# McMath v. Washburn

> District Court, M.D. Tennessee · January 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10669694

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** January 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10669694

## How later opinions describe it (automated extraction)

- noting the interplay between the exhaustion rule and the procedural default doctrine

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669694. Public record. Not legal advice.