheeler informed
him that she had gone to the Petitioner’s home one morning because the Petitioner
was supposed to help roof one of her rental properties. The Petitioner was still
asleep when she arrived, and she instructed one of the other residents of the home
to wake up the Petitioner. As she waited for the Petitioner, Tammy Vance and her
daughter arrived in the victim’s truck with a large screen television in the back of
the truck. According to Ms. Wheeler, the Petitioner came out of the house and
helped the women unload the television.

Mr. Chapman testified that he believed Ms. Wheeler’s account coincided
with the information he received from Ms. Tammy Vance, who confessed to him
that it was her daughter, and not the Petitioner, who had killed the victim. He said
he called trial counsel and informed him of what Ms. Wheeler had told him. He
stated that trial counsel was not present during his interview with Ms. Wheeler and,
to his knowledge, never interviewed Ms. Wheeler himself. He said that trial
counsel was confident that the case “would either settle before [they] went into trial
or . . . would just go away” and did not think they needed “anything else.”
On cross-examination, Mr. Chapman testified that he spoke with the
Petitioner throughout his preparation of the case and that the Petitioner appeared to
be engaged in the investigative process and to understand everything he said to him.
He said he thought that Ms. Wheeler would have been an instrumental witness in
“identifying who had the TV that morning” and, as such, would have corroborated
Ms. Vance’s story that her daughter had killed the victim with a hammer. He
acknowledged, however, that trial counsel had cross-examined Ms. Vance about
her contention that her daughter was the perpetrator.

On redirect, Mr. Chapman explained that Ms. Wheeler’s testimony that the
two women brought the television to the house alone was significant because the
State’s theory was that Ms. Vance had to have the Petitioner’s help in loading the
television. In addition to Ms. Wheeler, he also thought that the defense should have
had a physician appointed to investigate the Petitioner’s mental health issues. He
stated that the defense team contacted a doctor to perform a mental health
evaluation on the Petitioner, but the physician backed out, citing a conflict of
interest. To his knowledge, no one else was ever appointed to take that physician’s
place.

On re-cross-examination, Mr. Chapman acknowledged that the Petitioner
provided details in his statement to police that were consistent with the physical
evidence at the crime scene. He further acknowledged that the Petitioner said
during cross-examination that the prosecutor would not be able to make him say
anything he did not want to say. He explained, however, that the Petitioner had felt
comfortable at trial because he was in the presence of trial counsel. In his opinion,
a mental health expert would have been able to testify to the Petitioner’s overall
capacity and how he could be easily pressured in stressful situations, such as while
being interviewed by aggressive police officers.

Upon further direct examination, Mr. Chapman testified that the Petitioner
did not always appear to follow everything that was said to him and at times did
not “seem like he [was] there.” He further testified that the Petitioner’s school
report indicated that his intellectual functioning was in the “mild range of mental
retardation.” He said the Petitioner was questioned for twelve to thirteen hours
before he gave his statement to the police.

The Petitioner’s trial counsel, who said he had been licensed to practice law
since 1973 and had been in private practice, primarily criminal defense, since 1984,
testified that the Petitioner’s case was the only one of hundreds he had handled in
which he believed that an innocent man had been incarcerated. He stated he met
with the Petitioner on “numerous occasions” during the course of his
representation, and the Petitioner was very easy to talk to and appeared to
understand the charges against him. The Petitioner could not, however, “process
the technical side of it in terms of the law; in terms of evidence.” According to trial
counsel, the Petitioner’s position was that he was not there and did not commit the
crimes, and the Petitioner could not understand why he had been charged in the
case.

Trial counsel testified that they discussed having a mental evaluation
performed on the Petitioner and “made an effort to contact someone for that
purpose.” However, the “intervening development” of Ms. Vance’s changing her
story about the Petitioner’s participation in the crimes “changed the course of [their]
strategy in th[e] case.” He explained that there was no physical evidence linking
the Petitioner to the crimes and that the Petitioner became a suspect only after Ms.
Vance implicated him in her statement to the police. When Ms. Vance confessed
that she had been trying to protect her daughter, and agreed to testify to that effect
at trial, the issue of the Petitioner’s mental capacity became less important:

Her agreement to come and testify for the defense in this case
kind of changed the course of the strategy that we were originally
planning. And [the Petitioner’s] mental state, mental condition
ability were not seen as important in light of that new development
with Ms. Vance agreeing to come and testify.

Trial counsel testified that his original plan was to hire a “confession
expert,” but he did not follow through with that plan in light of Ms. Vance’s
agreement to testify that her daughter was the perpetrator. In hindsight, however,
he thought he made a mistake in not hiring the confession expert, who would have
been able to explain to the jury why the Petitioner would have confessed when he
was not guilty. He stated that he extensively prepared the Petitioner to testify,
spending much time reviewing with him the length of the police interrogation and
what led to his statement to the police, but that a confession expert could have
helped the case tremendously and that he erred by relying too heavily on Ms.
Vance’s testimony. In addition, trial counsel believed he erred by not instructing
the Petitioner to remain calm and to refrain from becoming aggressive or
argumentative with the prosecutor. Trial counsel testified that, given the
Petitioner’s limited mental capacity, he should have anticipated that the Petitioner
would become upset in the face of aggressive questioning and “would explode . . .
under strenuous cross-examination.”

Trial counsel testified that he did not have the bloody fingerprints found at
the crime scene tested because there was no evidence that the Petitioner was at the
crime scene and no evidence that the fingerprints belonged to him. As for his failure
to exercise a peremptory challenge to strike Juror Number 7, who was an employee
of the sheriff’s department and a presumed co-worker of the victim’s son, trial
counsel testified that he could not recall his reasoning, but the juror’s association
with the sheriff’s department would not have been an automatic basis for trial
counsel to strike him. Counsel explained that he sometimes looked for jurors that
he believed had “the ability to process evidence and facts and make an intelligent
decision” and that he would not have automatically assumed bias on the part of a
juror because he “was somehow affiliated with the sheriff[‘s] department.”
On cross-examination, trial counsel testified that he never had any question
about the Petitioner’s competency to stand trial. He also acknowledged that he filed
an unsuccessful motion to suppress the Petitioner’s statement on the basis that the
statement was coerced.

Frances Wheeler, the owner of the rental home in which the Petitioner had
lived, testified that one morning she was at the property to work on the roof when
Ms. Vance and her daughter pulled up in a white truck with a television in the back.
The Petitioner, who was supposed to be helping her with the roofing, was asleep
inside, but Ms. Vance’s daughter went in and then stuck her head out to announce
he would be out in a minute. On cross-examination, Ms. Wheeler testified that she
was not sure of the date the events transpired.

The Petitioner testified that he was innocent and that he had had faith in trial
counsel to prove his innocence. On cross-examination, the Petitioner
acknowledged he had been a witness in another criminal case and that he
understood his rights when the police interviewed him. He denied, however, that
trial counsel prepared his trial testimony or kept him informed of the defense
strategy in the case. On redirect examination, he testified that he was treated very
differently by the police in the previous criminal case in which he had been merely
a witness. He further testified that he only had an eighth grade education and that
he spent his entire school career in resource classes.

On October 5, 2015, the post-conviction court entered a detailed written
order denying the petition. On February 22, 2016, this court entered an order
allowing the late-filing of the Petitioner's notice of appeal.

Hayes v. State, 2017 WL 2805205, at *3–6.
II. Petitioner’s Habeas Claims
Petitioner now claims that trial counsel provided ineffective assistance in several ways.
(ECF No. 1 at PageID 4.) First, he claims that counsel should have conducted a mental
evaluation of Petitioner. (Id.) He argues next that his counsel was ineffective by not calling Ms.
Wheeler as an eyewitness and for not striking someone from the jury. He also argues that
counsel should have compared the fingerprints at the crime scene against the fingerprints of
Sarah Lucas. (Id.) Finally, Petitioner claims that counsel should have objected to the trial
court’s jury instructions. (ECF No. 1-1 at PageID 15.)
Petitioner further argues that the trial court violated his due process right by denying his
motion to suppress his statements to the police. (Id. at PageID 13–14.) The Court now turns to
the legal standards for Petitioner’s claims.
LEGAL STANDARDS

Federal courts may grant habeas corpus relief for persons in state custody under 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). But a federal court has limited authority and may grant that relief “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). Before a federal court may consider a state prisoner’s request for
habeas relief, it must examine the state court record for specific information.
I. Exhaustion and Procedural Default
A federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless,
with certain exceptions, the prisoner has exhausted available state remedies. Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). The petitioner must present to the state courts the same

claim for which it seeks redress in a federal habeas court under 28 U.S.C. § 2254(b) and (c). Id.
The petitioner must “fairly present”4 each claim to all levels of state court review, including the
state’s highest court on discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). That
said, however, a petitioner need not present to all levels of state court if the state has explicitly
disavowed state supreme court review as an available state remedy. O’Sullivan v. Boerckel, 526
U.S. 838, 847–48 (1999).

4 To exhaust each 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).
Tennessee has done that. Indeed, Tennessee Supreme Court Rule 39 eliminated the need
to seek review in the Tennessee Supreme Court. Adams v. Holland, 330 F.3d 398, 402 (6th Cir.
2003). Under Rule 39, “once the Court of Criminal Appeals has denied a claim of error, ‘the
litigant shall be deemed to have exhausted all available state remedies.’” Id. (quoting Tenn. Sup.

Ct. R. 39); see Smith v. Morgan, 371 F. App’x 575, 579 (6th Cir. 2010).
Much like the exhaustion requirement, the procedural default doctrine also applies to
habeas petitions from state prisoners. See Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000)
(noting the interplay between the exhaustion rule and the procedural default doctrine). Under
this doctrine, 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 quotation marks and citation
omitted)).5 In general, 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).

5 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 54) (internal quotation marks and citations omitted).
If the procedural default doctrine bars a claim at the state level, the petitioner must show
cause to excuse his failure to present the claim and actual prejudice stemming from the alleged
constitutional violation. Schlup v. Delo, 513 U.S. 298, 320–21 (1995); Coleman v. Thompson,
501 U.S. 722, 750 (1991). Or he must show that a failure to review the claim will lead to a

fundamental miscarriage of justice. Id.Id. For the latter, the petitioner must show that a
constitutional error has probably led to the conviction of a person who is innocent of the crime.
Id. at 321; see also House v. Bell, 547 U.S. 518, 536–39 (2006) (restating the ways to overcome
procedural default and further explaining the actual innocence exception).
II. Merits Review Under § 2254
Under § 2254(d), where a state court decided a claim on the merits, a federal court should
only grant a habeas petition if the state court’s decision :
(1) 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) 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). Petitioner carries the burden of proof on this “difficult to meet” and
“highly deferential [AEDPA] standard,” 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)).
Under § 2254(d)(1), the court must limit its review to the record that the state court used
to adjudicate the claim on the merits. Id. at 181–82. A state court’s decision is “contrary” to
federal law when 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). A state
court makes an “unreasonable application” of federal law when it “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. So the state court’s application of clearly
established federal law must be “objectively unreasonable” for the writ to issue. Id. at 409. And

the habeas court may not issue the writ just because, “in its independent judgment,” it 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) (internal quotation
marks omitted).
There is little case law addressing whether, under § 2254(d)(2), a state court based its
decision on “an unreasonable determination of the facts.” In Wood v. Allen, the Supreme Court
noted that a state-court factual determination is not “unreasonable” only because the federal
habeas court would have reached a different conclusion.6 558 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 has described the § 2254(d)(2) standard as “demanding but not
insatiable” and has emphasized that, under § 2254(e)(1), the federal court presumes the state
court’s factual determination is correct absent clear and convincing evidence to the contrary.
Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010). A federal court will not overturn a state

6 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) additionally requires a petitioner to rebut
a presumption that the determination was correct with clear and convincing evidence.” Wood,
558 U.S. at 299. The Court found it unnecessary to reach that issue and left it open “for another
day”. Id. at 300–01, 304 (citing Rice v. Collins, 546 U.S. 333, 339 (2006) (recognizing that it is
unsettled whether there are some factual disputes to which § 2254(e)(1) does not apply)).
court adjudication on factual grounds unless it is objectively unreasonable given the evidence
presented during the state court proceeding. Id.; see also Hudson v. Lafler, 421 F. App’x 619,
624 (6th Cir. 2011).
III. Ineffective Assistance of Counsel

The standards from 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 two elements: 1) that 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.
To establish deficient performance, a person challenging a conviction “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. A court
considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s

representation was within the “wide range of reasonable professional assistance.” Id. at 689.
The challenger’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.
To show prejudice, a petitioner must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” 7 Id. at
694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. And “[i]t is not enough for the defendant to show that the errors had some

7 If a reviewing court finds a lack of prejudice, it need not determine whether, in fact, counsel
performed deficiently. Strickland, 466 U.S. at 697.
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
687; see also Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam) (stating “Strickland does
not require the State to rule out” a more favorable outcome to prevail, but “places the burden on

the defendant, not the State, to show a reasonable probability that the result would have been
different.”) (internal quotation marks omitted).
A federal court’s deference to a state-court decision under 28 U.S.C. § 2254(d) increases
when reviewing an ineffective assistance claim. According to the Supreme Court 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.

Harrington, 562 U.S. at 105 (internal citations and quotation marks omitted).
What is more, the Constitution does not guarantee the right to an attorney in state post-
conviction proceedings. Coleman, 501 U.S. at 752. “Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel in such proceedings.” Id. 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). 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.
In Martinez v. Ryan, the Supreme Court recognized a narrow exception to the Coleman
rule—“[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding.” 566 U.S. 1, 17 (2012). In such cases, “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.” Id. The Supreme Court also emphasized that
“[t]he rule of Coleman governs in all but the limited circumstances recognized here. . . . It 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:
(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).
In Martinez, the Supreme Court considered an Arizona law that did not permit an inmate
to assert ineffective assistance claims on direct appeal. Martinez, 566 U.S. at 4. In the Supreme
Court’s later decision in Trevino, the Court extended its holding in Martinez to states in which a
“state procedural framework, by reason of its design and operation, 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 a procedural default. Both Martinez and Trevino apply to
Tennessee prisoners. Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014).
ANALYSIS OF PETITIONER’S CLAIMS
Petitioner raises these issues in his § 2254 petition:

1. Trial counsel performed deficiently by failing to:

(a) have a mental evaluation performed on Petitioner;

(b) call Ms. Wheeler as an eyewitness;

(c) strike a work colleague of the victim’s son from the jury; and

(d) conduct an adequate investigation (specifically for not
testing the bloody fingerprints at the crime scene) (ECF Nos.
1 at PageID 4; 1-1 at PageID 14);

2. Trial counsel performed deficiently by failing to object to the trial court’s
incorrect jury instructions (ECF No. 1-1 at PageID 15–16); and

3. The trial court violated Petitioner’s due process rights by denying his
motion to suppress his statements to police. (Id. at PageID 13–14.)

The TCAA addressed Issue 3 on direct appeal. State v. Hayes, 2012 WL 3192827, at
*10–13. And the TCCA addressed Issues 1(a)–(d) in the post-conviction appeal. Hayes v. State,
2017 WL 2805205, at *6–7. Because he raised Issues 3 and 1(a)–(d) in state court, he has
exhausted these claims. But Petitioner never presented Issue 2 to the TCCA. So he did not
exhaust this claim.
The Court will now turn to its analysis of these claims.
I. Issues 1(a)–(d)

Petitioner argues that trial counsel performed deficiently by failing to: (1) have a mental
examination of Petitioner; (2) call Ms. Wheeler as an eyewitness; (3) strike a Sheriff’s
Department employee from the jury; and (4) analyze a bloody fingerprint from the crime scene.
(ECF Nos. 1 at PageID 4; 1-1 at PageID 14.) Respondent counters that the state court reasonably
applied Strickland when reviewing these claims and that its decision was not an unreasonable
determination of the facts. (ECF No. 17 at PageID 2391–95.)
A. The State Court’s Review of These Issues

The post-conviction trial court analyzed each of these issues under Strickland and rule
against petitioner.
i. Defense Counsel Failed to Have a Mental Health Evaluation Done on
the Petitioner After Gaining Knowledge of the Petitioner’s History of
Mental Health Issues; Defense Counsel Failed to Have the Petitioner’s
Reading Level Tested After Learning of the Petitioner’s Reading
Deficiencies and the Alleged Reading and Signing of a Written
Statement.

Defense counsel did meet the first prong of the Strickland test by acting
reasonably. The first prong of the Strickland test is that the defendant must show
that counsel’s actions were so deficient that counsel was not functioning as counsel
that is guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. In
Tennessee, this means that the counsel’s actions were so serious that they fall below
an objective standard of reasonableness. Goad v. State, 938 S.W.2d 363, 369.
Although he admitted to not scheduling a mental health exam or reading and writing
assessment for Petitioner, Defense counsel’s theory for the defense was his belief
that Petitioner was not at the scene of the crime. PC Tr. pg. 46. Strong deference
is to be given to counsel’s strategy and defendants must overcome the presumption
that the challenged action might be considered sound trial strategy. Defense
counsel’s actions in the matter at hand were sound. He said because there was no
physical evidence to show that Petitioner was at the scene of the crime and Tammy
Vance (“Ms. Vance”) agreed to testify that Petitioner was not the one who
committed the crime, that Petitioner’s mental state and literacy were not seen as
important. Thus, he chose to change the course of his strategy. Further, Defense
counsel said that before and throughout the trial, Petitioner knew right from wrong
and understood the charges against him. Considering the totality of the
circumstances and that there was more than one route that Defense Counsel could
have chosen at trial, his actions were reasonable and those guaranteed by the Sixth
Amendment.

Mr. Garrett’s performance did not prejudice the outcome of the case. This
second prong requires an assessment of whether trial counsel’s performance was
so deficient that it prejudiced the outcome of the case. Petitioner claims that if
Defense counsel had a doctor to perform a mental health exam on Petitioner and
had him to take a test to assess his literacy that the outcome of the trial would have
differed significantly. More specifically, that Petitioner’s statement to officers
would not have been voluntary. Defense counsel was aware of Petitioner’s low IQ
level and his inability to understand legal analysis. However, Petitioner understood
the charges against him, signed a copy of the statement affirming that he
voluntar[il]y made it, and knew wrong from right. Petitioner had also been a
witness in prior criminal cases and understood witness rights when they were read
to him at that time. Since Petitioner knew what was going on in the case, gave his
signature affirming the truth of the statement and had been involved in criminal
cases before, there was ample evidence to prove that Petitioner’s statement was
voluntary. The lack of a recent mental health exam did not prejudice Petitioner and
change the outcome of the case.

(ECF No. 16-20 at PageID 2192–94.)
ii. Defense Counsel Was Not Ineffective for Failing to Interview and
Investigate the Testimony of Francis Wheeler.

Defense Counsel’s failure to interview Francis Wheeler (“Ms. Wheeler”)
would not have changed the outcome of the case. Petitioner must establish that Ms.
Wheeler’s testimony would change the verdict by a clear and convincing evidence.
Though Ms. Wheeler would have testified that Petitioner was at her home during
the time of the robbery, the robbery only occurred after the murder, thus [it is] a
separate matter. Further, there were other statements and pieces of evidence that
the jury could use to conclude a guilty verdict, such as Petitioner confessing to the
murder. Since Petitioner fails to identify how Mrs. Wheeler’s testimony would
alter the verdict at trial, there is a substantial doubt about the correctness of the
conclusions drawn from the evidence.

(Id. at PageID 2196–97.)
iii. Defense Counsel Was Not Ineffective When He Allowed an Employee
of the Shelby County Sheriff’s Department to Remain on the Jury
When the Victim Was the Father of a Sheriff Deputy, As Well As the
Courtroom Full of Sheriff Deputies During the Trial.

The decision not to challenge and have a member of the Shelby County
Sheriff’s department removed from the jury does not constitute ineffective
assistance of counsel and the Petitioner has failed to adequately demonstrate that
there was a “reasonable probability that the result would be different.” State v.
Taylor, 968 S.W.2d 900, 905. Defense counsel was aware of the position held by
the juror as well as the fact that the victim’s son was also a member of the Sheriff’s
department. PC. Tr. pg. 62. Defense counsel’s decision not to challenge the juror
was not based on a lack of preparation for voir dire, but instead a decision to favor
who in his judgment was a fair and impartial juror, over a possibility of some
possible bias based on his profession. PC. Tr. pg. 63. Moreover, that Petitioner
has failed to show any reason for bias other than holding a job at the Shelby County
Sheriff’s department. There has been no suggestion that the juror knew the victim
or the victim’s son.

Additionally, the case law presented in support of the Petitioner’s request
for relief is unpersuasive. It must first be noted that the cases cited by the Petitioner
are not binding authority in this jurisdiction. Moreover, the cases are
distinguishable in several respects from the present case. Most notably, in State v.
Lamere, the defense counsel admitted that he had failed [to] realize the potential
impartiality of the juror and that this was the result of his own oversight and lack
of preparedness. State v. Lamere, 112 P.3d 1005, 1011. Secondly, the potential
from [sic] bias stemmed from a very close relationship. The juror in question was
the mother of a paralegal for the County Attorney’s Office that was prosecuting the
case. Id. Dissimilarly, the relationship in question here is between a juror and the
son of the victim, whom the Petitioner doesn’t contend know of each other.
Additionally, the defense counsel here seems to have been aware of the juror’s
position at the Shelby County Sheriff’s department.

The speculation that a juror is biased and unable to serve effectively is
unsupported by the Petitioner’s claims. As such he has failed to establish prejudice
that was likely to affect the outcome of his trial.

(Id. at PageID 2195–96.)
iv. Defense Counsel Was Not Ineffective for Failing to Have the Bloody
Print on the Crime Scene Tested Against Sarah Lucas, After Gaining
Knowledge That Said Daughter Might Have Been Involved in the
Crime.

It is not the job of the Court to second-guess the trial strategy of the defense
counsel. The theory of the case, according to the defense counsel, was that
Petitioner was not/had not been at the victim’s home. PC. Tr. pg. 46. The untested
handprint did nothing to undermine that strategy. The Petitioner claims now that
testing the print would have identified Sarah Lucas as the person responsible.
However, Sarah Lucas had already admitted to being present at the scene of the
crime. PC. Tr. pg. 79. Further linking her to the crime does nothing to undermine
the other testimony and evidence at trial that lead to the Petitioner’s conviction.
Therefore, not testing the handprint was reasonable given the Defense’s theory for
the case and additionally any testing of the handprint is [sic] not necessarily
undercut [by] any of the other evidence presented at trial.

(Id. at PageID 2195.)
The TCCA reviewed the post-conviction court’s opinion. And it also considered Issues
1(a)–(d) under Strickland, the proper standard for analyzing an ineffective assistance of counsel
claim. Hayes v. State, 2017 WL 2805205, at *6–7. After reviewing the post-conviction
testimony and the postconviction court’s decision, the TCCA opined:
The record fully supports the findings and conclusions of the post-
conviction court. Trial counsel, a very experienced criminal defense attorney,
offered a reasonable explanation for why he did not pursue a mental health
evaluation of the Petitioner, explaining that there was nothing to link the Petitioner
to the crime scene other than Ms. Vance’s statement to the police. Ms. Vance,
however, later confessed to him that she had implicated the Petitioner to protect her
daughter, who was the real culprit, and she agreed to testify for the Petitioner at
trial. Although trial counsel believed in hindsight that a confession expert would
have helped explain why the Petitioner would confess to a crime he had not
committed, he also testified that the Petitioner was mentally competent to stand trial
and that he was able to elicit details for the jury about the lengthy interrogation and
the Petitioner’s emotional distress during questioning. As the post-conviction court
noted, the Petitioner also cannot show he was prejudiced by trial counsel’s failure
to have a mental evaluation performed.

Trial counsel also offered a reasonable explanation for why he did not
attempt to have the bloody fingerprint found at the crime scene tested against the
fingerprints of Sarah Lucas and why he did not strike the sheriff’s department
employee from the jury. As for trial counsel’s failure to call Ms. Wheeler as a
witness, we agree with the post-conviction court that her testimony would not have
altered the outcome of the trial. All that Ms. Wheeler would have added to the case
was that she had seen Ms. Vance and her daughter arrive in a truck alone with a
large television in the back. She was unable to testify as to the date the events
transpired or how the television got into the back of the truck. In sum, the Petitioner
has failed to meet his burden of demonstrating that he was denied the effective
assistance of trial counsel.

Id. at *7.
B. Petitioner Fails to Show That Counsel Performed Deficiently
In effect, Issues 1(a)–(d) are Petitioner’s complaints about trial counsel’s strategic
decisions before and during trial. Petitioner argues that counsel should have performed a mental
evaluation and that he should have called Ms. Wheeler as a witness. But when Petitioner’s
codefendant decided to testify in Petitioner’s defense, trial counsel’s defensive strategy changed.
(ECF No. 16-22 at PageID 2263.) Counsel decided not to bring some defenses or call certain
witnesses. (Id. at PageID 2263–66.) Trial counsel explained that Petitioner’s “mental condition
[and] ability were not seen as important in light of that new development with Ms. Vance
agreeing to come and testify.” (Id. at PageID 2263.)
Counsel also decided not to call Ms. Wheeler as a witness. Her testimony at the post-
conviction hearing shows that even if she had testified at trial, it would not have helped

Petitioner’s defense. She did not testify that Tammy and Sarah Lucas pulled up to the house
with the television while Petitioner was asleep. (See id. at PageID 2287–88.) Instead, she
testified that she “remember[s] Snow and Tammy Hess coming and pulling up in the truck with a
TV in the back of it.” (Id. at PageID 2287.) What is more, Wheeler’s testimony did not identify
when she saw the television in the truck. (Id. at PageID 2289.) All in all, this testimony did not
help Petitioner’s defense.
Trial counsel also made a considered decision not to strike the juror employed by the
Sheriff’s department. He did so because there “was no sufficient basis to excuse this particular
juror because of some other factors . . . favorable to the defense.” (Id. at PageID 2280.) And
finally, trial counsel made a sound tactical decision against testing the bloody crime scene

fingerprints. The reason is that no physical evidence placed Petitioner at the scene of the crime.
(Id. at PageID 2275.)
In the end, Petitioner’s claims lack facts or arguments showing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Nor has he shown that counsel’s decisions were
objectively unreasonable. (See ECF No. 1-1 at PageID 14–15.) Plus, the district court presumes
that a state court’s factual findings are correct, absent clear and convincing evidence to the
contrary. 28 U.S.C. §§ 2254(d)(2), 2254(e)(1). And Petitioner here fails to assert an argument
or provide any evidence that overcomes this presumption.
Based on this Court’s review of the post-conviction testimony (ECF No. 16-22), as well
as the trial transcript (ECF Nos. 16-5, 16-6, 16-7, 16-8, 16-9, 16-10, 16-11, 16-12), Petitioner has
not shown that the strategic decisions made by experienced, capable counsel were deficient. And
so, the Court finds it appropriate to defer to the state court decision on Petitioner’s ineffective

assistance claims. The Court thus DENIES Issues 1(a)–1(d).
II. Issue 2

Petitioner claims that trial counsel provided ineffective assistance by not objecting to the
trial court’s incorrect jury instructions.8 (ECF No. 1-1 at PageID 15–16.) Respondent, however,
argues that the procedural default doctrine bars review of this claim. (ECF No. 17 at PageID
2395–96.)
Petitioner did not raise this issue in either his pro se or amended post-conviction
petitions. (ECF No. 16-20 at PageID 2143–50; 2155–64; 2175–86.) Nor did he raise the issue
during the post-conviction appeal. (ECF No. 16-23 at PageID 2326.) His claim is therefore
procedurally defaulted, unless he can show that the Court should excuse his procedural default
under Martinez. To do so, Petitioner must show, among other things, that his “claim of
ineffective assistance of trial counsel was a substantial claim.” Trevino, 569 U.S. at 423 (internal
quotations omitted). And here, Respondent argues that the Court cannot excuse Petitioner’s
default under Martinez, because the claim is not substantial. (ECF No. 17 at PageID 2390.)
When reviewing this claim on direct appeal, the TCCA considered Petitioner’s argument
and found:

8 The trial judge told the jury that to convict Petitioner, it must find “that the defendant or one for
whom the defendant is criminally responsible unlawfully killed the alleged victim, and that the
killing was committed in the perpetration of or the attempt to perpetrate the alleged robbery.”
State v. Hayes, 2012 WL 3192827, at *16. But the trial judge never defined “criminal
responsibility for the conduct of another.” Id.
Conceding that he failed to lodge a contemporaneous objection to the jury
instructions provided by the trial court and that he failed to include any issue related
to the jury instructions in his motion for new trial, the defendant asks this court to
review the jury charge for plain error in the trial court’s instructions regarding the
definition of criminal responsibility for the conduct of another. The State contends
that the defendant waived plenary review of the issue and that the defendant has
failed to establish plain error in the instructions provided by the trial court.

Initially, as the defendant concedes, he has waived plenary consideration of
any issue related to the jury instructions by failing to object to the omission at trial,
see Tenn. R. Crim. P. 30(b); State v. Lynn, 924 S.W.2d 892, 899 (Tenn. 1996), and
by failing to include it in his motion for new trial, see Tenn. R. App. P. 3(e) (“[I]n
all cases tried by a jury, no issue presented for review shall be predicated upon error
in . . . jury instructions granted or refused . . or other ground upon which a new trial
is sought, unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived.”); see also State v. Martin, 940
S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right to
argue on appeal any issues that should have been presented in a motion for new
trial but were not raised in the motion); State v. Dodson, 780 S.W.2d 778, 780
(Tenn. Crim. App. 1989).

Whether properly assigned or not, however, “an appellate court may
consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial” where consideration
of the error is “necessary to do substantial justice.” Tenn. R. App. P. 36(b). Before
an error may be so recognized, however, it “must be ‘plain’ and it must affect a
‘substantial right’ of the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn.
Crim. App. 1994). Authority to correct an otherwise “forfeited error” lies strictly
“within the sound discretion of the [appellate court], and the court should not
exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” United States v. Olano, 507 U.S. 725,
732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993) (citations omitted).

In State v. Smith, 24 S.W.3d 274, 282–83 (Tenn. 2000), our supreme court
adopted the definition of “substantial right” promulgated by this court in Adkisson.
There, we held that “[a] ‘substantial right’ is a right of ‘fundamental proportions in
the indictment process, a right to the proof of every element of the offense, and is
constitutional in nature.’” Adkisson, 899 S.W.2d at 639. Our supreme court also
adopted Adkisson’s five factor test for determining whether an error should be
recognized as plain:

“(a) the record must clearly establish what occurred in the trial
court;

(b) a clear and unequivocal rule of law must have been
breached;
(c) a substantial right of the accused must have been adversely
affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is ‘necessary to do substantial
justice.’”

Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641–42). “[A]ll five
factors must be established by the record before this court will recognize the
existence of plain error, and complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be
established.” Id. at 283. To be reviewable as “plain,” the error “must [have been]
of such a great magnitude that it probably changed the outcome of the trial.’” Id.
(quoting Adkisson, 899 S.W.2d at 642) (alteration in original). Finally, “the burden
of establishing entitlement to relief for plain error is on the defendant claiming it.”
United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S. Ct. 2333, 159 L. Ed.2d
157 (2004).

An accused’s constitutional right to trial by jury, see U.S. Const. amend VI;
Tenn. Const. art. 1, § 6, encompasses a right to a correct and complete charge of
the law, see State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court has a
duty “to give a complete charge of the law applicable to the facts of a case.” State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see Teel, 793 S.W.2d at 249; see
also Tenn. R. Crim. P. 30.

The legal accuracy of the trial court’s instructions is a question of law
subject to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149
(Tenn. 2007). The propriety of a given instruction is a mixed question of law and
fact to be reviewed de novo with a presumption of correctness. Carpenter v. State,
126 S.W.3d 879, 892 (Tenn. 2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn.
2001).

In its instruction on the offense of first degree murder in the perpetration of
a felony, the trial court told the jury that, to convict the defendant, it must find
“[t]hat the defendant or one for whom the defendant is criminally responsible
unlawfully killed the alleged victim, and that the killing was committed in the
perpetration of or the attempt to perpetrate the alleged robbery.” The trial court did
not define the concept of criminal responsibility for the conduct of another. Indeed,
the trial court did not mention the concept again. During its deliberations, the jury
sent the following question: “What is the meaning of criminally responsible as it
applies to first degree murder associated with aggravated robbery[?]” The trial
court responded, “The definition of criminal responsibility is in the jury charge, and
you’re going to have to find that definition. It’s already there. Talks about what
that means, and in fact, is there several times, all throughout the charge.”
Despite the trial court’s remarks, the printed instructions provided to the
jury do not contain any definition or further reference to the concept of criminal
responsibility. That being said, the record clearly establishes that the omission of
the instruction, even if it was erroneous, was harmless beyond a reasonable doubt.
The defendant was not charged under a theory of criminal responsibility for the
conduct of another, and the only testimony that the victim was murdered by anyone
other than the defendant came from Ms. Vance, whose testimony the jury rejected
out of hand. The defendant invites us to speculate that the jury’s question evinced
its consideration that someone other than the defendant committed the murder, but
we cannot and will not do so. Because any error in the omission of a criminal
responsibility instruction was harmless beyond a reasonable doubt, the error did not
adversely affect any substantial right of the defendant and consideration of the issue
is not “‘necessary to do substantial justice.’” Smith, 24 S.W.3d at 282 (quoting
Adkisson, 899 S.W.2d at 641–42).

State v. Hayes, 2012 WL 3192827, at *15–16.
The TCCA’s analysis on direct appeal explains that the trial court’s error “was harmless
beyond a reasonable doubt, [and] the error did not adversely affect any substantial right of the
defendant.” Id. at PageID *16. Indeed, trial counsel did not perform deficiently by failing to
object to the trial court’s harmless mistake. This is because the State did not charge Petitioner
under a theory of criminal responsibility for the conduct of another. See Hayes, 2012 WL
3192827, at *16. All in all, Petitioner fails to present a substantial claim of ineffective
assistance, and so, fails to overcome his procedural default. As a result, the Court DENIES
Issue 2.
III. Issue 3

Petitioner alleges that the trial court violated his due process rights by denying his motion
to suppress his statements to the police. (ECF No. 1-1 at PageID 12–14.) But Respondent
argues that the TCCA applied the proper federal standard to this claim and that its decision was
reasonable. (ECF No. 17 at PageID 2397–99.)
A. The TCCA’s Opinion on Issue 3
After reviewing the trial testimony, the TCCA opined:
The defendant contends that the trial court erred by denying his motion to
suppress the inculpatory statements he provided to police, claiming that the
statements were obtained in violation of his constitutional rights. The State asserts
that the trial court did not err by denying the motion and admitting the statements
as evidence at the defendant’s trial.

At the hearing on the defendant’s motion to suppress his pretrial statements
as involuntarily given, Lieutenant Ragland testified, as he later did at trial, that as
he interviewed the defendant, “it became obvious that he knew more about the case
than he was telling us and as we continued to interview him, we felt it was prudent
to treat him as a possible suspect.” The defendant was then advised of his rights,
and he signed a waiver of rights form. Lieutenant Ragland testified that after the
defendant had some difficulty reading the advice of rights form, he read the entire
document aloud to the defendant. He said that the defendant never asked for an
attorney, never refused to answer any questions, and never gave any indication that
he did not understand the process.

Lieutenant Ragland testified that the defendant was provided several breaks
to use the restroom and smoke cigarettes and that the defendant was offered food
and water. He denied telling the defendant what to say, noting that the officers “just
wanted the truth.” Upon further questioning, the defendant admitted that he had
gone to the victim’s apartment to help Ms. Vance retrieve a television to pawn and
that he had seen the victim’s decaying corpse during that outing. Lieutenant
Ragland presented that statement to Sergeant Mason, who then asked Sergeant
Mullins to interrogate the defendant. Lieutenant Ragland testified that after
Sergeant Mullins interrogated the defendant, he asked Lieutenant Ragland to take
a “formal” statement from the defendant. In that statement, the defendant admitted
killing the victim.

Lieutenant Ragland adamantly denied berating or threatening the defendant
to get him to provide an inculpatory statement.

During cross-examination, Lieutenant Ragland acknowledged that he had
“basically” accused the defendant of lying, telling him that his statements were
inconsistent. Lieutenant Ragland said that the defendant did not tell him that he
was a resource student.

Sergeant Mullins testified that he interviewed the defendant in response to
the defendant’s interview with Lieutenant Ragland and “[b]ased on the information
[officers] were getting” from Ms. Vance. Sergeant Mullins said that when
confronted with “all the information,” the defendant “admitted that he was there
and that he killed” the victim. Although he had knowledge of the crime scene from
having visited it, Sergeant Mullins insisted that he did not relay any of that
information to the defendant. He said that the details provided by the defendant
during his confession matched the crime scene.

According to Sergeant Mullins, after the defendant gave the detailed
confession, Sergeant Mullins sent Lieutenant Ragland to get a transcriptionist to
take the “formal” statement. As they began taking the formal statement, however,
the defendant “all of a sudden . . . gets it all wrong. He’s not describing it the same
way he described it before.” When Sergeant Mullins told him to start over again,
the defendant “started panicking, becoming upset, and claiming that others had
committed the crime and threatened him and threatened his family if he told
anybody.” Sergeant Mullins said that the defendant “started saying that Janice
Jefferson, who he called mom, had done it. He said a guy named Wayne Bobo had
done it. He brought a couple of Hispanic names into it. Everybody but Andrew
Hayes.” At that point, they “stopped the statement.”

Sergeant Mullins said that even during his breakdown, the defendant never
asked for an attorney, never asked for questioning to cease, and never indicated that
he did not understand the waiver of rights. Sergeant Mullins testified that the
defendant provided another statement after he spent several hours in the jail on a
48–hour hold. That statement, he said, was consistent with the one given before
the defendant’s breakdown on the previous evening. Sergeant Mullins maintained
that he did not threaten the defendant or tell him what to say.

During cross-examination, Sergeant Mullins testified that officers stopped
questioning the defendant when it became clear that further interrogation “would
have been counterproductive for everybody.” He acknowledged that they did allow
Snow to confront the defendant after he implicated her in the victim’s murder. He
testified that he thought that Ms. Vance might have been the first to implicate the
defendant, and he acknowledged that he confronted the defendant with Ms. Vance’s
statement. He denied telling the defendant everything that Ms. Vance had said or
that the defendant was interviewed in the room adjacent to Ms. Vance.

Ms. Vance testified at the hearing that she heard detectives yelling and
screaming at the defendant and using “racial slurs.”

The defendant testified that he only admitted killing the victim because the
officers told him he would not be released until he told them what they wanted to
hear. He acknowledged that officers offered him food and drink and permitted him
breaks to smoke. He claimed, however, that they told him facts about the crime
and showed him pictures of the crime scene before he confessed. He also claimed
that officers did not provide Miranda warnings until he had already provided a
confession.
During cross-examination, the defendant conceded that he traveled to the
police station voluntarily in his own vehicle and that he had signed two advice of
rights forms.

The trial court denied the defendant’s motion to suppress, concluding that
“the totality of the circumstances reflects an uncoerced choice to speak with law
enforcement.” The court accredited Lieutenant Ragland’s testimony that he read
the advice of rights form aloud to the defendant and observed that the defendant
had signed two rights waivers and had initialed various parts of each incriminating
statement.

On appeal, the defendant again complains that the statements were the
product of law enforcement coercion. We consider the claim with a few well-
settled principles in mind.

A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d
215, 217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus,
questions of credibility, the weight and value of the evidence, and the resolution of
conflicting evidence are matters entrusted to the trial judge, and this court must
uphold a trial court’s findings of fact unless the evidence in the record
preponderates against them. Odom, 928 S.W.2d at 23; see also Tenn. R. App. P.
13(d). The application of the law to the facts, however, is reviewed de novo on
appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

The Fifth Amendment to the United States Constitution provides that “no
person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12
L. Ed. 2d 653 (1964) (holding “the Fifth Amendment’s exception from compulsory
self-incrimination” applicable to the states through the Fourteenth Amendment).
This means that, to pass federal constitutional muster and be admissible at trial, a
confession must be free and voluntary and not “‘extracted by any sort of threats or
violence, nor obtained by any direct or implied promises, . . . nor by the exertion of
any improper influence’” or police overreaching. Bram v. United States, 168 U.S.
532, 542–43, 18 S. Ct. 183, 42 L. Ed. 568 (1897) (citation omitted). The rule is
equally applicable to confessions given during custodial interrogations following
appropriate provision of Miranda warnings, see State v. Kelly, 603 S.W.2d 726,
728 (Tenn. 1980), and those provided before the defendant has been placed in
custody, see Arizona v. Fulminante, 499 U.S. 279, 286–88, 111 S. Ct. 1246, 113 L.
Ed. 2d 302 (1991). To determine voluntariness, the reviewing court must examine
the totality of the circumstances surrounding the confession to determine “whether
the behavior of the State’s law enforcement officials was such as to overbear [the
defendant’s] will to resist and bring about confessions not freely self-determined—
a question to be answered with complete disregard of whether or not [the defendant]
in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 5
L. Ed. 2d 760 (1961).
Article I, section 9 of the Tennessee Constitution provides that “in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence
against himself.” Tenn. Const. art. I, § 9. “The test of voluntariness for confessions
under Article I, § 9 of the Tennessee Constitution is broader and more protective of
individual rights than the test of voluntariness under the Fifth Amendment.” State
v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996) (citing State v. Stephenson, 878 S.W.2d
530, 545 (Tenn. 1994)); see also State v. Thacker, 164 S.W.3d 208, 248 (Tenn.
2005). “The critical question is ‘whether the behavior of the state’s law
enforcement officials was such as to overbear petitioner’s will to resist and bring
about confessions not freely self-determined.’” Smith, 933 S.W.2d at 455–6
(quoting Kelly, 603 S.W.2d at 728 (internal citation and quotation marks omitted)).9

Upon our review, we conclude that the record simply does not support the
defendant’s claim of coercion. The defendant, in his late twenties, was provided
with Miranda warnings. Lieutenant Ragland read both the warnings and the advice
of rights form aloud to the defendant on at least one occasion. Although the
defendant’s interrogation on November 2 was lengthy and no doubt intense, no
evidence supports a claim that his will to resist was overborne. He was provided
breaks to use the restroom and smoke, provided with a drink, and offered food.
Although this court has roundly condemned the 48–hour hold procedure utilized by
the Memphis Police Department, see, e.g., State v. Courtney Bishop, No. W2010–
01207–CCA–R3–CD, slip op. at 9 (Tenn. Crim. App., Jackson, Mar. 14, 2012), the
record in the present case establishes that probable cause for the defendant’s arrest
existed at the time he was booked into the jail on the 48–hour hold. Under these
circumstances, the trial court did not err by refusing to suppress his statements.

State v. Hayes, 2012 WL 3192827, at *10–13.
B. The TCCA Correctly Applied Federal Law
The TCCA correctly applied federal law on this issue. Under the Fifth Amendment to the
United States Constitution, “no person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. Const. amend. V. The Supreme Court has held that “the
prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards

9 This test is exactly the same as that promulgated in Rogers v. Richmond, 365 U.S. 534, 544, 81
S. Ct. 735, 5 L. Ed. 2d 760 (1961); so it is not entirely clear that it effectuates the stated goal of
providing more protection to the criminally accused.
effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436,
444 (1966). Under these safeguards, officers must tell a suspect that he has a right to remain
silent and that he has the right to have an attorney present during questioning. Id.
A defendant may waive these rights “provided the waiver is made voluntarily, knowingly

and intelligently.” Id. And “convictions following the admission into evidence of confessions
which are involuntary, i.e., the product of coercion, either physical or psychological, cannot
stand.” Rogers v. Richmond, 365 U.S. 534, 540 (1961). To determine whether a confession is
voluntary, the court asks “whether the behavior of the State’s law enforcement officials was such
as to overbear [the suspect’s] will to resist and bring about confessions not freely self-
determined. . . .” Id. at 544. As the Supreme Court in Schneckloth v. Bustamonte explained,
In determining whether a defendant’s will was overborne in a particular
case, the Court has assessed the totality of all the surrounding circumstances—both
the characteristics of the accused and the details of the interrogation. Some of the
factors taken into account have included the youth of the accused; his lack of
education; or his low intelligence; the lack of any advice to the accused of his
constitutional rights; the length of detention; the repeated and prolonged nature of
the questioning; and the use of physical punishment such as the deprivation of food
or sleep. In all of these cases, the Court determined the factual circumstances
surrounding the confession, assessed the psychological impact on the accused, and
evaluated the legal significance of how the accused reacted.

412 U.S. 218, 226 (1973) (citations and footnote omitted).
It is the State’s burden to show that a suspect has waived his rights by a preponderance of
the evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972). And “the admission of an
‘involuntary’ confession at trial is subject to harmless-error analysis.” Arizona v. Fulminante,
499 U.S. 279, 303 (1991). Under that standard, if a trial error was harmless beyond a reasonable
doubt, the court need not vacate the conviction. Id. at 310.
Petitioner does not dispute that the officers gave him the appropriate Miranda warnings.
Instead, he argues that, after “hours” of questioning, “officers created a statement . . . allegedly
given by” Petitioner and “Petitioner was compelled to implicate himself.” (ECF No. 1-1 at
PageID 13–14.) But the § 2254 Petition does not address the standards for evaluating habeas
claims on the merits. As a result, it is unclear whether Petitioner contends that the TCCA’s
decision was “contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” or whether it “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). Even if Petitioner makes these arguments, his claim
still fails.10
i. Petitioner Fails to Show that the TCCA’s Decision Conflicted with
Clearly Established Federal Law

First, Petitioner has not established that the TCCA’s decision conflicted with any relevant
Supreme Court decision. A state court’s decision is “contrary” to federal law when 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, 529 U.S. at 412–13. Here, the TCCA cited the correct legal rule from Miranda and
from Tennessee decisions applying Miranda. Hayes, 2012 WL 3192827, at *12. So the TCCA
properly relied on both federal and state case law here. And at any rate, the “contrary to”
standard under § 2254(d)(1) does not require citation of Supreme Court cases “so long as neither
the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537
U.S. 3, 8 (2002) (per curiam). That is the case here. The cases that the TCCA cited do not
contradict the Supreme Court’s decision in Miranda.

10 Because his claim fails under either standard, the court need not determine whether Petitioner
brings his claims under 28 U.S.C. § 2254(d)(1) or (2).
To be sure, the TCCA also cited federal and state decisions that do not accurately reflect
the current state of federal constitutional law, as determined by the United States Supreme Court.
For example, the TCCA quoted Bram v. United States, 168 U.S. 532, 542–43 (1897), for the
proposition that officers cannot obtain a confession by “any direct or implied promises, however

slight, nor by the exertion of any improper influence.” Hayes, 2012 WL 3192827, at *12. But
the Supreme Court has held that “under current precedent [that passage from Bram] does not
state the standard for determining the voluntariness of a confession . . . .” Fulminante, 499 U.S.
at 285.
Despite citing Bram, the TCCA still applied the correct test to find that Petitioner’s
confession was voluntary. See Hayes, 2012 WL 3192827, at *12–13. The Tennessee Supreme
Court has stated that, although both the United States and Tennessee Constitutions protect
against self-incrimination, “the test of voluntariness for confessions under Article I, § 9 [of the
Tennessee Constitution] is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.

1994), abrogated on other grounds by State v. Saylor, 117 S.W.3d 239 (Tenn. 2003); see also
State v. Frasier, 914 S.W.3d 467, 472 (Tenn. 1996) (“[T]his Court is not bound by the
interpretations of the Fifth Amendment by the federal courts, except to the extent that they
establish a ‘floor’ of constitutional protection.”). The TCCA here analyzed Petitioner’s
confession under the Tennessee Constitution’s more protective standard and found that his
confession was voluntary. This conclusion is not “contrary to” any Supreme Court decision. As
a result, Petitioner’s argument that the TCAA’s decision conflicted with Supreme Court
precedent fails.
ii. Petitioner Fails to Show that the TCCA’s Decision Unreasonably
Applied Federal Law

Second, Petitioner has not satisfied his burden of showing that the TCCA’s decision
unreasonably applied any relevant Supreme Court decision. 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.” Williams, 529 U.S. at 413. To issue a writ of habeas corpus on these grounds, the district
court must find that the state court’s application of clearly established federal law was
“objectively unreasonable.” Id. at 409. “Indeed, ‘a federal habeas court may not issue the writ
simply because the court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.’” Renico, 559 U.S. at
773 (citing Williams, 529 U.S. at 411). Thus, “[a]s a condition for obtaining habeas corpus from
a federal court, a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fair minded disagreement.”
Harrington, 562 U.S. at 103.
Petitioner does not show that the TCCA decision unreasonably applied Supreme Court
precedent. Applying the appropriate “totality of the circumstances” test, the TCCA held that
Petitioner’s confession was voluntary. Hayes, 2012 WL 3192827, at *12–13. The TCCA noted

that Petitioner “was provided with Miranda warnings.” Id. at *13. And that even though
Petitioner’s “interrogation on November 2 was lengthy and no doubt intense, no evidence
support[ed] a claim that his will to resist was overborne.” Id. Although Petitioner disagrees with
the TCCA’s decision, he has not established that it “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103. Petitioner’s argument here fails.
iii. Petitioner Fails to Show that the TCCA Based Its Decision on an
Unreasonable Factual Determination

Third, Petitioner has not shown that the TCCA based its decision on an unreasonable
factual determination. “[W]hen a federal habeas petitioner challenges the factual basis for a
prior state-court decision rejecting a claim, . . . [t]he prisoner bears the burden of rebutting the
state court’s factual findings ‘by clear and convincing evidence.’” Burt v. Titlow, 571 U.S. 12,
18 (2013) (quoting 28 U.S.C. § 2254(e)(1)). Plus “a state court factual determination is not
unreasonable merely because the federal habeas court would have reached a different conclusion
in the first instance.” Wood, 558 U.S. at 301; see also Rice v. Collins, 546 U.S. at 341–42
(“Reasonable 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.”).
Here, Petitioner has raised no specific objections to the factual determinations relied on
by the TCCA. The TCCA found that the record supported the trial court’s conclusion and that
the trial court did not err by refusing to suppress Petitioner’s statements. Hayes, 2012 WL
3192827, at *13. All in all, Petitioner has not shown by clear and convincing evidence that the
state court made unreasonable factual findings. See Burt, 571 U.S. at 18. Deference to the state
court’s decision here is appropriate. And so, the Court DENIES Issue 3.

In sum, Petitioner’s claims about Issues 1 and 3 lack merit. And the procedural default
doctrine bars Issue 2. As a result, the Court DISMISSES the petition WITH PREJUDICE.
The Court will enter judgment for Respondent.
APPELLATE ISSUES
A petitioner has no absolute entitlement to appeal a district court’s denial of a § 2254
petition. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). The Court has to 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 take an appeal unless a circuit or district judge issues a COA. 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1). A 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 reveal 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 he shows that “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).
The petitioner also does not 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). Even so,
courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773
(6th Cir. 2005) (quoting Slack, 537 U.S. at 337).
Here, there can be no question that Petitioner’s claims lack merit. Because any appeal by
Petitioner on the issues raised in this petition does not deserve attention, the Court DENIES a
certificate of appealability.
And for the same reasons the Court denies a certificate of appealability, the Court finds
that any appeal would not be taken in good faith. The Court therefore CERTIFIES under Fed.
R. App. P. 24(a), that any appeal here would not be taken in good faith, and the Court DENIES
leave to appeal in forma pauperis.11

SO ORDERED, this 24th day of March, 2022.
s/Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

11 If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or move to
proceed in forma pauperis with a supporting affidavit in the Sixth Circuit Court of Appeals
within 30 days of the entry of this order. See Fed. R. App. P. 24(a)(5).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440947. Public record. Not legal advice.