Anglin v. Phillips

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

BILLY ANGLIN, )

)

Petitioner, )

)

v. ) NO. 3:20-cv-00180

)

SHAWN P. PHILLIPS, Warden, ) JUDGE CAMPBELL

)

Respondent. )

MEMORANDUM OPINION

Petitioner Billy Anglin, a state inmate proceeding pro se, has filed a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Doc. No. 1), challenging the legality of his 1993

conviction in Williamson County Criminal Court. Respondent has filed the record of proceedings

in state court (Doc. Nos. 13, 14) and an Answer to the Petition (Doc. No. 15). Petitioner has filed

a brief in reply to Respondent’s Answer. (Doc. No. 28.)

Having reviewed the parties’ arguments and the underlying record, the Court finds that an

evidentiary hearing is not required in this matter. As explained below, Petitioner is not entitled to

relief under Section 2254, and this action will therefore be dismissed by Order entered

contemporaneously with this Memorandum Opinion.

I. BACKGROUND

A. Trial Proceedings

Petitioner was indicted by the Hickman County, Tennessee grand jury for crimes stemming

from a violent incident that occurred on August 23, 1991. After a late change in venue, Petitioner

was tried and convicted in September 1993 (along with two co-defendants, Petitioner’s brother

Steve Anglin and father John Anglin) in Williamson County, Tennessee, of the offenses of first-

degree murder, attempted first-degree murder, aggravated assault, and reckless endangerment.

(Doc. No. 13-4 at 2–5.)1 He received a total effective sentence of life plus 25 years in prison. (Id.)

Petitioner and Steve Anglin jointly appealed their convictions, and the Tennessee Court of

Criminal Appeals (TCCA) provided the following summary of the evidence at trial:

On August 23, 1991, Steve Anglin, accompanied by Billy Anglin and armed with

his shotgun, had gotten out of his truck at Dottie’s Trailer Park and made statements

threatening Buddy Simmons and Linda Lee Anglin, who was married to Johnny

Ray Anglin, a brother of the Appellants. He grabbed Mrs. Anglin by the hair,

slapped her three or four times, called her a “slut” and threatened to kill her, telling

her he was “fixing to blow [her] brains out.” He also said “that son of a bitch in the

yellow truck’s going to get some too.” The only yellow truck there belonged to

Buddy Simmons.

Mrs. Anglin went into her trailer and called the police. Steve Anglin came into her

trailer and said if she was calling the law, he would kill her. She stayed on the

telephone until officers arrived, during which time Steve Anglin again threatened

to kill her if she had him arrested.

Nonetheless, Mrs. Anglin went to get a warrant for Steve Anglin’s arrest, but the

sheriff would not allow her to have one issued. She returned to the trailer park to

get her five-year-old son whom she had left with Bess Besson.[2]

Neither Steve Anglin nor Billy Anglin were at the trailer park when she arrived.

However, while she was at Ms. Besson’s trailer, she heard the Anglins arrive. She

heard loud music.

Steve Anglin and Billy Anglin were sitting close to one another on the back of a

car with the radio in the car playing loudly. Steve Anglin was banging on a garbage

can and screaming for someone to make him turn the radio down. There was a

shotgun leaning between the men. Linda Anglin got very scared and went back to

get a warrant for Steve Anglin’s arrest.

As the Appellants sat on the car, Buddy Simmons was seen walking toward the car

where the Appellants were sitting. Steve Anglin shot into the ground in front of

Buddy and Buddy backed away, after which Steve shot into the ground again.

1 It appears that the case was brought to trial in Hickman County, but a mistrial was declared before

jury selection could be completed (see Doc. No. 13-10 at 72–73) and the trial venue was changed to

Williamson County.

2 At this point, it was evidently late afternoon/early evening and Mrs. Anglin testified it was “starting

to get dus[k]y dark.” (See Doc. No. 13-11 at 160–61.)

Buddy stood still while Steve reloaded the gun, then Buddy grabbed the gun and

swung it at Steve.

John Anglin, father of Steve and Billy Anglin, lived in the trailer park. Billy went

to his father’s trailer and said “Daddy, I need the gun.” He got a shotgun. As he left

the trailer, he put the gun to his shoulder and started swinging it and shooting. One

shot hit Ms. Besson, who lived with Buddy Simmons. She had been outside trying

to get Mr. Simmons to go back inside their trailer. At the time she was shot, she

was returning to her trailer. She was not armed.[3]

Rose Haskins was hit on the “rear end” by one of the shots. She was taken to the

hospital. She recovered and testified at the trial.

Mr. Simmons was also hit by one of the shots fired by Billy Anglin and he fell. As

Mr. Simmons laid on the ground, Billy Anglin then shot him again. Billy Anglin

then went to Mr. Simmons, put the gun to his head and pulled the trigger. It clicked,

apparently out of ammunition. Steve Anglin then pulled the shotgun back, put it to

Mr. Simmons’ head and pulled the trigger. Again, the gun clicked.

Steve Anglin then got down on the ground where Mr. Simmons was lying and was

described by a witness as making motions with his hands like he was “carving

something up.” He then stood up and began kicking and “stomping” Mr. Simmons.

The medical proof revealed that Mr. Simmons had very large and numerous

lacerations to his abdomen, chest, back, face, back of his head, ears, over his eyes,

to his tongue, arms and legs, as well as a cut throat. The lacerations to his arms

were so deep that his bones were visible to his elbows. Parts of his left thigh was

blown away by the shotgun blast midway to his buttocks with much of the muscle

and tissue in that area blown away. Both bones in his lower left leg were fractured,

and his right ulna was fractured. He had an evulsion injury to his right hand and his

fifth finger (pinky) was destroyed. Miraculously, Mr. Simmons recovered after

extensive medical treatment requiring eleven separate surgeries and forty-nine days

of hospitalization at Vanderbilt University Medical Center in Nashville.4

3 It was approximately 9:00 p.m. when Petitioner and his brother returned to the trailer park, and

their violent confrontation with Buddy Simmons began shortly thereafter. (See Doc. No. 13-10 at 194; Doc.

No. 13-11 at 41, 110–11.) Police responded to the scene at “about 9:35 p.m.” (Doc. No. 13-10 at 167), when

the lamp lighting in the trailer park was “not that great,” but “light enough [that] you could see.” (Id. at

172.) An expert witness for the defense, Dr. Robert Simon, also testified about the expected lighting

conditions at the trailer park on the night in question. (Doc. No. 13-12 at 225–38.)

4 At this point, the TCCA inserted the following text in a footnote: “Dr. John Thomas Sexton, who

examined Mr. Simmons at the Hickman County Hospital described his wounds as the worst he had ever

seen in his three years of emergency room experience. He analogized the wounds to ‘something that would

be seen in a military operation.’”

During the shooting incident, Billy Anglin was heard to say to Mr. Simmons, “What

are you going to do now, you son of a bitch?”

The autopsy revealed that Ms. Besson died of gunshot wounds to several vital

organs including the left carotid artery, left subclavian artery and multiple left

jugular veins. Three pieces of a deer slug were removed from her body. The slug

entered her lower neck at the top of her sternum and exited in the area of the left

shoulder blade. Ms. Besson was dead at the scene.

A TBI Crime Laboratory forensic expert tested the firearms found at the scene. A

shotgun was identified as the weapon from which the fatal .410 gauge shell was

fired. Other spent shotgun shells were identified as having been fired from the .12

gauge shotgun found at the scene. Both shotguns were surrendered to law

enforcement officers by John Anglin, the father of Billy and Steve Anglin who had

picked them up and taken them inside his mobile home. Four live .410 shotgun

shells were found in Steve Anglin’s left pants pocket.

Brenda Davis testified that immediately after the incident Billy Anglin appeared

“calm and collected” and made small talk with her husband as he walked to his

trailer, which was located behind Mr. and Mrs. Davis’ trailer. Ms. Davis further

testified that Steve Anglin “flipped us all a bird” as he was being driven away by

the law enforcement officers.

State v. Anglin, No. 01C01-9403-CC-00106, 1998 WL 531847, at *1–3 (Tenn. Crim. App. Aug.

25, 1998). Based on this evidence, the jury found Petitioner guilty as charged. (Doc. No. 13-14 at

12–13.) The trial court held a sidebar with counsel after the verdict was read and the jury was

polled, and the following ruling was then announced to the jury:

[L]adies and gentlemen, this is a case where the proof of any aggravating

circumstances is not great and in my opinion a death penalty can not be sustained.

That is now moot since the family of the two victims, the families of the two victims

consulted with the district attorney and they have decided to withdraw the

allegations of aggravating circumstance. So the court will set penalty of life

imprisonment for the two defendants who have been convicted of [first-degree

murder].

(Id. at 21–22.)

B. Post-Trial Proceedings

Petitioner filed a post-judgment motion for new trial, which was denied by the trial court.

(Doc. No. 13-4 at 42.) Petitioner’s conviction and sentence were subsequently affirmed on direct

appeal. State v. Anglin, 1998 WL 531847. After failing to file an application for permission to

appeal to the Tennessee Supreme Court within 60 days of the decision of the TCCA, Petitioner’s

counsel filed a motion to extend the appeal window, which the Tennessee Supreme Court denied.

See Anglin v. State, No. M2019-00083-CCA-R3-PC, 2019 WL 6954185, at *2 (Tenn. Crim. App.

Dec. 19, 2019) (describing proceedings after affirmance in State v. Anglin, supra). Counsel did not

pursue further relief on direct appeal.

Petitioner timely filed a pro se petition for post-conviction relief, and post-conviction

counsel was appointed. (Doc. No. 13-21 at 8–11, 28.) On March 30, 2001, the post-conviction trial

court entered an agreed order permitting Petitioner “to file his Petition for Appeal to Tennessee

Supreme Court” on direct review despite the lengthy delay, while “[a]ll other issues” in his post-

conviction petition were dismissed. (Id. at 38.) “Notwithstanding the agreed order, no application

for permission to appeal was filed with the supreme court.” Anglin v. State, 2019 WL 6954185, at

*3. Nonetheless, Petitioner’s case was reviewed in state court during subsequent years, as later

described by the TCCA:

In 2003, the Petitioner filed pro se pleadings attempting to ascertain the status and

amend or reissue the order stating that he shall be permitted to file an application

for permission to appeal to the supreme court.

The Petitioner’s first post-conviction counsel was permitted to withdraw, and the

second post-conviction counsel was appointed. In 2005, the Petitioner’s second

post-conviction counsel was permitted to withdraw, and the third post-conviction

counsel was appointed. The record does not contain evidence of any action on the

case until April 2010, when the circuit court clerk notified the third post-conviction

counsel that the case would be dismissed on June 30, 2010, unless counsel

requested that the case remain open. On July 23, 2010, the post-conviction court

dismissed the case for failure to prosecute.

In 2014, the Petitioner filed a pro se motion with the Tennessee Supreme Court, in

which he requested the court grant him “pro se status for the purpose of filing his

T.R.A.P. Rule 11.” The Petitioner detailed his unsuccessful efforts to file an

application for permission to appeal through counsel. The supreme court filed an

order directing responses from the first post-conviction counsel and the State and,

after those responses were filed, the court found that it did not have a complete

record regarding the matter and remanded the case to the post-conviction court for

an evidentiary hearing. The court directed:

In addition to any other issues raised by the parties relative to the motion,

the trial court should determine whether the trial court’s order purporting

to dismiss the post-conviction petition entered in July of 2010 was a nullity

given the prior entry of the Agreed Order in April 2001, see Anthony

Perris v. State, No. W2006-02236-CCA-R3-PC, 2008 WL 2483524

(Tenn. Crim. App. June 19, 2008), and whether [the Petitioner] should be

permitted to file an amended post-conviction petition alleging that

appellate counsel was ineffective for failing to file timely the application

for permission to appeal after the entry of the Agreed Order.

The supreme court also appointed counsel for the Petitioner.

On remand, the post-conviction court received briefs and conducted a hearing. In a

written order filed August 14, 2015, the court concluded that the Petitioner had been

denied due process in his efforts to pursue a delayed appeal of his convictions. The

court determined that the July 23, 2010 order purporting to dismiss the case was

void because the court had no jurisdiction to dismiss the case.5 The court granted

the Petitioner a delayed appeal of his convictions and ordered that the remaining

post-conviction claims be stayed pending the outcome of the delayed appeal.

The Petitioner filed an application for permission to appeal from the Court of

Criminal Appeals’ opinion and the judgment affirming his convictions. The

Tennessee Supreme Court denied his application on January 14, 2016.

Anglin v. State, 2019 WL 6954185, at *3–4.

Petitioner then returned to the post-conviction trial court, where an evidentiary hearing was

conducted in November 2017. (Doc. No. 13-26.) The court denied relief in December 2018. (Doc.

No. 13-25 at 106–127.) In the order denying relief, the court recognized trial counsel Larry

Drolsum’s certification as a “Death Qualified” defense attorney and credited his testimony that he

“sought to protect Petitioner’s life when it appeared the death penalty was still a viable option,”

before the trial judge unexpectedly “t[ook] the death penalty out of the jury’s hands at the

conclusion of trial.” (Id. at 109, 117.) On post-conviction appeal, the TCCA provided the following

5 At this point, the TCCA inserted the following text in a footnote: “Although both orders were issued

by the post-conviction court, different judges filed the July 23, 2010 and August 14, 2015 orders.”

summary of testimony from the only two witnesses at the evidentiary hearing, Petitioner and Mr.

Drolsum:

The Petitioner testified that he had lead counsel and co-counsel for his trial. He said

he was tried in Hickman County, which resulted in a mistrial after the discovery

that a court officer was related to one of the victims, Buddy Simmons. The

Petitioner said he had been unconcerned about a court officer’s relationship to

Buddy Simmons because the Petitioner and the court officer were friends. The

Petitioner said a change of venue occurred, which he opposed. The Petitioner

agreed that he was tried jointly with his father and brother. The Petitioner said he

wanted his case severed for trial but could not recall the reason his attorneys told

him why the cases were not severed. The Petitioner said he had wanted his case

severed because his brother had threatened to shoot people when the Petitioner was

not present. The Petitioner said a joint trial “got me in the middle of it.” Copies of

two motions to sever were received as exhibits. The post-conviction court noted

that, according to the Court of Criminal Appeals’ opinion in the appeal of the

convictions, the trial court had denied a motion to sever.

The Petitioner testified that his trial attorneys called Jerry Simmons, who was the

Petitioner’s first cousin, and “some doctor or something, Simon or something” to

testify as defense witnesses. The Petitioner agreed he wanted to call his

codefendants, his sister, “and a few other people there at the trailer park that night”

as witnesses. He said he wanted his attorneys to call Buddy Simmons to testify

about why Buddy Simmons “was over there coming in my area over there where I

was at” and to explain “some stuff from years ago between me and him.” The

Petitioner said twenty to thirty people were present at the trailer park on the night

of the crimes. He agreed that if Buddy Simmons had been called as a witness, the

Petitioner would have wanted to portray Buddy Simmons as the aggressor. The

Petitioner said that if his attorneys had called Boyce Cannon as a witness, he could

have testified that he had been with Robby Henson two days before the offenses in

this case, when Mr. Henson shot Rose Haskins “in the rear end with a pellet gun.”

He said showing that Mr. Henson shot Ms. Haskins would eliminate one victim

from the crimes with which he was charged. The Petitioner said that his father died

in 2003 and that his brother died in 2014. The Petitioner said the eyewitnesses

would have testified that he did not hold a gun to Buddy Simmons’s head. The

Petitioner said that he had not put a gun to Buddy Simmons’s head and that the

Petitioner’s brother had done so after the Petitioner told his brother the gun was out

of ammunition.

The Petitioner testified that his trial attorneys should have done more to impeach

Ms. Haskins, “Mary,” and Ricky Stanley about changes between their preliminary

hearing testimony and trial testimony. The Petitioner said his attorneys should have

objected to the State’s closing arguments that his self-defense theory was “ludicrous

and [a] smoke screen,” that a State’s witness was credible, and that a defense

witness lacked credibility. He said his attorneys should have objected, as well, to

the State’s posing a question “about all of the victims, bone blood and all of this

old shotgun stuff which he didn’t know nothing [sic] about.” The Petitioner said his

attorneys should have objected to the State’s argument about how Buddy Simmons

felt “while his flesh was being ripped away from his body.” The Petitioner thought

his attorneys should have objected to the State’s argument that the Petitioner’s

saying “I put a gun to Buddy [Simmons]’s head [was] in Jerry [Anglin]’s

statement.” The Petitioner claimed this allegation was not in Jerry Anglin’s

statement.

The Petitioner testified that his trial attorneys advised him not to testify at his trial

due to his criminal record and that he did not testify. He said that he wanted to

testify but that his attorneys said they “had it.” He said his attorneys pursued a self-

defense theory but not in the way he wanted and not to the extent he thought they

should have. He agreed that he faced the death penalty and that his trial testimony

could have been considered during the penalty phase if he had chosen to testify. He

said he had four or five prior felony convictions, including convictions for burglary

and receiving or concealing stolen property.

The Petitioner testified that he was examined before the trial by Dr. Robert Simon,

an optometric physician, and that he was unsure whether Dr. Simon diagnosed him

with myopia. He recalled that Dr. Simon said his eyesight was bad. He thought Dr.

Simon testified at the trial but said the scope of Dr. Simon’s testimony was limited

by the trial court. The Petitioner thought Dr. Simon testified about the lighting

conditions at the trailer park. When asked if the trial court had not allowed Dr.

Simon to testify about the Petitioner’s eyesight, the Petitioner said Dr. Simon had

examined him after the offenses but before the trial.

. . .

Regarding delays, the Petitioner testified that he waited two years for a trial. He

said one of his attorneys failed to file an application for permission to appeal, which

necessitated his filing a post-conviction petition. He said he had an attorney who

did not file anything for three to four years, another attorney who did not file

anything for a year, and another who did not file anything for five years. He said

that more recently, he had an attorney who withdrew after fifteen months because

the attorney did not want to raise issues that the Petitioner wanted to raise. He said

this attorney wrote to him but did not speak to him in person. The Petitioner said

he had tried unsuccessfully for over twenty years to obtain the trial transcripts. Post-

conviction counsel informed the court that he had tried unsuccessfully to obtain the

sentencing hearing transcript for the Petitioner.

The transcript of a deposition of George Michael “Buddy” Simmons taken in a civil

case against the Petitioner was received as an exhibit. The transcript reflects that

Mr. Simmons testified in the deposition that he was shot during an altercation with

the Petitioner and the Petitioner’s brother. Mr. Simmons said that he did not know

how many people shot at him and that shots came from different directions. Mr.

Simmons said he did not go to the ground when shots hit him and had gone forty

to fifty feet toward the source of the shots because he knew he would be shot in the

back if he retreated. He said that he grabbed a gun from the Petitioner, who was

reloading it, and that the Petitioner’s brother got the gun and broke Mr. Simmons’s

shoulder and leg. Mr. Simmons said that “he” jumped on Mr. Simmons’s back and

that the Petitioner put a gun between Mr. Simmons’s eyes and said, “[H]ow does it

feel to know you’re fixing to die, you SOB.” Mr. Simmons stated that the Petitioner

might as well shoot him because Mr. Simmons was “might near gone anyway.” Mr.

Simmons said that the Petitioner “snapped” the gun, which did not fire, and that the

Petitioner’s brother cut Mr. Simmons’s throat, tongue, and the area over his eyes.

When asked at the post-conviction hearing how he theorized that Mr. Simmons

would have been a favorable defense witness in light of the deposition testimony,

the Petitioner questioned whether Mr. Simmons had said the Petitioner had put a

gun to Mr. Simmons’s head and had done anything other than shoot Mr. Simmons

below the waist. The Petitioner said he had not told Mr. Simmons that Mr. Simmons

was going to die and that he had said, “[W]hat [are] you going to do now you son

of a b----,” when the Petitioner came outside. The Petitioner said Mr. Simmons held

a gun and needed only to drop it.

Trial counsel testified that both he and co-counsel were qualified to represent

capital defendants and that the Petitioner faced the death penalty. Counsel said he

met with the Petitioner at least ten to fifteen times in the two years before the trial.

Trial counsel testified that before the first trial ended in a mistrial, he noticed that

one of the court officers directed comments toward one of the jurors. Counsel said

that he learned Buddy Simmons and the court officer were related and that the trial

court granted counsel’s motion for a mistrial on this basis. Counsel said the venue

was changed from Hickman County to Williamson County for the second trial.

Counsel said he explained to the Petitioner that counsel thought a change of venue

would be beneficial because no one would know about the details of the case.

Counsel noted that the Petitioner had a “stormy past” and had been involved in a

United States Supreme Court case regarding the right to counsel for juveniles.

Counsel said that the Petitioner was known around Hickman County and that the

trailer park where the crimes occurred had a reputation for altercations and police

response. Counsel said police officers told him that they had problems with the

Petitioner’s brother and that the Petitioner’s family was “clannish,” protected their

own, and had their own rules at the trailer park. Counsel said these factors were

among the things he considered in deciding to request a change of venue.

Trial counsel testified that another attorney in the case filed a motion for a severance

and that he and co-counsel decided to “piggy back” the motion. He said this motion

was filed before the first trial and that it was denied. Counsel said the Petitioner had

no benefit from a joint trial. Counsel did not recall the circumstances surrounding

an agreed order for a joint trial. He later recalled that the attorneys thought it best

to proceed with the trial and did not think the trial court would have granted a

severance. He said that, as things developed in the first trial, it became apparent

that the Petitioner might not be given “a fair shot.” Counsel agreed the trial court

stated it might reconsider the motion for a severance if the Petitioner chose to

testify.

Trial counsel testified that the defense theory was that the shooting had been an

accident or mistake when the Petitioner had come to the aid of his brother. Counsel

said their theory was that the Petitioner had heard yelling and gone outside with a

gun but had tripped off the porch, which caused the gun to fire accidentally.

Trial counsel testified that the Petitioner expressed a desire to testify. Counsel said

he was concerned the Petitioner might say something that would cause the jury to

impose the death penalty. Counsel said he explained his concern to the Petitioner.

Counsel said that the Petitioner made the decision not to testify in consultation with

counsel and co-counsel and that the Petitioner agreed with their advice that he

should not testify.

Trial counsel testified that although he could not recall an issue regarding Steve

Anglin’s statement of intent to kill Buddy Simmons, he believed such a statement

would have been admissible as a hearsay exception.

Trial counsel testified that he and his investigator talked to Buddy Simmons before

the trial. Counsel said that the investigator did the first round of interviews of the

witnesses and that written summaries of their statements were provided to the

Petitioner. Counsel said he later interviewed the State’s witnesses and other

important witnesses and tried to determine “where the mistakes were being made

by the witnesses.” He said questions existed as to whether any of them remembered

accurately what had happened. He said that he and co-counsel used the written

summaries of the witnesses’ prior statements when cross-examining the witnesses

and that they were prepared for fourteen potential witnesses. Counsel thought they

had been able to neutralize some of the State’s proof through cross-examination.

He said a female witness testified that she thought “it was just an accident.” Counsel

said that although the Petitioner thought some of the State’s witnesses might

provide testimony that was favorable to the defense, this was not the case after two

rounds of witness interviews.

Trial counsel testified that he took the position that Mr. Simmons had been the

aggressor. Counsel said he did not call Mr. Simmons as a defense witness because

Mr. Simmons would not have been helpful. Counsel said Mr. Simmons did not like

the Petitioner and, in counsel’s opinion, the Petitioner’s best interests were not

served by calling Mr. Simmons as a defense witness. Counsel said that if Mr.

Simmons had been called as a defense witness and had testified consistently with

his testimony in the civil deposition, the jury might have been more inclined to

impose the death penalty. Counsel said that “the victim” was related to a Centerville

police officer and that he thought the State pursued the death penalty because a

police officer’s “brother, uncle, or cousin” had been injured.

Trial counsel testified that after the trial began, he became aware he needed to

convey to the jury the lighting conditions at the trailer park. He said he obtained the

trial court’s approval for Dr. Simon to serve as a defense expert. Counsel said Dr.

Simon used instruments which tested the amount of light at the scene. Counsel said

he did not anticipate any issues with the admissibility of Dr. Simon’s testimony

because the court had appointed Dr. Simon as an expert. Counsel said the court

permitted Dr. Simon’s testimony regarding the lighting conditions. Counsel said,

however, the court would not allow Dr. Simon to testify about the Petitioner’s

vision two years after the offenses because of the possibility of changes over

time. . . .

Anglin v. State, 2019 WL 6954185, at *4–7.

II. CLAIMS OF THE PETITION

The Petition before the Court (Doc. No. 1) asserts the following claims:

(1) Trial counsel failed to present an adequate defense and was constitutionally ineffective in:

(a) advising Petitioner not to testify;

(b) failing to object to inadmissible hearsay testimony concerning Steve Anglin’s

statement reflecting his intent to kill Buddy Simmons and Linda Anglin;

(c) failing to call Buddy Simmons to testify that his issue was with Steve Anglin, not

Petitioner;

(d) failing to call Boyce Cannon to testify that Rose Haskins had been shot in the days

prior to the incident at the trailer park;

(e) failing to keep the trial in Hickman County, where “the venire would hav[e] been

more sympathetic to Petitioner”; and

(f) failing to object to improper statements made by the State during closing

arguments.

(2) Petitioner was denied due process when the State deprived him of a meaningful post-

conviction process, leaving him unable to present proof of trial counsel’s ineffectiveness in failing

to call Buddy Simmons and Boyce Cannon as trial witnesses––proof that he could not present on

direct review because trial counsel (who also represented Petitioner on direct appeal) would not

raise the issue of their own ineffectiveness.

(Doc. No. 1 at 6–11.)

III. ANALYSIS

A. 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).6 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” upon the conviction. 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)). Prior to the passage of AEDPA, district courts applied de novo

6 Although Petitioner was tried, convicted, and sentenced in 1993, his habeas petition was not filed

until 2020, “so it is subject to the requirements of [AEDPA], which became effective on April 24, 1996.”

Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 840–41 (6th Cir. 2017).

review to determine whether “the relevant state court had erred on a question of constitutional law

or on a mixed constitutional question.” Williams v. Taylor, 529 U.S. 362, 402 (2000) (O’Connor,

J., concurring). But now, where state courts have ruled on the merits of 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, 529 U.S. at 410).

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,” 28

U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2). The Supreme Court has

repeatedly held “that AEDPA, by setting forth [these] necessary predicates before state-court

judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court.’” White v. Wheeler, 577 U.S. 73, 77 (2015) (quoting

Burt v. Titlow, 571 U.S. 12, 19 (2013)).

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, 529 U.S. at 412–13. An “unreasonable

application” under this subsection 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; White v. Woodall, 572 U.S. 415, 426 (2014). A state court decision is

not unreasonable under this standard simply because the federal court, “in its independent

judgment,” finds it erroneous or incorrect. Williams, 529 U.S. at 411. Rather, to be actionable

under Section 2254(d)(1), the state court’s decision “‘must be objectively unreasonable, not merely

wrong; even clear error will not suffice.’” Woods v. Donald, 575 U.S. 312, 316 (2015) (quoting

Woodall, 572 U.S. at 419). An objectively unreasonable decision is one “so lacking in justification

that there was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Harrington, 562 U.S. at 103.

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.

Young v. Hofbauer, 52 F. App’x 234, 237 (6th Cir. 2002). Rather, the determination must be

“objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-

El v. Cockrell, 537 U.S. 322, 340 (2003). “If reasonable minds reviewing the record might disagree

about the finding in question, on habeas review that does not suffice to supersede the trial court’s

. . . determination.” Brumfield v. Cain, 576 U.S. 305, 314 (2015) (quoting Wood v. Allen, 558 U.S.

290, 301 (2010)) (internal quotation marks omitted). Moreover, a state court’s factual

determinations “shall be presumed to be correct” and the petitioner bears “the burden of rebutting

the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see

Davis v. Ayala, 576 U.S. 257, 271 (2015). Finally, the petitioner may not prevail under Section

2254(d)(2) simply by showing that a fact was unreasonably determined; he “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)). This standard “was meant to be” a high hurdle for

petitioners, consistent with the principle that habeas corpus functions as a guard against only

“extreme malfunctions” in the state’s administration of criminal justice. Harrington, 562 U.S. at

102; see also Woods, 575 U.S. at 316.

Review under AEDPA is not only demanding, but also ordinarily unavailable to state

inmates who have not fully exhausted their remedies in the state court system. Title 28 U.S.C.

§§ 2254(b) and (c) provide that, subject to certain exceptions, a federal court may not grant a writ

of habeas corpus on behalf of a state prisoner unless the prisoner has presented the same claim

sought to be redressed in 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)) (federal claim is exhausted if it was presented “under the same theory” in 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, as of the time of the habeas petition’s filing, there can no longer be

any available state remedy for any of its claims; if a state remedy is available for any habeas claim,

the entire petition must be dismissed. Id. at 522. A habeas petition is thus fully exhausted if each

and every claim was first fairly presented to the state appellate court7 as a federal constitutional

claim in substance, if not explicitly. See Gray v. Netherland, 518 U.S. 152, 162–63 (1996); Pillette

v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (requiring the presentation of “the legal and factual

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

7 In Tennessee, the Court of Criminal Appeals is the highest appellate court to which appeal must be taken

in order to properly exhaust a claim. See Tenn. Sup. Ct. R. 39; Adams v. Holland, 330 F.3d 398, 402–03

(6th Cir. 2003).

However, because the exhaustion requirement “refers only to remedies still available at the

time of the federal petition,” it may also be “satisfied if it is clear that [the habeas petitioner’s]

claims are now procedurally barred under [state] law.” Gray, 518 U.S. at 161 (citations and internal

quotation marks omitted). The doctrine of procedural default is thus a corollary to the rule of

exhaustion, one which ordinarily bars habeas review of claims that were not “fairly presented” for

merits review in state court, either because they were presented in a way that failed to comport

with state procedural rules or because they were not presented at all and no longer can be presented

under state law. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (acknowledging “the interplay

of these two doctrines” and stating that, to avoid an end-run around the exhaustion requirement

and “the values that it serves,” “we ask not only whether a prisoner has exhausted his state

remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly

presented his claims to the state courts.”) (emphasis in original; internal citations and quotation

marks omitted). If the state court decides a claim on “adequate and independent state grounds,”

typically a procedural rule prohibiting the state court from reaching the merits of the constitutional

claim, the claim will ordinarily be barred from federal habeas review because of its procedural

default. 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). Likewise, 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 or state law deems the claim waived),8

8 The Tennessee Post-Conviction Procedure Act provides that “[i]n no event may more than one (1) petition

for post-conviction relief be filed attacking a single judgment,” and establishes a one-year statute of

limitations for filing that one petition. Tenn. Code Ann. § 40-30-102(a) and (c). The Act further provides

that “[a] ground for relief is waived if the petitioner personally or through an attorney failed to present it

then the claim is technically (though not properly) exhausted but barred by procedural default.

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.” Id. 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 asserted in his defaulted claim “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.

for determination in any proceeding before a court of competent jurisdiction in which the ground could

have been presented,” unless that ground could not be presented due to unconstitutional state action, or is

based on a new and retroactive constitutional right that was not recognized at the time of trial. Id. § 40-30-

106(g).

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 bar of an unexcused default in cases 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, 392–93 (2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord

Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006). To obtain habeas review under this

narrow exception to the procedural-default rule, the petitioner would need to demonstrate his

factual innocence, not the mere legal insufficiency of the State’s proof; a miscarriage-of-justice

claim is not supported by an assertion of mere legal innocence. Lee v. Brunsman, 474 F. App’x

439, 442 (6th Cir. 2012) (citing Bousley v. United States, 523 U.S. 614, 623 (1998), and Calderon

v. Thompson, 523 U.S. 538, 559 (1998)).

B. Petitioner’s Claims

As recited above, Petitioner claims that he was deprived of his rights to the effective

assistance of counsel (Claim 1) and due process of law (Claim 2). As a preliminary matter, prior

to asserting the claim of trial counsel’s ineffectiveness, Claim 1 of the Petition begins with the

words “[s]ufficiency of the evidence.” (Doc. No. 1 at 6.) In his Reply to Respondent’s Answer,

Petitioner fleshes out this bare reference to the sufficiency of the evidence by asserting that his

brother, Steve Anglin, “would have testified in the Petitioner’s defense” at his post-conviction

evidentiary hearing had Steve not died during Petitioner’s long wait for that hearing. (Doc. No. 28

at 16–17.) This is obviously not a claim that the evidence at trial was insufficient––both Petitioner

and Steve Anglin raised that claim in their joint appeal, resulting in the TCCA’s ruling “that there

was ample, indeed overwhelming evidence from which any rational trier of fact would find the

Appellants guilty of all of the offenses just as the jury did.” State v. Anglin, 1998 WL 531847, at

*3. This Court does not construe the Petition as seeking habeas relief from that ruling.

Alternatively, even if the Petition is properly construed as presenting a challenge to the

sufficiency of the evidence against Petitioner, any claim of insufficiency of the convicting

evidence is without merit under AEDPA due to the TCCA’s reasonable determination quoted

above, and any claim of the insufficiency of post-conviction development of the record is not

cognizable in federal habeas, as further discussed below in adjudicating Petitioner’s due process

claim. See, e.g., Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (noting that “the writ is not

the proper means” to challenge “collateral matters” as opposed to “the underlying state conviction

giving rise to the prisoner’s incarceration”).

1. Claim 1 – Ineffective Assistance of Counsel

In Claim 1, Petitioner asserts that his constitutional right to the effective assistance of

counsel was violated, enumerating six ineffective-assistance sub-claims. The first five sub-claims

were exhausted on post-conviction appeal before the TCCA, which decided them on their merits.

As to the sixth sub-claim, the TCCA found that Petitioner was not entitled to relief because he

waived review of that sub-claim.

Claims of ineffective assistance of counsel are subject to the two-prong standard of

Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether counsel was deficient in

representing Petitioner; and (2) whether counsel’s alleged deficiency prejudiced the defense so as

to deprive Petitioner of a fair trial. Id. at 687. To meet the first prong, 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, [he] must overcome the presumption that . . . the challenged action

‘might be considered sound trial strategy.’” Id. at 688–89 (quoting Michel v. State of La., 350 U.S.

91, 101 (1955)). 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). It requires a showing that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id.

When an exhausted claim of ineffective assistance of counsel is raised in a federal habeas

petition, review under AEDPA is “doubly deferential,” Knowles v. Mirzayance, 556 U.S. 111, 123

(2009), in that “Strickland requires deference to counsel and AEDPA requires deference to the

state court.” Moody v. Parris, No. 20-5299, 2022 WL 3788503, at *4 (6th Cir. Aug. 30, 2022).

The question then 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 Petitioner’s claims of ineffective assistance. Anglin v. State,

2019 WL 6954185, at *8. Accordingly, the critical question is whether the TCCA applied

Strickland reasonably in reaching its conclusions on each ground raised by Petitioner.

a. Advice Against Testifying

The TCCA rejected Petitioner’s claim that counsel was ineffective in advising him not to

testify in his own defense, as follows:

The post-conviction court found that the Petitioner and his trial attorneys discussed

the Petitioner’s right to testify, that the Petitioner wanted to testify, that his

attorneys advised against it because of the risk of the Petitioner’s saying something

that might make the jury more inclined to recommend a death sentence, and that

the Petitioner elected to follow his attorneys’ advice about not testifying. The post-

conviction court found that the Petitioner failed to show that his attorneys

performed deficiently in advising him not to testify.

On review, the record supports the post-conviction court’s determination. The

Petitioner was advised of his right to testify and elected to follow his trial attorneys’

advice. His attorneys’ advice that he not testify was based upon their concerns about

his testimony adversely affecting the jury and making the possibility of a death

sentence more likely. We note, as well, that the Petitioner did not testify at the post-

conviction hearing about the facts to which he would have testified if he had elected

to take the stand at his trial. Although post-conviction counsel argues that the

Petitioner would have testified that he was unable to see what he shot on the night

of the crimes, the transcript of the post-conviction hearing does not contain the

specifics about which the Petitioner claims he would have testified. The Petitioner

merely testified generally at the hearing that he thought they were relying on a self-

defense theory and that he “wanted to get up there and tell [his] story.” To the extent

that the Petitioner addressed any question about whether he had poor eyesight, his

post-conviction testimony centers on the trial court’s ruling regarding the

admissibility of Dr. Simon’s prospective testimony about the Petitioner’s eyesight.

Without knowing how the Petitioner might have testified, the post-conviction court

had no basis from which it might conclude that he suffered prejudice from

following his attorneys’ advice not to testify. See Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990) (“When a petitioner contends that trial counsel failed

to discover, interview, or present witnesses in support of his defense, these

witnesses should be presented by the petitioner at the evidentiary hearing.”). In

addition, the Petitioner’s post-conviction testimony that he wanted to tell his story

in furtherance of a self-defense theory is not consistent with his argument on appeal

that his eyesight was so poor he could not have seen where he shot. The post-

conviction court did not err in denying relief on this basis.

Id. at *9.

This determination is reasonable. Petitioner’s post-conviction testimony that he wanted “to

get up there [on the witness stand] and tell [his] story” (Doc. No. 13-26 at 26–27) cannot overcome

his admission that he “trusted” counsel and agreed (with some hesitation) to follow their advice

(id. at 56) based on the legitimate concern that, in this case where Petitioner clearly fired the shot

that claimed the life of Ms. Besson, any testimony he gave could provoke the jury to impose a

sentence of death. (Id. at 75–77.) The TCCA reasonably applied Strickland in finding that

Petitioner failed to prove that counsel performed deficiently in advising him not to testify.

Moreover, the TCCA reasonably found that Petitioner failed to establish prejudice from being

unable to testify to his poor vision, given his failure to proffer the specific testimony he would

have given on that topic and the trial court’s ruling that subsequent measurements of his visual

acuity could not be used to establish acuity at the time of the shootings. Petitioner is not entitled

to habeas relief on this sub-claim.

b. Failure to Object to Inadmissible Hearsay Testimony

Petitioner claims that trial counsel ineffectively failed to object to hearsay testimony that

Steve Anglin stated he intended to kill Buddy Simmons and Linda Anglin. As the TCCA noted,

the post-conviction trial court found that this out-of-court statement attributed to Steve Anglin

“was admissible [against Petitioner] as a hearsay exception for an admission of a party opponent,”

and therefore concluded that “Petitioner’s trial attorneys had not provided ineffective assistance.”

Anglin v. State, 2019 WL 6954185, at *10. The TCCA analyzed this sub-claim as follows:

Tennessee Rule of Evidence 803(1.2)(E) provides a hearsay exception for “[a]

statement offered against a party that is ... a statement by a co-conspirator of a party

during the course of and in furtherance of the conspiracy.” The Petitioner has not

identified a reason why the post-conviction court erred in concluding that the

evidence fell under this hearsay exception, and we decline to speculate as to the

Petitioner’s unstated reasoning. We conclude that the post-conviction court did not

err in determining that the Petitioner failed to prove his ineffective assistance of

counsel claim and that the court properly denied relief on this basis.

Id. Petitioner has provided no grounds, in either his Petition or his Reply, for finding this

determination unreasonable, nor does the Court find it to be an unreasonable application of

Strickland. Accordingly, habeas relief is not warranted on this sub-claim.

c. Failure to Call Buddy Simmons to Testify

The TCCA reviewed and analyzed this sub-claim as follows:

The Petitioner contends that his trial attorneys were ineffective because they failed

to call Buddy Simmons as a defense witness. He argues that Mr. Simmons, who

was deceased by the time of the post-conviction hearing, would have testified that

he had an issue with Steve Anglin, not the Petitioner. The post-conviction court

found that Mr. Simmons had provided deposition testimony which was unfavorable

to the Petitioner in a related civil case, that trial counsel’s investigation showed Mr.

Simmons did not like the Petitioner, and that the Petitioner’s trial attorneys made a

strategic decision not to call Mr. Simmons because they thought his testimony

“might have heightened the jury’s awareness to the death penalty.” Thus, the court

concluded that the Petitioner had failed to show his attorneys performed deficiently,

and it denied his ineffective assistance of counsel claim as to this issue.

Although the Petitioner claimed at the post-conviction hearing that Steve Anglin,

not the Petitioner, put a gun to Mr. Simmons’s head, Mr. Simmons testified in the

civil deposition that the Petitioner held the gun to Mr. Simmons’s head and asked

Mr. Simmons how it felt to know he was about to die. Trial counsel testified at the

post-conviction hearing that he made the decision not to call Mr. Simmons because

his investigation showed that Mr. Simmons would not be a favorable witness and

might cause the jury to be more inclined to recommend a death sentence. The record

supports the post-conviction court’s determination that the Petitioner failed to show

that his attorneys performed deficiently. In view of the evidence regarding Mr.

Simmons’s potential damaging testimony as a defense witness at the Petitioner’s

trial, the Petitioner has failed to show how he was prejudiced, as well. The post-

conviction court did not err in concluding that the Petitioner failed to prove his

ineffective assistance of counsel claim and in denying relief on this basis.

Id. at *10–11. Without question, counsel’s strategic decision that the testimony of victim Buddy

Simmons could only hurt Petitioner’s case, and therefore that he would not be called as a defense

witness, cannot be second-guessed on habeas review, where “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable[.]”

Strickland, 466 U.S. at 690. The TCCA reasonably applied Strickland to find no deficient

performance or prejudice resulting from counsel’s decision not to call Simmons. This sub-claim

has no merit.

d. Failure to Call Boyce Cannon to Testify

The TCCA reviewed and analyzed this sub-claim as follows:

The Petitioner contends that his trial attorneys were ineffective because they did

not call Boyce Cannon to testify as a defense witness. He claims Mr. Cannon would

have testified that Ms. Haskins had been shot a few days before the crimes, rather

than during the incident. The post-conviction court found that even if Mr. Cannon

had testified for the defense, the Petitioner had not shown that his convictions for

the offenses related to victims other than Ms. Haskins would have been affected.

Thus, the court concluded that the Petitioner had not shown that his attorneys

performed deficiently or that he had been prejudiced by their performance, and it

denied relief on this basis.

The record reflects that Mr. [Cannon] did not testify at the post-conviction hearing

and that the only evidence of how he might testify came from the Petitioner, who

claimed Mr. [Cannon] would have testified that Robby Henson, who was deceased

by the time of the post-conviction hearing, shot Rose Haskins “in the rear end with

a pellet gun.” As we have stated, a petitioner who claims his attorneys should have

presented a defense witness at trial should call the witness to testify at the post-

conviction hearing. See Black, 794 S.W.2d at 757. Because the Petitioner failed to

present evidence to support his claim by calling Mr. [Cannon] as a post-conviction

witness, the post-conviction court did not err in denying relief on this basis.

Anglin v. State, 2019 WL 6954185, at *11.

In his Reply, Petitioner asserts that he “told his post-conviction attorney that he wanted to

subpoena Mr. Cannon, however his attorney failed to have Mr. Cannon come to court as a witness.”

(Doc. No. 28 at 19.) But this alleged “failure to develop the state postconviction record” is the sort

of attorney error for which habeas petitioners must bear responsibility, in light of the fact that

“there is no constitutional right to counsel in state postconviction proceedings.” Shinn v. Ramirez,

142 S. Ct. 1718, 1735 (2022) (citations omitted); see also, e.g., 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.”). Not only does this

sub-claim fail for lack of evidence showing prejudice, as the TCCA reasonably determined,9 but

also Petitioner’s proffer of Cannon’s expected testimony is contradicted in the record, by the

testimony of the responding paramedic that Rose Haskins’s wounds were fresh, not days old, and

were inconsistent with a pellet or BB. (Doc. No. 13-11 at 27–33.) Petitioner is not entitled to relief

on this sub-claim.

e. Failure to Keep the Trial in Hickman County

The TCCA reviewed and analyzed this sub-claim as follows:

The Petitioner contends that his trial attorneys were ineffective relative to the

change of venue. The Petitioner argues in his brief that a Hickman County jury

would have been more sympathetic to him than was the Williamson County jury.

The Petitioner has not identified any factual or legal basis for this assertion.

The Petitioner testified at the post-conviction hearing that he opposed the change

of venue, which occurred after the first trial ended in a mistrial. Trial counsel

testified that a Hickman County court officer and one of the victims were friends,

that a police officer and one of the victims were related, and that the Petitioner and

his brother had a bad reputation in the community. In counsel’s opinion, the

Petitioner had a better change of receiving a fair trial in Williamson County. The

post-conviction court found that counsel made an informed, tactical decision to

agree to a change of venue. Thus, the post-conviction court concluded that the

Petitioner was not entitled to relief.

On review, the record supports the post-conviction court’s determination. After a

mistrial occurred due to a friendship between a court officer and a juror and after

consideration of several factors which trial counsel thought might affect the

likelihood of the Petitioner’s receiving a fair trial in Hickman County, counsel

consented to a change of venue to Williamson County. The record supports the

court’s determination, and the court did not err in denying relief on this basis.

Anglin v. State, 2019 WL 6954185, at *10. This, again, is a reasonable application by the TCCA

of Strickland to find that counsel’s choice, made after due consideration of the tactical advantages

9 See Troglin v. Westbrooks, No. 1:12-CV-41, 2014 WL 5810312, at *11 (E.D. Tenn. Nov. 7, 2014)

(“Given petitioner’s failure to offer testimony at the post-conviction hearing to demonstrate prejudice

flowed from the absence of . . . testimony at trial, the state court did not unreasonably apply Strickland

when it rejected this claim.”) (citing Martin v. Mitchell, 280 F.3d 594, 608 (6th Cir. 2002)).

and disadvantages of the proposed change in venue, was a strategic decision that is unassailable

on collateral review. Plaintiff’s claim to the contrary is without merit.

f. Failure to Object During State’s Closing Argument

Petitioner claims that his defense attorneys were ineffective in failing to object to improper

statements made by the State during closing argument. The TCCA addressed this sub-claim as

follows:

The Petitioner contends that his trial attorneys provided ineffective assistance of

counsel because they did not object to “improper statements” made during the

State’s closing arguments. The Petitioner’s brief does not identify the alleged

improper statements to which he claims his attorneys should have objected, nor

does it contain any legal support for a conclusion that such statements were

objectionable. At the post-conviction hearing, the Petitioner testified that his

attorneys did not object to argument that his self-defense theory was “ludicrous”

and a “smoke screen,” that a defense witness was incredible, that the victims were

“bone blood and all of this old shotgun stuff,” that the prosecutor wondered how

Buddy Simmons felt while “his flesh was being ripped away from his body,” that

the prosecutor believed the testimony of a State’s witness, and that Jerry Anglin’s

statement said the Petitioner put a gun to Mr. Simmons’s head when the statement

did not say this.

Relative to the claims related to the State’s attack on the self-defense theory and to

the State’s characterization of the defense theory as “ludicrous” and a “smoke

screen,” the post-conviction court found that the Court of Criminal Appeals had

denied relief in the appeal of the convictions [where the appellants had raised issues

of trial court error in allowing the statements without admonishment and

prosecutorial misconduct in making them].[10] As to the remaining allegations of

ineffective assistance related to failure to object to closing arguments, the post-

conviction court noted that these issues had not been raised in the petition or

amended petitions and that the Petitioner had not provided the post-conviction court

with a trial transcript of the closing arguments. The post-conviction court concluded

that the Petitioner had not met his burden of showing how “these comments denied

him a right to a fair trial.”

The post-conviction court correctly noted that the petition and amended petition do

not contain an allegation of ineffective assistance of counsel for failing to object to

the closing arguments. The original petition alleged (1) trial court error in failing to

admonish the State for unspecified, allegedly improper closing arguments and (2)

prosecutorial misconduct for unspecified, alleged improper closing arguments.

Neither of these allegations cast the issue as one of the ineffective assistance of

10 See State v. Anglin, 1998 WL 531847, at *4–6.

counsel. The post-conviction court did not address these allegations in terms of

whether the Petitioner had received the ineffective assistance of counsel, which is

how the issue is raised on appeal. The post-conviction court cannot be faulted for

not addressing the issue as a question of whether the Petitioner was deprived of the

effective assistance of counsel when the Petitioner had failed to raise the issue in

his petitions.

As a general proposition, this court will not address issues that were not raised in

the post-conviction petition or addressed by the post-conviction court. Brown v.

State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1991); see State v. Johnson, 970

S.W.2d 500, 508 (Tenn. Crim. App. 1996) (stating that issues raised for the first

time on appeal are waived). Because the Petitioner failed to raise an ineffective

assistance of trial counsel allegation related to his attorneys’ failure to object to

specific portions of the State’s closing arguments, thereby depriving the post-

conviction court of the opportunity to adjudicate this claim, we conclude that our

consideration of the issue, at this juncture, is waived. The Petitioner is not entitled

to relief on this basis.

Anglin v. State, 2019 WL 6954185, at *11–12.

Tennessee’s waiver rule applicable to post-conviction proceedings, Tenn. Code Ann. § 40-

30-106(g), provides that, subject to two exceptions not pertinent here, “[a] ground for relief is

waived if the petitioner personally or through an attorney failed to present it for determination in

any proceeding before a court of competent jurisdiction in which the ground could have been

presented.” Thus, “[a]n issue not presented in a petition for post-conviction relief may not be raised

for the first time on appeal.” Beechem v. State, No. W2010-02271-CCA-R3-PC, 2012 WL

2514904, at *6 (Tenn. Crim. App. July 2, 2012), perm. app. denied (Tenn. Oct. 16, 2012). The

Sixth Circuit has found that the application of Tennessee’s post-conviction waiver rule is an

independent and adequate state ground for decision that bars federal habeas review, unless cause

and prejudice excusing the procedural default is shown. Cone v. Bell, 243 F.3d 961, 969–71 (6th

Cir. 2001), overruled on other grounds by Bell v. Cone, 535 U.S. 685 (2002)).

Petitioner makes no attempt to demonstrate cause and prejudice excusing his default of this

sub-claim. Accordingly, it is barred from review in this Court.

In his Reply, Petitioner for the first time asserts improprieties in the closing argument of

Attorney Bates (counsel for Steve Anglin) and in the opening statements of both Bates and

Petitioner’s counsel. (Doc. No. 28 at 18.) Specifically, he asserts that “Bates stated at the opening

statements that the Petitioner was the killer,” while Petitioner’s counsel merely “discussed the prior

events which occurred approximately a year before the altercation and events that occurred

between the Petitioner and Buddy Simmons.” (Id.) Petitioner further asserts that, in closing

argument, “Bates stated to the jury that ‘the only thing the Defendants were guilty of was going

too far,’” which implied “that the Petitioner was in fact guilty.” (Id.) Regardless of whether these

assertions are construed as arguments supporting Petitioner’s claim of trial counsel’s ineffective

failure to object to improper statements, or as facts supporting a new constitutional claim, they are

not properly raised in the Reply and the Court therefore will not consider them. See Jalowiec v.

Bradshaw, 657 F.3d 293, 311–12 (6th Cir. 2011) (finding that “district court properly declined to

address . . . grounds for relief” first asserted in habeas petitioner’s traverse, or reply) (citing Tyler

v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005)); cf. Royster v. Warden, Chillicothe Corr. Inst., No.

18-3362, 2018 WL 8138770, at *2 (6th Cir. Aug. 23, 2018) (finding that “[w]hile Royster’s

traverse claims share a common legal theory as those in his petition—trial and appellate counsels’

alleged ineffectiveness—they concern new factual bases that were not presented in his petition and

thus are new claims” that were not properly before the district court).

2. Claim 2 – Due Process

Petitioner claims that he was denied due process when the State delayed his ability to

proceed to a post-conviction evidentiary hearing until 2017, by which time all potential witnesses

except Boyce Cannon had died. Petitioner asserts that this delay prejudiced his ability to present

proof of trial counsel’s ineffectiveness––proof that he was not previously able to present because

counsel (who also represented Petitioner on direct appeal) would not raise the issue of his own

ineffectiveness.11 (See Doc. No. 1 at 6–11; Doc. No. 28 at 18–19; see also Doc. No. 13-25 at 27–

28 (Petitioner’s pro se “Closing Statements” to the post-conviction trial court, identifying names

and expected testimony of witnesses he would have called but for delay).)

The TCCA analyzed this claim as follows:

The Petitioner contends that he was denied due process by the lengthy delay

between the filing of his post-conviction petition in 1999 and the 2017 hearing. He

argues that he did not have a fair hearing because memories had faded and

witnesses had died. The State counters that no due process violation occurred and

notes that any delay cannot be attributed to the State.

The post-conviction court found that the Petitioner had been denied due process

because of the delay between the filing of his post-conviction petition and his

receiving a delayed appeal of his conviction proceedings in the form of an

application for permission to appeal to the Tennessee Supreme Court. The post-

conviction court found, however, that the Petitioner had received relief in the form

of the delayed appeal and that the supreme court had acted on his application by

denying permission to appeal. Thus, the post-conviction court concluded that the

Petitioner had been afforded a remedy for the due process violation. The court also

found that to the extent the Petitioner claimed he had been abandoned by his post-

conviction counsel, he had no constitutional or statutory right to the effective

assistance of counsel in a post-conviction proceeding, pursuant to House v. State,

911 S.W.2d 705, 712 (Tenn. 1995).

In the post-conviction realm, due process requires merely that the petitioner have

“‘the opportunity to be heard at a meaningful time and in a meaningful manner.’”

House, 911 S.W.2d at 711 (quoting Mathews v. Eldridge, 424 U.S. 319, 333

(1976)); see Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 2004). Although the delay

in this case was significant, the record reflects inaction on the part of the Petitioner

and his attorneys for years at a time. In any event, the Petitioner was afforded a

hearing, at which he was allowed to testify at length as to his alleged grievances.

The post-conviction court filed a lengthy, detailed order addressing all of the issues

raised. Ultimately, the court found that the Petitioner failed to prove his claims on

11 The Petition asserts a separate claim based on trial/appellate counsel’s ineffective failure to raise

their own ineffectiveness. (See Doc. No. 1 at 11.) But because ineffective assistance of trial counsel is

“virtually impossible” to prove without an evidentiary hearing, State v. Blackmon, 78 S.W.3d 322, 328

(Tenn. Crim. App. 2001) (citation omitted), and Tennessee courts have “overwhelmingly communicated”

that such claims are best resolved in post-conviction proceedings, Sutton v. Carpenter, 745 F.3d 787, 795

(6th Cir. 2014), counsel could not have been constitutionally ineffective in failing to raise the claims prior

to the post-conviction stage of the case. Accordingly, the Court liberally construes Petitioner’s third asserted

habeas claim in conjunction with his assertion of his due process rights in Claim 2.

the merits. The court properly determined that the Petitioner was not entitled to

relief on his due process claim related to the post-conviction claims other than the

delayed appeal.

Anglin v. State, 2019 WL 6954185, at *12.

Errors in state collateral proceedings are ordinarily “outside the scope of federal habeas

corpus review” because such errors, even if they amount to a deprivation of due process, do not

directly pertain to the determination of whether the petitioner “is in custody in violation of the

Constitution or laws or treaties of the United States” under 28 U.S.C. § 2254(a). Cress, 484 F.3d

at 853. In this case, however, Petitioner argued before the state courts that the egregious delay in

his post-conviction proceedings not only amounted to an erroneous disruption of those

proceedings, but also prejudiced his only meaningful opportunity to establish the merit of his Sixth

Amendment claim that trial counsel was ineffective in failing to call trial witnesses––a claim which

does directly pertain to the legality of his custody. (See Doc. No. 13-25 at 25–36 (citing, e.g.,

Martinez v. Ryan, 566 U.S. 1 (2012)); Doc. No. 13-28, Petitioner’s Post-Conviction Appellate

Brief, at 13 (citing Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (“the only way”

a petitioner can establish prejudice from trial counsel’s failure to call witnesses at trial is to present

the witness at the post-conviction evidentiary hearing)).)

Nevertheless, under AEDPA, for habeas relief to be granted on this claim which the state

courts adjudicated on its merits, that adjudication must have “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.” 28 U.S.C. § 2254(d)(1). And, if the state

adjudication stood in such relationship to Supreme Court-determined federal law, the underlying

due process violation must have “had substantial and injurious effect or influence” upon

Petitioner’s conviction––in other words, it must not have been harmless. Brecht v. Abrahamson,

507 U.S. 619, 637 (1993); Peterson v. Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).

In Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832 (6th Cir. 2017), the Sixth

Circuit considered a habeas petitioner’s argument that the framework for post-conviction review

in Ohio violated his due process rights because it denied him an “adequate corrective process.” Id.

at 854. The petitioner had argued before the district court that the state post-conviction process

was inadequate for obtaining review of claims which, as recognized by the Supreme Court in

Martinez v. Ryan and Trevino v. Thaler,12 “can only be brought for the first time on

postconviction,” whereas on appeal he asserted that the post-conviction corrective process in Ohio

is so inadequate that it is “little more than a ritual.” Id. In affirming the denial of this claim, the

Sixth Circuit first noted that, under its precedent, habeas corpus cannot be used to challenge a

state’s scheme of post-conviction relief. Id. at 855 (citing, e.g., Cress, 484 F.3d at 853). The court

then proceeded to determine that, “[m]ore to the point, in the absence of Supreme Court precedent

evaluating the constitutional adequacy of state post-conviction review proceedings, Leonard

cannot establish the necessary precondition for issuance of the writ—namely, that the decision of

the Ohio Court of Appeals, which clearly evaluated the merits of his claim, ‘was contrary to, or

12 In Martinez, the Supreme Court recognized, “as an equitable matter, that the initial-review

collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been

sufficient to ensure that proper consideration was given to a substantial claim” of trial counsel’s

ineffectiveness, when that claim could not have been raised on direct appeal because of state procedural

rules. 566 U.S. 1, 13 (2012). In such cases, the Court carved out a “narrow exception” to the rule that post-

conviction counsel’s ineffectiveness is a risk borne by the petitioner, allowing such ineffectiveness during

initial post-conviction proceedings to excuse the procedural default of a substantial claim of trial counsel’s

ineffectiveness. Id. at 9, 13–14.

In Trevino, the Supreme Court extended the application of Martinez to states with procedural

frameworks that do not preclude an ineffective-assistance claim on direct appeal, but make it unlikely that

the opportunity to raise that claim at that time will be a meaningful one. 569 U.S. 413, 429 (2013). The

Sixth Circuit then held in Sutton that, under Tennessee’s procedural scheme, the initial post-conviction

proceeding is the first meaningful opportunity to raise a claim of ineffective assistance of trial counsel. 745

F.3d at 795–96.

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Id. (quoting § 2254(d)(1)). Implicit in this determination is

a rejection of the notion that the equitable rule of Martinez and Trevino, allowing habeas courts to

reach certain defaulted claims, established any rule concerning the sufficiency of state post-

conviction procedures.

So too in the case at bar, Petitioner has not argued, nor can he establish, that the TCCA’s

ruling that he ultimately received all the process he was due in post-conviction trial court was

contrary to, or unreasonably applied, any decision of the U.S. Supreme Court. Neither can

Petitioner establish that he was prejudiced by any error in the state courts’ denial of “relief on his

due process claim related to the post-conviction claims other than the delayed appeal,” Anglin v.

State, 2019 WL 6954185, at *12, because, as detailed above, those courts based their denial of his

ineffective-assistance claims on failure to meet his burden of proving both deficient performance

and resulting prejudice, not strictly on failure to offer testimony from witnesses now deceased.

Petitioner is not entitled to habeas relief on his due process claim.

V. CONCLUSION

For the reasons stated above, Petitioner is not entitled to relief under Section 2254 and this

action will therefore be DISMISSED.

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 § 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. /d. at 337.

Because reasonable jurists could not debate whether Petitioner’s claims should have been

resolved differently or are deserving of encouragement to proceed further, the Court will DENY a

COA. Petitioner 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.

AMX

UNITED STATES DISTRICT JUDGE

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