McMath v. Washburn

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DENVER JOE McMATH, JR., #499263, )

)

Petitioner, )

)

v. ) NO. 3:20-cv-00325

)

MARTIN FRINK, Warden,1 )

)

Respondent. )

MEMORANDUM OPINION

Denver McMath, an inmate at the Trousdale Turner Correctional Center in Hartsville,

Tennessee, is serving a 140-year prison sentence. He has filed a pro se Petition for the Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1), challenging the constitutionality of his

state conviction. In response, Respondent filed the transcript of proceedings in state court (Doc.

No. 15) and an Answer to the Petition (Doc. No. 16). Petitioner subsequently filed a Reply to

Respondent’s Answer. (Doc. No. 33). He also filed a Motion to Amend his Petition (Doc. No. 32),

a Motion for Extension of Time to file a memorandum in support of his Motion to Amend (Doc.

No. 34), and a Motion to Appoint Counsel. (Doc. No. 36).

This matter is fully briefed and ripe for the Court’s review. Respondent does not dispute

that the Petition is timely and that this is Petitioner’s first Section 2254 petition related to this

conviction. (Doc. No. 16 at 1). Having reviewed Petitioner’s arguments and the underlying record,

1 On December 13, 2021, Petitioner notified the Court that the prison where he is incarcerated had a new

warden, Mr. Martin Frink. (Doc. No. 26). As the proper respondent to a petition under Section 2254 is the

warden of the institution where the petitioner is in custody, Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004)

(citing 28 U.S.C. §§ 2242, 2243), the proper respondent here is Warden Frink, rather than former Warden

Russell Washburn. In the Order accompanying this Memorandum Opinion, the Clerk will be directed to

make this change on the docket.

the Court finds that an evidentiary hearing is not required, and that it would be futile to allow

amendment of the Petition as requested. As explained below, Petitioner is not entitled to relief

under Section 2254, and his Petition and pending motions will therefore be denied.

I. PROCEDURAL HISTORY

After being indicted on charges of aggravated sexual battery (four counts) and rape of a

child (four counts), Petitioner was convicted on all counts on August 24, 2011, and given an

effective sentence of 140 years in prison. (Doc. No. 15-1 at 54–61). Trial counsel was allowed to

withdraw from the representation after sentencing (see id. at 62), and newly appointed counsel

represented Petitioner first in seeking a new trial (id. at 62–69), and then on appeal from his

conviction and sentence.

The Tennessee Court of Criminal Appeals (TCCA) affirmed the trial court’s judgment on

direct appeal. State v. McMath, No. M2012-01260-CCA-R3CD, 2013 WL 5918733 (Tenn. Crim.

App. Nov. 1, 2013); (Doc. No. 15-11). The Tennessee Supreme Court denied discretionary review

on March 5, 2014. (Doc. No. 15-15).

Petitioner subsequently filed for post-conviction relief in the trial court, where an

evidentiary hearing was held on May 3, 2017. (Doc. No. 15-18). The post-conviction trial court

denied relief on November 21, 2017. (Doc. No. 15-17 at 3–6). On June 10, 2019, the TCCA

affirmed the denial of post-conviction relief. McMath v. State, No. M201702426CCAR3PC, 2019

WL 2420559, at *1 (Tenn. Crim. App. June 10, 2019); (Doc. No. 15-23). Petitioner was denied

permission to appeal to the Tennessee Supreme Court on October 14, 2019. (Doc. No. 15-24).

Petitioner then timely filed his pro se Petition under Section 2254.

II. STATEMENT OF FACTS

A. Evidence at Trial

The TCCA on direct appeal produced a summary of the proof at trial, which it also utilized

as the factual record for purposes of adjudicating certain issues on post-conviction appeal, because

Petitioner had failed to file the trial transcript as an exhibit to the post-conviction evidentiary

hearing. See McMath v. State, 2019 WL 2420559, at *7. This factual summary is reproduced in

its entirety below:

The victim was born on September 5, 1990. [The petitioner] was her mother’s

boyfriend and the father of her younger half-brother. At the time of the crimes, the

victim lived with [the petitioner], her mother, her half-brother, her two sisters, and

her older brother.

The victim recalled that the first incident happened during the winter of her fourth

grade year. She testified that [the petitioner] told her to come into his bedroom and

sit beside him on the bed. [The petitioner] kissed the victim, inserting his tongue

into her mouth, and then gave her some coloring books. On another occasion, [the

petitioner] went into the victim’s bedroom and touched her breasts, with his hand

on top of her clothes, while she was sleeping in her bed. The victim testified that

one night, “late at night,” [the petitioner] went into her bedroom where she and her

twin sister were sleeping, and performed oral sex on her. She testified that [the

petitioner] pulled her pants down and put his mouth on her vagina.

The victim recalled an incident when she was in the sixth grade and [the petitioner]

made her perform oral sex on him in the laundry room of their house. The victim

did not know what oral sex was, and [the petitioner] told her to “put [her] mouth on

it, and [she] had no choice.” The victim testified that it happened “[a] lot.” She

testified that [the petitioner] ejaculated in her mouth. She testified that she was

afraid that if she did not do as [the petitioner] told her, [the petitioner] would beat

her. She testified, “he always beat[ ] us.” The victim testified that she could not

count the number of times she performed oral sex on [the petitioner]. She recalled

the incident in the laundry room and another occasion in the kitchen. On one

occasion, her older brother walked into the laundry room while the victim was

performing oral sex on [the petitioner], and [the petitioner] “just started beating

him.”

The victim also testified that [the petitioner] called her downstairs to watch

pornography with him. She testified that [the petitioner] was masturbating while

watching two people on television have sex. [The petitioner] then told the victim to

go to the laundry room, where he made her perform oral sex on him. She testified,

“[o]ne time, he had called me downstairs and he was rolling up weed and then he

smoked it and then told me to smoke it.” The victim smoked the marijuana and then

went upstairs, but she was not feeling “normal” and she thought she was “high.”

[The petitioner] called her back downstairs and made her perform oral sex on him.[2]

On another occasion, the victim fell asleep in her mother’s bedroom while watching

her youngest brother while her mother was at work. She awoke to [the petitioner]

touching her. The victim recalled another incident when [the petitioner] touched

her chest in the living room. She testified, “[I] was just scared and I told him -- I

told him that I was going to tell my mother and he said [‘]you tell [,] I’m going to

kill you.[’]”

The victim testified that the abuse ended when she was in eighth grade after the

family moved to another residence. [The petitioner] “stayed there on and off.” The

victim’s older brother told the victim’s mother about the abuse when the victim was

in the tenth grade.

The victim’s older brother testified that [the petitioner] physically abused him as a

child. He recalled an incident when his mother was in the hospital giving birth to

his younger brother, and [the petitioner] told him to watch for a cab that was coming

to pick him up. After waiting for awhile and not seeing a cab, he went upstairs to

tell [the petitioner]. When he walked inside the bedroom he saw [the petitioner] “on

the bed with his thang out and [the victim] was in the room with him.” He testified

that [the petitioner]’s penis was erect. On another occasion, at 2:30 or 3:00 a.m.,

the victim’s brother saw [the petitioner] “on top of [the victim] giving her oral sex”

in the living room. On another occasion, the victim’s brother was outside and he

saw [the petitioner] and the victim through the window in the laundry room. He

testified “just something was awkward ....” He testified that in 2007, during an

argument with the victim, he told his mother that [the petitioner] had abused the

victim in the past.[3]

The victim’s mother testified that she and [the petitioner] lived together with her

five children for 15 years. She testified that [the petitioner] never had a “steady job”

and that he “demanded money” from her. She testified that when the victim was 16

years old, she discovered that [the petitioner] had previously molested the victim.

The victim’s mother confronted [the petitioner] with the allegation, and [the

petitioner] initially denied it. [The petitioner] then said, “‘if I did do it I was on

drugs and alcohol.’” During the investigation of this case, the victim’s mother

2 After seating the jury but prior to beginning the proof, the trial court held a jury-out hearing to determine

the admissibility under Tennessee Rule of Evidence 404(b) of this testimony involving Petitioner’s use of

pornography and marijuana. (See Doc. No. 15-2).

3 In 2018, over seven years after testifying against Petitioner, the victim’s older brother executed an affidavit

generally recanting the “false statements” he had made in his trial testimony. (Doc. No. 32 at 6–7).

However, as discussed later in this Opinion, that affidavit does not meet the applicable criteria for admission

on the record of this case in support of any claim for habeas relief.

attempted to speak to [the petitioner] while wearing a “wire,” but [the petitioner]

refused to meet with her and said, “Bitch, you’re trying to set me up.” The victim’s

mother received a letter from [the petitioner] to his son, the victim’s younger

brother, that contained a drawing of a woman with a gun to her head. She received

the letter on the Saturday prior to testifying in this case. She perceived the drawing

as a threat.

Melinda Evans, an investigator with the Tennessee Department of Children’s

Services, testified that she investigated the allegations against [the petitioner] after

the victim’s twin sister disclosed information about the abuse to someone at school.

She testified that the victim was “initially very reserved and very reluctant” to speak

to her. The victim told Ms. Evans that [the petitioner] had touched her breasts and

buttocks on top of her clothes. The victim was 17 years old at the time of the

interview and stated that the incidents happened four years prior. The victim denied

that she had ever touched [the petitioner].

Eric Fitzgerald, of the Sex Crimes Unit of the Metro Nashville Police Department,

testified that he interviewed the victim. Detective Fitzgerald testified that the victim

was initially a “little stand-offish,” but that she eventually described the events,

which she stated began when she was in fourth grade. She told Detective Fitzgerald

that it started as kissing, then [the petitioner] touched her breasts outside her clothes,

then inside her clothes, and her vagina, and eventually, [the petitioner] performed

oral sex on the victim and had the victim perform oral sex on him. Detective

Fitzgerald also interviewed the victim’s older brother, who had witnessed some

incidents of abuse.

[The petitioner] did not testify or present any proof at trial.

Id. at *1–3.

Prior to resting its case, the State read the following election of offenses to the jury:

Count one, aggravated sexual battery, refers to the testimony that the [petitioner]

touched the victim’s breast over her clothes when she slept on the bottom bunk in

her bedroom.

Count two, aggravated sexual battery, refers to the testimony that the [petitioner]

touched the victim’s breast under her clothes on the skin when she slept on the

bottom bunk in her bedroom.

Count three, aggravated sexual battery, refers to the testimony that the [petitioner]

touched the victim’s breasts when she was laying in the bed with her little brother

in her mother’s bedroom.

Court four, aggravated sexual battery, refers to the testimony that the [petitioner]

touched the victim’s breast when she sat on a chair in the living room when she told

the [petitioner] that she was going to tell her mother and he threatened he would

kill her if she did.

Count five, rape of a child, refers to the testimony that the [petitioner] came into

the victim’s bedroom at night and performed cunnilingus on her.

Count six, rape of a child, refers to the first incident the victim could recall of

performing fellatio on the [petitioner] before which he instructed her how to do it.

Count seven, rape of a child, refers to the testimony that the victim performed

fellatio on the [petitioner] in the laundry room after he showed her pornography on

the television.

Count eight, rape of a child, refers to the testimony that the victim performed

fellatio on the [petitioner] in the kitchen after the [petitioner] told her to smoke

marijuana.

(Doc. No. 15-4 at 7–9).

The jury, which included among its members former Tennessee Governor Phil Bredesen,

heard closing arguments, was charged, and rendered a verdict of guilty on all counts. Petitioner

was later sentenced at a hearing where the following discussion and rulings occurred after counsel

(Ms. Reddick for the State and Mr. Colavecchio for Petitioner) had argued their sentencing

positions:

MS. REDDICK: Just a reminder to Mr. Colavecchio that, given the age of

these offenses, the dates of the offenses, he has to elect which sentencing structure

he wants to be sentenced under, old or new.

MR. COLAVECCHIO: Well, I believe these were all pre-Blakely.

THE COURT: Well, it is eight to twelve and fifteen to twenty-five. Right?

MR. COLAVECCHIO: Yes.

MS. REDDICK: No. I am referring to the – whether or not Your Honor

considers – starts in the middle of the range and moves up, considering only the

felony conviction, which he does have; or, could start at the beginning but considers

all factors.

THE COURT: All right. Well, either way.

MR. COLAVECCHIO: We would elect to start at the bottom end –

THE COURT: Bottom range. That’s fine. All right. Well –

MR. MOORE: And I hate to interrupt, but this is one you don’t start at the

bottom of the range it it’s under the new law. The Court just considers all the

enhancement factors so that there is no real starting point by the terms of the statute.

MR. COLAVECCHIO: Yes.

THE COURT: All right. All that having been said, the Court, first of all, has

to consider sentencing considerations. . . .

(Doc. No. 15-7 at 14–16). The trial court proceeded to find that five statutory enhancement factors

applied, that no statutory mitigating factors applied, and that the appropriate sentence was 10 years

(in the middle of the applicable range)4 for each aggravated sexual battery conviction and 25 years

(at the top of the applicable range)5 for each child rape conviction, all of which would run

consecutively for a total effective sentence of 140 years. (Id. at 16–17).

B. Post-Conviction Proceedings

After reciting is previously published summary of the evidence at trial, the TCCA provided

the following summary of the evidence from Petitioner’s post-conviction evidentiary hearing, as

relevant to the issues raised on appeal:

The first witness called by the petitioner was Woodrow Ledford, an investigator

with the Metro Police Department. Investigator Ledford testified he was involved

in the investigation of the petitioner but could not remember if a “controlled phone

call” was made in this case. Investigator Ledford did, however, admit if a recording

was made of such a call it would have been turned over to the District Attorney’s

Office.

The petitioner then testified concerning his claims against trial counsel and

appellate counsel. While admitting trial counsel provided him with a copy of

discovery and discussed the State’s case against him, the petitioner claimed trial

4 See Tenn. Code Ann. § 40-35-112(a)(2) (establishing a Range I sentence for a Class B felony as “not less

than eight (8) nor more than twelve (12) years”).

5 See id. § 40-35-112(a)(1) (establishing a Range I sentence for a Class A felony as “not less than fifteen

(15) nor more than twenty-five (25) years”).

counsel failed to sufficiently communicate with him. The petitioner, who was

incarcerated prior to trial, also stated trial counsel did not provide him with a copy

of the CD which contained some of the State’s discovery. The petitioner admitted

trial counsel reviewed the CD but did not discuss it with the petitioner after doing

so.

While admitting trial counsel sought funds for and hired an investigator as part of

his defense, the petitioner claimed trial counsel never discussed the investigator’s

findings with him. The petitioner admitted, however, that he met with the

investigator. The petitioner also stated trial counsel failed to find potential

witnesses he felt would have been “pertinent to my case.” Though the petitioner

failed to provide specific names, he testified trial counsel should have subpoenaed

individuals from the children’s’ day care and school.

Next, the petitioner testified trial counsel failed to properly “challenge the

indictments.” While admitting trial counsel requested a bill of particulars, the

petitioner claimed the State’s response was not specific enough, and he asked

counsel to renew his motion and request a more specific response. According to the

petitioner, trial counsel did not make a second request of the State.

The petitioner also claimed trial counsel was ineffective for failing to cross-

examine certain witnesses. According to the petitioner, both the victim’s mother

and the victim gave inconsistent statements prior to trial and trial counsel failed to

adequately cross-examine them about the inconsistencies. For example, the

petitioner testified the victim initially claimed one incident occurred upstairs and

then she later testified the same incident took place downstairs, and trial counsel

failed to sufficiently cross-examine the victim concerning this inconsistency.

Next, the petitioner testified counsel was ineffective for allowing him to be

sentenced under the wrong sentencing act. According to the petitioner, his crimes

were committed prior to the 2005 amendment to the sentencing statute, yet he was

sentenced under the new statute which allowed the trial court to rely on certain

enhancement factors that should not have been considered.

Trial counsel, who represented the petitioner after arraignment through sentencing,

testified he has been practicing criminal law for twenty years and has handled forty

to fifty jury trials. Trial counsel stated that upon receiving discovery from the State,

he mailed a copy of the discovery to the petitioner. Trial counsel reviewed a CD

provided by the State and discussed the contents of the CD with the petitioner as

well as answered any questions the petitioner had about the discovery and the

evidence in his case.

As trial counsel and the petitioner prepared for trial, they “expected some of the

testimony to not be consistent with each other” based on the discovery provided by

the State. However, trial counsel noted that the inconsistencies were not related to

the elements of the crimes charged but differences such as “it happened in the

afternoon or it happened at night.” Trial counsel not only pointed these differences

and inconsistences out during the witnesses’ testimony but also summarized them

during his closing argument.

Trial counsel filed “a bill of particulars that asked specific questions – dates, times,

places, details on the specifics of the allegation.” However, the State’s first response

was not very specific, so he requested more information and received a “more

detailed Election of Offenses where the specifics were discussed about how and

when and all that.”

When questioned about the advice he provided concerning the petitioner’s

sentencing options, trial counsel testified they discussed the fact the petitioner had

an option about “which act to be sentenced under. And we chose one, and I believe

that’s on the record, and there was no issue about it at that time.” According to trial

counsel, he met with the petitioner on two occasions prior to the sentencing hearing

and advised the petitioner of his options under each act during their first meeting.

The final witness was the petitioner’s appellate counsel. Appellate counsel testified

he has been practicing for thirteen years during which time he has handled twenty-

five criminal jury trials and several criminal appellate matters. Appellate counsel

was assigned to the petitioner’s case after the sentencing hearing and, therefore, he

handled both the motion for new trial and the petitioner’s appeal. In preparing both

the motion for new trial and the appeal, appellate counsel spoke with and exchanged

numerous letters with the petitioner. Appellate counsel also spoke with trial counsel

and reviewed the record.

While appellate counsel and the petitioner agreed on some issues to include in the

motion for new trial and on appeal, such as some evidentiary issues and consecutive

sentencing, appellate counsel did not believe other issues the petitioner wished to

pursue had merit, such as the bill of particulars and prosecutorial misconduct.

Appellate counsel, therefore, only raised those issues which, in his experience,

provided the petitioner with the best opportunity to obtain relief.

When questioned specifically as to why he did not raise the issue of whether the

petitioner was sentenced under the appropriate sentencing act, appellate counsel

testified that his review of the sentencing hearing transcript revealed the issue had

been discussed during the hearing with the petitioner and the petitioner had made

an informed decision. Therefore, appellate counsel did not raise the issue on appeal.

McMath v. State, 2019 WL 2420559, at *3–5.

III. CLAIMS PRESENTED FOR REVIEW

The pro se Petition in this Court asserts the following five claims:

(1) The State’s bill of particulars was insufficient to state the offenses with specificity.

(2) The trial court erred by allowing into evidence the testimony of three State’s witnesses, as

the testimony constituted inadmissible character evidence and inadmissible hearsay.

(3) The trial court erred by allowing the State to introduce into evidence a drawing enclosed

with a letter from Petitioner to his son and the victim’s mother.

(4) The trial court erred in sentencing Petitioner.

(5) Petitioner received ineffective assistance of counsel at trial and on appeal.

(Doc. No. 1 at 5, 7–8, 10, Doc. No. 1-1; see also Doc. No. 2 at 4).6

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” 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

6 Petitioner purports to assert a sixth claim. (See Doc. No. 1-1 at 2–3; Doc. No. 2 at 4). However, as

discussed below, his “Claim #6” is in fact an argument that his post-conviction counsel’s ineffectiveness is

to blame for his failure to exhaust most of the claims of ineffective assistance of counsel asserted in Claim

5. (Doc. No. 1-1 at 2–3; Doc. No. 2 at 55).

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

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

also Davis v. Ayala, 576 U.S. 257, 271 (2015) (“State-court factual findings . . . are presumed

correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing

evidence.’”) (quoting Rice v. Collins, 546 U.S. 333, 338–39 (2006)). 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.

Even AEDPA’s demanding review 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.7 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 complements the exhaustion requirement, to ensure that

the state has a meaningful opportunity to address the merits of its convicts’ claims of constitutional

error before those claims are entertained in federal court. See Edwards v. Carpenter, 529 U.S. 446

(2000) (noting the interplay between the exhaustion rule and the procedural default doctrine).

Under this doctrine, a claim is procedurally defaulted and thus ordinarily barred from federal

habeas review if the state court decides it on an independent and adequate state ground, such as a

procedural rule prohibiting the state court from reaching the merits of the constitutional claim.

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 or state law deems the claim waived),8 then the

claim is technically exhausted, but procedurally barred. Coleman, 501 U.S. at 731–32.

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).

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

If a claim is procedurally defaulted under either of the above scenarios, “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

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).

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

Petitioner raises five habeas claims. In response to the first four––which assert errors

committed by either the court or the prosecution during trial and sentencing––Respondent raises

the defense of procedural default, arguing that while Petitioner presented those claims to the state

courts, he did so without asserting any federal constitutional violation. (See Doc. No. 16 at 17–18,

22–23, 25). Respondent argues that, because state law prevents Petitioner from returning to state

court to present his claims as federal claims, they have been defaulted and are barred from

adjudication in this habeas case. (Id. (citing Tenn. Code Ann. § 40-30-102(c)). Respondent is

correct.

A. Unexcused Procedural Default of Claims 1–4

Petitioner did in fact present Claims 1 through 4 to the TCCA on direct appeal, but not as

federal constitutional claims. Instead, he argued that the trial court erred in allowing testimony that

was improper under Tennessee Rules of Evidence 401, 403, and 404 (Doc. No. 15-9 at 8–20); that

the court erred in applying sentence-enhancement factors and imposing consecutive sentences

under the statutory sentencing scheme, Tenn. Code Ann. § 40-35-101 et seq. (id. at 21–32)9; that

the court erred under Tennessee Rule of Evidence 403 in admitting into evidence a letter from

9 Notably, Petitioner has failed in this Court to assert any federal constitutional violation resulting from the

sentencing error he alleges, which is that the trial court misapplied enhancement factors and erroneously

imposed consecutive sentences under state law. (Doc. No. 1 at 10; Doc. No. 2 at 29–35). Claim 4 is subject

to dismissal on this basis alone. See Hagerman v. Minter, No. 317CV00549JRGHBG, 2019 WL 148661,

at *7 (E.D. Tenn. Jan. 9, 2019) (finding that, “to the extent Petitioner is asserting that her sentence violated

the 1989 Sentencing Act, which is state law,” the claim was noncognizable and the court had “no warrant

to review” it as a habeas claim) (citing 28 U.S.C. § 2254(a) (federal habeas relief is available only if an

inmate is being held “in violation of the Constitution or laws or treaties of the United States”)).

Petitioner to his young son (id. at 32–35); and, that the court erred in failing to order the State to

answer his bill of particulars under Tennessee Rule of Criminal Procedure 7(c). (Id. at 35–37).

“[B]oth Congress and federal habeas courts have set out strict rules requiring prisoners to

raise all of their federal claims in state court before seeking federal relief.” Shinn v. Ramirez, 142

S. Ct. 1718, 1731–32 (2022). Consequently, “[t]he federal courts do not have jurisdiction to

consider a claim in a habeas petition that was not ‘fairly presented’ to the state courts” as a federal

claim. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (quoting Franklin v. Rose, 811

F.2d 322, 324–25 (6th Cir. 1987)). Fair presentation requires the habeas claim to have first been

advanced “under the same theory” in state court. Kelly, 846 F.3d at 828 (citation omitted). “It is

not enough that all the facts necessary to support the federal claim were before the state courts, or

that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)

(citations omitted).

Petitioner’s arguments on direct appeal were based entirely on state law and did not rely

on cases employing federal constitutional analysis, facts within the mainstream of constitutional

law, or any other material sufficient to alert the TCCA that a federal constitutional violation was

also being claimed. See McMeans, 228 F.3d at 681–82 (listing criteria for finding federal claim

fairly presented in state court; finding issue not fairly presented where petitioner “focused entirely”

on state law and “did not cite any federal precedent” in advancing claim). Nor does the TCCA’s

opinion give any indication that it perceived any federal claim to be asserted or implied by

Petitioner’s arguments. His federal claims were thus not fairly presented to the courts of the state.

Because Petitioner is now barred from presenting these federal claims in state court by Tennessee’s

post-conviction statute of limitations, single-petition rule, and waiver rule, see Tenn. Code Ann.

§§ 40-30-102(a) and (c), 40-30-106(g), Claims 1 through 4 are defaulted.

Citing Martinez v. Ryan, 566 U.S. 1 (2012), Petitioner asserts that cause for the default lies

in his post-conviction counsel’s ineffectiveness in failing to raise these federal claims during post-

conviction proceedings. (See Doc. No. 33, Petitioner’s Reply, at 2–4, 6). But Martinez “treats

ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default

of a single claim—ineffective assistance of trial counsel––”and the Supreme Court has not

permitted any extension of Martinez’s holding to other claims. Davila v. Davis, 137 S. Ct. 2058,

2062 (2017).

Petitioner also asserts the ineffectiveness of his counsel on direct appeal, but only as a

freestanding Sixth Amendment claim (Claim 5), not as cause for the default of Claims 1 through

4. He does not contend in Claim 5 that appellate counsel was ineffective in failing to present claims

related to the bill of particulars, erroneous evidentiary rulings, or sentencing as federal claims.

Even if such failures had been cited as cause excusing procedural default, Petitioner’s ineffective-

assistance-of-appellate-counsel claim is likewise barred by its unexcused procedural default, as

discussed below; accordingly, it cannot serve as cause excusing the default of Claims 1 through 4.

Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000) (“[A] procedurally defaulted ineffective-

assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas

claim only if the habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to

the ineffective-assistance claim itself.”).

Nor does Petitioner assert grounds for bypassing his unexcused default on the basis of his

actual innocence. See, e.g., Dretke v. Haley, 541 U.S. at 392. Though Petitioner asserts that he has

“maintained his innocence from the beginning of the case” (Doc. No. 33 at 4), he does not appear

to claim that he is actually innocent (i.e., that he is innocent in fact, rather than merely deserving

of acquittal) and therefore that, even absent cause for the default, his defaulted claims must be

reviewed to avoid a miscarriage of justice. To obtain habeas review under this “narrow exception”

to the procedural-default rule, Dretke, 541 U.S. at 393, 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)).

Petitioner does not claim factual innocence; rather, he asserts an incoherence between his

conviction of eight offenses and what he represents as the victim’s trial testimony describing only

two instances of sexual misconduct (Doc. No. 33 at 1–2), combined with the lack of “physical

evidence” in his case. (Id. at 4). To the extent that Petitioner is claiming to be innocent of six of

the eight counts of conviction based on the victim’s testimony to “only one count of aggravated

sexual battery and one count of rape of a child” (id. at 1, 2 (citing Doc. No. 15-2 and referring to

it as “the trial transcript”)), the claim is unfounded, as the testimony he relies on came not from

the State’s proof to the jury, but from the pretrial motions hearing (held outside the presence of the

jury) under Tennessee Rule of Evidence 404(b) to determine the admissibility testimony

describing his use of pornography and marijuana. (See Doc. No. 15-2). The victim’s actual trial

testimony described encounters which aligned with all eight indicted charges, as elucidated in the

State’s election of offenses. (See Doc. No. 15-4 at 7–9). In short, Petitioner’s innocence claim is

not helped by his citation to the record as he misperceives it, nor by his objection to the lack of

physical evidence of abuses that were charged several years after their occurrence.

Finally, Petitioner’s Reply can be liberally construed as asserting his innocence vis-à-vis

his consecutive sentencing to 140 years in prison, on grounds that only two of the four sentence-

enhancement factors applied in his case were proper (Doc. No. 33 at 6) and his sentence is therefore

illegal unless it is “adjusted to [35 years].” (Id.). But even if actual innocence would allow for

habeas review of a defaulted challenge to Petitioner’s noncapital sentence, see Gatewood v. United

States, 979 F.3d 391, 395 n.1 (6th Cir. 2020) (noting that “it is an open question in this circuit”

whether actual innocence can excuse default in challenge to noncapital sentence, as it can in

challenges to capital sentences and to convictions), Petitioner does not assert his factual innocence,

so no such excuse for the default of the sentencing claim in this case is available. See id.

Accordingly, Claims 1 through 4 are barred from habeas review.

B. Claim 5: Ineffective Assistance of Counsel

In Claim 5 of the Petition, 17 grounds (or sub-claims) are asserted in support of Petitioner’s

claim that he received the ineffective assistance of trial and appellate counsel. (See Doc. No. 1-1

at 1–2 (enumerating 18 grounds but omitting #12)). Three additional grounds are included in his

supporting Memorandum (see Doc. No. 2 at 39 & n.2), bringing the count to 20. Of these

ineffective-assistance sub-claims, sub-claims 1–14 and 17–20 assert trial counsel’s ineffectiveness

(id. at 39, 76–78), while sub-claims 15 and 16 assert appellate counsel’s ineffectiveness. (Id. at

39). In total, Petitioner claims that trial counsel provided constitutionally ineffective assistance by

failing to:

1) provide a copy of [digital] discovery;

2) sufficiently cross-examine witnesses;

3) challenge [with a] Motion to Dismiss;

4) advise the Petitioner of the applicable sentencing guidelines;

5) object to prosecutorial misconduct during closing arguments;

6) demand the court order the prosecution to provide a renewed bill of particulars

and challenge the insufficient indictment matter in timely manner with proper

authority;

7) build a proper trial strategy for petitioner’s best interest;

8) challenge the sufficiency of evidence and argue the rule of cancellation for count

#8 during election of offenses;

9) introduce . . . all other contents that accompanied a drawing that was alleged to

threat[en] the victim’s mother;

10) challenge the Brady act/violation;

11) subpoena the investigating detective regarding his actual investigation and

controlled phone conversation between petitioner and victim’s mother;

12) subpoena a witness[ ] from a day care center . . . the alleged victim and her

siblings attended in regards to the alleged abuse and beating;

13) impeach Mr. Hawk where he alleged he was physically abused for years by the

petitioner;

14) challenge a conflict of interest where he did not exclude the former Governor,

Phil Bredesen, as a juror;

. . .

17) challenge double jeopardy on counts 3, 4 and 6;

18) provide . . . adequate advice on plea matter and deliver the state’s 10-year offer

to petitioner which was favor[able] to petitioner;

19) provide . . . adequate advice on constitutional right to testify at trial and [refrain

from] discourag[ing] petitioner from testifying at trial for his own defense;

20) challenge [based on] actual innocence.

Petitioner asserts that appellate counsel was ineffective in failing to:

15) challenge State’s brief where the State provided false testimony/information;

16) challenge trial counsel’s cumulat[ive] error[.]

(Doc. No. 2 at 39).

Petitioner acknowledges that sub-claims 1–5 were the only claims from the list above that

were presented to the TCCA. (Id. at 56). He asserts that, as to sub-claims 6–17, “the post-

conviction counsel actually challenged them via amended petitions and [at the evidentiary]

hearing,” but “eventually abandoned them during appeal[.]” (Id. at 56–57).10 As to sub-claims 18–

20, Petitioner asserts that post-conviction counsel failed to “effectively challeng[e]” them in the

post-conviction trial court. (Id. at 57).

In response, Respondent argues that only sub-claims 1 and 4 were properly exhausted

before the TCCA (see Doc. No. 16 at 28–31), while sub-claims 2 and 3 were dismissed based on

10 It does not appear that sub-claims 15 and 16 were among the “several claims” of ineffective assistance

of appellate counsel that were presented to the TCCA, which included “failure to adequately communicate

with the petitioner, failure to include the bill of particulars issue in the motion for new trial, and failure to

include the issue of prosecutorial misconduct and certain evidentiary issues on appeal.” McMath v. State,

2019 WL 2420559, at *7.

adequate and independent state grounds as described in the TCCA’s opinion and are therefore

procedurally defaulted. (Id. at 32–34). Respondent argues that Petitioner defaulted the remaining

ineffective-assistance claims by failing to raise them on post-conviction appeal. (Id. at 34–35).

Finally, Respondent argues that Petitioner cannot establish cause excusing his procedural default

because the miscarriage-of-justice exception does not apply, Martinez does not apply, and no other

cause has been shown. (Id. at 35).11

1. Sub-Claims Properly Exhausted on Post-Conviction Appeal

Of the sub-claims raised before the TCCA, only two sub-claims 1 and 4, related to

discovery and sentencing––were presented in a way that enabled the TCCA to decide them on

their merits. These properly exhausted 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 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. 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

11 In his Reply to Respondent’s arguments (Doc. No. 33 at 7), Petitioner again asserts his misperception,

based on his confusion of the victim’s testimony in an admissibility hearing for her testimony at trial, that

Respondent’s opposition to Claim 5 misrepresents the record. As previously discussed, this objection is

unavailing.

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 in such cases 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).

Here, the TCCA correctly identified and summarized the Strickland standard applicable to

Petitioner’s claims of ineffective assistance. McMath v. State, 2019 WL 2420559, at *5–6.

Accordingly, the critical question is whether that court applied Strickland reasonably in reaching

its conclusions on sub-claims 1 and 4.

a. Sub-Claim 1: Discovery

The TCCA analyzed sub-claim 1 as follows:

Initially, the petitioner contends trial counsel was ineffective in providing

discovery. While admitting trial counsel shared written discovery and discussed

“the contents of the disk of evidence provided by the State” with the petitioner, the

petitioner complains trial counsel was ineffective because the petitioner “never saw

the actual evidence from the disk.” However, other than making his claim, the

petitioner failed to present any proof during the post-conviction hearing as to what

discovery trial counsel failed to provide him and/or how he was prejudiced by not

being able to personally review the CD in question. Thus, the petitioner has failed

to meet the burden required of him and is not entitled to relief.

McMath v. State, 2019 WL 2420559, at *6.

Petitioner argues that the above analysis does not constitute an adjudication on the

merits of sub-claim 1, and therefore AEDPA deference does not apply. (See Doc. No. 2 at

45). But the TCCA decided this sub-claim based on Petitioner’s substantive failure to

provide evidence of counsel’s ineffectiveness, not his failure to comply with a state

procedural requirement. See Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460

(6th Cir. 2015) (“Under Harrington v. Richter, ‘[w]hen a federal claim has been presented

to a state court and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on its merits in the absence of any indication or state-law procedural

principles to the contrary.’”). Accordingly, the state court decided the merits of this

ineffective-assistance sub-claim. See Witherow v. Perry, No. 1:19-CV-169-HSM-CHS,

2019 WL 5865622, at *9 (E.D. Tenn. Nov. 8, 2019) (applying AEDPA deference to claim

dismissed by TCCA on grounds that “Petitioner failed to prove deficiency or prejudice

because he did not offer proof to support his claims” at post-conviction evidentiary

hearing).

Moreover, the TCCA’s determination was reasonable. Regardless of whether or not

Petitioner discussed the CD’s contents with counsel, the TCCA reasonably determined that

he failed to establish prejudice resulting from counsel’s refusal to produce the disk for his

personal review, because he failed to offer any testimony or other proof on that score at the

evidentiary hearing. Before this Court, Petitioner attempts to prove prejudice by asserting

that access to the disk would have allowed him to challenge the age of the victim at the

time of the alleged offenses, based on discrepancies in “some papers” (presumably

contained on the disk) related to what grades the victim was in during the relevant period.

(Doc. No. 2 at 44). He claims that access to this information would have “more than likely”

motivated him to file a pro se “motion to dismiss and/or change offenses from rape of a

child to a statutory rape.” (Id.). But even if this “proof” of prejudice could withstand

scrutiny on federal habeas review, it was not made available for the state post-conviction

court to scrutinize. The TCCA reasonably determined that Petitioner is not entitled to relief

on this unproven claim, and AEDPA requires this Court to defer to that determination.

Accordingly, Petitioner is not entitled to habeas relief on sub-claim 1.

b. Sub-Claim 4: Sentencing

In sub-claim 4, Petitioner asserts that trial counsel was ineffective in advising him

of the sentencing guidelines applicable to his offenses and the sentencing options available

to him. The TCCA analyzed this claim as follows:

The petitioner also claims trial counsel was ineffective for failing to properly advise

him concerning his sentencing options. The indictment alleged that the offenses

were committed between September 5, 2000, and September 4, 2003. For offenses

committed prior to June 7, 2005, sentencing was governed by prior law, which

provided for “presumptive” sentences. Trial courts were to enhance and/or mitigate

a defendant's sentence based upon the application of enhancement and mitigating

factors. See Tenn. Code Ann. § 40-35-210(d), (e) (2003).

In response to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403 (2004), our legislature amended Tennessee’s sentencing scheme in 2005 and

eliminated presumptive sentences. The amended act also provided that the trial

court set a sentence within the range and consider imposing the minimum sentence.

Tenn. Code Ann. § 40-35-210(c)(1). The trial court “shall consider, but is not bound

by” certain “advisory sentencing guidelines,” which include that the sentence be

adjusted, as appropriate, for any enhancement or mitigating factors shown. Tenn.

Code Ann. § 40-35-210(c)(2). However, “defendants who are sentenced after June

7, 2005, for offenses committed on or after July 1, 1982,” cannot be sentenced

pursuant to the amended sentencing act without a waiver of the defendant’s ex post

facto protections. Tenn. Code Ann. § 40-35-210, Compiler’s Notes.

Trial counsel testified that he and the petitioner discussed the fact the petitioner

could choose under which act he wanted to be sentenced. According to trial counsel,

“we chose one, and I believe that’s on the record, and there was no issue about it at

that time.” Appellate counsel’s testimony corroborated that of trial counsel. When

questioned about the issue, appellate counsel noted he reviewed the record and

recalled a discussion in open court about the petitioner’s having a choice and the

petitioner’s making that choice. Again, we note the trial transcript, including the

sentencing hearing, was not introduced as an exhibit during the post-conviction

hearing, and therefore, is not included in the record on appeal. Thus, based on the

testimony of trial and appellate counsel and the record before us, the petitioner has

failed to prove his factual allegation that he was not properly advised of his rights

and options concerning sentencing and was, therefore, sentenced under the wrong

act, by clear and convincing evidence. Accordingly, the petitioner is not entitled to

relief on this claim.

McMath v. State, 2019 WL 2420559, at *7.

A Tennessee post-conviction petitioner “ha[s] the burden of proving [his] allegations of

fact by clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f); see Johnson v.

Genovese, 924 F.3d 929, 936 (6th Cir. 2019) (noting the clear-and-convincing standard of § 40-

30-110(f) and observing that it “is consistent with AEDPA’s own rules and standards for factual

determinations”). Earlier in its opinion, the TCCA recounted the post-conviction testimony

concerning sentencing from Petitioner, trial counsel, and appellate counsel, as follows:

Next, the petitioner testified counsel was ineffective for allowing him to be

sentenced under the wrong sentencing act. According to the petitioner, his crimes

were committed prior to the 2005 amendment to the sentencing statute, yet he was

sentenced under the new statute which allowed the trial court to rely on certain

enhancement factors that should not have been considered.

. . .

When questioned about the advice he provided concerning the petitioner’s

sentencing options, trial counsel testified they discussed the fact the petitioner had

an option about “which act to be sentenced under. And we chose one, and I believe

that’s on the record, and there was no issue about it at that time.” According to trial

counsel, he met with the petitioner on two occasions prior to the sentencing hearing

and advised the petitioner of his options under each act during their first meeting.

. . .

When questioned specifically as to why he did not raise the issue of whether the

petitioner was sentenced under the appropriate sentencing act, appellate counsel

testified that his review of the sentencing hearing transcript revealed the issue had

been discussed during the hearing with the petitioner and the petitioner had made

an informed decision. Therefore, appellate counsel did not raise the issue on appeal.

McMath v. State, 2019 WL 2420559, at *4–5. Based on this record, the TCCA reasonably found

that Petitioner’s testimony did not clearly and convincingly establish that trial counsel improperly

advised him to elect sentencing under the less advantageous sentencing scheme.

Even if this finding were not reasonable, Petitioner could not establish that counsel’s

allegedly deficient advice ultimately prejudiced him under Strickland. The record before this

Court––which includes the transcript of Petitioner’s sentencing hearing––reveals that the trial

court accepted counsel’s election “to start at the bottom end” of the sentencing range (consistent

with a presumption under the old scheme) but indicated that its sentence for the Class B

aggravated-sexual-battery felonies and the Class A child-rape felonies was appropriate “either

way,” apparently because of the applicable statutory enhancement factors and a lack of mitigating

factors.12 (Doc. No. 15-7, Sentencing Hearing Transcript, at 15; Doc. No. 15-1 at 54–61 (reflecting

Petitioner’s offender status and class of his crimes)). And, as the TCCA found on direct appeal

from Petitioner’s sentence, “misapplication of an enhancement or mitigating factor does not

invalidate the sentence imposed unless the trial court wholly departed from the 1989 [Sentencing

Reform] Act, as amended in 2005,” which the trial court did not do in ordering Petitioner to serve

12 See State v. Bise, 380 S.W.3d 682, 692 (Tenn. 2012) (reciting that, under old sentencing scheme, “[i]f

enhancement but not mitigating factors were present, the trial court could set the sentence for a Class B, C,

D, or E felony ‘above the minimum in that range but still within the range,’” and “for a Class A felony, the

trial court was required to ‘set the sentence at or above the midpoint of the range’”) (quoting Tenn. Code

Ann. § 40–35–210(d) (Supp. 2001)).

consecutive, enhanced sentences. State v. McMath, 2013 WL 5918733, at *10–11 (quoting Bise,

380 S.W.3d at 706). Petitioner is not entitled to habeas relief on sub-claim 4.

2. Sub-Claim 3

While the TCCA recognized Petitioner’s claim (asserted in this Court as sub-claim 3) that

“trial counsel was ineffective for failing to request ‘the case be dismissed’ because the ‘victim

testified at trial that she was not touched in the vaginal area, as alleged by the State in the Election

of Offenses,’” it did not dispose of that claim. McMath v. State, 2019 WL 2420559, at *7. Rather,

the court merely noted (1) that Petitioner failed to specify which charges he believes should have

been dismissed, and (2) that he failed to introduce the trial transcript into the post-conviction

record, leaving the TCCA to rely on the summary of the evidence provided in its decision on direct

appeal. Id.

Regardless of whether the TCCA’s limited treatment of this claim implies that it viewed

the claim as unexhausted, defaulted, or without merit, this Court may deny sub-claim 3 on its

merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on

the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”). The only claim that Petitioner makes regarding prejudice from the allegedly

deficient failure to seek dismissal is in his supporting Memorandum, where Petitioner again cites

the victim’s testimony to only two incidents of abuse during the pretrial Rule 404(b) admissibility

hearing, and argues that he was prejudiced “by standing trial for extra six (6) counts without trial

testimony” when those counts “more than likely[] would have been dismissed” had counsel filed

a motion. (Doc. No. 2 at 49–50). Because the premise of this argument is simply mistaken, as

described above, the Court finds sub-claim 3 to be unfounded and without merit.

3. Defaulted Sub-Claims

a. Sub-Claims 2 and 5: Denied on Procedural Grounds

Sub-claims 2 (concerning cross-examination of witnesses) and 5 (concerning the State’s

closing argument) were raised before the TCCA but disposed of on procedural grounds, as

described below:

Next, the petitioner claims trial counsel was ineffective for failing to adequately

cross-examine witnesses and point out inconsistencies in their testimony. However,

the petitioner fails to provide examples or arguments in support of his claim as to

how trial counsel’s actions prejudiced his case. A brief shall contain “[an] argument

. . . setting forth the contentions of the appellant with respect to the issues presented,

and the reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities and appropriate references to the

record . . . relied on.” Tenn. R. App. P. 27(a)(7). Failure to comply with this basic

rule will ordinarily constitute a waiver of the issue. Tenn. Ct. Crim. App. R. 10(b)

(“Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.”); State v. Thompson,

36 S.W.3d 102, 108 (Tenn. Crim. App. 2000) (determining that issue was waived

when defendant cited no authority to support his argument on appeal). The

petitioner does not support this claim with any argument or authority; consequently,

it is waived.

. . .

The petitioner’s final claim regarding trial counsel is that trial counsel was

ineffective for failing to object to portions of the State’s closing argument.

However, the petitioner fails to support his claim with any argument or citations to

the record or appropriate authorities; therefore, the petitioner has waived

consideration of this claim. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.

10(b); Thompson, 36 S.W.3d at 108.

McMath v. State, 2019 WL 2420559, at *6–7.

“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,” such as a state procedural rule. Walker, 562 U.S. at 315. Here, the TCCA

rejected sub-claims 2 and 5 under the waiver provision of Tennessee Court of Criminal Appeals

Rule 10. The Sixth Circuit has “recognized that Rule 10 of Tennessee’s criminal rules is a ‘firmly

established and regularly followed’ rule, and therefore ‘adequate’” grounds to dismiss a claim

independent of the federal question it attempts to raise. Mathis v. Colson, 528 F. App’x 470, 478

(6th Cir. 2013) (quoting Middlebrooks v. Bell, 619 F.3d 526, 535–36 (6th Cir. 2010) (finding that

claims denied under Tenn. Ct. Crim. App. R. 10(b) and Tenn. R. App. P. 27(a)(7) are defaulted)

(judgment vacated on other grounds)). Accordingly, Petitioner procedurally defaulted sub-claims

2 and 5. Because he has failed to “argue cause and prejudice for his failure to meet the state

procedural rule,” the merits of these sub-claims cannot be reviewed in this Court. Mathis, 528 F.

App’x at 478.

b. Sub-Claims 6–20: Ineffectively Raised or Abandoned during Post-

Conviction Proceedings

As noted above, Petitioner asserts that sub-claims 6–17 were raised in the post-conviction

trial court “via amended petitions and [at the evidentiary] hearing,” but “eventually abandoned”

on appeal. (Doc. No. 2 at 56–57). The TCCA agreed that Petitioner had “alleged a number of

instances of ineffective assistance in his petition and at the evidentiary hearing . . . [but] confine[d]

himself on appeal to arguing” only a few of those claims. McMath v. State, 2019 WL 2420559, at

*3. By initially raising sub-claims 6–17 but failing to pursue them after the post-conviction trial

court found that his testimony was not credible, and that he had failed to establish prejudice from

any deficiency in counsels’ performance (Doc. No. 15-17 at 5), Petitioner defaulted these sub-

claims on post-conviction appeal. Because Martinez does not operate to excuse procedural default

caused by the ineffective assistance of counsel on post-conviction appeal, but only on initial post-

conviction review, Davila, 137 S. Ct. at 2063, and because Petitioner has not made any other

showing of cause for the default, sub-claims 6–17 cannot be reviewed in this Court.

With regard to sub-claims 18–20, which Respondent claims were defaulted when they were

not “effectively challeng[ed]” in the post-conviction trial court, Petitioner’s attempt to show cause

for the default under Martinez is unavailing. The Sixth Circuit has instructed district courts, in

analyzing cause for a procedural default under Martinez and its progeny, to determine “(1) whether

state post-conviction counsel was ineffective, . . . and (2) whether [Petitioner’s] claims of

ineffective assistance of counsel were ‘substantial’ within the meaning of Martinez, Sutton, and

Trevino.” Atkins v. Holloway, 792 F.3d 654, 660 (6th Cir. 2015) (internal citations omitted).

Whether post-conviction counsel was constitutionally ineffective is necessarily connected to the

strength of the claim he failed to raise, so “in many habeas cases seeking to overcome procedural

default under Martinez, it will be more efficient for the reviewing court to consider in the first

instance whether the alleged underlying ineffective assistance of counsel was ‘substantial’ enough

to satisfy the ‘actual prejudice’ prong of Coleman.” Thorne v. Hollway, No. 3:14-cv-0695, 2014

WL 4411680, at *23 (M.D. Tenn. Sept. 8, 2014), aff’d sub nom. Thorne v. Lester, 641 F. App’x

541 (6th Cir. 2016).

Here, even assuming that Petitioner’s counsel on initial post-conviction review was

ineffective in presenting his claims that trial counsel failed to adequately advise him regarding plea

negotiations or to deliver the state’s 10-year offer to him (sub-claim 18), advise him concerning

whether to testify in his own defense (sub-claim 19), or assert his actual innocence (sub-claim 20),

none of those sub-claims is substantial.

Sub-claims 18 and 19 were developed in testimony at the evidentiary hearing in response

to questioning by both post-conviction counsel and the State’s attorney. Petitioner gave the

following testimony regarding these sub-claims in response to his counsel’s questioning:

Q. Okay. And when you say you had communication issues, did you talk about

possible, did he talk about possible offers that the state made?

A. Yeah. He told me about one offer. It was a probation. And then when I told

him, this was way later on, I told him I’ll take it, he said it wasn’t probation. He

said it was time in the penitentiary.

Q. So your understanding was that at some point you had an offer for probation

and then it changed?

A. Yeah. That’s what I, the whole time, the whole entire time I was under the

impression that it was ten years[’] probation.

Q. Did he explain to you that D.A.s are able to change their offers?

A. No. He didn’t explain that to me.

Q. I just want to make sure that we understand about counsel, I mean your

inability to communicate with Mr. Colavecchio. Did you and he talk about at trial

whether or not you would testify?

A. Okay. I think that did come up about me testifying.

Q. Okay. And did y’all discuss the pros and cons?

A. I’m sorry?

Q. Did you discuss the pros and cons?

A. No. No, ma’am.

Q. So y’all didn’t have any discussions about whether or not you would’ve –

A. No. I was just asked, asked if I wanted to take the stand.

Q. Is that in the open court during the trial or was that in the back with Mr.

Colavecchio?

A. It was that day.

Q. Was it in open court or was it in the back?

A. It was in the court. It was right when we was sitting at the table.

Q. Was it the judge asking you if you chose to testify or not?

A. No. Well. Me and Colavecchio talked about it at the table.

Q. So y’all did talk about it a little bit. What did you talk about?

A. Just if I wanted to take the stand.

Q. Okay. So y’all –

A. And he had me to sign some paper right on that table.

Q. It’s your testimony today under oath that before that moment, before the

judge had you sign a thing stating you weren’t going to testify, that y’all never had

that conversation outside the courtroom?

A. No. No.

(Doc. No. 15-18 at 11–13). Upon cross-examination by the State, Petitioner further testified

as follows:

Q. I’m asking you a different question now. I’m asking you about you

discussed about a potential plea agreement, correct? A potential plea; right?

A. Yes, ma’am.

Q. In fact, the first plea that he spoke to you –

A. And the only one that I was aware of was the probation, ten years[’]

probation.

Q. Okay. And that was in 2009, he came to you and said that you had been

offered ten years[’] probation; right?

A. Yeah.

Q. But you didn’t accept that, did you?

A. At the time, I didn’t.

Q. Okay. And then as trial got closer and the state’s, and Mr. Colavecchio and

everybody is working and getting ready for trial, there was another plea agreement

that was brought to you; right?

A. No. It was the – That’s, after that first time, we never discussed no more

plea. I was under the impression all the way up until I told him, I asked him, I told

him I’ll go ahead, I want to take it. And that’s when he told me then that it wasn’t

probation, it was time in the penitentiary, ten years in the penitentiary.

Q. But as you just testified, you, at first, said you didn’t want the ten years[’]

probation. At first, you said no, I don’t want it; correct? Nobody put a gun to your

head. You said you didn’t want it at first; correct? In 2009; correct?

A. My mind wasn’t made up.

Q. Okay.

A. It wasn’t that I didn’t want it. I just was undecided at the time.

. . .

Q. Okay. But you did not take it in 2009. And then in 2010, on October the

25th, 2010, you were then offered ten years.

A. No. He [(trial counsel)] did not offer me nothing. Again, that was the first

thing I heard. The next time it was mentioned is when I brought it up to him [(in

2010)] and told him that I will take it. That’s when he told me that it wasn’t

probation, that it was time in the penitentiary.

. . .

Q. . . . At that time, you did not accept the ten years in prison offer, did you?

A. I had to think about it.

Q. Okay. That’s a no; correct?

A. No, it’s not. It’s something I had to think about.

(Doc. No. 15-18 at 50–55).

The State then called trial counsel, Mr. Colavecchio, who testified that Petitioner rejected

the State’s plea offers of 10-years’ probation in 2009 and 10-years’ incarceration in 2010:

Q. Now, let’s talk about the plea agreement. After speaking with him, looking

at discovery, listening to the CD, et cetera, talking to investigators, did you speak

to the D.A. about a potential plea?

A. Yes. General Riddick and I had had a conversation at some point, I don’t

know if it was here at the courthouse or at her office or over the phone. But the first

offer that was discussed, it was very early on, I do remember that, was for ten years

of probation. And I even wrote a note to myself on a sticky note and attached it to

a plea petition and put it in the file, and that was, and then I related it to Mr.

McMath. And, at the time, he still denied that he had done, well, he probably still

does, but he denied that he did this and he wasn’t going to take any offer that

involved any punishment.

Q. Okay.

A. And then second, approximately a year later, maybe a little more than a year

later, General Reddick had obviously gotten a lot further into the case, I think we

were close to the first time it was set for trial. I think it was set for trial at least once

or twice. And because of the, well, I’m assuming this, I’m assuming because the

victims were so adamant about the allegations, and I say the victims, the victim and

the victim’s mother were so adamant about the whole scenario, that she withdrew

the probation part of it and said that he could take ten years, but it would have to be

to serve.

Q. And did you relay that information to the defendant?

A. Yes. Yes. And Mr. McMath not only turned it down but was mad because

it had gone up, which doesn’t make any difference. But, you know, he wasn’t going

to take the first one, so he sure wasn’t going to take the second one.

Q. And certainly isn’t unusual in a criminal case?

A. No. Not unusual at all.

Q. Okay.

A. And that one, by the way, the second, I do remember the second plea offer,

the ten years to serve, was made here at the courthouse on a court date where Mr.

McMath was present, and I had actually written up a plea petition because he had

somewhat at first indicated he might take it or at least he was thinking about it. And

then when I went and showed it to him, I guess maybe seeing it on paper was a little

different and he wouldn’t sign it and wouldn’t, obviously, accept it. So he denied,

he turned it down in writing.

Q. And you still kept that in your file?

A. Yes.

Q. And that would be dated October the 25th, 2010?

A. That sounds right, yeah.

(Id. at 68–71).

Trial counsel further testified as follows with respect to the decision not to call Petitioner

as a witness to testify at trial:

Q. And, in addition to that, regarding the trial, he elected not to testify at the

trial, either?

A. That’s correct. And he did make, and he was correct today, make that

determination himself long before the trial actually occurred, and we discussed why

anyway, because I felt like he needed to understand my thought on it, because he

had a serious felony record.

Q. Notice of Enhancements had been filed of his other felonies?

A. Yes. And I forget how many. It was eight or ten or somewhere in that range

that was going to be used if he did testify. And I felt like if the jury heard several

years[’] worth, it wasn’t all just very, very recent. There was some that was several

years old, several felony convictions in different jurisdictions, if I remember right.

Even some were in another state. It wasn’t just here. That it would not serve him

very well and his credibility would have been severely hurt, I believed, had he

testified and all of that came out, among other reasons.

Q. And you explained all of that to him and he made a choice?

A. Yes. He made a choice. We conducted a Momon hearing[13] here in the

courtroom without the jury present, and he admitted that that was his choice.

(Id. at 78–79).

As long as the record supports the post-conviction trial court’s finding that Petitioner’s

testimony was not credible with regard to counsel’s alleged deficiencies in communicating plea

negotiations or advising whether Petitioner should testify, this Court must defer to that finding.

Watkins v. Settles, No. 3:17-CV-01321, 2019 WL 4038338, at *18 (M.D. Tenn. Aug. 27, 2019)

(citing Rice v. Collins, 546 U.S. 333, 339 (2006) (“Reasonable minds reviewing the record might

disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede

the trial court’s credibility determination.”)). Petitioner now alleges that he was “very interested”

in the State’s plea offer of ten years in prison but declined it because counsel “was very positive

for the outcome of the trial” and “wrongly guided that Petitioner would be sentenced [to] 15 years

if found guilty.” (Doc. No. 2 at 75). He claims that “[a]fter hearing that there are only 5-years

difference between trial and guilty plea from his trial counsel, Petitioner chose to take a trial in an

13 (See Doc. No. 15-4 at 2–4).

effort to prove his innocence.” (Id.). But this claim is not consistent with Petitioner’s post-

conviction testimony, quoted above, that focused on counsel’s failure to inform him that the 2009

offer of probation would no longer be on the table over a year later, and on his indecisiveness upon

learning of the 2010 offer of 10 years in prison. It was entirely reasonable for the post-conviction

court to reject Petitioner’s testimony regarding plea negotiations in favor of counsel’s more

plausible testimony.

Moreover, the state court reasonably rejected Petitioner’s testimony that counsel failed to

discuss or give competent, timely advice regarding whether Petitioner should testify in his own

defense, particularly in light of the record showing that the State filed, long before trial, its “Notice

of Intent to Use Convictions or Prior Bad Acts for Impeachment Purposes” should he testify, which

identified nine prior felony convictions. (See Doc. No. 15-1 at 20–21, filed and served on March

31, 2010). Petitioner now asserts that counsel’s advice was deficient because “the case was largely

depende[nt] on the credibility between the accusers and Petitioner,” and his testimony would have

supported his innocence by revealing (1) the financial conflict between him and the victim’s

mother, who “used to threat[en] Petitioner for financial support”; (2) that the victim “did not smoke

marijuana when they live[d] together, therefore, the marijuana-video-sex incident . . . never

happened”; and (3) that the victim “was a fine young girl until she was in . . . eighth grade,” when

Petitioner suggests something about her changed. (Doc. No. 2 at 76–77). But the record, in addition

to including the State’s notice of intent to impeach Petitioner using his lengthy criminal history,

fails to support the notion that the jury would have credited Petitioner if he had testified to his

innocence, given the State’s direct evidence of abuse from the testimony of the victim and her

older brother; the victim’s mother’s testimony that it was she who financially supported Petitioner

out of fear (see Doc. No. 15-3 at 109–110); and the evidence that Petitioner mailed an apparent

threat to the victim’s mother just prior to trial. (See id. at 101–07).

For these reasons, the allegations of ineffective assistance of trial counsel made in defaulted

sub-claims 18 and 19 do not support a finding of prejudice under Strickland and are therefore not

substantial. Atkins, 792 F.3d at 660; Thorne, 2014 WL 4411680, at *23. Accordingly, any

ineffectiveness of post-conviction counsel in failing to effectively present these sub-claims does

not amount to cause excusing their default under Martinez, and the Court may not entertain them.

As to sub-claim 20––that trial counsel “did not properly develop[] Petitioner’s actual

innocence theory as an ultimate defense strategy” in light of the alleged implausibility of the

victim’s allegations and the delay in making them, the absence of physical evidence of assault, and

the victim’s mother’s potential motive of financial gain (Doc. No. 2 at 77–78)––this claim is

repetitive of Petitioner’s arguments in support of his claim that counsel improperly advised him

not to testify, and likewise fails to demonstrate any deficiency in counsel’s performance. See

Nance v. Mississippi, No. CIV.A. 107CV307SAJAD, 2010 WL 1418015, at *4 (N.D. Miss. Feb.

23, 2010) (“Nance complains his attorney put on no proof in response to the state’s case,” but “[a]s

far as the record shows, the only available witness willing to offer exculpatory testimony would

have been Nance himself, [and] he elected not to testify. There is no showing of deficient

performance by counsel in this regard.”). Accordingly, for the same reasons given with regard to

sub-claim 19, sub-claim 20 is also insubstantial and its default unexcused. It is therefore barred

from further review in this Court.

VI. MOTION TO AMEND THE PETITION

Finally, Petitioner’s Motion to Amend his Petition based on newly discovered evidence

(Doc. No. 32) will be denied. In this Motion, Petitioner “avers that he recently received the sworn

affidavit of Darryl K. Hawk [executed] several years ago [in 2018],” in which Mr. Hawk (the

victim’s older brother) swears under oath that he did not want to testify at Petitioner’s trial but was

coerced into testifying by the prosecution, and that he “lied and made false statements about”

Petitioner during that testimony. (Id. at 6–7). No further detail about the number or content of Mr.

Hawk’s allegedly false statements is provided. This recantation affidavit was apparently procured

by Mr. Charles E. McMath, whose own affidavit states that he drove to Mr. Hawk’s place of

employment on September 3, 2018 and witnessed Mr. Hawk sign the recantation affidavit “free of

any promises, threats or coercion and on his own free will.” (Id. at 8).

A petition for writ of habeas corpus may be amended pursuant to Federal Rule of Civil

Procedure 15. See 28 U.S.C. § 2242 (petitions “may be amended or supplemented as provided in

the rules of procedure applicable to civil actions”). At this stage in the case, Petitioner may amend

the Petition only with the Court’s leave or Respondent’s written consent. Fed. R. Civ. P. 15(a).

Respondent does not consent. Courts “freely give leave” to amend “when justice so requires.” Fed.

R. Civ. P. 15(a)(2). Two factors considered when “evaluating the interests of justice” are “undue

delay in filing” and “futility of amendment.” Oleson v. United States, 27 F. App’x 566, 569 (6th

Cir. 2001) (quoting Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998)).

Here, not only has Petitioner failed to act with due diligence in waiting until 2022 to

introduce an affidavit that was procured in 2018 and recants testimony given in 2011, but

amendment of the Petition to introduce the recantation affidavit would be futile. The Sixth Circuit

has cautioned that affidavits by trial witnesses recanting their testimony are to be “viewed with

extreme suspicion,” and “even if accepted, . . . are generally not sufficient to grant habeas relief

absent constitutional error.” Welsh v. Lafler, 444 F. App’x 844, 850 (6th Cir. 2011) (citations and

internal quotation marks omitted). Mr. Hawk’s affidavit fails to provide any detail at all regarding

the scope of his recantation; it merely reports “[t]hat during [his] testimony,” he “lied and made

false statements about Denver McMath” in order “to appease the district attorney’s office.” (Doc.

No. 32 at 6). Furthermore, as in Welsh, there is no evidence in this case that the recanting affidavit

was filed and considered in state court or that it was corroborated by other evidence of record. In

fact, to the extent that Mr. Hawk intended his recantation to encompass his testimony that he

revealed his knowledge of Petitioner’s crimes during a 2007 argument with the victim in front of

their mother, that testimony was corroborated by both the victim and the mother. (See Doc. No.

15-3 at 37–42, 93–96). Accordingly, “the recantation here is an insufficient basis upon which to

grant habeas relief,” Welsh, 444 F. App’x at 850, and amendment of the Petition to include it

would be futile.

VII. CONCLUSION

For the reasons given above, the Petition for Writ of Habeas Corpus (Doc. No. 1) and

Petitioner’s Motion to Amend Petition (Doc. No. 32) will be DENIED, the motions to extend time

and to appoint counsel (Doc. Nos. 34 & 36) will be DENIED AS MOOT, 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 § 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. Id. at 337.

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

resolved differently or deserve 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’ □ § 2254 Cases.

An appropriate Order will enter.

Waub. Eusbe.

CHIEF UNITED STATES DISTRICT JUDGE

4]