Moody v. Westbrooks

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DEANGELO MOODY, )

)

Petitioner, )

)

v. ) Case No. 3:17-cv-01452

) Judge Trauger

MIKE PARRIS, Warden,1 )

)

Respondent. )

MEMORANDUM

DeAngelo Moody is currently serving a sentence of life in prison based on his May 12,

2011 conviction by a Davidson County, Tennessee jury of first-degree felony murder. On

November 15, 2017, he filed his pro se petition for the writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. (Doc. No. 1.) The respondent thereafter filed an answer to the petition (Doc. No. 8) and

the state court record (Doc. No. 7), and the petitioner filed a reply to the respondent’s answer (Doc.

No. 15).

This matter is ripe for the court’s review, and the court has jurisdiction. The respondent

does not dispute that the petition is timely, that this is the petitioner’s first Section 2254 petition

related to this conviction, and that the claims of the petition have been exhausted. (Doc. No. 8 at

1–2.) Having reviewed the petitioner’s arguments and the underlying record, the court finds that

an evidentiary hearing is not required. As explained below, the petitioner is not entitled to relief

under Section 2254, and his petition will therefore be denied.

1 In light of the petitioner’s transfer to the Morgan County Correctional Complex, the appropriate

respondent to his petition is the warden of that facility, Mike Parris. Rule 2(a), Rules Gov’g Section 2254

Cases.

I. PROCEDURAL HISTORY

The petitioner was indicted on December 3, 2009, along with Martez Matthews and

Lorenzo Ortago Thomas, for the killing of Loren Michelle Johnson during the perpetration of or

attempt to perpetrate a first-degree murder, and for employing a firearm during the commission of

a dangerous felony. (Doc. No. 7-1 at 4–7.) The petitioner, his co-defendants, and the victim were

all minor teenagers in 2009. After being tried jointly with Matthews before a jury (Thomas was

tried separately), the petitioner was acquitted of the firearm charge but convicted of first-degree

felony murder. (Doc. No. 7-7 at 3–4.) The trial court sentenced the petitioner to life in prison.

(Doc. No. 7-1 at 48.)

On direct appeal, the petitioner argued that the evidence at trial was insufficient to support

a guilty verdict. (Doc. No. 7-10 at 4.) The Tennessee Court of Criminal Appeals (TCCA) rejected

this argument and affirmed the judgment of the trial court. See State v. Moody, No. M2011-01930-

CCA-R3-CD, 2013 WL 1932718 (Tenn. Crim. App. May 9, 2013). The Tennessee Supreme Court

denied discretionary review on October 7, 2013. (Doc. No. 7-13.)

Petitioner filed a pro se petition for post-conviction relief on April 21, 2014. (Doc. No. 7-

14 at 29–35.) Following the appointment of counsel and an evidentiary hearing, the post-

conviction trial court denied relief on multiple claims of ineffective assistance of trial counsel, but

granted relief and ordered a new trial based on its finding that counsel was constitutionally

ineffective in failing to interview and call Ortago Thomas to testify at the petitioner’s trial. (Id.)

The state filed an appeal from the grant of post-conviction relief, arguing that the trial court erred

in finding that trial counsel was constitutionally ineffective. (Doc. No. 7-22.) The petitioner

responded in defense of the trial court’s judgment, but did not appeal its rulings on his unsuccessful

ineffective assistance claims. (Doc. No. 7-21.)

On March 2, 2017, the TCCA reversed the trial court’s grant of post-conviction relief and

reinstated the judgment against the petitioner. Moody v. State, No. M2015-02424-CCA-R3-PC,

2017 WL 829820 (Tenn. Crim. App. Mar. 2, 2017). The petitioner filed for permission to appeal

to the Tennessee Supreme Court, which was denied on June 9, 2017. He filed his pro se petition

under Section 2254 in this court on November 15, 2017.

II. STATEMENT OF FACTS

A. Evidence at Trial

On April 25, 2009, sixteen-year-old Loren Johnson was struck by stray gunfire and killed

as she laid in her mother’s bedroom inside the family home, located at 3652 Chesapeak Drive. Her

mother, Inez Johnson, testified that she was lying on the bed with her daughter when they heard

gunshots, and “instead of laying low and rolling from the bed, [the victim] raised her body up” and

was struck by a bullet. Although paramedics responded to the scene and took the victim by

ambulance to the hospital, she died from her injuries. State v. Moody, 2013 WL 1932718, at *1.

Officer Christopher Cote of the Metro Nashville Police Department (MNPD) testified that

he arrived at the scene after the paramedics. He testified that, when Officer Brian Eaves arrived at

the scene, a witness approached Eaves and gave him a hat that the witness had found. Officer Cote

also testified that he found multiple shell casings of different calibers at the scene. Id. at *2. A

crime scene investigator, Lynne Mace, testified that her investigation of the scene revealed that

there were two .45 caliber automatic casings and six 9mm casings. Id.

The state then called Christopher Bridges to testify. He testified that he lived at 3648

Chesapeak Drive, and described the events surrounding the shooting as follows:

He stated that on April 25, 2009, at approximately 4:00 p.m., he was walking down

Chesapeak Drive with Deandre Williams. As they were walking, a car with four or

five people inside of it pulled up and began shooting. Christopher began to run, but

he heard more than five shots fired. The State showed him a photograph of a vehicle

and asked if it was the vehicle he observed on April 25, 2009, to which Christopher

responded, “Yes, sir.” Christopher stated that he was given the opportunity to speak

with the police about what he observed, but he told them that he “really didn’t see

anybody, didn’t see anything.” He said that he did not want to speak with the police

and that they forced him to go to the precinct. Christopher admitted that in April

2009, he was a member of the 107 Underground Crips but denied that he was still

a member.

On cross-examination, Christopher testified that he did not know why someone

would want to shoot at him. He stated that the shooting came from the driver’s side

of the vehicle. He did not know appellants [Moody and Matthews] and said that the

first time he saw them was on the news. Christopher stated that he had an adequate

opportunity to view the car because it passed him and made a u-turn. He said that

the vehicle’s license plate was in the window and that the vehicle’s bumper was not

damaged. Christopher later testified that the vehicle that he identified in the

photograph had damage on its bumper. Christopher said that he ran between some

houses when the people in the vehicle started shooting; however, the victim’s house

was not one of them.

Id.

The next witness, Deandre Williams, testified that he had lived with Christopher Bridges

in April 2009 and was with him on April 25. Id. Williams further testified as follows:

On April 25, 2009, he was walking to a friend’s house with Christopher when he

heard gunshots. He ran away and was unable to see from where the gunshots

originated. He stated that he was sending text messages on his cellular telephone

and did not observe any nearby vehicles or people. However, he recalled telling the

police that he saw a small blue or green vehicle that looked like a Honda. He

explained that he saw the vehicle before he and Christopher began walking. Mr.

Williams further testified that he heard more than five gunshots. He estimated that

he was three houses away from 3652 Chesapeak Drive when the gunshots began.

He ran in the opposite direction from the victim’s house.

Mr. Williams denied being a member of or affiliated with the 107 Underground

Crips. He stated that he did not know whether Christopher was a member of the

gang and denied noticing a tattoo of a gun with the numbers “107” on Christopher’s

hand.

On cross-examination, Mr. Williams testified that he did not know appellants and

had never seen them before the day of trial. Mr. Williams did not know why anyone

would shoot at him. He stated that he did not know anything about the incident and

was only testifying because the State forced him to do so.

Id. at *2–3.

Evan Bridges, Christopher’s father, was next to testify. He was in the backyard of his home

at 3648 Chesapeak Drive when he heard gunshots and moved toward his front yard. Id. at *3. Upon

arriving at his front yard, Evan Bridges was able to determine that the gunshots were coming from

a small green car that was driving down the street, in which he “observed the heads of three

African-Americans” who appeared to be “some young guys.” Id. “When shown a photograph of a

vehicle, Evan stated that the vehicle in the photograph was the same size, but the car he saw on

the day of the shooting looked like a Honda.” Id. He testified that “[a]pproximately fifteen to

twenty minutes after the shooting ceased, [he] found a black cap in the middle of the street that

was not there before the shooting” and gave it to the police. Id. Evan Bridges testified on cross-

examination that he did not actually see anyone fire a weapon, and further clarified that the vehicle

he saw was green while the vehicle in the photograph appeared to be blue. Id.

The state next called Quontez Caldwell, who provided the following testimony:

Quontez Caldwell testified that appellant Moody and Ortego Thomas are his

halfbrothers through their father, but he only became acquainted with them a short

time prior to this incident. Mr. Caldwell stated that on April 25, 2009, appellant

Moody and Mr. Thomas picked him up from his grandmother’s house in appellant

Moody’s vehicle. He identified appellant Moody’s vehicle from an exhibit

photograph. In addition to his half-brothers, two other males whom he did not know

were in the vehicle. He identified appellant Matthews in the courtroom as one of

the other passengers in the vehicle. Mr. Caldwell stated that as they drove down

Chesapeak Drive, the people in the car saw “somebody they had a beef with [sic][,]

and they shot at them.” He recalled that Mr. Thomas said, “‘There go [sic]

somebody we beefin’ with [sic].’” The driver then turned the vehicle around and

drove back up Chesapeak Drive. He said that appellants and Mr. Thomas began

shooting at a person he knew as “C. Trigger.” Mr. Caldwell did not recall having

previously testified that appellant Matthews had a 9mm pistol, that appellant

Moody had a “.45 or .40,” or that Mr. Thomas had a “38 revolver,” but he

acknowledged that if he had previously so testified, then it was the truth. He stated

that neither he nor the driver had a weapon that day. After the shooting, the men

dropped Mr. Caldwell off in the middle of the street. He said that he did not speak

with appellants about the shooting after it happened.

Mr. Caldwell stated that the police attempted to interview him. The first two times

they attempted to speak with him, he told them that he did not know anything about

what happened because he just “didn’t want to tell them nothing [sic].” Mr.

Caldwell denied being a member of the Hoover Deuce Crips. He denied testifying

to being a member in July 2009 and said that if his being a member of the Crips

was reflected in his statement, it was not the truth.

On cross-examination, Mr. Caldwell denied that a detective with MNPD brought

him in for questioning because he had received information that Mr. Caldwell had

claimed that he killed the victim. He further denied getting a new “teardrop tattoo”

on his face. Mr. Caldwell did not recall telling the detective that he was anywhere

near Chesapeak Drive, that he was with someone named “T.O.,” that he was in a

Chevrolet Impala, or that he did not know the color of the Impala. He stated that he

did not know appellant Moody’s real name and that he only knew his father by the

name “Tango.”

Mr. Caldwell admitted that he spoke with another detective a few weeks later but

denied that he changed his story about being in an Impala with T.O. Mr. Caldwell

admitted that appellant Moody picked him up and then proceeded to pick up another

person, at which time the other person began driving the vehicle. He remembered

seeing “C. Trigger” and stated that “guns were pulled[,] and they started shooting.”

In a subsequent interview with Kathy Morante, an assistant district attorney, Mr.

Caldwell denied any knowledge of his brothers’ having problems with “C. Trigger”

and stated, “I didn't know they had no [sic] beef with him.” He testified that his

problem with “C. Trigger” was “[s]omething about ... some child issues” and that

it was not significant. Mr. Caldwell denied that the “child issues” concerned his

child’s mother and could not remember stating that there was bad blood between

him and “C. Trigger” or indicating that “C. Trigger” had tried to do him harm in

the past. He declined the opportunity to review the transcript of his statement.

Id. at *3–4. Mr. Caldwell testified as a cooperating witness pursuant to a “use immunity”

agreement. Assistant District Attorney Kathy Morante testified that such agreements precluded the

prosecution from using any information provided by the witness unless it is determined that the

witness is being untruthful. Id. at *4. She testified that “the most serious charge Mr. Caldwell faced

in the summer of 2009, when he was fifteen years of age, was an attempted homicide that was

unrelated to the instant case,” and that he had been in the custody of the Department of Children’s

Services based on other criminal acts until just before the incident on April 25, 2009. Id. at *4–5.

The state proceeded to put on the following proof through lay and expert witnesses:

Detective Gene Davis of the MNPD testified that on May 15, 2009, he conducted

a traffic stop in the area of Nolensville Road for a traffic ordinance violation. He

observed three people inside the vehicle he stopped, and during a search of the

vehicle, he found a loaded 9mm Glock semi-automatic pistol. Detective Davis

stated that appellant Matthews claimed ownership of the weapon, at which time he

was taken into custody. Detective Davis identified the weapon, which was entered

as an exhibit. He also identified appellant Matthews, who was seated in the

courtroom.

Detective Cody O’Quinn of the MNPD testified that he was involved in serving a

search warrant for a vehicle located at 314 Kern Drive on June 18, 2009. The

vehicle was a green 1999 Kia. He determined that the vehicle was registered to

appellant Deangelo Moody and his mother. He identified the temporary drive-out

tag found inside the automobile and noted that it would have been valid on the date

of this incident, April 25, 2009. On cross-examination, Detective O’Quinn stated

that the Kia automobile in the exhibit photograph appeared green in color to him.

Detective Lawrence Brown, also from the MNPD, testified that he obtained buccal

swabs from both appellants on February 9, 2011, at the prosecutor’s request. He

explained that a buccal swab is used to obtain liquid evidence, usually saliva, from

an individual. The swabs were packaged and taken to the Tennessee Bureau of

Investigation (“TBI”) to be analyzed for DNA comparison.

Agent Mark Dunlap of the TBI Crime Laboratory was accepted by the trial court

as an expert in forensic chemistry and serology. He testified with regard to his DNA

analysis of a black cap. From his testing, he determined that the “DNA profile from

the cap was a mixture of genetic material from two individuals.” From the standards

submitted in February 2011, ten of the thirteen testing sites indicated that the major

contributor of DNA on the cap was appellant Matthews.

On cross-examination, Agent Dunlap explained that three of the thirteen testing

sites were inconclusive, stating, “[T]here just wasn’t enough DNA there to obtain

a full profile, so those sites didn’t yield results. It doesn’t mean that they didn’t

match, it just means there was no result at those sites.” He acknowledged that no

DNA belonging to appellant Deangelo Moody was found on the hat.

Agent Robert Daniel Royse of the TBI Crime Laboratory was accepted by the trial

court as an expert in firearms and tool mark identification. He explained the

operation of the Glock 9mm Luger semiautomatic pistol, the parts of a live

cartridge, and the firing cycle process. Agent Royse testified that in his work, he

examines the unique set of markings found on every firearm, which can be thought

of as a mechanical fingerprint. In making an identification, he test fires the weapon

and takes the test bullets and cartridge cases and compares them to the evidence. If

the unique characteristics are present on both the evidence and the test material, he

concludes that they have a common origin and that they were fired from the same

weapon. Agent Royse was provided six spent .45 caliber automatic cartridge

casings and two 9mm cartridge casings in April 2009, and in January 2011, he was

provided a 9mm weapon for analysis. He testified that the two 9mm casings

provided to him were fired from the weapon he received in January 2011.

Id. at *5.

After the prosecution rested, the defense called William Jackson, a former MNPD officer

who testified that he was the lead detective investigating the victim’s death. Detective Jackson

testified that he “was present during the victim’s autopsy and collected the bullet recovered from

the victim’s body as evidence.” Id. at *6. Detective Jackson further testified as follows:

He recalled testifying at appellants’ detention hearing that the recovered bullet was

a large fragment and stated, “I didn’t know at the time if it was a[.]45 or a[.]40[.] I

guessed that it was one of those too big to be a[.]38 or a[.]22.”

Detective Jackson testified at length concerning his three interviews with Quontez

Caldwell. He recalled that his first interview with Mr. Caldwell was at the end of

April and the second interview was on June 12th. He explained that he uses

conversation as his interviewing technique to get to the truth. He would not make

promises of assisting in getting charges dismissed or lowered, but he acknowledged

that he would “talk for someone if they cooperate” and admitted that “[he did not]

know how the [District Attorney] works.”

On cross-examination, Detective Jackson recalled that during the first interview

with Mr. Caldwell on April 30, 2009, Mr. Caldwell denied being at the scene or

having anything to do with this incident. During the second interview on June 12,

2009, Mr. Caldwell began to cooperate and identified appellant Matthews in a

photograph array as one of the individuals involved in this shooting. Detective

Jackson testified that ultimately, Mr. Caldwell provided seating positions in the

vehicle and stated that appellants were two of the three people involved in shooting

at Christopher Bridges and Deandre Williams on April 25, 2009.

Id.

B. Testimony at the Post-Conviction Hearing

The evidence received in the post-conviction trial court pertaining to the sole issue on

appeal––trial counsel’s ineffectiveness vis-à-vis co-defendant Ortago Thomas––was described by

the TCCA as follows:

Ortago Thomas testified that he was indicted as a co-defendant and that his case

was severed from the petitioner’s. He pled guilty to a lesser charge of second degree

murder in exchange for a sentence of fifteen years. Mr. Thomas claimed that the

petitioner was not involved in the murder and that “it was just [Mr. Thomas] and

[Mr.] Caldwell [who] was doing the shooting.” Mr. Thomas elaborated:

[The petitioner] didn’t know what was going on because (unintelligible)

fact that Caldwell was telling us to take him home, we was taking him

home then, he went down—he was giving us directions, we went down

the wrong street, and then we seen the two individuals that was shooting

at, and then didn’t nobody know what was going on because they the only

one shootin’ at people.

Asked why the petitioner did not know there was going to be a shooting, Mr.

Thomas responded, “Simple fact he didn't have no gun or nothing, because only

one had a gun was me, Caldwell and Matthews, was the only one.” Mr. Thomas

stated that they were taking Mr. Caldwell home, one street over, when the shooting

occurred. Asked what happened, Mr. Thomas responded:

Simple fact when the two individuals shooting at, one of them was

reaching, I shot in the air to try to get him away and told the driver to go

on drive off so we can go on get away, then all of a sudden I see Caldwell

reach under the seat, ... driver’s seat and grab Matthews’ gun and his gun

start shooting over the roof, and Matthews done grabbed the gun, tried to

grab the gun from him.

Mr. Thomas claimed that, while the case was pending, he told his lawyer, his

family, and the petitioner’s family about what had happened. Mr. Thomas stated

that he wanted to testify at the petitioner’s trial that he was the one responsible for

the victim’s murder, but no one would let him take responsibility.

Mr. Thomas acknowledged having initially told the police that he had nothing to

do with the crime and that he was not there when it happened. He then eventually

told the police that he was in the car, had a .38 caliber gun, and that he fired the

gun. Mr. Thomas stated that Mr. Matthews had a nine-millimeter gun, but Mr.

Caldwell was shooting it. Mr. Caldwell was also shooting his own .45 caliber gun

as well. He recalled that the victim was killed by a .45 caliber bullet. Mr. Thomas

agreed that his testimony would have essentially been that the petitioner did not

have a gun at the time of the offense.

The petitioner testified regarding counsel’s representation of him and his various

interactions with counsel. The petitioner stated that he asked counsel to investigate

statements made by Quontez Caldwell, but counsel failed to do so. According to

the petitioner, Mr. Caldwell was overheard at his high school bragging about the

murder, and students at the school could have testified about the statements.

However, the petitioner acknowledged that the police investigated the alleged

statements and could not find any witnesses who heard Mr. Caldwell bragging

about the murder. The petitioner did not provide any testimony concerning Mr.

Thomas.

Trial counsel testified that it was clear that the petitioner was not the shooter, but

counsel was not “able to convey with a degree of understanding the concept of

criminal responsibility or ... facilitation” to the petitioner. Counsel recalled that Mr.

Caldwell, a witness for the State, “changed his story a lot” and at one time said that

the petitioner had fired a weapon. However, the petitioner was acquitted on the gun

charge, indicating that the jury based the petitioner’s murder conviction on a theory

of criminal responsibility. Counsel stated that his review of the discovery materials

showed that Mr. Caldwell was the only person who stated that the petitioner was

shooting. The discovery also indicated that Mr. Caldwell had made self-

incriminating statements at his high school. Counsel spoke to people at Mr.

Caldwell’s school and obtained Mr. Caldwell’s interview statements to police.

Counsel testified that he was unsure why Mr. Thomas’ case was severed from the

petitioner’s. However, at one point, he thought Mr. Thomas was going to testify

against the petitioner. Counsel said that he discussed the case with the attorney who

represented Mr. Thomas, and Mr. Thomas’ attorney never told him that Mr.

Thomas wanted to testify for the petitioner. Counsel stated that he would have been

shocked if Mr. Thomas had testified at the petitioner’s trial that Mr. Thomas had

committed first degree murder. Counsel also noted that he could not compel Mr.

Thomas to testify against himself. He could not say whether Mr. Thomas’

testimony would have helped at trial.

Moody v. State, No. M2015-02424-CCA-R3-PC, 2017 WL 829820, at *6–7 (Tenn. Crim. App.

Mar. 2, 2017).

III. CLAIMS PRESENTED FOR REVIEW

The petitioner’s pro se petition in this court asserts the following claims:

(1) The evidence is insufficient to support his conviction.

(2) Trial counsel was constitutionally ineffective in failing to: (a) prepare for trial; (b) move

to sever his trial from that of Mr. Matthews; (c) move for dismissal of all charges after the jury

acquitted him of the firearm charge; and (d) challenge the constitutionality of his sentence under

Miller v. Alabama, 567 U.S. 460 (2012), and Graham v. Florida, 560 U.S. 48 (2010).

(3) The trial court erred in failing to act as thirteenth juror.

(4) The trial court erred in failing to allow him to retain counsel of his choice.

(5) The trial court sentenced him unconstitutionally, in light of Miller and Graham.

(Doc. No. 1 at 6–18.)

IV. LEGAL STANDARD

The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is provided by 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). Upon finding a constitutional error on habeas corpus review, a federal

court may only grant relief if it finds that the error “had substantial and injurious effect or influence

in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v.

Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).

AEDPA was enacted “to reduce delays in the execution of state and federal criminal

sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and

federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529

U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met

before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht

v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,

AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme

malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction

through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia,

443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes “a

substantially higher threshold” for obtaining relief than a de novo review of whether the state

court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing

Williams v. Taylor, 529 U.S. 362, 410 (2000)).

Specifically, a federal court may not grant habeas relief on a claim rejected on the merits

in state court unless the state decision was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United States,” or

“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), (d)(2). A state court’s legal decision is “contrary

to” clearly established federal law under Section 2254(d)(1) “if the state court arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state

court decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. at 412–13. An “unreasonable application”

occurs when “the state court identifies the correct legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A

state court decision is not unreasonable under this standard simply because the federal court finds

it erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court’s

decision applies federal law in an objectively unreasonable manner. Id. at 410–12.

Similarly, a district court on habeas review may not find a state court factual determination

to be unreasonable under Section 2254(d)(2) simply because it disagrees with the determination;

rather, the determination must be “‘objectively unreasonable’ in light of the evidence presented in

the state court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002). “A state

court decision involves ‘an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding’ only if it is shown that the state court’s presumptively

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

in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting Section 2254(d)(2)

and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 & n.3 (6th Cir. 2014) (observing that

the Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did

not read Matthews to take a clear position on a circuit split about whether clear and convincing

rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under Section

2254(d)(2), “it is not enough for the petitioner to show some unreasonable determination of fact;

rather, the petitioner must show that the resulting state court decision was ‘based on’ that

unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).

The standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the

merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for evaluating state-

court rulings, which demands that state-court decisions be given the benefit of the doubt.’” Cullen

v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Richter, 562 U.S. at 102, and Woodford v.

Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner bears the burden of proof.

Pinholster, 563 U.S. at 181.

Even that demanding review, however, is ordinarily only available to state inmates who

have fully exhausted their remedies in the state court system. 28 U.S.C. §§ 2254(b) and (c) provide

that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with

certain exceptions, the prisoner has presented the same claim sought to be redressed in a federal

habeas court to the state courts. Pinholster, 563 U.S. at 182; Kelly v. Lazaroff, 846 F.3d 819, 828

(6th Cir. 2017) (quoting Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009)) (petitioner must

present the “same claim under the same theory” to the state court). This rule has been interpreted

by the Supreme Court as one of total exhaustion, Rose v. Lundy, 455 U.S. 509 (1982), meaning

that each and every claim set forth in the federal habeas corpus petition must have been presented

to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v. Foltz, 824

F.2d 494, 496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and factual

substance of every claim to all levels of state court review”). Moreover, the substance of the claim

must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152,

162–63 (1996).

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

Carpenter, 529 U.S. 446 (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, a petitioner ordinarily is barred from seeking federal habeas review.

Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also Walker v. Martin, 562 U.S. 307, 315

(2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of

the state court rests on a state law ground that is independent of the federal question and adequate

to support the judgment”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). If a claim has never

been presented to the state courts, but a state court remedy is no longer available (e.g., when an

applicable statute of limitations bars a claim), then the claim is technically exhausted, but

procedurally barred. Coleman, 501 U.S. at 731–32.

If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless

the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The burden of showing cause and

prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412,

418 (6th Cir. 1999) (citing Coleman, 501 U.S. at 754). “‘[C]ause’ under the cause and prejudice

test must be something external to the petitioner, something that cannot fairly be attributed to

him[;] . . . some objective factor external to the defense [that] impeded . . . efforts to comply with

the State’s procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of cause

include the unavailability of the factual or legal basis for a claim or interference by officials that

makes compliance “impracticable.” Id. To establish prejudice, a petitioner must demonstrate that

the constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux,

58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); see

also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that “having shown cause,

petitioners must show actual prejudice to excuse their default”). “When a petitioner fails to

establish cause to excuse a procedural default, a court does not need to address the issue of

prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a petitioner cannot

establish prejudice, the question of cause is immaterial.

Because the cause and prejudice standard is not a perfect safeguard against fundamental

miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the

cause requirement where a constitutional violation has “probably resulted” in the conviction of

one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392

(2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord Lundgren v. Mitchell, 440

F.3d 754, 764 (6th Cir. 2006).

V. ANALYSIS

A. Sufficiency of the Evidence

The petitioner’s “first and foremost” challenge is to the sufficiency of the evidence to

support his felony murder conviction. (Doc. No. 15 at 2; Doc. No. 1 at 6.) He argues that his

conviction rests entirely upon the testimony of Quontez Caldwell, his half-brother and an

uncharged accomplice to the crime who testified under a “use immunity” agreement leveraged by

unrelated felony charges against Caldwell. (Doc. No. 15 at 10.) The petitioner contends that

“[t]here is not a single piece of reliable, independent evidence that corroborates the so called

accomplice’s testimony” (Doc. No. 1 at 6), and that this uncorroborated testimony is further

weakened by the jury’s verdict acquitting the petitioner of employing a firearm during the

commission of the crime. (Doc. No. 15 at 19.) This was his lone contention on direct appeal to

the TCCA. (Doc. No. 7-10 at 4, 13–16.)

The TCCA properly stated the standard for appellate review of a claim challenging the

sufficiency of the state’s evidence as “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.” State v. Moody, No. M2011-01930-CCA-R3-CD, 2013 WL

1932718, at *7 (Tenn. Crim. App. May 9, 2013), perm. app. denied (Tenn. Oct. 17, 2013) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In accord with this standard, “a reviewing 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.’” Cavazos v. Smith, 565 U.S. 1, 6 (2011)

(quoting Jackson, 443 U.S. at 326)). Thus, a federal habeas court must resist substituting its own

opinion for that of the convicting jury, York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988), particularly

when it comes to matters of witness credibility, which “is an issue to be left solely within the

province of the jury.” Knighton v. Mills, No. 3:07-cv-2, 2011 WL 3843696, at *6 (E.D. Tenn. Aug.

29, 2011) (citing, e.g., Deel v. Jago, 967 F.2d 1079, 1086 (6th Cir. 1992)).

In addition to this requirement of deference to the fact-finder’s verdict concerning the

substantive elements of the crime under state law, this court must defer to the TCCA’s

consideration of that verdict under AEDPA. See Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir.

2008) (stating that “the law commands deference at two levels” when adjudicating sufficiency-of-

the-evidence claim). The TCCA’s consideration of the petitioner’s sufficiency-of-the-evidence

claim is set out below:

To sustain appellants’ convictions, the State must have proven beyond a reasonable

doubt that appellants killed the victim “in the perpetration of or attempt to

perpetrate ... first degree murder,” as charged in the indictment. Tenn. Code Ann.

§ 39–13–202(a)(2) (2010). First degree premeditated murder, the underlying

felony, is defined as “a premeditated and intentional killing of another.” Id. at § 39–

13–202(a)(1). The jury was instructed that “attempt” meant that one “[a]cts with

intent to cause a result that is an element of the offense, and believes the conduct

will cause the result without further conduct on the person’s part.” Id. at § 39–12–

101(a)(2).

Viewed in the light most favorable to the State, a brief synopsis of the facts in this

case demonstrates sufficient evidence underlying appellants’ convictions. Officer

Cote responded to the call at 3652 Chesapeak Drive and was advised by paramedics

that a sixteen-year-old female had been shot. After securing the scene, he and

Officer Eaves received into evidence a black cap that a witness had found in the

street. Officer Cote also retrieved two .45 caliber automatic shell casings and six

9mm shell casings.

Christopher Bridges testified that as he and Mr. Williams were walking down

Chesapeak Drive, a car with four or five people inside of it pulled up, and some of

the occupants began shooting. He heard more than five shots fired. He identified a

photograph of a vehicle and stated that it appeared to be the vehicle from which the

shots were fired. Christopher stated that he had an adequate opportunity to view the

car because it passed him and made a u-turn. Mr. Williams also recounted that on

April 25, 2009, he was walking to a friend’s house with Christopher when he heard

gunshots. He recalled telling the police that he saw a small blue or green vehicle

that looked like a Honda. He explained that he saw that vehicle before he and

Christopher began walking.

Evan Bridges heard gunshots around 4:00 p.m. on April 25, 2009, and went toward

his front yard. When he arrived at the front yard, Evan determined that the gunshots

were coming from a small green car that was driving down the street.

Approximately fifteen to twenty minutes after the shooting ceased, Evan found a

black cap in the middle of the street that was not there before the shooting. He

thought that it might have belonged to one of the shooters, so he gave it to the

police.

Quontez Caldwell testified that the vehicle in the picture introduced at trial was

appellant Moody’s vehicle, and it was the vehicle in which appellant Moody, Mr.

Thomas, and some other individuals picked him up that day. He identified appellant

Matthews in the courtroom as one of the other passengers riding in the vehicle. Mr.

Caldwell stated that as they drove down Chesapeak Drive, they saw someone with

whom they had a disagreement and both appellants and the severed co-defendant

began firing shots at him.

On May 15, 2009, Detective Davis conducted a traffic stop in the area of

Nolensville Road for a traffic ordinance violation. During a search of the vehicle,

he found a loaded 9mm Glock semi-automatic pistol, which appellant Matthews

claimed as his own. Detective Cody O’Quinn of the MNPD testified that he was

involved in serving a search warrant for a vehicle located at 314 Kern Drive on

June 18, 2009. The vehicle was a green 1999 Kia. He determined that the vehicle

was registered to appellant Deangelo Moody and his mother.

Detective Brown obtained buccal swabs from both appellants on February 9, 2011.

Agent Dunlap analyzed the swabs and compared them to the DNA found on the

black cap. From his testing, he determined that ten of the thirteen testing sites

indicated that the major contributor of DNA on the cap was appellant Matthews.

Agent Royse received six spent .45 caliber automatic cartridge casings and two

9mm cartridge casings in connection with this case in April 2009. In January 2011,

he received a 9mm weapon for comparison and determined that the two 9mm

casings provided to him were fired from the weapon he received in January 2011.

Detective Jackson testified that Mr. Caldwell identified appellant Matthews in a

photograph array as one of the individuals involved in this shooting. Detective

Jackson stated that ultimately, Mr. Caldwell provided seating positions in the

vehicle and stated that appellants were two of the three people involved in shooting

at Christopher Bridges and Deandre Williams on April 25, 2009.

Based on this evidence, the jury had sufficient evidence to convict both appellants

of felony murder perpetrated during an attempt to commit first degree murder.

“‘Premeditation’ means that the intent to kill must have been formed prior to the

act itself. It is not necessary that the purpose to kill pre-exist in the mind of the

accused for any definite period of time.” Tenn.Code Ann. § 39–13–202(d) (2010).

The jury could have found that appellants formed the intent to kill after appellants

and their cohorts passed “C. Trigger,” a person with whom they had a disagreement,

walking down the street, at which time they made a u-turn in order to confront “C.

Trigger.” In shooting at “C. Trigger,” appellants performed an act intending to

cause an element of first degree murder to occur without further action on their part.

Id. at § 39–12–101(a)(2). However, they missed their intended target and instead

shot through the victim’s home. “[A] killing in the course of an attempted first

degree murder is first degree felony murder. If the prosecution establishes that a

defendant attempts to commit the premeditated and deliberate first degree murder

of a specific victim but instead kills an unintended victim, the defendant may be

guilty of first degree felony murder. This result is plain from the statutory definition

of the crime....” Millen v. State, 988 S.W.2d 164, 167–68 (Tenn.1999). As such,

neither appellant is entitled to relief on this issue.

Moody, 2013 WL 1932718, at *7–9.

This court has reviewed the transcript of the petitioner’s trial and finds that the TCCA’s

decision is supported in the record. The petitioner argues strenuously that no evidence reliably

corroborates Mr. Caldwell’s testimony that the petitioner was even present at the scene of the

crime, much less that he participated in any way as a shooter. (Doc. No. 15 at 16–21.) However,

to the extent that Mr. Caldwell was considered an accomplice by the jury, “[t]he rule that a

conviction must be supported by more than the uncorroborated evidence of an accomplice is a

state-law rule and not one of constitutional dimension.” Beaird v. Parris, No. 3:14-cv-01970, 2015

WL 3970573, at *13 (M.D. Tenn. June 30, 2015) (citing United States v. Gallo, 763 F.2d 1504,

1518 (6th Cir. 1985)).

While the jury acquitted the petitioner on the charge of employing a firearm, it is clear that

he need not have fired a gun to be guilty of felony murder. The state proceeded against the

petitioner on a theory of criminal responsibility,2 pursuant to which an accused may be liable if he

“in some way associate[s] himself with the venture, act[s] with knowledge that an offense is to be

committed, and share[s] in the criminal intent of the principal in the first degree.” Hembree v.

State, 546 S. W. 2d 235, 239 (Tenn. Crim. App. 1976). “The defendant’s requisite criminal intent

may be inferred from his ‘presence, companionship, and conduct before and after the offense.’”

State v. Peebles, No. 2011-01312-CCA-R3-CD, 2013 WL 2459881, at *5 (Tenn. Crim. App. June

2 In line with this theory, the jury’s verdict of guilt established that either the petitioner or a person

for whom he was criminally responsible fired the bullet that accidentally killed the victim. The petitioner

thus rightly objects (Doc. No. 15 at 14–15) to the respondent’s characterization of the evidence in this case

as unequivocally establishing that “Petitioner killed [the victim]” after “attempt[ing] to kill a person with

whom he had a disagreement,” and that “Petitioner had with him a .40 or .45 caliber weapon” when he

“turned the car around and . . . began firing.” (Doc. No. 8 at 3, 5, 6.) The court agrees with the petitioner

that these characterizations are misleading in light of the proof at trial.

6, 2013) (quoting State v. McBee, 644 S. W. 2d 425, 428 (Tenn. Crim. App. 1982)). While the

defendant’s mere presence during the crime’s commission is not sufficient to support a conviction,

he need not take a physical part in the crime to be criminally responsible; “encouragement of the

principal is sufficient.” State v. Little, 402 S. W. 3d 202, 217 (Tenn. 2013).

Here, the state produced evidence supporting the finding that the petitioner drove a car

resembling the eye witnesses’ description of the car from which shots were fired, including the

notable feature of a “temporary drive-out tag . . . that . . . would have been valid on the date of

th[e] incident.” Moody, 2013 WL 1932718, at *5. Moreover, “Quontez Caldwell testified that [the

petitioner] and Ort[a]go Thomas are his halfbrothers through their father, . . . [and] on April 25,

2009, [the petitioner] and Mr. Thomas picked him up from his grandmother’s house in [the

petitioner’s] vehicle,” which Caldwell identified from an exhibit photograph. Id. at 3. Caldwell

further testified that the petitioner’s co-defendant, Martez Matthews, was in the car. Id. A cap

containing Mr. Matthews’ DNA was found at the scene of the crime, and Mr. Matthews was

subsequently found in possession of a gun that was used during the attempt on Mr. Bridges’ life.

Id. at 5.

The record evidence clearly does not fail to support the identification of the petitioner as

an occupant of the car, nor does it require the finding that he was simply an innocent passenger.

There was room for the jury to conclude, as the state argued in closing, that all occupants of the

car set out on April 25, 2009 to do harm to Mr. Bridges when they found him and that the petitioner

shared in this intent, even if he did not fire a weapon in furtherance of it. (See Doc. No. 7-6 at 90–

93.) There was testimony that the petitioner ceded the driver’s seat in his car to an unidentified

individual after picking up Caldwell, and the jury could have concluded that this was done so that

he could participate in a more active way in searching for Mr. Bridges. It could also be the case

that the jury, in finding the petitioner guilty on the felony murder charge, credited Mr. Caldwell’s

testimony that the petitioner fired a weapon, despite acquitting the petitioner on the gun charge.

Though such a verdict would be inconsistent, it would not be unconstitutional. Nor does the

acquittal on the gun charge affect the review for sufficiency of the evidence supporting the felony

murder conviction. As the Supreme Court has explained,

[I]nconsistent verdicts—even verdicts that acquit on a predicate offense while

convicting on the compound offense—should not necessarily be interpreted as a

windfall to the Government at the defendant’s expense. It is equally possible that

the jury, convinced of guilt, properly reached its conclusion on the compound

offense, and then through mistake, compromise, or lenity, arrived at an inconsistent

conclusion on the lesser offense. … Sufficiency-of-the evidence review involves

assessment by the courts of whether the evidence adduced at trial could support any

rational determination of guilty beyond a reasonable doubt. This review should be

independent of the jury’s determination that evidence on another count was

insufficient. … Whether presented as an insufficient evidence argument, or as an

argument that the acquittal on the predicate offense should collaterally estop the

Government on the compound offense, the argument necessarily assumes that the

acquittal on the predicate offense was proper—the one the jury “really meant.”

This, of course, is not necessarily correct[.]

United States v. Powell, 469 U.S. 57, 65 (1984) (internal citations omitted).

In short, despite the petitioner’s assertion that the record lacks reliable evidence of his

involvement in the crime of conviction, it is the province of the jury to determine the reliability of

witness testimony, and Mr. Caldwell’s testimony need not be corroborated for purposes of this

court’s review for sufficiency of the evidence. The court may not rely on its own opinion of the

weight due the testimonial and other evidence of the petitioner’s involvement, but must defer to

the jury’s resolution of evidentiary conflicts. Whether the jury’s verdict was based on the theory

that the petitioner was criminally responsible for the actions of another (with or without having

himself fired a gun), or whether it reflects inconsistent findings with respect to the petitioner’s

employment of a firearm, the evidence was sufficient for a rational juror to find the elements of

felony murder beyond a reasonable doubt. The petitioner’s claim to the contrary is without merit.

B. Ineffective Assistance of Counsel

1. Procedurally Defaulted Claims

The petitioner claims that his trial counsel was ineffective in (1) failing to prepare for trial,

including by preparing for cross-examination of the state’s witnesses and by filing necessary

pretrial motions; (2) failing to move to sever the petitioner’s trial from that of Mr. Matthews; (3)

failing to move for dismissal of all charges in light of the gun charge acquittal; and (4) failing to

challenge the constitutionality of his life sentence.3 (Doc. No. 1 at 8–9.) The respondent asserts

that these claims were procedurally defaulted when the petitioner failed to present them to the

TCCA on post-conviction appeal. (Doc. No. 8 at 8–9.) The petitioner concedes the procedural

default that resulted from his post-conviction counsel ignoring his instructions and failing to

present these claims to the TCCA. (Id.) As explained in the petition,

The [post-conviction] trial court granted relief on an issue that the petitioner did not

raise, but which was sua sponte raised during the evidentiary hearing. The State

appealed the decision to grant relief, and petitioner repeatedly corresponded with

appointed counsel and repeatedly requested that all issues that had been raised and

argued be preserved in the appellate court. Appointed counsel promised,

repeatedly, in writing and over the phone, that he would ensure that all issues were

raised and preserved.

Counsel failed to raise any of the issues, other than to argue that the trial court did

not err in granting relief. Thus, counsel failed to present or preserve the above

issues, even in the face of his specific promises to do so.

(Id. at 10.) These assertions are borne out in the correspondence attached to the petition (id. at 26–

45), which documents the petitioner’s justifiable fear that any issue not raised before the TCCA

would be defaulted; his insistence that counsel either appeal all claims which were denied at the

3 The petitioner recognizes that this claim presents “an issue of the ineffective assistance of counsel

for failing to raise the [sentencing] issue on direct appeal.” (Doc. No. 1 at 18.) “The right to the effective

assistance of counsel includes the right to the effective assistance of appellate counsel.” Burger v. Prelesnik,

826 F. Supp. 2d 997, 1011 (E.D. Mich. 2011), aff’d sub nom. Burger v. Woods, 515 F. App’x 507 (6th Cir.

2013) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)). The petitioner’s trial counsel also represented him

on direct appeal, where the only issue raised was the sufficiency of the evidence.

post-conviction trial level or move to withdraw; and counsel’s refusal to comply with these

instructions, advising the petitioner that, “[a]s I’ve told you before, we had to stay on point with

the [appellate] brief and stick to why Judge Fishburn was correct in his ruling and argue that he

did not abuse his discretion in his ruling.” (Id. at 39.)

Despite the petitioner’s prescience concerning the default of claims not raised before the

TCCA, an attorney’s error short of constitutional ineffectiveness does not constitute cause

excusing a procedural default, whether the error arises from inadvertence, ignorance, or (as here)

strategic choice. Murray v. Carrier, 477 U.S. 478, 487–88 (1986). The Supreme Court has

“explained clearly that ‘cause’ under the cause and prejudice test must be something external to

the petitioner, something that cannot fairly be attributed to him.” Coleman v. Thompson, 501 U.S.

722, 753 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012). Unless the attorney

error asserted as cause was made at a stage when the Sixth Amendment right to counsel attached

or at the stage presenting the first meaningful opportunity to raise an ineffective assistance of trial

counsel claim4––and “the Sixth Amendment itself [therefore] requires that responsibility for the

default be imputed to the State”––the error cannot be cause excusing a procedural default. This is

“because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the

litigation, and the petitioner must bear the risk of attorney error.” Id. at 754.

The court is certainly sympathetic to the petitioner’s frustration here, in light of his post-

conviction appellate counsel’s failure to follow his very clear instructions. (See, e.g., Doc. No. 1

at 34–35.) However, because the petitioner had no right to counsel during the pursuit of his state

post-conviction appeal, and because his post-conviction appeal was not his first meaningful

opportunity to raise the claims at issue, see Sutton v. Carpenter, 745 F.3d 787, 795–96 (6th Cir.

4 See Martinez, 566 U.S. at 10–11.

2014) (holding that under Tennessee procedural law, the initial post-conviction proceeding is the

first meaningful opportunity to raise ineffective-assistance-of-trial-counsel claim), the “attorney

error that led to the default of [these] claims in state court cannot constitute cause to excuse the

default in federal habeas.” Coleman, 501 U.S. at 757.

Even if the court were to find cause excusing the petitioner’s procedural default, he has not

established prejudice resulting from the claimed errors of counsel. To establish prejudice, a

petitioner must demonstrate that the constitutional error “worked to his actual and substantial

disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995). Review of the trial

transcripts does not reveal any lack of vigor in trial counsel’s cross-examination of the state’s

witnesses, nor does it support the petitioner’s assertion that counsel “failed to challenge the total

lack of corroboration among the testimony of the accomplices, and failed to vigorously argue for

acquittal” (Doc. No. 15 at 29); indeed, the transcripts of counsel’s closing argument to the jury

(Doc. No. 7-6 at 105–13) and the trial court’s hearing on the petitioner’s motion for a new trial

(Doc. No. 7-9) reveal just the contrary. Moreover, the petitioner does not specify any prejudice

resulting from counsel’s allegedly deficient pretrial preparation or motion practice. The petitioner

argues that prejudice should be presumed from counsel’s failure to move to sever his trial from

that of “a codefendant who was found in possession of what is arguably the weapon which fired

the bullet which killed the victim in this case,” (Doc. No. 15 at 32–33) when such evidence would

not have been admissible at a severed trial (Doc. No. 1 at 9). But the petitioner does not cite any

authority for this proposition, and the court finds none. See Mayhew v. State, No. W2013-00973-

CCA-R3PC, 2014 WL 1101987, at *8 (Tenn. Crim. App. Mar. 19, 2014) (finding no prejudice

from counsel’s decision to forego motion to sever, despite introduction of DNA evidence linking

co-defendant to the crime scene; “Given the ‘close connection’ of the ‘time, place, and occasion’

of the Petitioner and his co-defendant’s crimes in this case, ‘it would be difficult to separate proof

of one charge from proof of the others.’”) (quoting Tenn. R. Crim. P. 8(c)(3)); see also Black v.

State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990) (finding that a joint trial “contemplates that

evidence may be admitted against one or more defendants which is not necessarily applicable to

other defendants.”) (citations omitted).

Finally, any argument for prejudice resulting from counsel’s failure to challenge the

constitutionality of the petitioner’s sentence, based on the claim that it effectively precludes the

possibility of parole, is foreclosed because the Supreme Court has only held unconstitutional “a

sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders,” Miller, 567 U.S. at 479 (emphasis added), and the Tennessee statutory scheme under

which the petitioner was sentenced “permits release eligibility after serving fifty-one years.” State

v. Polochak, No. M2013-02712-CCA-R3CD, 2015 WL 226566, at *34 (Tenn. Crim. App. Jan. 16,

2015); see Starks v. Easterling, 659 F. App’x 277, 280 (6th Cir. 2016), cert. denied, 137 S. Ct. 819

(2017) (denying habeas relief to petitioner who received life sentence for felony murder, “which

in Tennessee requires an individual to serve fifty-one years in prison before eligibility for parole,”

“[b]ecause the Supreme Court has not yet explicitly held that the Eighth Amendment extends to

juvenile sentences that are the functional equivalent of life” without parole). Because the

petitioner’s life sentence was the minimum sentence mandated by state law, Tenn. Code Ann.

§ 39-13-202, and federal law does not preclude its imposition upon a juvenile so long as parole is

possible, it cannot be said that counsel’s failure to challenge the sentence actually prejudiced the

petitioner.

In sum, the petitioner’s claims of ineffective assistance of counsel were defaulted before

the state courts, and he has failed to demonstrate cause and prejudice excusing the default. These

claims are therefore barred from federal habeas review.

2. Ineffective Assistance Claim Presented to the TCCA

The only issue of ineffective assistance of counsel considered by the TCCA––“that counsel

was ineffective concerning co-defendant Ortago Thomas” “for failing to interview Mr. Thomas or

call him as a witness at trial,” Moody v. State, No. M2015-02424-CCA-R3-PC, 2017 WL 829820,

at *5, 7 (Tenn. Crim. App. Mar. 2, 2017)––is not explicitly raised in the petition before this court.

However, the court liberally construes the petition as raising this claim as part of the contention

that counsel failed “to investigate.” (Doc. No. 1 at 8.) The post-conviction trial court awarded relief

on this issue, but was reversed by the TCCA.

All federal claims of ineffective assistance of counsel are subject to the highly deferential

two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether

counsel was deficient in representing the defendant; and (2) whether counsel’s alleged deficiency

prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To meet the first

prong, a petitioner must establish that his attorney’s representation “fell below an objective

standard of reasonableness,” and must overcome the “strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that . . . the challenged action ‘might be considered sound trial

strategy.’” Id. at 688–89. The “prejudice” component of the claim “focuses on the question of

whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Prejudice, under

Strickland, requires showing that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

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

outcome.” Id.

As discussed above, however, a federal court may not grant habeas relief on a claim that

has been rejected on the merits by a state court, unless the petitioner shows that the state court’s

decision “was contrary to” law clearly established by the United States Supreme Court, or that it

“involved an unreasonable application of” such law, or that it “was based on an unreasonable

determination of the facts” in light of the record before the state court. 28 U.S.C. §§ 2254(d)(1)

and (2); Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus, when an exhausted claim of

ineffective assistance of counsel is raised in a federal habeas petition, the question to be resolved

is not whether the petitioner’s counsel was ineffective. Rather, “[t]he pivotal question is whether

the state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter,

562 U.S. at 101. As the Supreme Court clarified in Harrington,

This is different from asking whether defense counsel’s performance fell below

Strickland’s standard. Were that the inquiry, the analysis would be no different than

if, for example, this Court were adjudicating a Strickland claim on direct review of

a criminal conviction in a United States district court. Under AEDPA, though, it is

a necessary premise that the two questions are different. For purposes of

§ 2254(d)(1), an unreasonable application of federal law is different from an

incorrect application of federal law. A state court must be granted a deference and

latitude that are not in operation when the case involves review under the Strickland

standard itself.

Id. (internal quotation marks and citation omitted).

The TCCA correctly identified and summarized the Strickland standard applicable to this

claim. Moody, 2017 WL 829820, at *8–10. Accordingly, the critical question is whether the state

court applied Strickland reasonably in reaching the following conclusions:

After our thorough review, we conclude that the post-conviction court erred in

granting the petitioner relief based on ineffective assistance of counsel. In

determining that trial counsel’s performance was deficient, the post-conviction

court found that counsel was aware that Mr. Thomas wanted to testify for the

petitioner. However, there is nothing in the record to support this finding. Mr.

Thomas testified at the hearing that he told the petitioner that he wanted to testify,

but the petitioner never testified that he received this information or conveyed it to

counsel. Counsel testified that he would have been “shocked” if Mr. Thomas’

attorney told him that Mr. Thomas would testify and admit to murder. Absent a

showing that counsel knew that Mr. Thomas was willing to testify for the petitioner,

it was reasonable for counsel to believe that Mr. Thomas, a co-defendant charged

with first degree murder, would not incriminate himself if called to testify. Any

finding that counsel was aware of Mr. Thomas’ willingness to testify is pure

speculation.

Moreover, it was not unreasonable for trial counsel not to interview Mr. Thomas

prior to trial because counsel spoke to Mr. Thomas’ attorney and the attorney never

mentioned that Mr. Thomas was willing to testify for the petitioner, and there is

nothing in the record to suggest that Mr. Thomas’ attorney would have allowed Mr.

Thomas to speak to counsel and implicate himself in the murder. Furthermore, even

if counsel had been aware that Mr. Thomas wanted to testify, his proposed

testimony that the petitioner was unaware of what was going to happen would have

likely been inadmissible as speculation. Thus, only Mr. Thomas’ proposed

testimony that the petitioner did not fire a weapon would have been admissible.

Therefore, it would have been reasonable not to call Mr. Thomas as a witness

because his testimony would have added little value to the case and been subject to

impeachment based on Mr. Thomas’ multiple prior statements to police. We

conclude that trial counsel did not render deficient performance.

Although we have determined that trial counsel’s performance was not deficient,

the bigger issue and basis for us to overrule the court below is that the post-

conviction court did not make the proper analysis in determining whether the

petitioner was prejudiced. In finding prejudice, the court stated that “the point is

not whether [Mr. Thomas’] testimony would have been accepted or rejected.

Rather, the point is that the jury was never allowed to hear from the witness.” The

court later discussed whether the jury would have accepted Mr. Thomas’ claim that

the petitioner did not know a shooting was going to occur and stated “there is no

way to know.” These statements do not support a finding of prejudice because the

appropriate standard for determining prejudice is whether there is “a reasonable

probability . . . that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

Applying the correct standard, we cannot conclude that there is a reasonable

probability that the result of the trial would have been different had Mr. Thomas

testified. Mr. Thomas testified at the post-conviction hearing that his testimony

essentially would have been that the petitioner did not have or fire a weapon, but

that evidence was already presented to and apparently accepted by the jury in

acquitting the petitioner of the weapon charge. The post-conviction court even

noted that Mr. Thomas’ testimony “mirror[ed] the jury’s verdict that Petitioner was

not a shooter.”

Even with Mr. Thomas’ testimony, the evidence established that the petitioner was

in the car at the time the shots were fired and the car was registered to his mother.

The evidence also indicates some awareness on the petitioner’s part of what was

going to happen considering Quontez Caldwell’s testimony that, while they were

in the car, one of the passengers said, “There go [sic] somebody we beefin’ with

[sic],” and the driver made a U-turn to go back toward the individuals. In light of

Mr. Thomas’ limited proposed testimony that the petitioner was not the shooter, the

fact that the State prosecuted the petitioner under a theory of criminal responsibility

and the fact that Mr. Thomas’ testimony would have been impeached support a

finding that there was no reasonable probability that the result of the trial would

have been different had Mr. Thomas testified.

Id. at *10.

The TCCA reasonably analyzed this issue and determined that counsel was not ineffective

under Strickland. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Counsel’s

decision not to interview a co-defendant does not necessarily amount to unreasonable

investigation, particularly if that decision is made after speaking with the co-defendant’s attorney.

See U.S. v. Gavin, 77 F. Supp. 3d 525, 529 (S.D. Miss. 2014) (stating that “Strickland does not

require the interview of every potential witness,” and finding that counsel used reasonable

professional judgment in declining to interview co-defendant after discussion with co-defendant’s

counsel). As recited above, the TCCA highlighted the communication between defense attorneys

––who “spoke frequently . . . because they shared office space” (Doc. No. 7-15 at 15) and “had

quite a bit of discussion about the case” (Doc. No. 7-18 at 23)––and the lack of any evidence that

Thomas’s attorney informed the petitioner’s attorney of Thomas’s availability as a witness. The

TCCA also properly pointed to the lack of any record evidence that counsel otherwise knew of

Thomas’s professed desire to testify for the petitioner and, in so doing, incriminate himself. The

TCCA’s finding that the petitioner’s counsel did not render deficient performance in failing to

interview Thomas in the presence of his attorney or to call him to testify was thus based on a

reasonable application of Strickland, which requires that a decision not to investigate be “assessed

for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” 466 U.S. at 691; see Stewart v. Wolfenbarger, 468 F.3d 338, 352 (6th Cir. 2006)

(finding no deficiency in failure to call uncharged accomplice to testify, as it is not reasonable to

expect that accomplice would forego his Fifth Amendment right against self-incrimination and

implicate himself to deflect suspicion from petitioner).

The TCCA also reasonably applied Strickland in finding no reasonable probability that the

result of the proceeding would have been different if not for counsel’s failure to interview or call

Thomas to testify, “[i]n light of Mr. Thomas’ limited proposed testimony that the petitioner was

not the shooter, the fact that the State prosecuted the petitioner under a theory of criminal

responsibility and the fact that Mr. Thomas’ testimony would have been impeached.” Moody, 2017

WL 829820, at *10. Because the state court reasonably found that neither prong of the Strickland

test for ineffective assistance was satisfied, the petitioner is not entitled to habeas relief on this

claim.

C. Remaining Claims

The petitioner’s remaining claims––that the trial court erred in failing to act as thirteenth

juror, in failing to allow him to retain counsel of his choice, and in giving him a sentence that is

functionally equivalent to life without the possibility of parole––were not presented to the TCCA

and are therefore defaulted. The petitioner does not attempt to demonstrate cause and prejudice

excusing the default, aside from citing the failures of his post-conviction appellate attorney which,

again, cannot establish cause for the default because they are attributable to the petitioner. These

claims are therefore barred from review in this court.

Although the petitioner concludes his petition by referring to his “actual[] innocen[ce] of

the crime he has been convicted of” (Doc. No. 1 at 21), the court finds no grounds for excusing his

procedural default on this basis. To establish actual innocence as a gateway to substantive review

of a procedurally barred claim, the petitioner must demonstrate that, “in light of all the evidence,

it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United

States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327–28 (1995) (internal

quotation marks omitted). Importantly, “‘actual innocence’ means factual innocence, not mere

legal insufficiency” of the proof against the petitioner. Id. Therefore, this narrow exception to the

procedural default bar “must be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998). Such evidence “can take the form of ‘exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence.’” Chavis-Tucker v.

Hudson, 348 F. App’x 125, 133 (6th Cir. 2009) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)).

This standard “does not require absolute certainty about the petitioner’s guilt or innocence,” but it

is a demanding standard that “permits review only in the extraordinary case.” House v. Bell, 547

U.S. 518, 538 (2006). In determining whether the standard is met, “the habeas court may have to

make some credibility assessments.” Chavis-Tucker, 348 F. App’x at 133.

While the petitioner’s conclusory reference to his actual innocence does not justify further

consideration of his defaulted claims under this standard, the post-conviction testimony of Ortago

Thomas could conceivably fit the bill. Upon scrutiny, however, this eyewitness testimony that the

petitioner was an innocent passenger in the vehicle from which the fatal shot was fired cannot be

deemed “reliable” or “trustworthy.” Thomas testified that he was the petitioner’s brother, that he

initially lied to police by denying any involvement in the shooting, and that after the petitioner’s

conviction he pled guilty to a reduced charge of second-degree murder in exchange for a fifteen-

year prison sentence. Thomas further testified that three of the car’s passengers were armed, that

three guns were fired by two passengers (Thomas with his own gun, and Caldwell with his gun

and a gun belonging to Matthews), and that the petitioner was not involved and could not have

known that a shooting was going to occur because he did not have a gun. (Doc. No. 7-18 at 3–17.)

The credibility of this testimony about the petitioner’s innocence is undermined by Thomas’s

relation to the petitioner, his admission to lying to police, and his criminal conviction; therefore, a

reasonable juror could easily conclude that Thomas is an unreliable eyewitness. See Chavis-

Tucker, 348 F. App’x at 134–35. Furthermore, although Thomas’s testimony at the petitioner’s

post-conviction hearing is the only eyewitness account identifying Caldwell as a shooter, there

was ample evidence at the petitioner’s trial from which the jury could have drawn this inference

in spite of Caldwell’s contrary testimony and the lack of other eyewitness accounts. The court

finds that the petitioner is not entitled to an exception, based on actual innocence, to the

requirement of showing cause excusing his procedural default.

Even if the default could be excused, the petitioner would not be entitled to relief on any

of the three remaining grounds of his petition. First, his claim that the trial court erred when it

failed to act as thirteenth juror under Tennessee Rule of Criminal Procedure 33 (Doc. No. 15 at

34–35) is explicitly a matter of state law and therefore not cognizable on habeas review. See Nash

v. Eberlin, 258 F. App’x 761, 764 n.4 (6th Cir. 2007) (unless properly construed as challenging

sufficiency of the evidence, a claim that conviction was against manifest weight of the evidence is

a state law claim not subject to federal habeas review); Williams v. Easterling, No. 3:09-cv-1002,

2010 WL 3463728, at *8 (M.D. Tenn. July 14, 2010), report and recommendation adopted sub

nom. Williams v. Eastering, No. 3:09-1002, 2010 WL 3463726 (M.D. Tenn. Sept. 2, 2010)

(deferring to state court’s interpretation of requirements of Tenn. R. Crim P. 33).

Second, the denial of the petitioner’s motion for continuance so that newly retained counsel

could prepare for trial––which was filed four days prior to the scheduled beginning of the trial,

when his co-defendant, the state, and his appointed counsel were ready to proceed, and after the

trial had previously been continued from its original setting––did not amount to an unconstitutional

deprivation of chosen counsel. The trial court denied the continuance motion in light of the late

date of its filing and the fact that, despite complaining to the trial court about his appointed

attorney, the petitioner had not previously informed the court that he or his family was attempting

to retain private counsel. (Doc. No. 7-15 at 28); see Burton v. Renico, 391 F.3d 764, 772 (6th Cir.

2004) (denial of a continuance rises to the level of a constitutional violation only when

circumstances show that denial was “unreasoning and arbitrary” and actually prejudiced the

defense). Although the Sixth Amendment guarantee of counsel for an accused’s defense carries

with it the right to be represented by counsel of one’s own choice, which may not be arbitrarily

and unreasonably interfered with, this right is not absolute and may not be used to unreasonably

delay trial. Linton v. Perini, 656 F.2d 207, 208–09 (6th Cir. 1981). There is no indication here that

the trial court arbitrarily denied a continuance when the requested continuance would have made

previously unavailable witnesses available or otherwise benefitted the defense in any measurable

way. Burton, 391 F.3d at 772; Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003).

Finally, and as previously discussed, federal law does not prohibit the state from sentencing

a juvenile such as the petitioner to life with the possibility of parole, even though parole is only

possible after service of 51 years in prison. See Starks v. Easterling, 659 F. App’x at 280; see also

Ali v. Roy, ---F.3d----, 2020 WL 812916, at *3 (8th Cir. Feb. 19, 2020) (rejecting claim under

Miller and denying habeas relief to juvenile petitioner who was not sentenced to life without

parole, but to three 30-year sentences).

VI. CONCLUSION

For the foregoing reasons, the habeas corpus petition will be denied and this matter will be

dismissed with prejudice.

The court must issue or deny a certificate of appealability (‘COA’) when it enters a final

order adverse to a Section 2254 petitioner. Rule 11, Rules Gov’ g 8 2254 Cases. A petitioner may

not take an appeal unless a district or circuit 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,” 28 U.S.C. § 2253(c)(2). 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 v. Cockrell, 537 U.S. 322, 336

(2003) (citations and internal quotation marks omitted). “[A] COA does not require a showing that

the appeal will succeed,” but courts should not issue a COA as a matter of course. Jd. at 337.

Reasonable jurists could debate whether the petitioner’s undefaulted claim of ineffective

assistance of counsel has merit, and whether his showing of actual innocence via Ortago Thomas’s

testimony is sufficient to excuse his procedural default. The court will therefore grant a certificate

of appealability on these issues. The court will deny a COA on the rest of the petitioner’s claims,

but he may seek a COA directly from the Sixth Circuit Court of Appeals. Rule 11(a), Rules Gov’ g

§ 2254 Cases.

An appropriate order is filed herewith. fi

United States District Judge

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