Alston v. Genovese

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

DWIGHT ALSTON,

Petitioner,

v. Case No. 2:21-cv-2196-MSN-tmp

KEVIN GENOVESE,

Respondent.

_____________________________________________________________________________

ORDER OF DISMISSAL

ORDER DENYING CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

AND

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

______________________________________________________________________________

Before the Court are the pro se Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus

by a Person in State Custody (“§ 2254 Petition,” ECF No. 1) filed by Petitioner Dwight Alston and

Respondent’s Answer to Petition for Writ of Habeas Corpus (ECF No. 21). For the reasons stated

below, the § 2254 Petition is DISMISSED.

I. STATE COURT PROCEEDINGS

On March 2, 2015, a grand jury in Tipton County, Tennessee returned an indictment

charging Petitioner with first-degree premeditated murder, employing a firearm during the

commission of a dangerous felony, and possession of a deadly weapon with intent to employ

related to the killing of Petitioner’s wife, Johnnie Alston, on September 20, 2014. (See ECF No.

14-1 at PageID 260-63.) A jury trial was held on July 13-15, 2016. (See ECF No. 14-2 at PageID

300.)

The Tennessee Court of Criminal Appeals (“TCCA”) summarized the evidence presented

at trial as follows:

This case relates to the Appellant’s shooting his wife, Johnnie Patricia Alston, on

September 20, 2014. Michael Alston, the Appellant’s and the victim’s son, testified

that he was born on November 4, 1993, and was twenty-two years old at the time

of trial. In September 2014, he lived with his parents on Andy Drive in

Drummonds, Tennessee. At some point, the Appellant had moved out of the house,

but he moved back in about three months before the shooting.

Michael testified that on the evening of Friday, September 19, his parents were at

home arguing. His mother was dressed to go to a party, but the Appellant wanted

“some family time” and did not want her to leave. The victim left in her blue

Jaguar, and Michael went to his room to watch television. He fell asleep but was

awakened by the garage door opening. He said that he knew the victim had returned

home, that he heard his parents arguing in the garage, and that the Appellant

sounded angry. Michael walked from his bedroom to the door that separated the

house from the garage and looked through a window in the door. The Appellant

was standing in front of the door, and the victim was standing in front of her car.

Michael said that the victim “was begging him and stuff” and that the Appellant

would not let the victim into the house. The Appellant kept pushing the victim

backward toward the overhead garage door and kept telling Michael to “stay back.”

Michael testified that he saw the Appellant holding a shotgun and that the victim

“fell to the ground on her knees and started begging and everything.” The victim

was crying and told the Appellant, “I’m sorry. I’ll do anything. I’ll do—I’ll sign

the papers.” The Appellant told Michael, “[G]et back, [you] don’t need to see this.”

Michael walked into the kitchen and heard a gunshot one to two minutes later. He

said that he was scared, that he grabbed the cordless house telephone, and that he

ran across the street and hid under a neighbor’s vehicle. The Appellant came

outside, and Michael crawled out from under the vehicle. He did not see the

Appellant holding a gun and asked if the Appellant was okay, but the Appellant

would not answer. The Appellant told Michael to call the police, got into the

Appellant’s Nissan, and drove away. Michael called 911.

On cross-examination, Michael testified that his mother left about 9:00 p.m. on

September 19 and that he and the Appellant watched wrestling on television in the

living room. About 9:20 p.m., Michael went to his room and fell asleep. Sometime

before 10:00 p.m., he heard the front door of the house open and close. He went

into the living room and looked outside but did not see the Appellant. The

Appellant’s Nissan was still in the driveway.

Michael acknowledged that he had been diagnosed with schizophrenia and said that

he used to take [T]razodone and Risperdal because he spoke to the devil and heard

demons talking to him. However, he stopped taking the medications because they

gave him headaches. He acknowledged telling a police officer that he thought the

Appellant had the gun just to scare the victim and that he did not think the Appellant

was going to shoot her. He also acknowledged that the victim would come home

sometimes at 2:00 or 3:00 a.m. and that one time, she did not come home until 6:00

or 7:00 a.m. On redirect examination, Michael acknowledged that[,] despite his

mental health issues, he could remember details of events.

Deputy Wesley Ballard of the Tipton County Sheriff's Office (TCSO) testified that

in the early morning hours of September 20, 2014, he transported someone to jail

and pulled into the sheriff's office to turn in the paperwork for the arrest. While

Deputy Ballard was sitting in his patrol car, the Appellant approached and said that

“he was there to turn himself in, because he’d done something bad.” Deputy

Ballard asked what the Appellant did, and the Appellant said he shot his wife.

Deputy Ballard checked the Appellant for weapons and found a .410 shotgun shell

in the Appellant’s front pants pocket. The officer learned from dispatch that the

police were looking for the Appellant and took him into custody.

Corporal Eddie Walker of the TCSO testified that on September 20, 2014, he

responded to a domestic call with possible shots fired at a home on Andy Drive.

Michael Alston was standing on the road in front of the house and was pointing to

the house. Corporal Walker described Michael as “[u]pset, scared.” Corporal

Walker and three other officers went into the home, and Corporal Walker

immediately noticed a strong smell of gunpowder. The officers went into the

garage, and Corporal Walker saw the victim lying face-down beside the overhead

garage door. Blood was pooled around her face. About thirty minutes later,

Corporal Walker learned that a vehicle possibly related to the shooting was at a

residence in Atoka, Tennessee. He went to the home and found the Appellant’s

Nissan. Two .410 shotguns shells were in the passenger seat, and one of the shells

was expended. The Appellant was not present.

Sergeant Sean Cullen of the TCSO testified that about 1:40 a.m. on September 20,

2014, he responded to the home on Andy Drive. He entered the front door and

“could smell the odor of a discharged firearm inside the residence.” The victim

was lying on the garage floor and had a hole in the back of her head. Blood was

around her head, and Sergeant Cullen saw brain matter but no wadding from a

shotgun shell.

Dorothy Bounds, the Appellant’s sister, testified that in September 2014, the

Appellant had a good job working as a supervisor at the Army Corps of Engineers

in Memphis. He and the victim had been married about 25 years. However, they

had separated for a while in 2013, and the Appellant had lived with Dorothy and

her family in Atoka for a few months. The Appellant told Dorothy that he was

going to file for divorce, and Dorothy “thought it was best.”

Dorothy testified that in 2014, the Appellant returned to live with the victim and

their son on Andy Drive. Dorothy told the Appellant not to go back, but the victim

wanted the Appellant to come home. Sometime after the Appellant returned, he

told Dorothy that he was going to proceed with the divorce. The Appellant was

unhappy because the victim never wanted to stay home. One time, the Appellant

visited the victim’s place of employment and saw a card to the victim from “a man

friend.” Dorothy said that the victim “would go out with her friends, partying and

drinking” and that the Appellant was “under stress.” The Appellant was hoping

that the victim would agree to divide their property equally in the divorce so that

he would not have to pay a lot of money to an attorney. However, in August or

September 2014, the Appellant told Dorothy that the victim “wasn’t going to sign.”

Dorothy testified that about 1:00 or 1:30 a.m. on September 20, 2014, she and her

husband were awakened by a knock on their front door. Dorothy’s husband

answered the door, and Dorothy got up to see who was there. The Appellant was

standing in the foyer, and Dorothy did not see any blood on him. The Appellant

was shaking and nervous and told Dorothy that he had come to say goodbye

because he had killed the victim and was going to jail. Dorothy said she started

crying and screaming and fell to the floor. The Appellant wanted Dorothy’s

husband to help him turn himself in to the police, so Dorothy’s husband left with

the Appellant in Dorothy’s vehicle. About 2:00 or 2:30 a.m., law enforcement

arrived and impounded the Appellant’s Nissan.

On cross-examination, Dorothy testified that the Appellant and his son, Michael,

were close. Michael had mental health issues, and the Appellant and Michael were

together all the time because the victim was “mostly not home.” Dorothy said that

the victim was still going to church but “kept living the other lifestyle.” Dorothy

acknowledged that the Appellant did not want to pay $10,000 to $15,000 for a

contested divorce and that he stayed with the victim to try to work out their

marriage. She said that when the Appellant came to her house on September 20,

he “seemed like a zombie.”

Mose Bounds, Jr., Dorothy Bounds’s husband, testified that he and Dorothy had

been married forty-two years and that he had known the Appellant about forty-three

years. The Appellant lived at the Bounds home for a period of time, but Mose never

talked with the Appellant about the Appellant’s marriage. At some point, the

Appellant and the victim reconciled. Mose said that after the reconciliation, the

Appellant “acted kind of disturbed some, you know, like depressed.”

Mose testified that about 1:15 a.m. on September 20, 2014, the Appellant knocked

on the front door. The Appellant told Mose to take him to the Tipton County Jail

“because he had done something he shouldn’t have done.” The Appellant also told

Dorothy to give him a hug because she would not see him anymore. Mose said the

Appellant was “[i]n a state of shock” and that he drove the Appellant to the sheriff’s

office. Mose said that the Appellant did not tell him specifically what the Appellant

had done but that “[i]n my mind, I knew about what he had done.” He said that

when they arrived at the sheriff’s office, the Appellant talked with an officer, and

the officer took the Appellant into custody.

Dr. Paul Benson testified as an expert in forensic pathology that he performed the

victim’s autopsy. The victim was fifty-one years old; five feet, nine inches tall; and

wearing a “CC Blues Club” wristband. She had a shotgun wound in the back of

her head on the right side, and the wound caused “lethal injuries to her skull and

brain.” Specifically, the victim experienced “diffused skull fractures, subdermal

hemorrhage, which is bleeding that happens on top of the brain, and pulpification

of the brain, which means that the brain tissue is just destroyed.” The trajectory of

the gunshot was right to left, back to front, and slightly downward. Dr. Benson

recovered multiple birdshot pellets and “a three petal plastic shot wad” from the

victim’s head. The gunshot entrance wound was circular and one-half inch in

diameter, which was consistent with a .410 shotgun. Dr. Benson did not see any

soot or searing around the wound and estimated that the muzzle of the gun was

about three feet from the victim when the gun was fired. Toxicology tests did not

show any drugs or alcohol in the victim’s bloodstream. He said that the victim’s

cause of death was a shotgun wound to the head and that the manner of death was

homicide.

On cross-examination, Dr. Benson acknowledged that “homicide” was a medical,

not legal, term and that it meant “death caused by another.” He said he could not

determine the position of the victim’s body at the time of the shooting.

Special Agent Mark Reynolds of the Tennessee Bureau of Investigation (TBI)

testified that he went to the home on Andy Drive on September 20, 2014, to

investigate the shooting, and he identified a diagram of the home's garage for the

jury. Looking into the garage from the driveway, a Mercedes was parked on the

left, and a Jaguar was parked on the right. The victim was lying behind the cars but

in front of the large garage door. Agent Reynolds found a single-shot, .410 bolt

action shotgun “propped up in the corner” of a closet in the garage. The victim was

an employee on the naval base in Millington, and Agent Reynolds went there and

photographed her office cubicle. He said that a greeting card was in the cubicle

and that someone had written in the card, “ ‘May God continue to bless and keep

you, love you.’” The card was signed, “Joseph.”

Barbara Thomas testified that she met the Appellant through her cousin in January

2014 and that they dated for a few months. The Appellant and the victim were

separated, and the Appellant was living with his sister. Thomas said that the

Appellant’s divorce from the victim “was in motion” and that she and the Appellant

talked about getting married. The Appellant told Thomas that the victim was not

contesting the divorce but that she “didn’t want to sign the papers.” He also told

Thomas that the victim was “going to sign one way or the other” and that “I can get

a divorce one way or the other.” The Appellant thought their property would be

“split down the middle,” but he was concerned about their house and furniture. At

some point, the Appellant broke up with Thomas by texting her that he had decided

to reconcile with the victim.

Special Agent Chuck Baker of the TBI testified that he interviewed the Appellant

at the sheriff’s office on September 20, 2014. The interview was video-recorded,

and the State played the recording for the jury. During the interview, the Appellant

stated as follows: He and the victim were “getting ready to go through a divorce,”

and he had “just been constantly at her about coming home at 1 or 2 in the morning.”

On the night of September 19, 2014, the victim left their house. The Appellant left

soon after and “followed her up to the store. ” He returned home, and he and his

son watched television together. The victim returned home about 2:00 a.m. The

gun was “right there in the closet.” The Appellant picked it up and asked the victim

“about this other guy.” Their son came to the door while they were arguing, and

the Appellant told him to go back inside the house. The victim was “pushing” the

Appellant, and he “kept backing up.” When he got to the rear of the car, he

“bumped” the car, and his hand “hit the trigger.” The gun was not pointed at the

victim, and he did not know he had shot her. He looked down and saw blood. The

Appellant returned to the closet and put another shell in the gun and a second shell

in his pocket. He was going to shoot himself but heard his son calling and went

outside. Agent Baker asked if the gun had “a safety,” and the Appellant said yes.

On cross-examination, Agent Baker acknowledged that the Appellant said

throughout the interview that he did not intend to kill the victim.

Oberia Malone, the victim’s sister, testified that the victim was a financial analyst

at Navy Personnel Command. Malone worked in the same building as the victim,

and they often had lunch together. One day, the Appellant “showed up” where they

were eating lunch. The Appellant was quiet, did not eat with them, and did not

interact with the victim.

Malone testified that on the Sunday before the victim’s death, she went to the

victim’s home for Sunday dinner. After dinner, the victim went upstairs and

“proceeded to separate items.” Malone said that the victim was “torn” about

divorcing the Appellant but that the victim was “tired of the situation.” Malone

stated that she and the victim often went out together at night. The victim would

drink alcohol and dance, but Malone did not see the victim with other men. When

the Appellant moved back home with the victim in 2014, he bought a Mercedes and

tried to give it to the victim. However, the victim had her own car.

At the conclusion of Malone’s testimony, the State rested its case.

See State v. Alston, No. W2017-00184-CCA-R3-CD, 2018 WL 801538, at *1–4 (Tenn. Crim. App.

Feb. 8, 2018) (footnote omitted), perm. app. denied (Tenn. Apr. 23, 2018) (ECF No. 14-11).

Petitioner retained and was represented by Leslie Ballin at trial. On July 15, 2016, the jury

found Petitioner guilty of murder in the first degree, and Petitioner was sentenced to life in prison.

(ECF No. 14-1 at PageID 271–74, 286.) The charges for employing a firearm and possession of a

deadly weapon were dismissed. (Id. at PageID 272–73.)

Petitioner appealed. (Id. at PageID 294; see ECF No. 14-5.) He raised one issue: whether

there was sufficient evidence to sustain the first-degree murder conviction. (See ECF No. 14-7 at

PageID 836.) Petitioner was represented by Melissa Downing. (See ECF No. 14-9 at PageID

891.) On February 8, 2018, the TCCA affirmed. (Id. at PageID 891, 899.) On April 23, 2018,

the Tennessee Supreme Court (“TSC”) denied permission to appeal. (ECF No. 14-11.)

On May 7, 2018, Petitioner filed a petition for post-conviction relief. (ECF No. 14-3 at

PageID 1015–30.) The TCCA summarized the evidence presented at the post-conviction hearing

as follows:

The Petitioner testified that trial counsel failed to present an accidental killing

defense. He believed that if trial counsel had focused more on the accidental nature

of the killing, he would likely have a received a conviction of second degree murder

or manslaughter instead of first degree murder. The Petitioner stated that if he had

testified, he could have explained to the jury that the shooting was accidental. He

recalled having a conversation with trial counsel during the trial regarding whether

he would testify, and trial counsel advised the Petitioner that it would not be in his

best interest to testify.

On cross-examination, the Petitioner acknowledged that he hired trial counsel to

represent him. The State pointed out that in the petition, the Petitioner alleged that

he spoke with trial counsel about whether he would testify approximately a year

prior to trial, even though the Petitioner had just testified that trial counsel only

spoke with him about whether the Petitioner would testify the day of trial. The

Petitioner acknowledged trial counsel reviewed the evidence with him prior to trial.

The Petitioner testified that he believed that trial counsel should have challenged

Mr. Alston’s competency to testify. The Petitioner thought that Mr. Alston’s

testimony unfavorably impacted the outcome of the trial. The Petitioner testified

that Mr. Alston was a diagnosed schizophrenic who had been hospitalized prior to

the shooting. The Petitioner agreed that Mr. Alston suffered from hallucinations.

On cross-examination, the Petitioner acknowledged that trial counsel questioned

Mr. Alston about his mental health on cross-examination at trial.

After the Petitioner was convicted, trial counsel filed a motion for new trial raising

twelve issues. The Petitioner was appointed a separate attorney for the purpose of

filing his direct appeal. The Petitioner testified that appellate counsel only

challenged the sufficiency of the evidence on appeal and did not raise any of the

additional eleven issues that trial counsel raised in the motion for new trial. The

Petitioner said that he met with appellate counsel prior to her filing the appellate

brief and that she informed him that it was in his best interest to only challenge the

sufficiency of the evidence. The Petitioner stated that he simply listened to

appellate counsel’s advice. On cross-examination, the Petitioner agreed that he had

the opportunity to discuss which issues would be raised on appeal with appellate

counsel but testified that he wanted appellate counsel to raise all of the claims that

trial counsel included in the motion for new trial on appeal.

Trial counsel testified that he had practiced law for over forty-two years at the time

of the post-conviction hearing. He recalled attempting to negotiate with the State

for a plea to a lesser included offense but was unable to do so. Trial counsel

remembered advising the Petitioner not to testify at trial and recalled having several

discussions with the Petitioner about whether he should testify. Trial counsel

agreed that the Petitioner came across as very mild-mannered and polite, and trial

counsel was not concerned with the Petitioner’s demeanor when he advised him

not to testify. He was concerned with the issues that would be brought out during

cross-examination, mainly that the Petitioner and the victim were going through a

divorce, that they had argued about the division of personal property, and that the

Petitioner believed that the victim had relationships with other men. Trial counsel

believed that those issues could be used to establish a motive for first degree

murder. Additionally, he explained that he believed that it was not necessary for

the Petitioner to testify because the jury heard his recorded statement in which he

maintained that the shooting had been an accident. Trial counsel recalled engaging

in a mock examination with the Petitioner with trial counsel performing the role of

the prosecutor. Trial counsel stated that he believed there “were areas of concern

of questions that [the Petitioner] could not give a good answer to.”

Regarding Mr. Alston’s competency, trial counsel recalled speaking with Mr.

Alston prior to trial. Trial counsel was aware of Mr. Alston’s mental health

diagnosis and was in possession of some of Mr. Alston’s mental health records.

Trial counsel was not concerned with Mr. Alston’s competency to testify and stated

that he did not believe that Mr. Alston “would have a problem understanding the

importance of taking an oath to tell the truth.” Trial counsel did not believe based

on his conversation with Mr. Alston and Mr. Alston’s medical records that there

were grounds to challenge Mr. Alston’s competency.

Trial counsel agreed that each of the twelve issues he raised in the motion for new

trial had merit and should have been raised on appeal. He explained that it is his

practice to prepare a motion of new trial immediately after trial while “the issues

are fresh on my mind.”

See Alston v. State, No. W2019-00930-CCA-R3-PC, 2020 WL 3639101, at *4–5 (Tenn. Crim.

App. July 2, 2020) (ECF No. 14-19), perm. app. denied (Tenn. Nov. 14, 2021) (ECF No. 14-23).

On March 19, 2019, the post-conviction court denied relief. (ECF No. 14-13 at PageID

1043–52.) Petitioner appealed. (Id. at PageID 1053.) He was represented by Frank Deslauriers

on appeal. (ECF No. 14-17 at PageID 1106.) Petitioner raised claims of ineffective assistance of

trial counsel for advising Petitioner not to testify at trial and for failing to investigate and raise

issues of Michael Alston’s competence and of trial court error concerning the denial of a

continuation or bifurcation of the post-conviction hearing so that appellate counsel could testify.

(ECF No. 14-17 at PageID 1110.) On July 2, 2020, the TCCA affirmed. See Alston, 2020 WL

3639101, at *1, 8. On January 14, 2021, the TSC denied permission to appeal. (ECF No. 14-23.)

II. FEDERAL HABEAS CLAIMS

Petitioner alleges the following grounds for relief:

1. Insufficient evidence to support first-degree premeditated murder (ECF No. 1 at

PageID 5);

2. Ineffective assistance of trial, appellate, and post-conviction counsel (id. at PageID 7,

24–33, 45–47);

3. Trial court error (id. at PageID 8, 35–44);

4. Denial of the fundamental right to a fair trial based on the cumulative effect of errors

(id. at PageID 10, 47).

III. LEGAL STANDARDS

Federal courts have authority to issue 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”). A federal court may grant habeas relief to a state prisoner “only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a).

A. EXHAUSTION AND PROCEDURAL DEFAULT

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 by presenting the same

claim sought to be redressed in a federal habeas court to the state courts pursuant to 28 U.S.C. §

2254(b) and (c). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner must “fairly

present”1 each claim to all levels of state court review, up to and including the state’s highest court

on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), except where 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). Tennessee Supreme Court Rule 39 eliminated the need

to seek review in the Tennessee Supreme Court to “be deemed to have exhausted all available state

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

App’x 575, 579 (6th Cir. 2010).

The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards

v. Carpenter, 529 U.S. 446, 452–53 (2000) (noting the interplay between the exhaustion rule and

the procedural default doctrine). 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 of the claim. 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

1 For a claim to be exhausted, “[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).

federal question and adequate to support the judgment”) (internal quotation marks and citation

omitted)).2 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).

If a petitioner’s claim has been procedurally defaulted at the state level, the claim is barred

unless the petitioner can show cause to excuse his failure to present the claim and actual prejudice

stemming from the constitutional violation. Schlup v. Delo, 513 U.S. 298, 320–21 (1995);

Coleman v. Thompson, 501 U.S. 722, 750 (1991). The only other way to excuse the procedural

default is for a petitioner to make a credible claim of actual innocence. A credible claim of

innocence is “not itself a constitutional claim, but instead a gateway through which a habeas

petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”

Schlup, 513 U.S. at 315 (quoting Herrara v. Collins, 506 U.S. 390, 404 (1993)). “To pass through

the gateway, a petitioner must produce new evidence that establishes a constitutional violation has

probably resulted in the conviction of one who is actually innocent.” Thornton v. Forshey, No.

21-3012, 2021 WL 5276758, at *3 (6th Cir. Nov. 12, 2021) (quoting Schlup, 513 U.S. at 327)

(cleaned up); 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).

2 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. 53, 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).

B. MERITS REVIEW

Pursuant to Section 2254(d), where a claim has been adjudicated in state courts on the

merits, a habeas petition should be granted only if resolution of the claim:

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

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

of the United States; or

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

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

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

and “highly deferential [AEDPA] standard,” 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)).

Review under § 2254(d)(1) is limited to the record before the state court that adjudicated

the claim on the merits. Cullen, 563 U.S. at 182. 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). An “unreasonable

application” of federal law occurs when the state court “identifies the correct governing legal

principle from” the Supreme Court’s decisions “but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. at 412–13. The state court’s application of clearly established federal

law must be “objectively unreasonable” for the writ to issue. Id. at 409. The writ may not issue

merely because the habeas court, “in its independent judgment,” determines that the “state court

decision applied clearly established federal law erroneously or incorrectly.” Renico v. Lett, 559

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

There is minimal case law addressing whether, under § 2254(d)(2), a decision was based

on “an unreasonable determination of the facts.” In Wood v. Allen, 558 U.S. 290, 301 (2010), the

Supreme Court stated that a state-court factual determination is not “unreasonable” merely because

the federal habeas court would have reached a different conclusion.3 In Rice v. Collins, 546 U.S.

333 (2006), 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.” Rice, 546 U.S. at 341–42.

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

insatiable” and has emphasized that, pursuant to § 2254(e)(1), the state court factual determination

is presumed to be correct absent clear and convincing evidence to the contrary. Ayers v. Hudson,

623 F.3d 301, 308 (6th Cir. 2010). A state court adjudication will not be overturned on factual

grounds unless objectively unreasonable in light of the evidence presented during the state court

proceeding. Id.; see also Hudson v. Lafler, 421 F. App’x 619, 624 (6th Cir. 2011) (same).

IV. ANALYSIS

Respondent argues that Petitioner’s claims are not cognizable, are unexhausted, or are

meritless. (ECF No. 21 at PageID 1192.)

A. SUFFICIENCY OF THE EVIDENCE

In Ground One, Petitioner alleges that the State is required to prove all elements of an

offense beyond a reasonable doubt and the State failed prove that Petitioner acted intentionally or

that the killing was premeditated. (ECF No. 1 at PageID 5.) This claim was exhausted on direct

3 In Wood, 558 U.S. at 299, 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.” The Court found it unnecessary to reach that issue, and left it open “for another day.”

Id. at 300–01, 303 (citing Rice, 546 U.S. at 339, in which the Court recognized that it is unsettled

whether there are some factual disputes to which § 2254(e)(1) is inapplicable).

appeal. The TCCA opined as follows:

The Appellant contends that the evidence is insufficient to support the conviction

because it fails to show he premeditated killing the victim. The State argues that

the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the

standard for review by an appellate court is “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled

to the strongest legitimate view of the evidence and all reasonable or legitimate

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Questions concerning the credibility of witnesses and the weight and

value to be afforded the evidence, as well as all factual issues raised by the

evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659

(Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this

court substitute its inferences drawn from the circumstantial evidence for those

inferences drawn by the jury. Id. Because a jury conviction removes the

presumption of innocence with which a defendant is initially cloaked at trial and

replaces it on appeal with one of guilt, a convicted defendant has the burden of

demonstrating to this court that the evidence is insufficient. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121,

140 (Tenn. 1998). “The jury decides the weight to be given to circumstantial

evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to

which the circumstances are consistent with guilt and inconsistent with innocence,

are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The

standard of review ‘is the same whether the conviction is based upon direct or

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

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) ).

First degree murder is the premeditated and intentional killing of another person.

Tenn. Code Ann. § 39–13–202(a)(1). A premeditated killing is one “done after the

exercise of reflection and judgment.” Tenn. Code Ann. § 39–13–202(d). The

element of premeditation is a question of fact for the jury. State v. Davidson, 121

S.W.3d 600, 614 (Tenn. 2003). Although the jury may not engage in speculation,

it may infer premeditation from the manner and circumstances surrounding the

killing. Bland, 958 S.W.2d at 660. In State v. Nichols, 24 S.W.3d 297, 302 (Tenn.

2000), our supreme court delineated the following circumstances from which a jury

may infer premeditation:

[D]eclarations by the defendant of an intent to kill, evidence of procurement

of a weapon, the use of a deadly weapon upon an unarmed victim, the

particular cruelty of the killing, infliction of multiple wounds, preparation

before the killing for concealment of the crime, destruction or secretion of

evidence of the murder, and calmness immediately after the killing.

The jury may also infer premeditation from the establishment of a motive for the

killing and the use of multiple weapons in succession. State v. Leach, 148 S.W.3d

42, 54 (Tenn. 2004).

The Appellant concedes that he shot and killed the victim but contends that he did

not do so with premeditation. In support of his claim, he notes that his son did not

hear him make any declaration to kill the victim before the shooting, that he told

his son to call 911 after the shooting, that the State failed to reveal any facts to

support a motive, that the killing did not involve particular cruelty, that he did not

attempt to destroy evidence or hide the crime, that he was visibly upset when he

spoke with his sister, and that he turned himself in to law enforcement.

Taken in the light most favorable to the State, the proof at trial showed that the

Appellant and the victim were in the process of getting a divorce and that the

Appellant was upset that the victim would not sign the divorce papers. He also was

upset that she was staying out late at night and suspected she was seeing other men.

The Appellant told Barbara Thomas that the victim was going to sign the papers

and that he would get a divorce “one way or the other.” On the night of September

19, 2014, the victim wanted to go to a party, but the Appellant did not want her to

leave. She left anyway, and he followed her for a short time. When she returned

home about 1:00 a.m., the Appellant confronted her in the garage, and they argued.

The Appellant was angry. He got the .410 shotgun out of the garage closet, and he

pointed it at the victim. The Appellant begged for her life and said she would sign

the divorce papers. The Appellant knew Michael was looking through the door and

told his son to get away because “[you] don’t need to see this.” The victim kept

moving backward from the front of the cars to the rear of the cars, and the Appellant

followed her. He shot her when she got to the garage door. He then put the shotgun

back into the closet, told his son to call 911, and drove to his sister’s house where

he confessed to killing the victim.

The Appellant’s procuring a weapon, using the deadly weapon on the unarmed

victim, returning the weapon to the closet after the killing, and calmness

immediately after the killing support a jury’s finding of premeditation in this case.

Moreover, his telling his son to get away because “[you] don’t need to see this”

shortly before the shooting could have been construed as a declaration to kill the

victim. Finally, although the Appellant contends that the State failed to present

proof of a motive, multiple witnesses testified that the Appellant was upset about

the victim’s partying and staying away from home, her possible involvement with

other men, and her refusal to sign the papers for an uncontested divorce. In sum,

the State presented numerous circumstances from which the jury could infer

premeditation by the Appellant. Accordingly, the evidence is sufficient to support

the conviction.

Alston, 2018 WL 801538, at *4–6.

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

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

have otherwise been satisfied—the applicant is entitled to habeas corpus relief” if the Court finds,

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

of guilt beyond a reasonable doubt.” 443 U.S. 307, 324 (1979). This standard requires a federal

district court to examine the evidence in the light most favorable to the State. Id. at 326 (“a federal

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

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

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

A challenge to the sufficiency of evidence addresses whether “the government’s case was

so lacking that it should not have even been submitted to the jury.” Musacchio v. United States,

577 U.S. 237, 243 (2016) (internal quotation marks omitted). “A reviewing court makes a limited

inquiry tailored to ensure that a defendant receives the minimum that due process requires: a

meaningful opportunity to defend against the charge against her and a jury finding of guilt beyond

a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 314–15) (cleaned up). The habeas court

asks only “whether, after viewing the evidence in the light most favorable to the prosecution, any

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

doubt.” Jackson, 443 U.S. at 319 (emphasis in original).

A federal habeas court may not intrude on the trier of fact’s role “to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id. Sufficiency of the evidence claims “face a high bar in federal habeas proceedings

because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650,

651 (2012). First, on direct appeal, the reviewing court defers to the trier of fact, and second, on

habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of

the evidence challenge simply because the federal court disagrees with the state court.” Id.

(internal quotation marks omitted). The federal habeas court may overturn the state court’s

rejection of such a claim, only if the state court’s decision was “objectively unreasonable.” Id.

(citation omitted); see Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (“we are thus bound by

two layers of deference to groups who might view facts differently than we would”).

Respondent argues that the state court applied the governing standard in Jackson and that

the state court decision is not contrary to or an unreasonable application of that standard. (ECF

No. 21 at PageID 1213.) Respondent notes that weight and credibility determinations are for the

jury and, based on the evidence, a reasonable jury could have found Petitioner guilty of first-degree

murder. (Id. at PageID 1214.) Respondent asserts that “[a] fairminded jurist could conclude that

a reasonable juror could find premeditation under this proof.” (Id.)

On direct appeal, the TCCA cited and applied the correct Supreme Court precedent in

Jackson, 443 U.S. 307. See Alston, 2018 WL 801538, at *4. The TCCA addressed the definition

of first-degree premeditated murder and the evidence required to prove it. Id. at *5. The court

noted that Petitioner conceded that he shot and killed his wife. Id. The TCCA explained that

Petitioner’s procurement of the weapon; using it against an unarmed victim; returning it to the

closet; his “calmness immediately after the killing”; and the statement to his son that he should go

away because “[you] don’t need to see this” support a finding of premeditation and a declaration

of Petitioner’s intent to kill his wife. Id. at *6.

The evidence presented at trial permits a rational trier of fact to find Petitioner guilty of

premeditated first-degree murder. This court, giving the deference due the TCCA, finds that the

TCCA’s determination that the State presented sufficient evidence to support Petitioner’s first-

degree murder conviction was not contrary to or an unreasonable application of the clearly

established Supreme Court precedent in Jackson. The TCCA did not base its decision on an

unreasonable determination of the facts in light of the evidence presented. Petitioner’s sufficiency

of the evidence claim is DENIED.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

A claim that ineffective assistance of trial counsel has deprived a defendant of his Sixth

Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466

U.S. 668, 687 (1984). To succeed on this claim, a movant must demonstrate 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.

The Sixth Circuit opined that this standard is “even more difficult to meet in habeas cases,

where the review that applies to Strickland claims is ‘doubly deferential.’” Tackett v. Trierweiler,

956 F.3d 358, 373 (6th Cir. 2020) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “The

question is not whether a federal court believes the state court’s determination under the Strickland

standard was incorrect but whether that determination was unreasonable—a substantially higher

threshold.” Id. (internal quotation marks and citation omitted).

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 demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for

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

694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.

It is not enough to show that the errors had some conceivable effect on the outcome of the

proceeding. Counsel’s errors must be so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Harrington, 562 U.S. at 104 (citing Strickland, 466 U.S. at 687, 693–

94) (cleaned up); see also Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam) (“But Strickland

does not require the State to ‘rule out’” a more favorable outcome to prevail. “Rather, Strickland

places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result

would have been different.”).

The deference accorded a state-court decision under 28 U.S.C. § 2254(d) is magnified

when reviewing an ineffective assistance claim:

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,” id., at 689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7

(1997), and when the two apply in tandem, review is “doubly” so, Knowles [v.

Mirzayance], 556 U.S., at 123, 129 S. Ct. at 1420 [(2009)]. The Strickland standard

is a general one, so the range of reasonable applications is substantial. 556 U.S., at

123, 129 S. Ct. at 1420. 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.

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

Evitts v. Lucey, 469 U.S. 387, 396 (1985). The failure to raise a nonfrivolous issue on appeal does

not constitute per se ineffective assistance of counsel, as “this process of winnowing out weaker

arguments on appeal and focusing on those more likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527,

536 (1986) (cleaned up). Claims of ineffective assistance of appellate counsel are evaluated using

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

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

v. Murray, 477 U.S. at 535–36 (failure to raise issue on appeal). To establish that appellate counsel

was ineffective, a prisoner

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

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

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

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

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

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

Smith v. Robbins, 528 U.S. at 285 (citation omitted).4

4 The Sixth Circuit has identified the following nonexclusive list of factors to consider

when assessing claims of ineffective assistance of appellate counsel:

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

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

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

4. Were the omitted issues objected to at trial?

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

6. Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so,

were the justifications reasonable?

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

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

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

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

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

would adopt?

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

An appellate counsel’s ability to choose those arguments that are more likely to succeed is

“the hallmark of effective appellate advocacy.” See Smith v. Murray, 477 U.S. 527, 536 (1986).

It is difficult to show that appellate counsel was deficient for raising one issue, rather than another,

on appeal. See Franklin v. Anderson, 434 F.3d 412, 429 (6th Cir. 2006). “In such cases, the

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

counsel did present.” Id. The petitioner must show that “there is a reasonable probability that

inclusion of the issue would have changed the result of the appeal.” McFarland v. Yukins, 356

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

In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court recognized a narrow exception

to the rule in Coleman, “[w]here, under state law, claims of ineffective assistance of trial counsel

must be raised in an initial-review collateral proceeding . . . .” Martinez, 566 U.S. at 17. 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 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. The requirements that must be satisfied to excuse a procedural default under Martinez are:

(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).

Martinez considered an Arizona law that did not permit ineffective assistance claims to be

raised on direct appeal. Martinez, 566 U.S. at 4. In the Supreme Court’s subsequent decision in

Trevino, 569 U.S. at 429, 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 . . . .” Trevino thus modified the fourth Martinez requirement for

overcoming a procedural default. Martinez and Trevino apply to Tennessee prisoners. Sutton v.

Carpenter, 745 F.3d 787, 790 (6th Cir. 2014). Martinez and Trevino do not, however, allow

ineffective assistance of post-conviction counsel claims to serve as cause and prejudice for the

procedural default of ineffective assistance of appellate counsel claims. Davila v. Davis, 137 S.

Ct. 2058 (2017). Further, the Supreme Court has held that, “under § 2254(e)(2), a federal habeas

court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-

court record based on the ineffective assistance of state post-conviction counsel.” Shinn v.

Ramirez, 142 S. Ct. 1718, 1734 (2022).

1. Petitioner’s Ineffective Assistance Claims

In Ground Two, Issues One through Three, of the Petition, Petitioner alleges multiple

claims of ineffective assistance of trial, appellate, and post-conviction counsel. In Issue One,

Petitioner asserts that his trial counsel was ineffective for the following reasons:

1. Failing to present a defense including witness, ballistic or medical experts and

evidence, and Petitioner at trial and to subject the prosecution’s case to meaningful

adversarial testing (Issue One, Claims One and Six, ECF No. 1 at PageID 24, 29, 45);

2. Advising Petitioner not to testify (Claim Two, id. at PageID 25);

3. Failing to request an instruction on accidental killing (Claim Three, id. at PageID 26);

and

4. Failing to file a pretrial motion to exclude Michael Alston’s testimony and to have a

hearing a hearing to address his competency as a witness (Claim Four, id. at PageID

27); and

5. Ballin abandoning Petitioner without cause on his direct appeal. (Claim Five, id. at

PageID 28, 45).5

In Issue Two, Petitioner asserts that his appointed appellate counsel, Melissa Downing,

was ineffective for failing to:

1. consult with Ballin on the twelve (12) issues he raised in the motion for new trial (Issue

Two, Claim One, id. at PageID 30); and

2. investigate, raise, and preserve those issues on direct appeal. (Claim Two, id. at PageID

31.)

In Issue Three, Petitioner asserts ineffective assistance of post-conviction counsel,

Deslauriers, for failing to:

1. investigate and raise why Ballin failed to raise the motions for new trial issues and

abandoned Petitioner on direct appeal (Claim One, id. at PageID 32); and

2. secure Downing as a witness at the post-conviction hearing. (Claim Two, id. at PageID

33.)

Respondent argues that Petitioner is not entitled to relief on any of his claims of ineffective

assistance of trial and appellate counsel because they are without merit or procedurally defaulted.

(ECF No. 21 at PageID 1216–22.) Respondent asserts that Petitioner’s claims of ineffective

assistance of post-conviction counsel are not cognizable in habeas. (Id. at PageID 1223.)

a. The Exhausted Claims

On post-conviction appeal, the TCCA addressed: a) ineffective assistance of trial counsel

for advising Petitioner not to testify and for failing to investigate and raise issues about his son’s

5 This is actually a claim of ineffective assistance of appellate counsel because it addresses

Ballin’s withdrawal on appeal.

competence; and b) ineffective assistance of appellate counsel for not raising issues from the

motion for new trial. See Alston, 2020 WL 3639101, at *1, 5, 8.

1) Petitioner’s Right to Testify

In Ground Two, Issue One, Claim Two of the habeas petition, Petitioner alleges that

counsel’s advice not to testify deprived the jury of crucial facts needed to establish a defense and

reasonable doubt as to murder. (ECF No. 1 at PageID 25.) Petitioner asserts that the post-

conviction court erred in finding that trial counsel’s advice was “not ineffective.” (Id. at PageID

41.)

On post-conviction appeal, the TCCA opined as follows:

The Petitioner maintains that trial counsel was ineffective for advising him not to

testify. The State argues that this argument is without merit because the Petitioner

acknowledged that he made the decision not to testify after he and trial counsel

discussed on multiple occasions the potential benefits and detriments of the

Petitioner’s testimony.

During the post-conviction hearing, trial counsel stated that he advised the

Petitioner not to testify because he was concerned that the State would question the

Petitioner about his ongoing divorce with the victim. Trial counsel also stated that

the jury had already heard from the Petitioner when the State played the Petitioner’s

interview during Special Agent Baker’s testimony. The post-conviction court

found that trial counsel “advised the Petitioner of the benefits and detriments of

testifying and explained the decision was for the Petitioner to make.” The

Petitioner testified in a jury-out hearing that he did not wish to testify before the

jury and that it was his decision not to testify. See Momon, 18 S.W.3d at 157.

Further, the post-conviction court determined that the jury heard the Petitioner’s

version of the circumstances surrounding the shooting when the video recording of

the Petitioner’s interview with Special Agent Baker was played for the jury. We

conclude that trial counsel was not deficient for advising the Petitioner not to

testify. Because the Petitioner has failed to establish that trial counsel was deficient,

we need not address the prejudice prong. See Kendrick, 454 S.W.3d at 457.

See Alston, 2020 WL 3639101, at *6.

Respondent points to trial counsel’s testimony at the post-conviction hearing explaining

why he advised Petitioner not to testify, including the risks at cross-examination given the

Petitioner’s marital distress and the fact that Petitioner claimed in his videotaped statement that

the shooting was an accident:

Part of the reasoning would have been based on the introduction into evidence [of]

his statement. When trying a case when my client’s statement is introduced, then

it’s no longer necessary for him to be subject to cross-examination to get his

message across to the jury. That would have been one of the considerations. The

others, I don’t know at the time what they were. But sitting here today, I remember

one of the reasons being that Agent Baker, if my memory is correct, testified about

his statement that included that this was an accident.

. . .

It’s what I was concerned about in as far as direct testimony, more important cross-

examination, what it would bring out, issues in the divorce, fighting about personal

property, issues at the trial as to whether or not she was out late at night carousing

with other men. And how his initial statement that this was an accident could be

stricken down by cross-examination to show an intentional killing, premeditated

killing, which is what the State argued as a result of things that he would be asked

about.

. . .

My recollection also is that in our pretrial conferences, we had mock trial question

and answers where -- where I asked him questions as if he was on direct, and then

portrayed the role of a prosecutor in asking him cross-examination-type questions.

My recollection is that there were pitfalls. There were areas of concern of questions

that he could not give a good answer to.

(ECF No. 14-14 at PageID 1092–93, 1095; see ECF No. 21 at PageID 1216–17.)

Respondent also pointed to the post-conviction court’s written findings that

It is not an attorney’s job to advise the client to take the stand. Trial counsel

should advise the client of the benefits and detriments of testifying and allow the

client to make the decision. Mr. Ballin testified that he discussed with petitioner

whether it would benefit him to take the stand, and they discussed the video

statement would present his theory of the case. Mr. Ballin felt it would be in his

interest to avoid cross-examination; but it was Mr. Alston’s decision and not Mr.

Ballin’s decision.

Trial counsel advised the Petitioner of the benefits and detriments of

testifying and explained the decision was for the Petitioner to make. The Petitioner

testified at a jury-out hearing that he did not want to testify before the jury, and that

it was his decision.

The same information which the Petitioner would have presented to the jury

if he had testified was already before the jury in his statement.

The interview was video-recorded, and the State played the recording for

the jury. During the interview, the Appellant stated as follows: He and the victim

were “getting ready to go through a divorce,” and he had “just been constantly at

her about coming home at 1 or 2 in the morning.” On the night of September 19,

2014, the victim left their house. The Appellant left soon after and “followed her

up to the store.” He returned home, and he and his son watched television together.

The victim returned home about 2:00 a.m. The gun was “right there in the closet.”

The Appellant picked it up and asked the victim “about this other guy.” Their son

came to the door while they were arguing, and the Appellant told him to go back

inside the house. The victim was “pushing” the Appellant, and he “kept backing

up.” When he got to the rear of the car, he “bumped “the car, and his hand “hit the

trigger.” The gun was not pointed at the victim, and he did not know he had shot

her. He looked down and saw blood. The Appellant returned to the closet and put

another shell in the gun and a second shell in his pocket. He was going to shoot

himself but heard his son calling and went outside. Agent Baker asked if the gun

had “a safety,” and the Appellant said yes. On cross-examination, Agent Baker

acknowledged that the Appellant said throughout the interview that he did not

intend to kill the victim.

Petitioner has failed to show how counsel was deficient in this regard. The jury

heard the defendant/petitioner’s version of what happened in the video. Petitioner

got his version of the facts before the jury without being subjected to cross-

examination. It was a trial decision for the defendant to elect not to testify. This

issue has no merit.

(ECF No. 14-13 at PageID 1047–48; see ECF No. 21 at PageID 1217.) Respondent argues that

the state court’s decision on appeal was not contrary to or an unreasonable application of Strickland

and was based on a reasonable determination of facts in light of the evidence presented. (Id. at

PageID 1218.)

The TCCA found that Petitioner recalled speaking with trial counsel during trial about

whether he should testify and that Ballin advised Petitioner that it would not be in his best interest

to testify. See Alston, 2020 WL 3639101, at *4. However, on cross-examination, Petitioner

admitted that, in his petition, he said he had spoken with trial counsel about whether to testify a

year before trial and acknowledged that trial counsel reviewed the evidence with him before trial.

Id. (See ECF No. 14-4 at PageID 1077–81.) In Petitioner’s post-conviction testimony, Petitioner

claimed that, on the day of trial, Ballin “told me that he had to put me on and ask[ed] me did I

want to take the stand, but I already knew not to take the stand.” (Id. at PageID 1079–80.)

Petitioner acknowledged that he and Ballin had discussed on multiple occasions whether he should

testify, and Petitioner said he followed what Ballin told him to do. (Id. at PageID 1083.)

Ballin remembered several conversations with Petitioner about whether he should testify

and Ballin’s advice that Petitioner should not testify. Id. Ballin said that he told Petitioner “it’s

your decision not mine.” (ECF No. 14-14 at PageID 1094.) Ballin was not concerned with

Petitioner’s demeanor or the impression that he might give to the jury because Petitioner presented

as mild-mannered, nice, and polite. (Id. at PageID 1092–94.)

The TCCA pointed out that, although Ballin was not concerned with Petitioner’s demeanor

at trial, he was concerned about the divorce, arguments over property, and Petitioner’s concern

over Johnnie Alston’s relationships with other men. Id. The TCCA noted that Ballin believed that

“those issues could be used to establish a motive for first-degree murder.” Id. The TCCA credited

Ballin’s testimony, Petitioner’s testimony in the Momon hearing (see ECF No. 14-4 at PageID

742–43), and found that the information about the circumstances of the shooting was before the

jury. Id. at *6. The TCCA held that trial counsel’s performance was not deficient concerning the

advice that Petitioner not testify. Id.

The TCCA cited and applied the correct standard in Strickland. Id. at *6. Counsel’s

concerns about how a jury would view the couple’s contentious divorce, relationship, and

Petitioner’s actions that night, including: a) his anger about his wife going out; b) following her

when she left home; c) confronting her on her return hours later; and d) following her in the garage,

despite her begging and agreeing to sign the divorce papers, raised legitimate concerns about

whether Petitioner would present well on cross-examination. Counsel also informed Petitioner

that it was his choice to testify. The TCCA’s determination that counsel’s advice was reasonable

and that his performance was not deficient is not contrary to or an unreasonable application of

Strickland and is based on a reasonable determination of facts in light of the evidence presented.

Petitioner’s claim is without merit and DENIED.

2) Michael Alston’s Competency

In Ground Two, Issue One, Claim Four, Petitioner asserts his Sixth and Fourteenth

Amendment rights were violated by counsel’s failure to file a pretrial motion to exclude his son

Michael Alston’s testimony and seek a competency hearing. (ECF No. 1 at PageID 27.) Petitioner

contends that Michael was diagnosed with schizophrenia and took Trazadone and Risperdal and

that he stopped taking his medications against doctor’s advice. (Id.) Petitioner asserts that “[t]his

alone undermine[s Michael’s] testimony.” (Id.) Petitioner contends that the post-conviction court

erred in finding that trial counsel was “not ineffective in failing to investigate and raising the

issues” of Michael Alston’s competence. (Id. at PageID 42.)

On post-conviction appeal, the TCCA found that Petitioner’s adult son, Michael, testified

at trial that his mother wanted to go to a party and Petitioner wanted her to stay home. Alston,

2020 WL 3639101, at *1. Michael woke up when the garage door opened and heard his parents

arguing. Id. Michael testified that he saw Petitioner holding a shotgun and his mother on her

knees begging and saying that she would “sign the papers.” Id. Michael said that Petitioner told

him to “[G]et back, [you] don’t need to see this.” Id. When Michael returned to the kitchen, he

heard gunshots moments later. Id.

In the post-conviction proceedings, Petitioner testified that Michael suffered from

hallucinations and had been hospitalized. Id. at *4. Petitioner believed that Michael’s testimony

had an unfavorable impact on the trial. Id. However, Petitioner acknowledged that Ballin asked

Michael about his mental health on cross-examination. Id.

Ballin was aware of Michael’s diagnosis, had his mental health records, and had spoken to

Michael before the trial. Id. at *5. Ballin was not concerned about Michael’s competency and

ability to take an oath and tell the truth. Id. Ballin found no basis in the medical records to

challenge Michael’s competency. Id. On post-conviction appeal, the TCCA opined, as follows:

The Petitioner contends that trial counsel was ineffective for failing to adequately

investigate and challenge the competency of Mr. Alston to testify at trial. The State

maintains that the Petitioner has failed to establish that he was prejudiced by trial

counsel’s decision not to challenge Mr. Alston’s competency to testify. We agree

with the State.

Rule 601 of the Tennessee Rules of Evidence states that “[e]very person is

presumed competent to be a witness except as otherwise provided in these rules or

by statute.” The Advisory Comments to Rule 601 states that “[v]irtually all

witnesses may be permitted to testify: children, mentally incompetent persons,

convicted felons.” “[E]very witness shall be required to declare that the witness

will testify truthfully by oath or affirmation, administered in a form calculated to

awaken the witness’s conscience and impress the witness’s mind with the duty to

do so.” Tenn. R. Evid. 603. However, trial counsel “may attempt to impeach a

witness by demonstrating his or her impaired capacity either at the time of the

occurrence which is the subject of the testimony or at the time of the testimony.”

State v. Garrick Graham, No. E2014-01267-CCA-R3-CD, 2016 WL 892103, at

*13 (Tenn. Crim. App. Mar. 8, 2016) (citing Tenn. R. Evid. 617; State v. Barnes,

703 S.W.2d 611, 617-18 (Tenn. 1985)).

Trial counsel testified at the post-conviction hearing that he did not believe that Mr.

Alston “would have a problem understanding the importance of taking an oath to

tell the truth.” Further, trial counsel was aware of Mr. Alston’s schizophrenia

diagnosis and questioned him about his mental health on cross-examination. Trial

counsel also testified during the post-conviction hearing that he interviewed Mr.

Alston prior to trial and had obtained his medical records. During the cross-

examination of Mr. Alston, trial counsel questioned Mr. Alston about his prescribed

medications, the symptoms of his schizophrenia, and whether Mr. Alston was still

taking his prescribed medications. The Petitioner failed to present any evidence

that Mr. Alston was not competent to testify at trial. See Larry E. Rathbone v. State,

No. E2019-00447-CCA-R3-PC, 2020 WL 2079264, at *13 (Tenn. Crim. App. Apr.

30, 2020) (concluding that the petitioner failed to show that trial counsel was

ineffective for failing to challenge the victim’s competency to testify when he failed

to establish that “a factual basis existed for trial counsel to mount a successful

challenge to the victim's competency to testify.”). Accordingly, we conclude that

trial counsel was not ineffective for failing to challenge Mr. Alston’s competence.

Alston, 2020 WL 3639101, at *7.

Respondent argues that the state court’s decision was not contrary to or an unreasonable

application of clearly established federal law and was not based on an unreasonable determination

of facts in light of the evidence presented in the state court. (ECF No. 21 at PageID 1218, 1220.)

Respondent asserts that Petitioner did not present proof that Michael was not competent to testify

and failed to show that trial counsel was deficient for not having the testimony excluded. (Id. at

PageID 1220.) Respondent points out that Ballin explored Michael’s diagnosis and medications

on cross-examination, and the jury made a credibility determination based on his testimony. (Id.)

At the post-conviction hearing, Petitioner acknowledged that Ballin cross-examined

Michael at trial with his psychiatric history. (ECF No. 14-14 at PageID 1085.) Petitioner wanted

to exclude his son’s testimony. (Id. at PageID 1088.) However, Ballin testified that, after speaking

with Michael and reviewing his records, he found no basis to file a motion based on Michael’s

competency. (See ECF No. 14-14 at PageID 1094–96.)

Michael testified about the argument before his mother left to go to a party, his father

leaving the home, and what happened in the garage when his mother returned and tried to come in

the house, her begging and crying, and his father pushing her away with the shotgun. (See ECF

No. 14-3 at PageID 472–94, 516–17.) Michael testified that he left because “Daddy told me to get

back, I don’t need to see this.” (Id. at PageID 494.) Michael was the only witness who could set

the stage for the events that led to his mother’s murder.

On cross-examination, Ballin asked Michael about his schizophrenia diagnosis and about

the medications he was prescribed. (Id. at PageID 511.) Michael testified that he stopped taking

Trazodone and Risperdal on his own because the medicine gave him headaches. (Id.) Michael

admitted that he was given the medication because he heard things—he talked to the devil and

demons spoke to him. (Id.) Michael testified that the testimony he gave was true and he could

remember details. (Id. at PageID 520–21.)

Like with Tenn. R. Evid. 601, the Sixth Circuit has held that a mature person of normal

appearance and demeanor is presumed to be a competent witness and that incompetency must be

shown. Henderson v. United States, 218 F.2d 14, 17–18 (6th Cir. 1955). Further, the TCCA has

clarified what it means to be competent to testify:

“So long as a witness is of sufficient capacity to understand the obligation of an

oath or affirmation, and some rule or statute does not provide otherwise, the witness

is competent.” Id. at 538. To understand the obligations of an oath, the witness

must simply be aware of and sensitive to the obligation to tell the truth under oath.

See State v. Jackson, 52 S.W.3d 661, 667 (Tenn. Crim. App. 2001).

State v. Shellhouse, No. E2001-01604-CCA-R3CD, 2002 WL 31202135, at *3 (Tenn. Crim. App.

Oct. 3, 2002). Michael’s testimony demonstrates that he understood the oath and his obligation to

tell the truth.

Petitioner has not pointed to any evidence to show that his son was incompetent to testify.

Petitioner does not dispute any of Michael’s testimony as untruthful or the product of his mental

illness. With no facts or evidence to show incompetence, Petitioner fails to meet his burden to

show that his counsel’s failure to challenge Michael’s competence was deficient performance.

The TCCA’s determination was not contrary to or an unreasonable application of

Strickland and was based on a reasonable determination of facts in light of the evidence presented

in the state courts. Petitioner’s claim of ineffective assistance about Michael’s competence to

testify is without merit and DENIED.

3) Other Issues Raised on Appeal

On post-conviction appeal, Petitioner disagreed with the post-conviction court’s finding

about ineffective assistance of appellate counsel because the case was not continued so appellate

counsel could testify, and Petitioner suggested that the facts and Ballin’s post-conviction testimony

did not support the post-conviction court’s findings. (See ECF No. 14-17 at PageID 1110, 1117–

20.) At the post-conviction hearing, Petitioner said that Downing should have raised on appeal

the twelve issues (see ECF No. 14-1 at PageID 287–88) that Ballin raised in the motion for new

trial. (ECF No. 14-14 at PageID 1071–72.) However, Downing raised sufficiency of the evidence

only. (Id.) Petitioner testified that Downing thought it was in Petitioner’s best interest to raise

only sufficiency of the evidence. (Id. at PageID 1072–73.) Petitioner later learned that this was

not in his best interest and that “Ballin wouldn’t have put that in there if it wasn’t important.” (Id.)

Ballin testified that he raised “issues that I thought may be subject to relief before the Court of

Criminal Appeals.” (Id. at PageID 1097.) Neither Ballin nor Petitioner elaborated on the merits

of any of the eleven claims from the motion for new trial that were not raised on appeal. 6

The TCCA addressed Petitioner’s assertions that appellate counsel was ineffective for

failing to raise eleven issues presented in the motion for a new trial on appeal. See Alston, 2020

WL 3639101, at *8. This claim was raised in Ground Two, Issue Two, Claim Two of the § 2254

Petition. Respondent argues that the claim is procedurally defaulted because it was abandoned on

post-conviction appeal and because the TCCA did not consider the claim. (ECF No. 21 at PageID

1222.) Because the record demonstrates that Petitioner exhausted the claim and the TCCA ruled

on it, the Court will address this claim on the merits.

In the context of evaluating the post-conviction court’s denial of a continuance, the TCCA

opined as follows:

The Petitioner maintains that appellate counsel was ineffective for failing to raise

6 Sufficiency of the evidence was raised in the motion for a new trial and on appeal. (See

ECF No. 14-1 at PageID 287; see ECF No. 14-7 at PageID 836.)

on appeal eleven issues that were included in the motion for new trial. “Appellate

counsel are not constitutionally required to raise every conceivable issue on

appeal.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004). When a petitioner

bases his claim of ineffective assistance of counsel on counsel’s failure to raise an

issue on appeal, the petitioner proves deficient performance by showing that “this

omission was so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Id. “[I]f an issue has no merit or is weak,

then appellate counsel’s performance will not be deficient if counsel fails to raise

it.” Id. Similarly, a petitioner suffers no prejudice when appellate counsel fails to

raise an issue on appeal, “unless the omitted issue has some merit.” Id.

Here, in both the petition for post-conviction and the Petitioner’s appellate brief, he

simply lists the issues that he believes appellate counsel should have raised. The

Petitioner failed to establish that any of these claims would have been successful

on appeal. Accordingly, we conclude that the post-conviction court did not err in

its findings.

Alston, 2020 WL 3639101, at *8.

Ballin withdrew the issue about the jury not being sworn because that was incorrect. (See

ECF 14-1 at PageID 293.) The trial court denied the motion for a new trial. (Id.) Although both

Petitioner and Ballin testified that they believed the claims in the motion for a new trial had merit,

neither testified about why those claims would have been successful on appeal. Petitioner has

failed to demonstrate deficient performance or prejudice.

The TCCA’s decision was not contrary to or any unreasonable application of Supreme

Court precedent and was not based on an unreasonable determination of facts in light of the

evidence presented. Petitioner’s claim of ineffective assistance of appellate counsel in Ground

Two, Issue Two, Claim Two is without merit and DENIED.

b. Procedurally Defaulted Claims

Respondent argues that the remaining ineffective assistance of trial counsel claims and the

remaining claim of ineffective assistance of appellate counsel are procedurally defaulted. (ECF

No. 21 at PageID 1220–22.)

1) Ballin’s Withdrawal

Respondent argues that Ground Two, Issue One, Claim Five about trial counsel’s

withdrawal on appeal was not raised in the post-conviction petition or on appeal. (Id. at PageID

1222.) Respondent contends that this claim is procedurally defaulted because Petitioner has not

fully exhausted his state court remedies. (Id.) Further, Respondent correctly asserts that Martinez

does not excuse the procedural default because Martinez does not extend to claims of ineffective

assistance of appellate counsel. (Id.) See Davila, 137 S. Ct. 2058.

Petitioner did not raise this claim in the state court proceedings. (See ECF No. 14-13 at

PageID 107; see also ECF No. 14-17.) Petitioner has not demonstrated cause and prejudice or

made a credible claim of actual innocence to overcome the procedural default. Ground Two, Issue

One, Claim Five is procedurally defaulted and DENIED.

2) Remaining Defaulted Claims

Respondent argues that Ground Two, Issue One, Claims One, Three, and Six and Ground

Two, Issue Two, Claim One7 were raised in the post-conviction petition, but Petitioner abandoned

those issues on appeal. (ECF No. 21 at PageID 1220–22.) Those claims are (i) ineffective

assistance of trial counsel for failing to present a defense, including witnesses, ballistic or medical

experts and evidence (see Ground Two, Issue One, Claims One and Six); (ii) ineffective assistance

of trial counsel and for failing to request an instruction on accidental killing (see id., Claim Three);

and (iii) ineffective assistance of appellate counsel for failing to consult with Ballin about the

issues in the motion for new trial (see id., Issue Two, Claim One). (ECF No. 1 at PageID 24, 26,

7 Respondent also argued that Ground Two, Issue Two, Claim Two was procedurally

defaulted; however, as explained above, the Petitioner exhausted the claim and the TCCA ruled

on it. This Court found that the claim was without merit. See supra Section IV.B.1.a(3), pp. 31–

33.

29–30.) Respondent argues that the claims were not fully exhausted to the highest available state

court and are procedurally defaulted because Martinez has no application to a federal claim

procedurally defaulted in collateral review appellate proceedings. (See ECF No. 21 at PageID

1220–22.)

Petitioner did not exhaust these ineffective assistance of trial and appellate counsel claims

on post-conviction appeal to the highest available state court. Petitioner makes no argument to

overcome the procedural default. To the extent Petitioner may rely on Martinez, ineffective

assistance of post-conviction counsel was not the cause for the default. See Martinez, 566 U.S. at

17 (Martinez “does not extend to attorney errors in any proceeding beyond the first occasion the

State allows a prisoner to raise a claim of ineffective assistance at trial”). For these reasons,

Ground Two, Issue One, Claims One, Three, and Six and Ground Two, Issue Two, Claim One are

procedurally defaulted and DENIED.

In sum, Petitioner’s claims of ineffective assistance of trial and appellate counsel in Ground

Two, Issues One and Two, are without merit or procedurally defaulted and DENIED.

c. NON-COGNIZABLE CLAIMS

In Ground Two, Issue Three, Petitioner asserts ineffective assistance of post-conviction

counsel, Deslauriers, for failing to investigate and raise Ballin’s failure to raise the motion for new

trial issues and his abandonment of Petitioner on direct appeal and for failing to secure appellate

counsel, Downing, as a witness at the post-conviction hearing. (ECF No. 1 at PageID 32–33.)

Respondent argues that these stand-alone claims are not cognizable in habeas. (ECF No. 21 at

PageID 1223.)

The ineffective assistance of post-conviction counsel does not constitute grounds for

habeas relief. See 28 U.S.C. § 2254(i). Even if that were not the case, the Supreme Court has long

held that “[t]here is no right to counsel in state post-conviction proceedings” and therefore no right

to effective post-conviction counsel. Coleman, 501 U.S. at 752 (citations omitted). Martinez and

Trevino did not abrogate that rule. “Because there is no constitutional right to counsel in state

postconviction proceedings, a prisoner ordinarily must bear responsibility for all attorney errors

during those proceedings. Among those errors, a state prisoner is responsible for counsel’s

negligent failure to develop the state postconviction record.” Shinn v. Ramirez, 212 L. Ed. 2d 713,

142 S. Ct. 1718, 1735 (2022) (cleaned up); see Hugueley v. Mays, 964 F.3d 489, 500 (6th Cir.

2020) (“Since a petitioner has no Sixth Amendment right to counsel in a post-conviction

proceeding, it therefore follows that counsel cannot be ineffective for not taking all possible steps

to fully develop the claim that the petitioner wishes she had”); see Waterford v. Washburn, 455 F.

Supp. 3d 579, 608 (M.D. Tenn. 2020) (denying ineffective assistance of post-conviction claim as

not cognizable). Because Petitioner has no constitutional right to the effective assistance of post-

conviction counsel, his claims of ineffective assistance of post-conviction counsel in Ground Two,

Issue Three, are not cognizable in this habeas proceeding and are DENIED.

2. TRIAL COURT ERRORS

In Ground Three, Petitioner alleges that the trial court erred when it:

1. Failed to swear in the jury (ECF No. 1 at PageID 35);

2. allowed Walker’s testimony about Michael Alston’s demeanor (id. at PageID 36);

3. allowed Cullen to testify as a ballistics expert (id. at PageID 37);

4. allowed Malone to testify about going to Petitioner’s house to get furniture and the

purpose of getting those items (id. at PageID 38);

5. allowed Malone to testify about the victim’s demeanor and Petitioner’s and the victim’s

marriage (id. at PageID 39);

6. allowed Ballin to withdraw after the trial (id. at PageID 40, 47);

7. determined, in the post-conviction proceedings, that trial counsel was not ineffective

for advising Petitioner not to testify at trial and for failing to investigate issues of

Michael Alston’s competency (id. at PageID 41-42);8 and

8. denied Petitioner a continuance or bifurcation of the hearing in the post-conviction

proceedings so that Downing could testify (id. at PageID 43).

Respondent argues that Petitioner’s claim of trial court error based on the post-conviction

court’s denial of a continuance is not cognizable and that the remaining claims of trial court error

are procedurally defaulted. (ECF No. 21 at PageID 1223–29.)

a. The Continuance

On post-conviction appeal, Petitioner asserts that he moved orally for a continuance of the

post-conviction hearing to allow Downing to testify, but the motion was denied. (ECF No. 14-17

at PageID 1117.) Petitioner argues that the court erred by not allowing a resetting or a bifurcated

hearing. (Id.) Petitioner contends that appellate counsel’s absence from the hearing prevented the

trial court from making proper factual findings. (Id.)

Respondent notes that Petitioner’s claim that the trial court erred in the post-conviction

proceedings by not granting a continuance or a bifurcated hearing to allow Downing to testify was

reviewed on post-conviction appeal. (ECF No. 21 at PageID 1223.) Respondent argues that the

claim was raised and addressed as a state law claim. (Id. at PageID 1224.) To the extent the claim

could be considered a cognizable federal claim, Respondent argues that the TCCA’s decision was

not contrary to or an unreasonable application of clearly established federal law and was based on

a reasonable determination of facts in light of the evidence presented. (Id.) Respondent contends

8 In Ground Three, Claims Seven and Eight, Petitioner asserts trial court error from the

post-conviction court’s determination that trial counsel was not ineffective for advising Petitioner

not to testify at trial and for and with regard to challenging Michael Alston’s competence. (ECF

No. 1 at PageID 42–43.) The Court has addressed these claims and found no error in the TCCA’s

rulings, see supra Section IV.B.1.a(1) & (2), pp. 23–31.

that the state court managed its docket appropriately, and there was no constitutional violation.

(Id.)

The TCCA opined as follows:

The State notes in its brief that the post-conviction court had previously granted the

Petitioner two continuances and was acting within its discretion in denying another

continuance. We agree with the State.

Whether to allow a continuance is within the discretion of the post-conviction court.

See Terry D. Sneed v. State, No. E2010-00323-CCA-R3-PC, 2011 WL 862029, at

*3 (Tenn. Crim. App. Mar. 14, 2011) (citing Moorehead v. State, 409 S.W.2d 357,

358 (Tenn. 1966)). The post-conviction court’s decision to deny a request for a

continuance will only be overturned when the post-conviction court abused its

discretion and the petitioner was prejudiced by the court’s decision. Dallas Jay

Stewart v. State, No. M2014-01682-CCAR3-PC, 2016 WL 2620286, at *4 (Tenn.

Crim. App. May 5, 2016) (citing State v. Morgan, 825 S.W.2d 113, 117 (Tenn.

Crim. App. 1991)). “A Petitioner is improperly prejudiced by the denial of a motion

for continuance when ‘a different result might reasonably have been reached if the

continuance had been granted.’” Id. (quoting Morgan, 825 S.W.2d at 117).

We conclude that the post-conviction court did not err by denying the Petitioner’s

oral motion for a continuance or a bifurcated hearing to allow appellate counsel to

be present to testify. The Petitioner’s brief simply states that the post-conviction

court erred in denying him a continuance because the post-conviction court made

factual findings regarding the effectiveness of appellate counsel without listening

to her testimony. He failed to establish that he was prejudiced by the denial of a

motion for continuance because he has not established that a different result would

have occurred if the continuance was granted. Id. The Petitioner failed to present

any evidence surrounding the circumstances of appellate counsel’s absence from

the hearing, and he failed to include any information regarding whether appellate

counsel was under subpoena to testify at the post-conviction hearing. The record

establishes that the post-conviction court had granted two previous continuances.

The post-conviction court did not err in denying the Petitioner’s request for a

continuance.

Alston, 2020 WL 3639101, at *7–8.

To obtain habeas relief, Petitioner must assert a violation of the Constitution, laws, or

treaties of the United States. See 28 U.S.C. § 2254(a). Petitioner’s claim was raised and decided

based on state law. He cites to Tenn. Code Ann. § 40-30-111(b) in support of his argument. (See

ECF No. 14-17 at PageID 1117–18.) Petitioner’s challenge is to the state court collateral

proceeding and is not a constitutional challenge to his detention. The claim is a matter of state law

related to the post-conviction court’s management of the case and does not raise a constitutional

challenge. See Schlup v. Armontrout, 941 F.2d 631, 642 (8th Cir. 1991) (the review in habeas of

a claim that the post-conviction court denied a motion to continue the post-conviction hearing is

not cognizable); see Martin v. Evans, 384 F.3d 848, 855 (7th Cir. 2004) (“The trial court’s denial

of a continuance, however, is a matter of state evidentiary law that does not provide a basis for

federal habeas relief.”) Petitioner’s claim that the post-conviction court erred in denying the

motion for continuance is not cognizable and DENIED.

b. Defaulted Claims

Ground Three, Claims One through Five, were raised in the motion for a new trial, but they

were not exhausted on direct appeal or post-conviction appeal. (See ECF No. 21 at PageID 1226–

29.) These claims were not exhausted to the highest available state court and are procedurally

defaulted.

Claim Six asserts trial court error for allowing Ballin, paid counsel, to withdraw on appeal.

(ECF No. 1 at PageID 1229.) This claim was not raised on direct appeal or in the post-conviction

proceedings. Petitioner has not exhausted this claim.

To the extent Petitioner relies on Martinez to overcome procedural default, his argument

fails because these are not ineffective assistance of trial counsel claims. See Martinez, 566 U.S. at

17. Further, Petitioner has not otherwise demonstrated cause and prejudice nor a credible claim

of actual innocence to overcome the procedural default. Ground Three, Claims One through Six,

are procedurally defaulted and DENIED.9

9 Claim One is also without merit because the jury was sworn. (See ECF No. 14-1 at

PageID 293.) Claims Two, Three, Four, and Five address state law evidentiary issues and do not

rise to the level of a due process violation. Generally, state evidentiary issues are not cognizable

Petitioner’s claims of trial court error in Ground Three are without merit, not cognizable in

habeas, or procedurally defaulted and DENIED.

C. CUMULATIVE ERROR

Petitioner alleges that the cumulative effect of the constitutional violations of ineffective

assistance and trial court error denied Petitioner his fundamental right to a fair trial and effective

appeal. (ECF No. 1 at PageID 10, 47.) The Sixth Circuit has held that “post-AEDPA, not even

constitutional errors that would not individually support habeas relief can be cumulated to support

habeas relief.” Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010) (quoting Moore v. Parker,

425 F.3d 250, 256 (6th Cir. 2005)); see Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012)

(same); see March v. McAllister, 573 F. App’x 450, n.5 (6th Cir. 2014); see also Cross v. Stovall,

238 F. App’x 32, 41 (6th Cir. 2007) (“The law of this Circuit is that cumulative error claims are

not cognizable on habeas because the Supreme Court has not spoken on this issue[,]”) (quoting

Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006)). Petitioner’s cumulative error claim is

without merit and DENIED.

V. CONCLUSION

The issues raised in the § 2254 Petition lack merit, are non-cognizable, or are barred by

procedural default. The Court therefore DISMISSES the § 2254 Petition WITH PREJUDICE.

The Court will enter judgment for Respondent.

VI. APPELLATE ISSUES

There is no absolute entitlement to appeal a district court’s denial of a § 2254 petition.

Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); Bradley v. Birkett, 156 F. App’x 771, 772 (6th

Cir. 2005). The Court must issue or deny a certificate of appealability (“COA”) when it enters a

on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

final order adverse to a § 2254 petitioner. Habeas Rule 11. 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 COA may issue only if the petitioner has made a substantial showing of the denial of a

constitutional right, and the COA must indicate the specific issue or issues that satisfy the required

showing. 28 U.S.C. §§ 2253(c)(2) & 3. A “substantial showing” is made when the petitioner

demonstrates 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) (same).

A COA does not require a showing 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). Courts should not issue

a COA as a matter of course. Bradley, 156 F. App’x at 773 (quoting Miller-El, 537 U.S. at 337).

In this case, there can be no question that the claims in this Petition are without merit,

procedurally defaulted, or not cognizable on habeas review. Because any appeal by Petitioner on

the issues raised in this petition does not deserve attention, the Court DENIES a certificate of

appealability.

In this case for the reasons the Court denies a certificate of appealability, the Court

determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant

to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith and leave

to appeal in forma pauperis is DENIED.10

10 If Petitioner files a notice of appeal, he must pay the full $605 appellate filing fee or file

a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of

Appeals within thirty (30) days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).

IT IS SO ORDERED, this 26th day of March, 2024.

s/ Mark S. Norris

MARK S. NORRIS

UNITED STATES DISTRICT JUDGE